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06 DOJ 1198

VIEWS: 4 PAGES: 9

									STATE OF NORTH CAROLINA                                         IN THE OFFICE OF
                                                             ADMINISTRATIVE HEARINGS
COUNTY OF BLADEN                                                06 DOJ 1198


TRAVIS DAN WILLIAMS,                                 )
          Petitioner,                                )
                                                     )
               v.                                    )      DECISION
                                                     )
NORTH CAROLINA CRIMINAL JUSTICE                      )
EDUCATION AND TRAINING                               )
STANDARDS COMMISSION,                                )
            Respondent.                              )
______________________________________               )


        In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the
designation of an administrative law judge to preside at an Article 3A, North Carolina General
Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request,
Administrative Law Judge Joe L. Webster heard this contested case in Fayetteville, North Carolina
on February 14, 2007.

                                       APPEARANCES

       Petitioner:    J. Michael McGuinness, Attorney at Law
                      Post Office Box 952
                      Elizabethtown, North Carolina 28337-0952

       Respondent:    Jane Ammons Gilchrist, Assistant Attorney General
                      N.C. Department of Justice
                      9001 Mail Service Center
                      Raleigh, North Carolina 27699-9001

                                             ISSUE

Is Respondent’s proposed denial of Petitioner’s law enforcement officer certification supported by
substantial evidence?

                                      RULES AT ISSUE
                                   12 NCAC 09A.0204(b)(6)
                                   12 NCAC 09A.0205(b)(4)



                                                1
         BASED UPON careful consideration of the sworn testimony of the witnesses presented at the
hearings, the documents and exhibits received and admitted into evidence, and the entire record in
this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of
Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses
by taking into account the appropriate factors for judging credibility, including but not limited to the
demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of
the witness to see, hear, know or remember the facts or occurrences about which the witness
testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent
with all other believable evidence in the case.

                                       FINDINGS OF FACT

1.     Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue
       are proper, both parties received Notice of Hearing, and Petitioner received the notification
       of probable cause to deny law enforcement officer certification letter mailed by the
       Respondent on June 12, 2006.

2.     The North Carolina Criminal Justice Education and Training Standards Commission has the
       authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of
       the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and
       to revoke, suspend, or deny such certification.

3.     12 NCAC 09A.0204(b)(6) provides that the Commission may suspend, revoke, or deny the
       certification of a criminal justice officer when the Commission finds that the applicant for
       certification or the certified officer ... has knowingly made a material misrepresentation of
       any information required for certification or accreditation.

4.     12 NCAC 09A.0205(b)(4) provides that when the Commission suspends or denies the
       certification of a criminal justice officer, the period of sanction shall be not less than five
       years; however, the Commission may either reduce or suspend the period of sanction under
       Paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of
       certification following an administrative hearing, where the cause of sanction is ... material
       misrepresentation of any information required for certification or accreditation.

5.     Petitioner applied for certification as a full-time law enforcement officer with the Carolina
       Beach Police Department on August 31, 2005.

6.     The Carolina Beach Police Department submitted to the Criminal Justice Standards Division
       a Report of Appointment/Application for Certification, Form F-5A, for Petitioner on
       September 1, 2005. (Respondent’s Exhibit 1) The Form F-5A indicated that Petitioner had
       no criminal charges.

7.     Petitioner signed the Form F-5A on August 31, 2005. Above the Petitioner’s signature is the


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      following statement:

             As the applicant for certification, I attest that I am aware of the minimum standards
             for employment, that I meet or exceed each of those requirements, that the
             information provided above and all other information submitted by me, both oral and
             written throughout the employment and certification process, is thorough, complete,
             and accurate to the best of my knowledge. I further understand and agree that any
             omission, falsification or misrepresentation of any factor or portion of such
             information can be the sole basis for termination of my employment and/or denial,
             suspension or revocation of my certification at any time, now or later. I further
             understand that I have a continuing duty to notify the Commission of all criminal
             offenses which I am arrested for or charged with, plead no contest to, plead guilty to
             or am found guilty of. If applicable, I specifically acknowledge that my continued
             employment and certification are contingent on the results of the fingerprint records
             check and other criminal history records being consistent with the information
             provided in my Personal History Statement and as reflected in this application.

8.    Richard N. Squires, an investigator with the Criminal Justice Standards Division, received
      the Report of Appointment/Application for Certification, Form F-5A, for Petitioner. Squires
      compared the contents of the Form F-5A to the information contained in Petitioner’s
      previous Sheriff’s Standards Certification file. In comparing the information from the
      previous file to the Form F-5A, Squires determined that Petitioner had not listed charges on
      the Form F-5A (Respondent’s Exhibit 1) of Criminal Trespass in the Third Degree, Criminal
      Mischief in the Fourth Degree and two counts of Disorderly Conduct.

9.    The Criminal Justice Standards Division received a copy of Petitioner’s 2005 Personal
      History Statement, Form F-3 that was filled out as a part of his application with the Carolina
      Beach Police Department. (Respondent’s Exhibit 2). The Form F-3 was signed by Petitioner
      before a Notary on May 16, 2005. The Petitioner certified “that each and every statement
      made on this form is true and complete and I understand that any misstatement or omissions
      of information will subject me to disqualification or dismissal.”

10.   Question Number 47 on the Form F-3 asks, “Have you ever been arrested by a law
      enforcement officer or otherwise charged with a criminal offense?” Petitioner listed an
      “Assault?” in “1986 or 1987" in the “Town of Ulster” in which the disposition was “Guilty”.
      Petitioner did not list any other criminal charges.

11.   The Criminal Justice Standards Division also received a copy of the Mandated Background
      Investigation Form, Form F-8, completed by the Carolina Beach Police Department on
      Petitioner. (Respondent’s Exhibit 3). The Form F-8 indicates that Lieutenant Marcucilli was
      the investigator.

12.   Attachment I of the Form F-8 is entitled Applicant Interview Questions. On page 3 of the


                                                3
      questions, Petitioner was asked, “Have you ever been arrested, detained, or charged with a
      crime, even if the charges against you have been dismissed?” Petitioner answered, “No”.
      Petitioner was asked, “Have you ever been issued a citation for a crime: ie, public
      consumption, assault, trespass, etc?” Petitioner answered, “No”. Petitioner was asked, “Have
      you ever been convicted of a crime?” Petitioner answered, “No”.

13.   Petitioner applied for certification as a full-time law enforcement officer with the Leland
      Police Department on January 18, 2006.

14.   The Leland Police Department submitted to the Criminal Justice Standards Division a Report
      of Appointment/Application for Certification, Form F-5A, for Petitioner on January 23,
      2006. (Respondent’s Exhibit 4) The Form F-5A indicated that Petitioner had one criminal
      charge of Disorderly Conduct in 1992. No other charges were listed.

15.   Petitioner signed the Form F-5A on January 18, 2006. The Criminal Record Section contains
      the following language:

             ALL APPLICANTS & TRANSFERS MUST READ AND COMPLETE THIS
             CRIMINAL RECORD SECTION IN THEIR OWN HANDWRITING.

             Each applicant must list any and all criminal charges regardless of the date of offense
             and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other
             disposition where you entered a plea of guilty). Do not include minor traffic offenses
             (N.C.G.S. Chapter 20), but specifically include DWI, DUI, driving while under the
             influence of drugs, driving while license permanently revoked, speeding to elude
             arrest, or duty to stop in event of accident. If you list a charge(s), please attach
             certified and true copies of warrant(s) and judgment(s) for each offense, even if
             documentation and charges have previously been reported to this agency. Attach
             additional sheets if needed.

16.   The Criminal Justice Standards Division received a copy of Petitioner’s 2006 Personal
      History Statement, Form F-3 that was filled out as a part of his application with the Leland
      Police Department. (Respondent’s Exhibit 5). The Form F-3 was signed by Petitioner before
      a Notary on January 9, 2006. The Petitioner certified “that each and every statement made on
      this form is true and complete and I understand that any misstatement or omissions of
      information will subject me to disqualification or dismissal.”

17.   Question Number 47 on the Form F-3 asks, “Have you ever been arrested by a law
      enforcement officer or otherwise charged with a criminal offense?” Petitioner listed “140.10
      Crim. Trespass” in “09/1992” by the “New Paltz P.D.” with a disposition of “Guilty to
      Disorderly Conduct $50.00 Fine” and “145.00 Crim. Mischief ?” in “09/1992” by the “New
      Paltz P.D.” with a disposition of “Guilty to Disorderly Conduct $50.00 Fine”.



                                               4
18.   The Criminal Justice Standards Division also received a copy of the Mandated Background
      Investigation Form, Form F-8, completed by the Leland Police Department on Petitioner.
      (Respondent’s Exhibit 6). The Form F-8 was completed by Lieutenant Scott Mason.

19.   Attachment I of the Form F-8 is entitled Applicant Interview Questions. On page 3 of the
      questions Petitioner was asked, “Have you ever been arrested, detained, or charged with a
      crime, even if the charges against you have been dismissed?” Petitioner answered, “Yes--
      disorderly conduct”. Petitioner was asked, “Have you ever been issued a citation for a crime:
      ie, public consumption, assault, trespass, etc?” Petitioner answered, “No”. Petitioner was
      asked, “Have you ever been issued a criminal summons to appear in court?” Petitioner
      answered, “Yes--disorderly conduct”. Petitioner was asked, “Have you ever been convicted
      of a crime?” Petitioner answered, “Yes--disorderly conduct”.

20.   The Criminal Justice Standards Division received a letter dated September 29, 2005 from the
      New Paltz Police Department. (Respondent’s Exhibit 7) Attached to the letter were copies of
      the “Data Screen” regarding Petitioner’s charges. The last page of Exhibit 7 shows that
      Petitioner was arrested on June 11, 1992 and charged with Criminal Mischief in violation of
      PL 145.00.

21.   Respondent’s Exhibit 8 was a set of papers provided to Investigator Squires by Petitioner.
      Included in Exhibit 8 was a Certificate of Disposition. The Certificate of Disposition
      indicated that Petitioner had been arrested on June 10, 1992 and that the charges were
      disposed of on December 16, 1992. Petitioner was charged with a violation of PL 140.10 and
      pled to a violation of PL 240.20--Disorderly Conduct. The Certificate of Disposition also
      indicated that Petitioner had been charged with a violation of PL 145.00 and pled to a
      violation of PL 240.20--Disorderly Conduct.

22.   Respondent’s Exhibit 8 also included an explanation by Petitioner, dated September 12,
      2005, regarding the incident in June, 1992. Petitioner stated he went to the police station,
      paid a fine and thought that was the end of the matter.

23.   Pages 4 and 7 of Respondent’s Exhibit 8 shows that Petitioner was arrested on June 11, 1992
      and charged with Criminal Trespass in the Third Degree, a violation of PL 140.10, and
      Criminal Mischief in the Fourth Degree, a violation of PL 145.00. It also shows that
      Petitioner pled to the reduced charge of Disorderly Conduct, a violation of PL 240.20, on
      December 16, 1992.

24.   Pages 5 and 6 of Respondent’s Exhibit 8 are the “Information” sheets, or formal charge
      sheets, which set out the details of the criminal charges against Petitioner for the offenses of
      Criminal Mischief in the Fourth Degree and Criminal Trespass in the Third Degree.

25.   On June 15, 2006, Petitioner received from the Respondent a Proposed Denial of Application
      for Law Enforcement Officer Certification, dated June 12, 2006, for knowingly making a


                                                 5
      material misrepresentation of any information required for certification. (Respondent’s
      Exhibit 9) The proposed denial was based upon Petitioner’s material misrepresentation on
      his 2005 Report of Appointment/Application for Certification, Form F-5A, with the Carolina
      Beach Police Department. On the Form F-5A, Petitioner failed to include in the Criminal
      Record Section the June 11, 1992 charges of Criminal Trespass in the Third Degree,
      Criminal Trespass in the Fourth Degree and two counts of Disorderly Conduct that Petitioner
      pled guilty to on December 16, 1992.

26.   The Proposed Denial was also based upon Petitioner’s material misrepresentation of
      information on the Personal History Statement, Form F-3, filed with the Carolina Beach
      Police Department on or about May 16, 2005. The material misrepresentation occurred when
      Petitioner failed to indicate in response to Question #47, which asks the applicant “Have you
      ever been arrested by a law enforcement officer or otherwise charged with a criminal
      offense?” all criminal charges the Petitioner had received. Petitioner failed to list the June 11,
      1992 charges of Criminal Trespass in the Third Degree, Criminal Trespass in the Fourth
      Degree and two counts of Disorderly Conduct that Petitioner pled guilty to on December 16,
      1992.

27.   The Proposed Denial was also based upon Petitioner’s material misrepresentation on his
      2006 Report of Appointment/Application for Certification, Form F-5A, with the Leland
      Police Department. On the Form F-5A, Petitioner failed to include in the Criminal Record
      Section the June 11, 1992 charges of Criminal Trespass in the Third Degree and Criminal
      Trespass in the Fourth Degree.

28.   Lieutenant Anthony Marcucilli testified that he is a lieutenant with the Carolina Beach Police
      Department. Lieutenant Marcucilli was involved in the hiring process with the Carolina
      Beach Police Department and prepared the Mandated Background Investigation Form, Form
      F-8, on Petitioner. Lieutenant Marcucilli became aware of the Petitioner’s charges of
      Criminal Trespass in the Third Degree and Criminal Trespass in the Fourth Degree when he
      was contacted by Investigator Squires. Lieutenant Marcucilli testified that a criminal
      background check had been run on Petitioner and the criminal charges of Criminal Trespass
      in the Third Degree and Criminal Trespass in the Fourth Degree did not appear on his
      criminal record. Lieutenant Marcucilli later learned that the criminal charges, which occurred
      in the state of New York, would not appear on a criminal background check run for
      employment purposes.

29.   Lieutenant Scott Mason testified that he is a lieutenant with the Leland Police Department.
      Lieutenant Mason was involved in the hiring process with the Leland Police Department and
      prepared the Mandated Background Investigation Form, Form F-8, on Petitioner. Lieutenant
      Mason instructed Petitioner to be honest in completing the forms and to include all
      information.

30.   Petitioner testified that he found out that he failed to list all criminal charges when he was


                                                  6
       notified of that fact by Investigator Squires. Petitioner admitted that he had in fact been
       charged on June 11, 1992 with Criminal Trespass in the Third Degree and Criminal Trespass
       in the Fourth Degree. Petitioner admitted that he pled guilty to two counts of Disorderly
       Conduct on December 16, 1992. Petitioner maintained that he did not remember the charges
       until the charges were brought to his attention by Investigator Squires.

31.    Petitioner became reacquainted with his father after nearly twenty-five years. Prior to
       moving from the State of Washington to Wilmington, North Carolina to be with his son,
       Petitioner’s father contracted a life threatening disease. At about the same time the father of
       Petitioner’s wife contracted cancer. Petitioner’s wife had to be away from home to be with
       her father in New York. During the relevant time period of Petitioner’s application,
       Petitioner’s and his wife’s fathers became gravely ill and died. The combination of these
       events caused Petitioner and his wife considerable stress during all relevant time periods and
       mostly likely had some impact upon the responses to questions made by Petitioner in
       connection with his application for a law enforcement position.

32.    Several character witnesses testified on Petitioner’s behalf as to his good character
       including Petitioner’s reputation for honesty and integrity.

        BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight
of the evidence in the whole record, the Undersigned makes the following:

                                   CONCLUSIONS OF LAW

1.     The Office of Administrative Hearings has personal and subject matter jurisdiction over this
       contested case. The parties received proper notice of the hearing in the matter. To the extent
       that the findings of fact contain conclusions of law, or that the conclusions of law are
       findings of fact, they should be so considered without regard to the given labels.

2.     The North Carolina Criminal Justice Education and Training Standards Commission has the
       authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of
       the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and
       to revoke, suspend, or deny such certification.

3.     Pursuant to 12 NCAC 09A.0204(b)(6), the Commission may suspend, revoke, or deny the
       certification of a criminal justice officer when the Commission finds that the applicant for
       certification or the certified officer ... has knowingly made a material misrepresentation of
       any information required for certification or accreditation.

4.     Pursuant to 12 NCAC 09A.0205(b)(4), when the Commission suspends or denies the
       certification of a criminal justice officer, the period of sanction shall be not less than five
       years; however, the Commission may either reduce or suspend the period of sanction under
       Paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of


                                                 7
      certification following an administrative hearing, where the cause of sanction is ... material
      misrepresentation of any information required for certification or accreditation.

5.    A preponderance of the evidence exists to support the conclusion that Petitioner knowingly
      made a material misrepresentation of information required for certification when he failed to
      indicate all criminal offenses for which he had been charged in that he did not list in the
      “Criminal Record Section” of the Report of Appointment/Application for Certification, Form
      F-5A (LE) he filed with the Carolina Beach Police Department, the June 11, 1992 charges of
      Criminal Trespass in the Third Degree, Criminal Trespass in the Fourth Degree and two
      counts of Disorderly Conduct that Petitioner pled guilty to on December 16, 1992.
      (Respondent’s Exhibit 1).

6.    A preponderance of the evidence exists to support the conclusion that Petitioner knowingly
      made a material misrepresentation of information required for certification when he failed to
      indicate in response to Question #47 on the Personal History Statement, Form F-3, which
      asks the applicant “Have you ever been arrested by a law enforcement officer or otherwise
      charged with a criminal offense?” all criminal charges the Petitioner had received. Petitioner
      failed to list the June 11, 1992 charges of Criminal Trespass in the Third Degree, Criminal
      Trespass in the Fourth Degree and two counts of Disorderly Conduct that Petitioner pled
      guilty to on December 16, 1992. (Respondent’s Exhibit 2)

7.    A preponderance of the evidence exists to support the conclusion that Petitioner knowingly
      made a material misrepresentation of information required for certification when he failed to
      indicate all criminal offenses for which he had been charged in that he did not list in the
      “Criminal Record Section” of the Report of Appointment/Application for Certification, Form
      F-5A (LE) he filed with the Leland Police Department, the June 11, 1992 charges of
      Criminal Trespass in the Third Degree and Criminal Trespass in the Fourth Degree.
      (Respondent’s Exhibit 4).

8.    The Respondent may properly deny Petitioner’s certification pursuant to 12 NCAC
      9A.0204(b)(6). Pursuant to 12 NCAC 9A .0205(b)(4), the period of sanction shall be not
      less than 5 years for material misrepresentation of any information required for certification.

9.    The findings of the Probable Cause Committee of the Respondent are supported by
      substantial evidence and are not arbitrary and capricious.

10.   The party with the burden of proof in a contested case must establish the facts required by
      G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The
      administrative law judge shall decide the case based upon the preponderance of the evidence.
      N.C. Gen. Stat. § 150B-34(a).Petitioner has the burden of proof in the case at bar. Petitioner
      has failed to show by a preponderance of the evidence that Respondent’s proposed denial of
      Petitioner’s law enforcement officer certification is not supported by substantial evidence.



                                                8
                                 PROPOSAL FOR DECISION

        NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law,
the Undersigned recommends Respondent deny the Petitioner’s application for law enforcement
certification for a period of no more than three years.

                                             NOTICE

        The Agency making the Final Decision in this contested case is required to give each party an
opportunity to file Exceptions to the Proposal for Decision, to submit Proposed Findings of Fact and
to present oral and written arguments to the Agency. N.C. Gen. Stat. §150B-40(e).
        The Agency that will make the Final Decision in this contested case is the North Carolina
Criminal Justice Education and Training Standards Commission.

       IT IS SO ORDERED.

       This the 26th day of April, 2007.



                                              ____________________________
                                              Joe L. Webster
                                              Administrative Law Judge




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