STATE OF NORTH CAROLINA - DOC 2

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					STATE OF NORTH CAROLINA                                          IN THE OFFICE OF
                                                             ADMINISTRATIVE HEARINGS
COUNTY OF WARREN                                                    06 DOJ 0070

Anthony Lee Davis                                   )
      Petitioner                                    )
                                                    )
           vs.                                      )         PROPOSAL FOR DECISION
                                                    )
N. C. Sheriffs' Education and                       )
Training Standards Commission                       )
       Respondent                                   )


                                          APPEARANCES

Petitioner:       Anthony Lee Davis, Pro Se
                  262 Davis Bugg Road
                  Macon, North Carolina 27551

Respondent:       Ashby T. Ray, Assistant Attorney General
                  Attorney for Respondent
                  N.C. Department of Justice
                  9001 Mail Service Center
                  Raleigh, North Carolina 27699-9001

                                                ISSUE

           Whether Respondent has sufficient grounds to deny Petitioner’s certification as a justice
officer.

                                         RULES AT ISSUE

                                      12 NCAC 10B .0204(c)(1)
                                      12 NCAC 10B .0204(c)(2)
                                      12 NCAC 10B .0205 (2)(b)
                                      12 NCAC 10B .0205(2)(c)

        BASED UPON careful consideration of the sworn testimony of the witnesses presented at the
hearing, 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.      The parties received notice of hearing by certified mail more than fifteen (15) days
prior to the hearing.

        2.      Respondent has authority under Chapter 17E of the North Carolina General Statutes
and Title 12 of the North Carolina Administrative Code, Chapter 10, to certify justice officers, and to
deny, revoke, or suspend such certification.

       3.      On or about January 15, 1994, Petitioner was charged in Warren County with Assault
on a Female, in violation of N.C.G.S. § 14-33(B)(2). Petitioner was found guilty and given a Prayer
for Judgment Continued on or about February 16, 1994. (94 CR 00099) (Respondent’s Exhibit 2)

       4.      On or about October 11, 1994, Petitioner was charged in Warren County with Assault
on a Female, in violation of N.C.G.S. § 14-33(B)(2). Petitioner was found guilty and placed on 18
months unsupervised probation and ordered to pay a fine of one hundred dollars ($100.00) on or
about June 21, 1995. (94 CR 1959) Petitioner appealed his conviction to Superior Court and then
withdrew his appeal on or about October 10, 1995. (Respondent’s Exhibit 3)

       5.      On or about November 29, 1994, Petitioner was charged in Warren County with
Assault on a Female, in violation of N.C.G.S. § 14-33(B)(2). Petitioner was found not guilty on or
about June 21, 1995. (Respondent’s Exhibit 4).

        6.       Petitioner testified, and it is found as fact, that he had scheduled court appearances for
all three of the Assault on a Female charges and that he did, in fact, attend court in order to dispose
of them.

       7.      On or about July 17, 1998, Petitioner completed a Personal History Statement (Form
F3) as part of his application with the North Carolina Department of Correction. (Respondent’s
Exhibit 1)

        8.      Page eight (8) of the Personal History Statement (Form F3) completed and signed by
Petitioner has a section entitled, “CRIMINAL OFFENSE AND DISCIPLINARY ACTIONS”. There
are two (2) paragraphs immediately following that heading which read:

                NOTE: Include all offenses other than minor traffic offenses. The
                following are not minor traffic offenses and must be listed below:
                DWI, DUI (alcohol or drugs), duty to stop in the event of an accident,
                driving while license permanently revoked, and speeding at least 15
                mph over limit to elude arrest.




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               Answer all of the following questions completely and accurately.
               Any falsifications or misstatements of fact may be sufficient to
               disqualify you. If any doubt exists in your mind as to whether or not
               you were arrested or charged with a criminal offense at some point in
               your life or whether an offense remains on your record, you should
               answer “Yes.” You should answer “No,” only if you have never been
               arrested or charged, or your record was expunged by a judge’s court
               order.

       9.      Question 47 of the Personal History Statement completed and signed by Petitioner on
or about July 17, 1998 as part of his application with the North Carolina Department of Correction
reads: “Have you ever been arrested by a law enforcement officer or otherwise charged with a
criminal offense?” (Respondent’s Exhibit 1)

       10.     In response to Question 47, Petitioner checked “No”. (Respondent’s Exhibit 1)

       11.     Petitioner applied for certification as a Justice Officer with Respondent through the
Warren County Sheriff’s office in 2005. As a part of the certification process, staff for Respondent
conducted a review of Petitioner’s criminal history as well as the Personal History Statement (Form
F3) completed by Petitioner on or about July 17, 1998 as part of his application with the North
Carolina Department of Correction.

        12.    Diane Konopka, the Deputy Director for Sheriffs’ Training and Standards, reviewed
Petitioner’s application and file as part of the certification process. During this review, Deputy
Director Konopka verified that Petitioner had failed to list the three Assault on a Female charges
from 1994.

       13.   After determining that Petitioner had failed to list the charges in question, Deputy
Director Konopka reviewed the court records for each charge. (Respondent’s Exhibits 2,3,4)

       14.     Deputy Director Konopka presented her findings to Respondent’s Probable Cause
Committee, which found probable cause that Petitioner had knowingly made a material
misrepresentation on the Personal History Statement (Form F3) that he completed on or about July
17, 1998, as part of his application with the North Carolina Department of Correction.
(Respondent’s Exhibit 5).

       15.     Petitioner testified that he didn’t list the three Assault on a Female charges on his
Personal History Statement (Form F3) because he had forgotten about them when he completed the
form. Petitioner’s testimony is not credible on this point.

       16.     12 NCAC 10B .0204(c) reads:

               The Commission may revoke, deny, or suspend the certification of a
               justice officer when the Commission finds that the applicant for
               certification or certified justice officer:


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      (1)    has knowingly made a material misrepresentation of any
      information required for certification or accreditation from the
      Commission or the North Carolina Criminal Justice Education and
      Training Standards Commission. . . .

      (2)    has knowingly and designedly by any means of false pretense,
      deception, fraud, misrepresentation or cheating whatsoever, obtained
      or attempted to obtain credit, training or certification from the
      Commission or the North Carolina Criminal Justice Education and
      Training Standards Commission. . .

17.   12 NCAC 10B .0205 states that:

      When the Commission suspends, revokes, or denies the certification
      of a justice officer, the period of sanction shall be:

      (2)    not less than five years where cause of sanction is:

             (a)    material misrepresentation of any information
             required for certification or accreditation from the
             Commission or from the North Carolina Criminal
             Justice Education and Training Standards
             Commission.

             (b)      knowingly and designedly by any means of
             false pretense, deception, fraud, misrepresentation or
             cheating whatsoever, obtained or attempted to obtain
             credit, training or certification from the Commission
             or the North Carolina Criminal Justice Education and
             Training Standards Commission.

      The Commission may either reduce or suspend the periods of
      sanction under this Item or substitute a period of probation in lieu of
      revocation, suspension or denial following an administrative hearing.
       This authority to reduce or suspend the period of sanction may be
      utilized by the Commission when extenuating circumstances brought
      out at the administrative hearing warrant such a reduction or
      suspension, in the discretion of the Commission.




                                        4
                                    CONCLUSIONS OF LAW

       1.     Both parties properly are before this Administrative Law Judge, in that jurisdiction is
proper, and both parties received proper notice. 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.     Petitioner’s failure to list the three Assault on a Female charges on his Personal
History Statement (Form F3) was willful, in that he knew or should have known that he had these
charges and convictions on his record when he completed and signed the form.

       3.     Petitioner knowingly made a material misrepresentation on the Personal History
Statement (Form F3), which he completed and signed as part of his application with the North
Carolina Department of Correction, on or about July 17, 1998.

               Based upon the above Findings of Fact and Conclusions of Law, the undersigned
makes the following:

                                  PROPOSAL FOR DECISION

        It hereby is recommended that Petitioner’s justice officer certification be denied for a period
of not less than five years for making a material misrepresentation of information required for
certification as set out in 12 NCAC .0204(c)(1) and (2).

                                              NOTICE

        The agency making the Final Decision in this contested case is required to give each party an
opportunity to file exceptions to this Recommended 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
is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

        The agency that will make the final decision in this contested case is the North Carolina
Sheriffs’ Education and Training Standards Commission.

       This the 26th day of June, 2006.



                                                       __________________________
                                                       Beecher R. Gray
                                                       Administrative Law Judge




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