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									STATE OF NORTH CAROLINA                                    IN THE OFFICE OF
                                                       ADMINISTRATIVE HEARINGS
COUNTY OF WAKE                                                03 DOJ 1706

                                                 )
Jennifer Consuela Davis                          )
       Petitioner                                )
                                                 )
       vs.                                       )         PROPOSED DECISION
                                                 )
North Carolina Attorney General's Office of      )
Company Police Program                           )
       Respondent                                )
                                                 )

       On January 6, 2004, Administrative Law Judge Melissa Owens Lassiter conducted an
administrative hearing in this contested case in Raleigh, North Carolina.

                                      APPEARANCES

       Petitioner:           Jeffrey P. Gray
                             Holt York McDarris & High, LLP
                             Two Hannover Square, Suite 2010
                             434 Fayetteville Street Mall
                             Raleigh, North Carolina 27601

       Respondent:           Ashby T. Ray
                             Assistant Attorney General
                             Law Enforcement Liaison Section
                             Post Office Box 629
                             Raleigh, North Carolina 27602

                                              ISSUE

       Whether the law and evidence support Respondent’s September 25, 2003 Notice of
Probable Cause, and Respondent’s amended December 19, 2003 Notice of Probable Cause,
denying Petitioner’s application to be commissioned as a Company Police Officer?

                            STATUTES AND RULES AT ISSUE

                                   N.C. Gen. Stat. § 14-230
                                   N.C. Gen. Stat. § 14-277
                                 N.C. Gen. Stat. § 17C-10(c)
                                12 NCAC 2I .0202(4) and (9)
                               12 NCAC 2I .0212(b) (1) and (2)
                                  12 NCAC 2I .0212(c) (1)
                                      12 NCAC 2I .0213(a) (1)
                                       12 NCAC 9A .0103(b)

                                              EXHIBITS

For Petitioner: 1 – 3   Character letters

For Respondent:

         1.    Petitioner’s application for Company Police Commission
         2.    Apex Police Dept.’s Report of Separation of Employment
         3.    Respondent’s September 25, 2003 Denial of Petitioner’s Application
         4.    Respondent’s December 19, 2003 Amended Denial Letter to Petitioner
         5.    Elizabeth Allen’s August 20, 2002 statement to Apex Police Dept.
         6.    Transcript of Petitioner’s Recorded Telephone Messages to Beth Allen
         7.    Apex Police Captain Adams’ August 21, 2002 Interview of Petitioner
         8.    Apex Police Captain Adams’ notes of August 21, 2002 Interview of
               Petitioner
        9.     Petitioner’s second written statement on August 21, 2002
       10.     Petitioner’s third statement to Apex Police Captain Adams
       11.     Melodie Davis’ December 16, 2003 statement to Respondent


                                       FINDINGS OF FACT

                                            Stipulated Facts

1.     Both parties are properly before this Administrative Law Judge, in that jurisdiction and
venue are proper, that both parties received proper notice of hearing required pursuant to N.C.
Gen. Stat. § 150B-38, and that Petitioner received notice of the denial of her application for
company police officer commission mailed by Respondent on September 25, 2003.

2.      The Petitioner received an amended notice of the denial of her application for company
police officer commission, which was mailed by Respondent on December 19, 2003.

3.      The parties agree to consolidate the amended notice of' the denial of company police
officer commission, which was mailed on December 19, 2003, with the original notice of the
denial of her application for company police officer commission, which was mailed by
Respondent on September 25, 2003.

4.      The North Carolina Department of Justice Company Police Program (Respondent) has
the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of
the North Carolina Administrative Code, Chapter 2I, to certify company police agencies and
commission company police officers, including denying, revoking, or suspending such
certification or commission.




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                                        Adjudicated Facts

5.     Respondent’s evidence consisted of testimony from the following five (5) witnesses:
Vickie M. Huskey, Company Police Administrator for the Respondent, Captain Steve Adams of
the Apex Police Department, Elizabeth Michelle (“Beth”) Allen, Melodie Ann Davis, and
Rebecca Mae Faircloth.

6.      On September 3, 2003, Vickie M. Huskey, Company Police Administrator, received
Petitioner’s application for Company Police Commission. Petitioner was applying for a
Company Police Officer commission with West-Tek Company Police. Ms. Huskey reviewed
Petitioner’s application, and conducted a criminal history background check on Petitioner. Ms.
Huskey reviewed a September 24, 2002 Report of Separation (Resp Exh 2) for Petitioner, which
indicated that the Town of Apex Police Department had dismissed Petitioner from employment
as a police officer. Ms. Huskey also reviewed Petitioner’s personnel file at the Apex Police
Department, a complaint against Petitioner received by Apex Police, and Apex Police
Department’s investigation into the complaint brought against Petitioner, including Petitioner’s
statements to Apex Police Captain Steve Adams.

7.      Ms. Huskey received no information proving that Petitioner had been criminally charged
for the incident that lead to her dismissal from Apex Police Department, and in fact, was aware
that Petitioner was not criminally charged for this incident.

8.      Based upon information obtained solely from Petitioner as part of the application process,
Ms. Huskey concluded that the allegations against the Petitioner, as a result of an investigation
conducted by the Apex Police Department, constituted: (1) a willful failure to discharge duties in
violation of N.C. Gen. Stat. § 14-230, and (2) aiding and abetting the impersonation of a law
enforcement officer in violation of N.C. Gen. Stat. §14-277. Pursuant to the Class B
Misdemeanor Manual published by the North Carolina Department of Justice, these two (2)
offenses are each considered a Class B Misdemeanor. This Manual is incorporated by reference
into Respondent’s administrative rules. Additionally, Ms. Huskey concluded that Petitioner’s
commission of these two (2) offenses constituted “a lack of moral character” by Petitioner, in
violation of Respondent’s administrative rules.

9.      By letter dated September 25, 2003 (Resp Exh 3), Ms. Huskey denied Petitioner’s
application for company police officer commission based upon two separate grounds:

                . . . willful failure to discharge duties in violation of N.C.G.S. § 14-230. I
       have probable cause to believe that you committed this offense by your actions on
       August 19, 2002, as well as your actions during the investigation of the incident
       on August 19, 2002 by the Apex Police Department. I also have probable cause
       to believe that, on or about August 19, 2002, you committed the offense of Aiding
       and Abetting the Impersonation of a Law Enforcement Officer in violation of
       N.C.G.S. § 14-277.

10.      Petitioner was not charged criminally with either of the offenses cited by the Respondent
in its notification of probable cause to deny Petitioner’s application.



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11.    At the conclusion of Ms. Huskey’s testimony at the administrative hearing, Petitioner’s
counsel moved to dismiss on the grounds that Respondent’s Exhibits 1 and 2 were insufficient to
support the conclusion by the Company Police Program Administrator that the Petitioner
committed the criminal offenses constituting a Class B Misdemeanor and a lack of good moral
character. The undersigned denied Petitioner’s Motion.

12.    Ms. Beth Allen and Melodie Ann Davis had an intimate personal relationship.

13.    Ms. Melodie Davis and Petitioner are cousins.

14.    The preponderance of the evidence proved that on August 19, 2002, Ms. Beth Allen rode
with Petitioner to a Raleigh city park. Once they were standing in the park, Petitioner told Ms.
Allen that she was under investigation for her illegal drug usage and sales. Mr. Lee Lamb
approached, and joined Ms. Allen and Petitioner in the park.

15.     The preponderance of the evidence tended to show that Mr. Lamb showed Ms. Allen a
“mock” arrest warrant that Petitioner had prepared in her basic law enforcement training class.
In its most essential points, the testimony tended to show that Ms. Allen was told that if she did
not break off her relationship with Petitioner’s cousin, Melodie Ann Davis, then Ms. Allen
would be arrested for selling illegal drugs.

16.    At the administrative hearing, Allen contended that when Mr. Lamb joined Petitioner
and her in the park, Petitioner intimated to her that Mr. Lamb was an officer with the Raleigh
Police Department, and introduced Mr. Lee Lamb as “Detective Taylor.”

17.    A preponderance of the evidence proved that Mr. Lee Lamb was not a sworn law
enforcement officer, but was merely a friend of Petitioner.

18.     A few days after the August 19, 2002 park incident, Ms. Allen learned that she was not
under investigation for selling illegal drugs, and complained to the Apex Police Department,
Petitioner’s employer at the time. Specifically, Ms. Allen spoke with Captain Steve Adams, and
filed a written complaint with Captain Adams.

19.     Captain Adams investigated Allen’s complaint as an internal affairs matter within the
Apex Police Department. In addition to Allen’s complaint, Captain Adams received two (2)
telephone message recordings left by the Petitioner at Ms. Allen’s home. (Resp Exhs 5 & 6)
Captain Adams also interviewed Petitioner on separate occasions about this matter, took notes
during the first question and answer interview with Petitioner, and gathered statements from
Petitioner. (Resp Exhs 7 – 10)

20.     These statements, including the Petitioner’s written statement, all indicated that Lee
Lamb did not make any representations to Ms. Allen, or anyone else, in the park on August 19,
2002 as to his employment capacity. In Respondent’s Exhibit 7, Captain Adams asked
Petitioner, “What actions were displayed by Mr. Lee Lamb? What statements were made by Mr.
Lamb?” Petitioner responded, “He just stood there, and made sure everything was okay.” In



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addition, Ms. Allen’s testimony at the administrative hearing, and her written statements
admitted into evidence, were consistent with Captain Adams’ internal investigation regarding
Lamb’s participation in the events in the park on August 19, 2002.

21.    According to Captain Adams, the records of the Apex Police Department showed that on
or about August 13, 2002, Petitioner advised her supervisor, Apex Police Detective John Penny,
about Ms. Allen’s suspected drug activities. Detective Penny called Detective Lynch of the
Raleigh Police Department about Ms. Allen, in response to the information Petitioner provided
him. However, Detective Lynch never followed up on this information because of other duties.
(See Adams’ cross-examination testimony)

22.    Although Captain Adams interviewed Petitioner and Ms. Beth Allen about the events of
August 19, 2002, he did not interview Lee Lamb prior to recommending that the Petitioner be
dismissed from the Apex Police Department.

23.    Captain Adams relied solely on Town policy in recommending that Petitioner be
dismissed from employment, and did not base that recommendation upon any violation of any
criminal law.

24.     Melodie Ann Davis’ testimony about the August 19, 2002 events was consistent with Ms.
Allen’s testimony. However, Ms. Melodie Davis was not present in the park on August 19, 2002
when Petitioner talked with Ms. Allen. Ms. Melodie Davis also alleged that after Petitioner was
dismissed from the Apex Police Department, Petitioner contacted her about some family medical
history. Ms. Melodie Davis contended that Petitioner offered to pay Ms. Allen, through Ms.
Davis, if Ms. Allen would change her testimony about the August 19, 2002 events.

25.    Respondent was not aware of this alleged telephone contact until preparing for the
hearing in this case. As a result of this information, on December 19, 2003, Respondent
amended its notice of probable cause to deny Petitioner’s application, finding that Petitioner had
also engaged in conduct constituting a lack of good moral character, thereby violating 12 NCAC
2I .0202(9).

26.    Rebecca Mae Faircloth was a friend of Ms. Beth Allen and Ms. Melodie Davis, and an
acquaintance of Petitioner. Ms. Faircloth and Ms. Melodie Davis share “custody” of Ms.
Melodie Davis’ son. The evidence at the administrative hearing showed that Petitioner had
previously expressed her “reservations” about Ms. Allen to Ms. Faircloth.

27.     At the close of the Respondent’s evidence, Petitioner’s counsel moved to dismiss, as a
matter of law, Respondent’s finding that the Petitioner had committed the offenses of: (1)
willfully failing to discharge duties in violation of N.C. Gen. Stat. § 14-230, and (2) aiding and
abetting the impersonation of a law enforcement officer in violation of N.C. Gen. Stat. § 14-277.
Counsel for Petitioner argued that N.C. Gen. Stat. §14-230 requires that a police officer must fail
to discharge a duty of the office, or willfully and corruptly violate the oath of office in order to
be guilty of this misdemeanor offense. Specifically, Respondent had failed to present evidence
of what duty the Petitioner had neglected, or refused to discharge during the August 19, 2002
events, outside the town limits of the Town of Apex, and in a city park in the City of Raleigh.



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        Additionally, Petitioner’s counsel argued that in order to be charged with aiding and
abetting a misdemeanor, the person that the Petitioner aided or abetted, must have committed the
misdemeanor. In this instance, Lee Lamb did not represent himself as a sworn law enforcement
officer. The facts tended to show that he made no statement or representation at all during the
events in the Raleigh city park. The common law offense of aiding and abetting a misdemeanor
in North Carolina requires that the misdemeanor be committed by another person. Therefore,
Petitioner could not be guilty of aiding and abetting a misdemeanor if no misdemeanor occurred.

28.     After a recess in the hearing, the undersigned granted Petitioner’s Motion to Dismiss, as a
matter of law, dismissing Respondent’s decision to deny Petitioner’s company police application
for committing the above-cited two (2) misdemeanor offenses and, based upon these two (2)
misdemeanor offenses, lacking good moral character. The undersigned dismissed these grounds
for Respondent’s denial of Petitioner’s application, because Respondent failed to prove by a
sufficiency of the evidence that Petitioner had willfully failed to discharge her duties in violation
of N.C. Gen. Stat. § 14-230, had aided and abetted the impersonation of a law enforcement
officer in violation of N.C. Gen. Stat. § 14-277, and thus, lacked good moral character as a result.
The undersigned denied Petitioner’s Motion to Dismiss as to the December 19, 2003 amended
notice of probable cause.

29.     For the remainder of the administrative hearing, the undersigned heard evidence strictly
on the question of whether Petitioner solicited Elizabeth Michelle (“Beth”) Allen, by and through
Melodie Ann Davis, to change her testimony in exchange for money, and thereby, lacked good
moral character to be a criminal justice officer.

30.     A preponderance of the evidence showed that after Petitioner lost her job with the Apex
Police Department, Petitioner initiated a number of conversations with Melodie Davis.
Petitioner denied that she had offered money to Beth Allen, through Melodie Ann Davis. The
only time the question of money arose during her conversation with Ms. Melodie Davis, was
when Petitioner told Melodie Davis that she wanted some family medical information, because
she wanted to sell her ovarian eggs to a fertility clinic. During that telephone conversation,
Petitioner and Melodie Davis discussed the amount of money Petitioner would be paid for that
service.

31.     Theresa E. Champion, a friend of the Petitioner, was present with the Petitioner in the
car, during Petitioner’s telephone conversation with Melodie Davis about the family medical
history, and the selling of Petitioner’s ovarian eggs. She was also present during at least one
other telephone conversation between Petitioner and her cousin, Melodie Davis. At no time
during those conversations, did Petitioner offer to give money to Ms. Allen to recant her
previous statements to the Apex Police Department.

32.     Lieutenant Pat Green has been Petitioner’s supervisor with West-Tek Security since
Petitioner has been employed as an unarmed security guard. He considers Petitioner to be a
truthful and honest person.




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33.     Apex Police Detective John Penny, Petitioner’s former supervisor and field training
officer at Apex Police Department, opined that Petitioner was a good law enforcement officer,
and that she was always honest and truthful.

34.     Three (3) notarized statements or affidavits of persons who know the Petitioner, and her
reputation for being dependable, hardworking, loyal, supportive, helpful and respectful, were
admitted into evidence as Petitioner’s Exhibit 1, Exhibit 2 and Exhibit 3.

35.      The preponderance of the evidence proved that Petitioner’s actions in talking with Beth
Allen in the park on August 19, 2002, was solely motivated by Petitioner’s desire to protect her
cousin and her cousin’s eight year old son. While Petitioner certainly used poor judgment in the
manner in which Petitioner conveyed that concern to Beth Allen, Petitioner’s conduct did not
rise to the level of any criminal misconduct.

                                   CONCLUSIONS OF LAW

1.      Both parties are properly before the Office of Administrative Hearings in that jurisdiction
is proper and both parties received a Notice of Hearing.

2.     By Order entered February 4, 2004, the undersigned found that Respondent erred when it
denied Petitioner’s application for a Company Police Officer Commission for committing the
misdemeanors of: (1) willfully failing to discharge her duties in violation of N.C.G.S. § 14-230,
and (2) aiding and abetting the impersonation of a law enforcement officer in violation of N.C.
Gen. Stat. § 14-277, and for lacking good moral character.

3.      N.C. Gen. Stat. §14-230 requires that a police officer must willfully fail to discharge “any
of the duties of his office,” or willfully and corruptly violate the oath of office, in order to be
guilty of this misdemeanor.

4.      In this case, Respondent failed to present any competent evidence of what duty the
Petitioner neglected, or refused to discharge, during the August 19, 2002 events, in a Raleigh city
park, outside the town limits of the Town of Apex.

5.      To be guilty of the offense of impersonating a law enforcement in violation of N.C. Gen.
Stat. § 14-277, a person:

       must have made a false representation that he is a duly authorized. . . officer, and
       acting upon such representation, he must have arrested some person, searched a
       building, or done some act in accordance with the authority delegated to duly
       authorized officers.

State v. Church, 242 N.C. 230, 87 S.E.2d 256 (1955)

6.      In this instance, Lee Lamb did not represent himself as a sworn law enforcement officer
on August 19, 2002. The facts tended to show that Lamb made no statement or representation at
all during the events in the Raleigh city park on August 19, 2002. Therefore, Respondent’s



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evidence failed to prove that Lee Lamb violated N.C. Gen. Stat. § 14-277 by impersonating a
Law Enforcement Officer to Beth Allen on August 19, 2002.

7.     The common law offense of aiding and abetting a misdemeanor in North Carolina
requires that the misdemeanor must first be committed by another person. That is, to be charged
with aiding and abetting a misdemeanor, the person that the Petitioner aided or abetted, must
have committed the misdemeanor. (See NC Crimes, Ch. 3, (Fourth Ed. 1995))

8.     Here, the evidence failed to prove that Lee Lamb committed the misdemeanor offense of
Impersonating a Law Enforcement Officer, and therefore, Petitioner can not be guilty of aiding
and abetting such a misdemeanor.

9.     As noted above, Respondent erred when it found that Petitioner committed the two
above-cited Class B misdemeanors, lacked good moral character for committing those Class B
misdemeanors, and denied Petitioner a company police officer commission on those grounds.

10.     Lastly, Respondent failed to present sufficient evidence proving that Petitioner lacked
“good moral character” by repeatedly asking Beth Allen to recant her statements to the Apex
Police Department concerning the August 19, 2002 events, and by offering to pay Beth Allen up
to $3000.00 if she would recant such statements. As such, Respondent erred when it denied
Petitioner a company police officer commission on that ground.

                                            DECISION

        Based upon the Findings of Facts and Conclusions of Law, the undersigned hereby
proposes that the Company Police Program RESCIND its September 25, 2003 notification of
probable clause to deny Petitioner’s commission as a company police officer dated, and its
December 19, 2003 amended notification of probable cause to deny Petitioner’s company police
officer commission, and ISSUE a company police officer commission to Petitioner.

                                     ORDER AND NOTICE

        The North Carolina Attorney General, or his designee, will make that Final Decision in
this contested case. That entity is required to give each party an opportunity to file exceptions to
this 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). That entity is also 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.

       This the 6th day of April, 2004.


                                              ____________________________________
                                              Melissa Owens Lassiter
                                              Administrative Law Judge




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