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									 STATE OF NORTH CAROLINA                                     IN THE OFFICE OF
                                                         ADMINISTRATIVE HEARINGS
 COUNTY OF WAKE                                                 03 DOJ 2431


 CHARLES ROBERT BRANHAM,                      )
  Petitioner                                  )
                                              )
       v.                                     )           PROPOSAL FOR DECISION
                                              )
 N.C. CRIMINAL JUSTICE                        )
 EDUCATION AND TRAINING                       )
 STANDARDS COMMISSION,                        )
   Respondent.                                )
 _____________________________                )



       THIS MATTER was heard before the undersigned Administrative Law Judge on April 27,
2004 in Raleigh, North Carolina.

                                      APPEARANCES

Petitioner:   H. Spencer Barrow, Esquire
              Attorney for Petitioner
              PO Box 2131
              Raleigh, NC 27602

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 the Respondent has just cause to suspend Petitioner’s certification as a law
enforcement officer.
                                  RULES AT ISSUE
                                  12 NCAC .09G 0206
                               12 NCAC .09G 0504(b)(2)
                               12 NCAC .09G 0504(b)(6)
                               12 NCAC .09G 0505(b)(5)
                               12 NCAC .09G 0505(c)(2)
                                 FINDINGS OF FACT


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       1.     Both parties are properly before this Administrative Law Judge, in that jurisdiction
and venue are proper, that both parties received Notice of Hearing, and that Petitioner received the
Proposed Suspension of Correctional Officer Certification letter mailed by Respondent on
November 19, 2004.

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

        3.      Petitioner pled guilty to Felony Housebreaking in Beaufort County, South Carolina
January 30, 1980. Petitioner received a three year suspended sentence upon payment of $300.00
and three years probation. This occurred twenty-four years ago.

        4.      Petitioner was convicted of Resist, Delay, Obstruct a law enforcement officer, in
violation of N.C.G.S. § 14-223, in Wake County on October 23, 1987. (87 CR 053943)

       5.     Petitioner was convicted of Intoxicated and Disruptive, in violation of N.C.G.S. §
14-444, in Wake County on October 23, 1987. (87 CR 053944)

       6.              Petitioner was convicted of Fishing Without a License, in violation of
                       N.C.G.S. § 113-271, in Wake County on November 22, 1991. (91 CR
                       069669)

       7.              Scott Perry, Director of the Criminal Justice Education and Training
                       Standards Commission, testified that if these old convictions had been listed
                       on the forms, he would have approved certification of Petitioner.

      8.      On November 30, 1984 Petitioner received a General Discharge Under Honorable
Circumstances from the United States Marine Corps.

       9.     On March 20, 2001, Petitioner completed and signed a Report of
Appointment/Application for Certification (Form F-5A) as part of his application with the North
Carolina Department of Correction.

       10.    On the first page of the Report of Appointment/Application for Certification (Form
F-5A) completed and signed by Petitioner, the following statement is written:

               Criminal Conviction Record: All convictions other than minor traffic
               violations must be reported below. Please note that “DWI/DUI
               (alcohol or drugs),” “Duty to Stop in the Event of an Accident,” and
               “Speeding to Elude Arrest” are NOT minor traffic violations and,
               therefore MUST be reported below. Provide all information
               completely and accurately. Any falsification or misstatements of fact
               may be sufficient to disqualify you. If any doubt exists in your mind

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              as to whether you were convicted of a criminal offense at some point
              in your life, you should check the block labeled, “Criminal
              Convictions as Reported Below” and give details. You should check
              the “No Criminal Convictions” block ONLY if you have never been
              convicted of a Misdemeanor or Felony, or your record/citation was
              expunged by a judge’s court order. Check one of the following:

       11.    Petitioner checked the block for “No Criminal Convictions.”

       12.            Question number 4 on the Report of Appointment/Application for
                      Certification (Form F-5A) asked Petitioner to disclose any military record,
                      including date and nature of discharge. The form provided “Honorable,”
                      “General,” “Dishonorable” and “Other” as choices for a response. The
                      Petitioner checked the box indicating he had received an Honorable
                      Discharge from the United States Marine Corps on October 7, 1981.

       13.            Petitioner testified that he did not know the difference between “General
                      Discharge under Honorable Conditions” and “Honorable Discharge” until all
                      this happened. He had always believed he had an Honorable Discharge.
                      Petitioner’s testimony in this regard is credible.

       14.     The Report of Appointment/Application for Certification (Form F-5A), which was
completed by Petitioner on March 20, 2001 provides the following language immediately
proceeding the Petitioner’s notarized signature.

              I hereby certify that each and every statement made on this form, and
              the N.C. State Application for Employment (PD-107) is true and
              complete. As the applicant for certification, I attest that I am aware
              of the minimum standards for employment, and that I meet each of
              those requirements, that the information provided and all other
              information submitted by me, both oral and written throughout the
              employment certification process is 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. 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. I acknowledge by my signature that my continued employment
              and certification are contingent on the results of the fingerprint record
              check and other criminal history records being consistent with the
              information provided in my State Application.

       15.    Petitioner began work with the North Carolina Department of Correction on April 9,

                                                 3
2001.

        16.    Petitioner completed his Basic Correctional Officer Training on February 8, 2002.

       17.    The North Carolina Criminal Justice Education and Training Standards Commission
received a copy of the Report Of Training Course Completion for the Petitioner on February 20,
2002. The Respondent was not aware of the Petitioner’s employment with the North Carolina
Department of Correction until receipt of this form.

      18.    On June 21, 2002, Petitioner was issued a Probationary Certification (PRB
400061094) based on his date of appointment, April 9, 2001.

       19.     On April 9, 2002, Petitioner was issued a General Certification (GNB 400061094)
based on his April 9, 2001 date of appointment.

        20.     In the late summer or early fall of 2002 the Respondent became aware of the fact
that the Petitioner had convictions on his criminal history he had not listed on his Report of
Appointment/Application for Certification (Form F-5A). In October of 2002 Edward J. Zapolsky
began an investigation into Petitioner’s failure to disclose four convictions on his Report of
Appointment/Application for Certification (Form F-5A).

       21.     As part of the investigation, Petitioner supplied written statements explaining why he
had not listed the various convictions on his Report of Appointment/Application for Certification
(Form F-5A). He also completed and signed a statement explaining why he believed he had
received an Honorable Discharge from the United States Marine Corps.

        22.     Petitioner’s case was presented to the Probable Cause Committee of the Criminal
Justice Education and Training Standards Commission in the Fall of 2003. The Probable Cause
Committee found probable cause to suspend Petitioner’s certification for material misrepresentation
and failing to meet the minimum requirements of a justice officer.

         23.    Specifically, the Probable Cause Committee found that Petitioner had made a
material misrepresentation on his Report of Appointment/Application for Certification (Form F-5A),
which he completed and signed on March 20, 2001 by failing to disclose the following criminal
convictions: Felony House Breaking in Beaufort County South Carolina on January 30, 1980;
Resist, Delay, Obstruct a law enforcement officer in violation of N.C.G.S. § 14-223 in Wake
County on October 23, 1987 (87 CR 053943); Intoxicated and Disruptive in violation of N.C.G.S.
§ 14-444 in Wake County on October 23, 1987 (87 CR 053944 ); and Fishing Without a License in
violation of N.C.G.S. § 113-271 in Wake County on November 22, 1991 (91 CR 069669).
Additionally, the Probable Cause Committee found probable cause to suspend Petitioner’s
certification for material misrepresentation based on the assertion that he received an Honorable
Discharge from the United States Marine Corps, when he received a General Discharge Under
Honorable Conditions.

        24.    The Probable Cause Committee also found probable cause to suspend Petitioner’s

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certification based on the fact that he failed to meet the minimum requirement that every justice
officer must be of good moral character. The Probable Cause Committee found a lack of good
moral character based on the numerous misrepresentations on his Report of
Appointment/Application for Certification (Form F-5A).

         25.     Petitioner testified that the Felony Housebreaking charge occurred while he was in
the Marine Corps in South Carolina and he and a friend were returning to base. Petitioner testified
that his friend got a blister on his heel and sat on an air conditioner that was sticking out of the
window of an abandoned house. His friend took his boots off to rub his heel and the air conditioner
fell the rest of the way out of the window. Petitioner’s friend then put his boot back on and they
continued walking back to base. Petitioner testified that he and his friend were stopped by a police
officer and charged with housebreaking.

       26.    In the written explanation of the convictions on his record that Petitioner wrote in
January of 2003 he explained the South Carolina conviction as follows:

               I was walking back to base when I felt a blister on the back of my
               heel Their (sic) was an abandoned house on the side of the road with
               an air conditioner in the window. The window was close to the
               ground and the air conditioner was half in the window and the other
               half was sitting on the ground. I sat on the air conditioner to take my
               boot off when the air conditioner fell out the rest of the way. I got up
               and continued back to base when a police officer pulled up and ask
               (sic) me if I know anything about a house getting broke (sic) into
               down the road. I told the police officer that I sat on a (sic) air
               conditioner at abandoned house (sic) to take by boot off because I
               had a blister on my heel and the air conditioner I was setting (sic) on
               fell out of the window.

        27.    When asked to explain why he failed to list the convictions of Resist Delay Obstruct
a Law Enforcement Officer and Intoxicated and disruptive the Petitioner testified that he went to
court and a District Attorney told him the charges were taken care of and would not show up on his
record.

        28.     In the written explanations of the convictions on his record that Petitioner wrote in
January of 2003 he explained not listing the Resist, Delay, Obstruct and Intoxicated and Disruptive
convictions as follows:

               I do not drink alcohol so I have no rememberance (sic) of any
               charges of 1987 of Intoxicated and Disruptive and Resist and
               Obstruct Public Officer. I’ve been married 17 yrs and I’m sure if this
               would have happened she would have known about this.

       29. The Warden of the North Carolina Correction Institute for Women (NCCIW), Anne
           Harvey, testified on behalf of Petitioner. Some of the important points from Warden

                                                  5
           Harvey’s powerful testimony include the following:

               a. Petitioner has been employed at her facility since April 2001.
               b. Petitioner’s job performance has been, on average, very good.
               c. He has already been promoted to Sergeant.
               d. It is difficult to find men to work as prison guards who will deal honorably with
                  female inmates. Petitioner, however, has always done so.
               e. Petitioner goes beyond the call in doing his job. It is hard to find that.
               f. The Warden has other staff who do not demonstrate as much integrity and
                  honesty as Petitioner.
               g. The Warden has had a long, tough discussion with Petitioner about the reasons
                  what he did in filling out the forms was wrong. She is satisfied he understands.

                                    CONCLUSIONS OF LAW

        1.     Both parties are properly before this Administrative Law Judge in that jurisdiction is
proper and both parties received notice of hearing.

        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 9, to certify correctional officers and to deny,
revoke, or suspend such certification.

        3.       There is sufficient evidence that Petitioner knowingly made a material
misrepresentation of information required for certification, in violation of the Commission’s rules,
by failing to list the 1980 conviction in Beaufort County South Carolina of felony House Breaking
on his Report of Appointment/Application for Certification (Form F-5A), which he completed and
signed on March 20, 2001.

        4.       There is not sufficient evidence to find that Petitioner knowingly made a material
misrepresentation of information required for certification, in violation of the Commission’s rules,
by failing to list the 1987 conviction in Wake County of Resist, Delay, Obstruct a Public Officer in
violation of N.C.G.S. §14-223 (87 CR 053943) on his Report of Appointment/Application for
Certification (Form F-5A), which he completed and signed on March 20, 2001.

        5.       There is not sufficient evidence to find that Petitioner knowingly made a material
misrepresentation of information required for certification, in violation of the Commission’s rules,
by failing to list the 1987 conviction in Wake County of Intoxicated and Disruptive in violation of
N.C.G.S. § 14-444 (87 CR 053944) on his Report of Appointment/Application for Certification
(Form F-5A), which he completed and signed on March 20, 2001.

        6.      There is not sufficient evidence to find that Petitioner knowingly made a material
misrepresentation of information required for certification, in violation of the Commission’s rules,
by failing to indicate he received a General Discharge from the United States Marine Corps on his
Report of Appointment/Application for Certification (Form F-5A), which he completed and signed

                                                 6
on March 20, 2001.

       7.     There is not sufficient evidence to find that Petitioner violated 12 NCAC 09G
.0206, which requires every person employed as a correctional officer to demonstrate good moral
character.

       8.      There is sufficient evidence that Petitioner violated 12 NCAC 09G .0504(b)(2)
which states that the Commission may suspend the certification of a corrections officer when the
Commission finds that the certified officer fails to meet or maintain the minimum employment
standards required by 12 NCAC 09G. 0200.

       9.      There is sufficient evidence that Petitioner violated 12 NCAC 09G .0504(b)(6),
which states that the Commission may suspend the certification of a correctional officer when the
Commission finds the certified officer has knowingly made a material misrepresentation of any
information required for certification or accreditation.

        10.    There is not sufficient evidence to show that Petitioner made a material
misrepresentation with regard to the Fishing Without a License Charge, which he failed to include
on his Report of Appointment/Application for Certification (Form F-5A).

     11.    The Commission has sufficient grounds under 12 NCAC 09G .0504(b)(6) and 12
NCAC 09G .0505 (b)(5) to suspend the Petitioner’s certification.

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

                                             DECISION

       It is hereby recommended that the Petitioner’s criminal justice officer certification be
suspended for a period of one month for knowingly making a material misrepresentation of
information required for certification.

                                              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
Criminal Justice Education and Training Standards Commission.

       This the 14th day of June, 2004.


                                                  7
    __________________________
    James. L. Conner, II
    Administrative Law Judge




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