STATE OF NORTH CAROLINA IN THE OFFICE OF by wulinqing

VIEWS: 21 PAGES: 10

									STATE OF NORTH CAROLINA                                      IN THE OFFICE OF
                                                         ADMINISTRATIVE HEARINGS
COUNTY OF CUMBERLAND                                            02 D0J 0416

MICHAEL A. CARRION                                )
           Petitioner,                            )
                                                  )
     v.                                           )              PROPOSAL
                                                  )                FOR
                                                  )              DECISION
NC CRIMINAL JUSTICE EDUCATION AND                 )
TRAINING STANDARDS COMMISSION                     )
           Respondent.                            )

       HEARING was held in this contested case before James L. Conner, II, Administrative
Law Judge, on July 12, 2002, in Fayetteville, North Carolina. Petitioner submitted proposed
Findings of Fact and Conclusions of Law on August 1, 2002, and Respondent submitted counter
proposals on August 15, 2002.

                                      APPEARANCES

              For Petitioner:       Stephen C. Stokes
                                    The Stokes Law Firm
                                    117 Person Street
                                    Fayetteville, NC 28301

              For Respondent:       Lorrin Freeman
                                    Assistant Attorney General
                                    NC Department of Justice
                                    PO Box 629
                                    Raleigh, North Carolina 27602

                                          ISSUES

       1.     Whether Petitioner knowingly provided material misrepresentation on his
Personal History Statement and Application for Certification regarding offenses committed in
April and May of 1976.

        2.     Whether Respondent has shown by a preponderance of the evidence that
Petitioner knowingly provided material misrepresentation on his Personal History Statement and
Application for Certification regarding offenses committed in April and May of 1976.

                      STATUTES AND REGULATIONS AT ISSUE

                                12 NCAC 9(G) 0504 and 505.
                                   EXHIBITS ADMITTED

Introduced by Petitioner:

       P1.     Criminal Court of the City of New York, Certificate of Disposition

       P2.     Otha L. Glover, memorandum dated May 29, 2001

       P3.     Michael Cotton, letter dated February 12, 2002

       P4.     Employee Appraisal for period 10-01-00 to 09-30-01

       P5.     Employee Appraisal per period 10-01-01 to 09-30-02

       P6.     Certificate of Release or Discharge from Active Duty (DD Form 214 and Form
               214 Worksheet)

       P7.     Certificate of Clearance And/Or Security Determination (DA Form 873)

       P8.     Certified copy of Certificate of Disposition (P1)

       P9.     New York Criminal Procedure Law, Section 720.35

Introduced by Respondent:

       R1.     Petitioner’s Personal History Statement (Form F-31(DOC))

       R2.     Report of Appointment/Application for Certification for Petitioner
               (Form F-5A(CJP))

       R3.     Arrest record from New York, 1976

       R4.     Additional criminal record report from New York

       R5.     Letter from Respondent to Petitioner proposing suspension of certification,
               dated February 19, 2002.

       R9.     Petitioner’s handwritten statement.
       R10.    Petitioner’s Interrogatory Responses

       R11.    Petitioner’s Appeal Letter

       R12.    FBI Record Check on Petitioner (Under Seal)




                                                2
       R12A. FBI additional Record Check on Petitioner (Under Seal)

                                       STIPULATIONS

        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 February 19, 2002.

        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 was charged with the following criminal offenses:

               a.     2nd Degree Robbery in New York City on April 17, 1976 for which he
                      received one year probation.

               b.     Petty Larceny in New York City on May 21, 1976 for which he was
                      convicted and served six month confinement.

        4.      On September 25, 2000 Petitioner completed a Personal History Statement (Form
F-3(DOC)) as a part of his application with Respondent for certification as a correctional officer
with the North Carolina Department of Corrections. Question number 14 of that form states:
“ALL offenses other than minor traffic offenses must be reported below. Please note that a
“DWI/DUI,” “Duty to Stop in the Event of an Accident,” “Driving While License permanently
Revoked,” and “Speeding to Elude Arrest” are not minor traffic offenses and, therefore, MUST
be reported below. Provide all information 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 check the block labeled “Criminal
Charges as Reported Below” and give details. If you have no criminal charges other than minor
traffic offenses, please check the bock labeled “No Criminal Charges other than Minor Traffic
Offenses.” You should check the “No Criminal Charges” block ONLY if you have never been
charged or arrested, or your record/citation was expunged by a judge’s court order. Criminal
offenses that have been “Dismissed” MUST be reported. Check one of the following:”
Petitioner checked the box that said: “No Criminal Charges other than Minor Traffic Offenses.”
        5.      In September of 2000, Petitioner, through the North Carolina Department of
Correction, filed a Report of Appointment/Application for Certification (Form F-5A(CJP)) with
Respondent. On this form, Petitioner indicated that he had no criminal record. Petitioner signed
this form on September 25, 2000.

       6.     Petitioner was issued a Probationary Certification (PRB 089504622) as a
Correctional Officer by Respondent effective October 9, 2000.


                                                3
        7.    Petitioner was issued a General Certification (GNB 089504622) as a Correctional
Officer by Respondent effective October 9, 2001.

                                    FINDINGS OF FACT

        From the official documents in the file, sworn testimony of the witnesses, exhibits, and
other competent and admissible evidence, the undersigned finds as follows:

       1.     The parties received Notice of Hearing more than fifteen (15) days before the
hearing.

       2.      Petitioner was hired as a Correctional Officer with the North Carolina Department
of Corrections, Hoke Correctional Institution, on or about September 25, 2000.

       3.     Petitioner was issued a Probationary Certification (PRB 089504622) as a
Correctional Officer by Respondent effective October 9, 2000.

        4.    Petitioner was issued a General Certification (GNB 089504622) as a Correctional
Officer by Respondent effective October 9, 2001.

       5.     Petitioner’s Notice of Alleged Violation, dated February 19, 2002, alleges that on
or about September 25, 2000, Petitioner falsified the Personal History Statement [Commission
Form F-3(DOC)], when he did not annotate that he had been apprehended in April and May of
1976 on suspicion of misdemeanor larceny and second degree robbery. He checked the “No
Criminal Charges other than Minor Traffic Offenses” box. Petitioner similarly completed the
Report of Appointment/Application for Certification [Commission Form F-5A (CJP)].

        6.     Pursuant to the above omissions, Respondent recommends suspension of
Petitioner’s Correctional Officer Certification.

       7.     The offenses in question occurred in New York City in April and May of 1976.

        8.      Petitioner was not convicted of either offense, but rather was granted Youthful
Offender Status pursuant to New York Criminal Procedure Law, Section 720.35. That statute
reads, in relevant Part, as follows:

              (1).    A Youthful offender adjudication is not a judgment of a conviction
              for a crime or any other offense, and does not operate as a disqualification of
              any person so adjudged to hold public office or public employment or to receive
              any license granted by public authority….”

              (2).   Except where specifically required or permitted by statute or upon specific
              authorization of the court, all official records and papers, whether on file with
              the court, a police agency or the division of criminal justice services, relating


                                               4
               to a case involving a youth who has been adjudicated a youthful offender, are
               confidential and may not be made available to any person or public or
               private agency….”

       (Emphasis added).

       9.      New York Consolidated Law 2002, Article 20, Youthful Offender Procedure,
defines youth as “a person who is at least 16 years old and less than 19 years old.” Petitioner’s
birthday is November 6, 1957. Accordingly, he was less than 19 years old in April and May of
1976, and therefore met the criteria for youthful offender treatment.

        10.     Petitioner was advised by his attorney and further told by the juvenile court judge
that he was granted youthful offender status in both cases and has lived his life over the past 27
years with that understanding and belief.

       11.    Prior to joining the military, Petitioner used the name his mother had given him
from her previous husband, Michael Mak.

        12.    Petitioner immediately joined the United States Arm in 1976 upon being released
from juvenile detention. Petitioner underwent extensive and periodic background checks during
his 20-year military career and was granted both Secret and Top Secret security clearances.
Never was he confronted with any records pertaining to the 1976 offenses. This further affirmed
in his mind what his attorney had previously advised him of and what the judge had reiterated:
That he had been granted youthful offender status and that he had no obligation ever to disclose
any information pertaining to any arrest, charge or conviction. During Petitioner’s military
career, he served in three war-time environments: Grenada, Panama and Desert Shield/Desert
Storm, where he suffered severe loss of hearing. He received numerous military awards and
declarations and retired honorably.

        13.    When the Respondent confronted Petitioner in February 2002 regarding the 27-
year old offenses, that was the first time he had been confronted with the same in all that time.
The Respondent confronted Petitioner with the purported dates of the offenses which at first
glance he accepted as accurate. However, upon further review, and as was pointed out by
Petitioner’s counsel, and conceded by Respondent during the hearing of this matter, information
regarding the dates of the offenses were rather confusing. For example, the Criminal Court of
New York Certificate of Disposition indicated that the date of disposition regarding the charge of
second degree robbery was May 20, 1976. It further states that Petitioner was sentenced to six
months confinement. However, Respondent maintains that Petitioner was then arrested for Petty
Larceny on May 21, 1976 – a day after Petitioner had been sentenced to confinement. Clearly,
this information was inaccurate and confusing to all, including Petitioner.

        14.     It is indicative of this confusion that the Respondent and Petitioner stipulated to
one interpretation of the 1976 charges and conviction(s), and Respondent offers a completely
different version in its Proposed Findings of Fact. The parties stipulated to two separate charges,




                                                5
convictions, and sentences. Stipulations, ¶3. Respondent now offers the following Finding of
Fact:

       Petitioner immediately joined the United States Arm in 1976 upon being released from
       juvenile detention. Petitioner underwent extensive and periodic background checks
       during his 20-year military career and was granted both Secret and Top Secret security
       clearances. Never was he confronted with any records pertaining to the 1976 offenses.
       This further affirmed in his mind what his attorney had previously advised him of and
       what the judge had reiterated: That he had been granted youthful offender status and that
       he had no obligation ever to disclose any information pertaining to any arrest, charge or
       conviction.    During Petitioner’s military career, he served in three war-time
       environments: Grenada, Panama and Desert Shield/Desert Storm, where he suffered
       severe loss of hearing. He received numerous military awards and declarations and
       retired honorably.

Respondent’s last offered explanation is logical and may be correct. However, this court is
unable to find as a fact that either version is correct, due to lack of clear evidence.

        15.    On or about September 25, 2000, Petitioner completed the Personal History
Statement [Commission Form F-3(DOC)], and the Report of Appointment/application for
Certification [Commission Form F-5A (CJP)]. He omitted information pertaining to the April
and May 1976 matters consistent with his long-term understanding and belief – based on New
York’s Youthful Offender Statute, advice of counsel and instructions from the bench – that he
had no obligation to ever disclose any information pertaining to those matters.

        16.     Richard Squires is employed as an investigator for the Criminal Justice Standards
Division. His duties include investigating violations of the North Carolina Criminal Justice
Education Training Standards Commission rules, violations of the rules concerning certification
of law enforcement officers, correction officers, and juvenile justice officers. Mr. Squires was
assigned to investigate the above referenced 1976 offenses pertaining to Petitioner vis-a-vis his
responses on the Personal History Statement (PHS) and Application for Certification (AFC).
Regarding Question number 14 of the PHS, Mr. Squires stated that Petitioner checked the “No
Criminal Charges other than Minor Traffic Offenses” and that he did not list the 1976 Petty
Larceny and Second Degree Robbery offense. However, Mr. Squires conceded that the New
York and FBI criminal records checks and forms upon which the Respondent relied were
inaccurate with respect to Petitioner’s date of birth and age at the time of the April and May 1976
offenses, and that the forms were confusing regarding which offense occurred first and their
respective disposition dates. Moreover, Mr. Squires testified that he had no evidence to show
that Petitioner had not been granted Youthful Offender Status under New York precluding any
obligation on Petitioner’s part to disclose any information pertaining to 1976 offenses.

         17.    Scott Perry is the Director of the Criminal Justice Standards Division, which is
staff to the North Carolina Criminal Justice Education and Training Standards Commission. Mr.
Perry testified that based on Mr. Squires’ investigation, he (Mr. Perry) forwarded the case to the
standards committee for a standards review on the issue of whether Petitioner’s responses on the


                                                6
PHS and/or AFC constituted a knowing material misrepresentation. Mr. Perry testified that he
had no evidence to show that Petitioner had not been granted Youthful Offender Status under
New York precluding any obligation on Petitioner’s part to disclose any information pertaining
to 1976 offenses.

        18.     Petitioner has been employed with the Hoke Correctional Institution for the past
twenty-two (22) months. Petitioner acknowledges submitting a statement regarding the
aforementioned offenses. Petitioner stated that on advice of counsel, he entered guilty pleas, was
placed on probation for one offense, and sentenced to six months confinement in juvenile
detention on the other. Petitioner is unsure as to which offense occurred first. Petitioner was 18
years old at the time of both offenses. Petitioner stated that the judge and his legal representative
both informed him that the crimes would not be indicated on his record and that he had no duty
to ever disclose the matters.

        19.    Petitioner testified that within months of getting out of the juvenile detention in
1976, he enlisted in the United States Army. Petitioner underwent extensive background checks
during his 20-year military career, most of which was served as a military police officer. He was
granted both Secret and Top Secret security clearances. Never was he confronted with any
records pertaining to the 1976 offenses. This further affirmed in his mind that what his attorney
had previously advised him of and what the judge had reiterated: That he had been granted
Youthful Offender Status and that he had no obligation ever to disclose any information
pertaining to any arrest, charge or conviction. During Petitioner’s military career, he served in
three war-time environments: Grenada, Panama and Desert Shield/Desert Storm, where he
suffered severe loss of hearing. He received numerous military awards and declarations and
retired honorably. In addition, Petitioner has since earned two Associates Degrees, and is
currently pursuing a BS Degree in Criminal Justice.

        20.    It wasn’t until February 2002 that Mr. Carrion first learned that the agency
thought he had misrepresented the information he provided on the Personal History Statement
and Application for Certification. When he reported to the secretary's office, he was given the
purported dates of the above mentioned offenses and asked to respond to the same. Using the
dates provided, Petitioner states he responded as best he could remember from 27 years ago.

        21.    Since being employed at the Hoke Correctional Institution, Petitioner has received
favorable evaluations from his mentor and supervisors. He testified regarding an office
memorandum from his senior mentor, Mr. Otha L. Glover. Mr. Glover’s memorandum states,
“Officer Carrion displayed outstanding demeanor and professional conduct,” “...his performance
on F Block was outstanding,” and “...he successfully completed the mentor program and no
further development is required.” Pet. Exh. 2.

       22.    Similarly, Petitioner referred to another document written by the institution’s
Assistant Superintendent, Mr. Michael Cotten, a 26-year veteran with the Department of
Corrections. Mr. Cotten’s letter, dated February 12, 2002 reads as follows:




                                                 7
             “The purpose of this letter is to document Officer Carrion's work ethic
             and moral character that he reflects on the job. Officer Carrion has
             performed all of his duties at Hoke Correctional Institution in an
             acceptable manner. He has worked at Hoke for over a year and we have
             never had reason to question his integrity or his moral character. He has
             carried out his duties in a professional manner. Your careful
             consideration of the above information as related to this case will be
             appreciated.”

       23.      Mr. Cotten also testified at the hearing consistent with his earlier written
statement as it appears above.

        24.     Kristie Bennett is Petitioner’s unit manager at Hoke Correctional Institution. Ms.
Bennett testified that nothing in Petitioner’s performance or behavior since being employed at
Hoke Correctional Institution over the past 22 months has given her any reason to question
Petitioner’s integrity, honesty, or moral turpitude. She has no reason to believe that Petitioner
has engaged in any wrongdoing. She believes Petitioner’s performance is where it should be
given his time on the job and experience.

       25.     The Petitioner’s testimony was credible.

        26.      What New York Law was in 1976, it can not conclusively be divined, given the
conflicting nature of some of the statutes introduced and uncertainty regarding the efficacy of the
statutes at the relevant times. However, New York did have a Youth Offender Statue in place at
the relevant times and Petitioner reasonably believed he enjoyed the protections of the statue with
respect to his obligation to disclose matters pertaining to the offenses at issue.

       27.    Under New York Criminal Procedure Law, Section 720.35, New York
Consolidated Law Service, Section 720.10(1), “Youth” means a person charged with a crime
alleged to have been committed when he was at least sixteen years old and less than nineteen
years old. Accordingly, Youthful Offender status is available to persons up until they are 19
years old. Petitioner was 18 years old at the relevant times. Because Petitioner was granted
Youthful Offender Status, he was not obligated to reveal the offenses.

        28.    Petitioner had the actual belief that he had Youthful Offender Status, and that
these offenses were not to be disclosed.

        29.     Petitioner’s assertion that he actually believed he had been granted Youthful
Offender Status is believable for several reasons: (1) Petitioner’s credible demeanor in court; (2)
Petitioner testified he was told he had Youthful Offender Status by a judge and a lawyer; (3)
Petitioner’s testimony regarding the aforementioned judge and lawyer, in itself, is credible
because he further testified that the judge told him to go into the military and that is what he did
shortly after getting out of the juvenile detention center.




                                                 8
        30.     The Court is cognizant of the fact that in earlier periods judges, especially juvenile
court judges, commonly took it on themselves to be flexible and to give young people advice
about how to straighten out their lives, such as to enlist in the armed forces. Accordingly,
Petitioner’s testimony is credible and consistent with jurisprudential practices in the mid-1970's.
Further, Petitioner’s assertion that he had been granted Youthful Offender status is consistent
with the New York Law judicially noticed during the hearing.

        31.     The Petitioner’s twenty-year period in the military, during which time he
underwent criminal record checks and never had any criminal matters surface, and during which
time he was granted security clearances, including top secret clearances, tended to bolster any
belief Petitioner may have had that these matters were not something he was obligated to reveal.

        32.    Aside from whether, technically, New York Law absolutely establishes the
Youthful Offender status one way or the other, the dispositive issue concerns Petitioner’s
knowledge and belief following the 1976 offenses and when he provided the information
reflected on the Personal History Statement and Application for Certification. In light of the
foregoing, the Petitioner’s knowledge and belief was that he did not have to report the offenses.

        33.    As to the confusion over the sequence of the crimes, the court acknowledged the
concern such confusion may have caused the Commission. However, the court further found that
as to the testimony, that the confusion was genuine, Petitioner’s testimony was consistently
confused and did not appear contrived. The Court could not ascertain any advantage to Petitioner
from any of the confusion that was evident in his testimony regarding which offense occurred
first. Accordingly, the court does not find the confusion to affect Petitioner’s credibility.

       34.     The Petitioner is a good employee now.

                                   CONCLUSIONS OF LAW

        1.     The Office of Administrative Hearings has jurisdiction in this matter and both
parties received proper notice for the hearing.

        2.      The regulation upon which the Respondent has based its proposed suspension of
Petitioner’s certification is 12 NCAC 09G .0504(b)(6), which provides as follows:

                       The Commission may suspend, revoke or deny the certification of a
                       corrections officer which the Commission finds that … the certified officer
                       … has knowingly made a material misrepresentation of any information
                       required for certification or accreditation.
(emphasis added)

        3.     Petitioner made no knowing misrepresentation of information required for
certification.




                                                  9
        4.      Even if the Commission were to conclude that the misrepresentation, if any, was
knowing and material, under 12 NCAC 09G .0504 and .0505, the Commission nevertheless
could and should exercise its discretion to allow Petitioner to remain employed by the
Department of Correction, based upon (1) The passage of time (27 years) since the offenses
occurred, their seriousness notwithstanding; (2) the intervening period in which Petitioner has
shown exceptional service to his country in a time when the national mood and policy is to give
honor to those who so serve; and (3) he has given twenty years of service in which he obtained
numerous accommodations, which are attested to by official government documentation. The
paperwork that was submitted as Petitioner's Exhibit 6, including top secret clearance, tend to
establish Petitioner’s integrity and credibility.

                               PROPOSAL FOR DECISION

       Based upon the totality of the foregoing Findings of Fact and Conclusions of Law, it is
proposed that Petitioner’s certification as a correctional Officer not be suspended, revoked or
denied for any period of time.

                                           ORDER

      It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance
with North Carolina General Statute 150B-36(b).

                                          NOTICE

        The decision of the Administrative Law Judge in this contested case will be reviewed by
the agency making the final decision according to the standards found in G.S. 150B-26(b)(b1)
and (b2). The agency making the final decision is required to give each party an opportunity to
file exceptions to the decision of the Administrative Law Judge and to present written argument
to those in the agency who will make the final decision. G.S. 150B-36(a).

      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 25th day of September, 2002.


                                    _________________________________
                                    James L. Conner, II
                                    Administrative Law Judge




                                               10

								
To top