05 DOJ 0770 by ashrafp

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									STATE OF NORTH CAROLINA                               IN THE OFFICE OF
                                                ADMINISTRATIVE HEARINGS
COUNTY OF WAYNE                                          05 DOJ 0770
______________________________________________________________________________

BENNY KEITH JOHNSON,                                )
    Petitioner,                                     )
                                                    )
       v.                                           )         PROPOSAL FOR DECISION
                                                    )
NORTH CAROLINA SHERIFFS’                            )
EDUCATION AND TRAINING                              )
STANDARDS COMMMISSION,                              )
     Respondent.                                    )


      THIS MATTER came on for hearing on September 20, 2005 before the undersigned
Administrative Law Judge, Augustus B. Elkins II, in Goldsboro, North Carolina. This case was
heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), designation of an
Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter
150B of the North Carolina General Statutes.


                                      APPEARANCES

              Petitioner:    Robert Morgan Smith, Esq.
                             Attorney for the Petitioner
                             Smith and Strickland PLLC
                             Post Office Box 1657
                             Goldsboro, N.C. 27533

              Respondent: John J. Aldridge, III, Esq.
                          Assistant Attorney General
                          Department of Justice
                          Law Enforcement Liaison Section
                          9001 Mail Service Center
                          Raleigh, N.C. 27699-9001

                                            ISSUE

       Is the Petitioner’s justice officer’s certification subject to revocation and should the
Commission revoke or suspend the justice officer certification of Petitioner pursuant to 12 NCAC
10B .0204(d)(1).?



                                              1
         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 witnesses, 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.      Petitioner received by certified mail the Proposed Suspension of Justice Officer
Certification letter mailed by Respondent Sheriffs’ Commission on March 21, 2005. Petitioner
properly requested a hearing and all parties received Notice of Hearing.

        2.      Pursuant to 12 NCAC 10B .0204(d)(1), the Respondent Sheriffs’ Commission may
revoke, suspend, or deny the certification of a justice officer when the Commission finds that the
applicant for certification or the certified officer has committed or been convicted of a crime or
unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred
after the date of initial certification.

        3.     The misdemeanor criminal offense of larceny by trick, in violation of N.C. General
Statute § 14-72 constitutes a Class B misdemeanor offense as defined in 12 NCAC 10B .0103(10)(b)
of the Respondent’s rules and the Class B misdemeanor manual.

        4.      Pursuant to 12 NCAC 10B .0103(2), convicted or conviction means and includes the
entry of (1) a plea of guilty; or (2) a verdict or finding of guilt by a jury, judge, magistrate, or other
duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or
military; or (3) a plea of no contest, nolo contender, or the equivalent.

        5.     Subsequent to an investigation by the North Carolina State Bureau of Investigation,
the Petitioner was initially, on February 16, 2004, charged with the felony offense of obtaining
property by false pretenses, in violation of North Carolina General Statute § 14-100.

        6.      Petitioner entered an “Alford Plea” pursuant to North Carolina v. Alford, 400 U.S. 25
(1970). Petitioner pled pursuant to Alford believing that it was in his best interest to enter into a plea
agreement rather than risk contesting felony charges at trial. Petitioner believed, based on the
information provided by his attorney, that the Wake County District Attorney was about to indict
Petitioner for each time he rented a room during the investigation period which would have resulted
in multiple felony charges or counts.


                                                  2
         7.     Pursuant to the plea arrangement with the State, the Petitioner on November 30, 2004
plead guilty to, and was found guilty of, the Class B misdemeanor offense of larceny by trick, in
violation of N.C. General Statute § 14-72, in return for the felony offense of obtaining property by
false pretenses being dismissed. The Class B misdemeanor larceny offense to which the Petitioner
plead guilty alleged that, on or about January 11, 1998, the Petitioner did unlawfully and willfully
steal, take and carry away the personal property of another without their consent, to wit; United
States currency in the amount of $2,271.99 from the North Carolina Department of Correction, by
means of a trick.

       8.      In response to the Respondent’s First Set of Interrogatories and Request for
Admissions, the Petitioner admitted to entering a plea of guilty on November 30, 2004 to the
misdemeanor charge of larceny by trick, and to paying restitution to the North Carolina Department
of Correction in the amount of $2,271.99 pursuant to his guilty plea.

        9.     Petitioner is now a self-employed contractor working part-time for the Wayne County
Sheriff’s Office as a Special Deputy. Petitioner was previously employed full-time as a Correctional
Officer with the North Carolina Department of Corrections. Petitioner’s prior law enforcement
experience started when he was appointed as a deputy sheriff with the Wayne County Sheriffs’
Office on January 26, 1987 and began working full-time as a deputy sheriff with the Wayne County
Sheriff’s Office. He received general certification as a deputy sheriff through the Respondent on
February 2, 1988. His experience included six months courtroom duty, assignment to the Patrol
Division for approximately three to four years, and assignment to the Detective Division for
approximately three to four years.

        10.    The Petitioner resigned from his deputy sheriff position on January 29, 1993, in order
to accept employment with the North Carolina Department of Correction. The Petitioner was
thereafter appointed as a part-time deputy sheriff through the Wayne County Sheriff’s Office on
December 12, 1994. He was issued general certification based on this part-time appointment on
December 30, 1994.

        11.     While employed with the North Carolina Department of Corrections, Petitioner was
promoted to the rank of Sergeant and held certification as a training instructor. Petitioner testified
that he never received any disciplinary actions against him while employed at either of the above-
mentioned agencies. There is no evidence to contradict Petitioner’s testimony, or to support an
inference that Petitioner ever received any disciplinary actions against him while employed at the
above-mentioned agencies.

       12.      By letter dated February 24, 2004, Ted Sauls, then Deputy Director for the
Respondent, received written notification from Sheriff Carey Winders of the Wayne County Sheriff’s
Office notifying him that the Petitioner was to be charged with the felony offense of obtaining
property by false pretenses in Raleigh, North Carolina on February 23, 2004. This notification letter
referenced that the incident occurred in January 1998. Based upon this notification, Mr. Sauls


                                                3
continued to periodically check the files of the Wake County Clerk of Superior Court to ascertain the
status of the Petitioner’s criminal charges. Pursuant to Mr. Saul’s request, the Wake County Clerk of
Superior Court forwarded several certified court documents, under a cover letter dated February 9,
2005. These documents showed that the Petitioner was charged on November 8, 2004 with
misdemeanor larceny by trick. These documents also reflected that the Petitioner plead guilty, on
November 30, 2004, to this misdemeanor offense, in return for the felony offense(s) of obtaining
property by false pretenses, being dismissed.

        13.     The guilty plea and finding of guilty was taken before Respondent’s Probable Cause
Committee, who thereafter, found probable cause to believe that the Petitioner’s certification as a
justice officer was subject to be revoked, based upon his conviction of the Class B misdemeanor
offense of larceny by trick.

        14.     In July 2002, an investigation was initiated by the North Carolina State Bureau of
Investigation at the request of Wake County District Attorney, Colon Willoughby. The purpose of
the investigation was to look into allegations that a Department of Correction Training Coordinator,
William Goodman, had allegedly submitted false travel reimbursement requests for lodging expenses
that he had not incurred. Goodman was employed by the North Carolina Department of Correction
from July 1983 to July 2002. At the time of his resignation from the Department of Correction in
2002, Goodman was the training coordinator for the Eastern Training Region. Five trainers, which
included the Petitioner, worked for Goodman in the eastern region. Special Agent Karen Nenstiel
was assigned to conduct this investigation. Special Agent Nenstiel, in addition to being a sworn law
enforcement officer, is a certified public accountant and a certified fraud examiner.

        15.    As a result of the allegations, the Internal Audit Division of the Department of
Correction (DOC) was requested to audit Goodman’s travel. This internal audit was submitted to
Special Agent Nenstiel for her reviews in the criminal investigation. The audit revealed that
Goodman had requested reimbursement for monies that he had not expended in lodging expenses. In
interviews by Special Agent Nenstiel with representatives of Bullard Realty, it was determined that
Goodman would reserve a condominium for a particular block of time and then request a “memo”
from Bullard Realty for the dates on which he personally occupied the unit. As the condominium
reserved for Goodman was owned by his mother, he never paid any money into Bullard Realty for its
use. Ms. Debbie Divers, a rental manager with Bullard Realty, told Special Agent Nenstiel that
Goodman was provided these memos at Goodman’s request, which recited the number of nights he
had spent in the condominium, and reflected the Department of Correction lodging reimbursement
rate. Ms. Divers stated that, despite this memo, Goodman had not paid any monies into Bullard
Realty and that she was told what to write on the memo by Goodman.

         16.    As a consequence of the Goodman audit, the Internal Audit Division of the DOC
audited all travel reimbursement requests for the training staff in the eastern training region. It was
determined through this audit that another trainer, Herbert Bryant, had also submitted false travel
reimbursements. It was determined by Special Agent Nenstiel in the course of her investigation that
at the time of his false vouchers, Bryant was experiencing personal problems and needed a place to


                                                 4
live. Bryant advised the investigator that Goodman assisted him in getting a place to stay at Pelicans
Watch through Bullard Realty. Bryant would arrange to rent a property through Bullard Realty for a
month, at rates which were substantially lower than the authorized lodging reimbursement allowed
by State guidelines. Bryant would in turn submit a travel reimbursement request up to the maximum
of the state guidelines, allowing him to make money. Mr. Bryant admitted in his interview with
Special Agent Nenstiel his wrongdoing. In the course of his cooperation with Special Agent
Nenstiel, Mr. Bryant identified the Petitioner as also submitting false travel reimbursement requests
similar to his. As a result of the Bryant interview, Special Agent Nenstiel requested the Audit
Division conduct an audit of the travel reimbursement requests submitted by the Petitioner.

        17.     Petitioner testified that he was initially asked by Agent Karen Nenstiel to be a witness
against William Goodman in a criminal case that was being investigated by the North Carolina State
Bureau of Investigation. Petitioner arranged for a room at Neuse Correctional Center in Goldsboro,
North Carolina to meet with Agent Nenstiel. Petitioner met with Agent Nenstiel freely and
voluntarily in an attempt to cooperate with the investigation. In their meeting, Agent Nenstiel began
asking him about the Eastern Training Region and then about William Goodman. Agent Nenstiel
then asked, or as Petitioner testified, “basically accusing me of overcharging for nights that I had
stayed there – started questioning me about this 7A sheet, I think it was, she had with her.” (Tr. at
pg. 155).

       18.    Petitioner was at no time able to review the statement or documents that was written
by or provided by Agent Nenstiel and labeled as Petitioner’s statement pursuant to his interview.
Agent Nenstiel conducted one interview with Petitioner.

       19.   Petitioner provided copies of records to the Sheriff’s Education and Training
Standards Commission voluntarily by submitting them to Ted Sauls, Deputy Director of the
Commission. (Tr. at pg. 162). This included vouchers for travel for times from 1998 on.

        20.     The findings of the investigation/audit, which covered the period of January 1998
through March 1999, was that the Petitioner had submitted approximately 27 travel reimbursement
requests for which the Petitioner was overpaid for lodging in a total amount of $2,271.99. This
figure was derived by retrieving the Petitioner’s account status from Bullard Realty, which showed
his out-of-pocket payments for reserving property in a block of time at Pelican Watch through
Bullard Realty. (Respondent Exhibit 8) The monies spent by the Petitioner to rent this property for a
particular block of time was then divided by the number of days he had reserved the room in order to
determine the per night cost. This figure was then compared to the actual number of nights the
Petitioner spent in service to the State on this property multiplied by the amount claimed by the
Petitioner (the maximum allowable lodging rate allowed by the State, either $43.00 or $60.00). A
comparison of these two transactions showed the overpayment received by the Petitioner.
(Respondent Exhibit 7A).

       21.   Debbie Divers (a rental manager with Bullard Realty) testified that the Petitioner
would come into Bullard Realty and reserve a particular room at Pelican Watch for a block of days


                                                 5
for a certain sum. During the block of days that the Petitioner would rent this room, the room was
unavailable to anyone else. One time as the audit/investigation showed, the Petitioner rented Unit
702 at Pelican Watch from January 11, 1998 through January 31, 1998 for a total sum of $400.00.
The Petitioner paid $400.00 out of his own money. The Petitioner got a receipt from Bullard Realty
for the $400.00. For the 20 days the Petitioner reserved the room in January 1998, the room was
unavailable for anyone else’s use. As the room was rented for 20 nights (January 11-31) at $400.00,
the per night rate would be $20.00. Ms. Divers testified that this was an off-season rate that Bullard
Realty would offer to any individual during the off-season for a long block of time. Testimony
indicated that the per night rate would have been more if it had been booked on a per night basis as
opposed to the block of time basis.

        22.     Continuing with the time in January 1998, the travel reimbursement requests of
Petitioner found at Respondent’s Exhibit 7, reflect that the Petitioner, while having the property
reserved for a total of 20 nights in January 1998, stayed on the property for a total of 11 nights on
State business. Despite the cost being $20.00 per night for the room (because it was a reduced rate
for the block of time), the Petitioner submitted travel vouchers for the 11 nights he stayed there on
State business. With his travel vouchers, he submitted a memo prepared by Ms. Divers reflecting the
nights of his stay and showing a rate of $43.00. The Petitioner was then reimbursed by the
Department of Correction, a total of $473.00 (11 nights at $43.00). In actuality, the Petitioner only
expended $400.00. The investigation found that he should only have received $220.00 (11 nights at
$20.00) on business with the State.

        23.    Ms. Divers stated that the Petitioner would come to her and request a memo reflecting
the actual number of nights that he had spent in the property while working for the State. She would
then write the State lodging reimbursement limit on this same memorandum. Petitioner provided
these numbers to her and told her what to write on the memo. Ms. Divers testified that this State
reimbursement figure did not reflect the actual per night rate that the Petitioner had actually paid.

         24.    Petitioner testified that he had a monthly training schedule listing training locations.
Sometimes Petitioner would train in Fort Fisher, sometimes in Salemburg, and sometimes Southern
Pines or Elizabeth City. (Tr. at pages 156-157). Petitioner testified that he filed travel vouchers for
the nights stayed at hotels when he was training. Petitioner testified to the following: “I may be
assigned a four-week school at Fort Fisher for twenty days during the four-week time, but I may only
be teaching there actually eleven, eleven, twelve days, and I may get pulled off of there and go to
another training site to do other training or I may actually be assigned to another training site during
that thirty days.” (Tr. at page 156). Petitioner stated that wherever he was training, he would only
submit travel vouchers for the actual days that he stayed in a hotel. Petitioner testified that he had
records specifically documenting his location and activities during training days and he did not
believe that Agent Nenstiel attempted to obtain copies of these records.

       25.    The Petitioner stated that he would provide Debbie Divers with his training schedule
and she would book his room and charge him a price for the room. Petitioner would often pay in
advance by check or credit card. After he received a statement of the account he would submit the


                                                 6
statement along with a travel voucher for reimbursement. Petitioner would obtain a statement from
Bullard Realty for each night he stayed at Pelican Watch rather than one statement covering all the
nights that he booked. He stated he did this so he could verify that he only incurred expenses for the
nights that he actually stayed.

        26.      Ms. Divers denied the Petitioner having ever shown her his training schedule in order
to set aside a room for a particular block of time. Ms. Divers testified that she would only reserve
the room for the days that she was told to by the Petitioner. She explained that she did not know that
she was doing anything wrong by writing out the memo at the direction of the Petitioner, as she was
unfamiliar with the Department of Correction lodging reimbursement policy.

        27.    Debbie Divers produced a document later marked Respondent’s Exhibit 8, which
showed that the room Petitioner stayed in was booked for twenty nights. Petitioner, during direct
examination, testified that he “had never heard of the twenty nights, no, sir…until I was talking with
the SBI Agent. She is the one that told me I had it for twenty nights. That’s the first time I was
aware that I had it for twenty nights.” (Tr. at pg. 167). Petitioner testified that Debbie Divers never
informed him that he was renting the property for any amount of time greater than what his training
schedule showed. When asked by Attorney for Respondent, Petitioner denied ever signing an
agreement allowing him to stay for the entire month. (Tr. at pg. 168) The Petitioner testified at the
Administrative Hearing that he had no knowledge of how the total numbers of days were reserved
for the rooms on the dates in question.

        28.     Agent Karen Nenstiel did not travel to Pelican Watch to specifically interview Debbie
Divers about Petitioner. (Tr. at pg. 112). Agent Nenstiel’s interview with Ms. Divers was focused
on William Goodman and Herbert Bryant, both who actually lived near Forth Fisher. Agent Nenstiel
did not ascertain whether or not Petitioner ever stayed at Pelican Watch at any time other than when
he was assigned for training purposes. Agent Nenstiel interviewed Petitioner and did not provide
Petitioner an opportunity to verify his statements to her. Additionally, Agent Nenstiel shredded her
notes prior to the Administrative Hearing; and thus the notes she had written during the interview
were not available to be validated by Petitioner.

        29.     Regarding another time of lodging in the audit/investigation, Debbie Divers admitted
that Petitioner paid more than forty-three dollars per night for his room. Specifically, Petitioner
stayed in a one-bedroom at Sea Colony during the off-peak season. Petitioner stayed September 8-
10, 1998 and Ms. Divers testified that the weekly rate would have been four twenty-five. When Ms.
Divers reviewed Respondent’s Exhibit 7H, she testified that the receipt was her writing and that the
amount listed (State rate) on the receipt was not the correct nightly rate. The nightly rate would have
been in the “sixty dollar range.” She admitted that Petitioner, assuming the rate was forty-three
dollars per night, would have to pay out-of-pocket for the additional room expense. (Tr. at pgs. 55-
56).

       30.    The results of the investigation/audit found that the Petitioner submitted
approximately 27 travel reimbursement requests with lodging expenses for various times between


                                                 7
January 1998 and March 1999 which resulted in his being overpaid by the State a total of $2,271.99.
Each of these requests included a memo reflecting a per-nightly rate in excess of the calculated costs
found to be correct by the audit.

         31.      Mr. Dave Thompson of the Internal Audit Division of the Department of Correction
testified that it is the policy of the Department of Correction that an individual is entitled to recover
only his out-of-pocket lodging expenses, up to a maximum of $43.00 or $60.00, for time spent in
service to the State. The Petitioner acknowledged that this was a correct statement of the policy and
that he understood this policy.

        32.     Mr. Thompson testified that he prepared a spreadsheet using data provided by the
State Bureau of Investigation and Bullard Realty. He was not aware of any data except for those
provided, and he was not provided data that would have shown whether or not Petitioner was
training at another location during the months that were claimed. (Tr. at pg. 92). David Thompson
did not request data from any other time in Petitioner’s career, just the time period at the Fort Fisher
location. (Tr. at pg. 93).

         33.    In June 2003, Special Agent Nenstiel interviewed the Petitioner concerning his travel
reimbursement requests for the period of January 1998 through March 1999. The Petitioner admitted
to Special Agent Nenstiel that he knew “I could not make money on lodging.” In an attempt to
explain his billing regarding lodging, the Petitioner stated that he did not interpret his January 1998
stay as $20.00 per night. The Petitioner explained that in his view, since he only stayed 11 nights on
the property in service of the State that he was justified in billing the State for $43.00 a night, even
though he did not pay this rate. The Petitioner acknowledged that even under his rationale, he was
still paid more than the actual $400.00 that he had expended for January 1998. The Petitioner
acknowledged to Special Agent Nenstiel that when his supervisor, William Goodman, signed and
approved his travel reimbursement request for the timeframe in question, Goodman knew that the
Petitioner was not paying $43.00 per night for the room.

        34.    Petitioner was provided a receipt for his rental of the properties for each block of time
he reserved them. Despite having this receipt, the Petitioner came to Ms. Divers and requested a
separate memo which reflected the nights he stayed in the property on State business, and reflected
the State reimbursement rate. This memorandum was prepared at the request of the Petitioner and
was submitted with each of his travel reimbursement requests in question.

         35.   The Petitioner acknowledged at the Administrative Hearing that for the timeframe in
question, the Department of Correction had three direct bill hotels that he could stay at. A direct bill
hotel is one where the Petitioner could stay and not have to expend any monies from his own pocket
as the hotel would bill the Department of Correction directly. The Petitioner would then only have to
submit a travel voucher for his meals. One of the direct bill hotels was in Carolina Beach and two
others were closer to Wilmington. The Petitioner declined to stay at any of these facilities due to
noise problems and other reasons, and chose to voluntarily stay at Pelican Watch and pay for the
room out of his own pocket and seek reimbursement.


                                                  8
         36.     A number of individuals testified to the Petitioner’s good character. Beverly Deans,
Director of the Wayne Community College Basic Law Enforcement Training Program, testified that
she knew Petitioner prior to him becoming a deputy sheriff for the Wayne County Sheriff’s
Department. She testified that he had a good reputation as a both a law enforcement officer and
citizen in the community. Ms. Deans stated that she recalled him volunteering for 4H groups during
the mid 1980’s. (Tr. at pg. 200).

       37.     Ms. Deans employed Petitioner as an instructor in the Basic Law Enforcement
Training Program and the Detention Officer’s Basic Program. Petitioner’s reputation as an instructor
was characterized as “very professional.” Petitioner’s ratings from the student evaluations were
always in the above average to excellent category. Ms. Deans continues to employ Petitioner after
having complete knowledge of the proceedings against him. (Tr. at pgs. 202-203).

        38.    Captain Owen Jackson and Captain William “Buddy” King both testified that they
have known the Petitioner for many years through his service as a deputy with the Wayne County
Sheriff’s Office.

        39.    Captain Jackson is retired from the Wayne County Sheriff’s Department. He
supervised Petitioner several times during his tenure at the Wayne County Sheriff’s Department.
Most recently Captain Jackson supervised Petitioner while Petitioner was a Special Deputy working
in the Civil Division of the Wayne County Sheriff’s Department. Captain Jackson described
Petitioner’s work as “meticulous.” Captain Jackson also said, “He was the kind of fellow that got his
papers done. They were done when they were supposed to be done. They were done the right way
and delivered to the right person at the right place. I didn’t get complaints on him.” (Tr. at pgs. 208
and 211).

        40.    William King testified that he has been employed at the Wayne County Sheriff’s
Department for approximately twenty-one years. Captain King has known Petitioner since “1987 or
before.” Captain King testified that he got to know Petitioner very well, both personally and
professionally. Captain King supervised Petitioner for approximately three to five years while
Petitioner was on shift as a uniformed officer. He had never known Petitioner to do anything wrong
and believed that Petitioner did an outstanding job. (Tr. at pg. 216). Captain King stated that he
would like to have more officers just like Petitioner. He stated Petitioner has a good reputation
among the other officers and is willing to help others if they need assistance. Captain King, with
knowledge of the legal actions pending against Petitioner, stated that he would like for Petitioner to
continue to serve papers for him. (Tr. at pg. 219-220).

        41.     Sheriff Carey Winders of Wayne County also testified on behalf of the Petitioner. He
stated that he has known the Petitioner for 14 years and they have worked cases together. Sheriff
Winders was acquainted with Petitioner when the Sheriff was a detective with the Goldsboro Police
Department and Petitioner was a detective with the Wayne County Sheriff’s Department. The
Petitioner has worked for Sheriff Winder’s as a reserve officer since 1994. Petitioner serves as a


                                                 9
Special Deputy working at ballgames as security, and working serving criminal warrants, and
serving civil papers. During the time Petitioner has worked for Sheriff Winders there have been no
complaints filed against Petitioner. (Tr. at pg. 224-25).

        42.     Sheriff Winders testified that when Petitioner’s legal issues arose, that Petitioner
came to him to inform him of the issues. Sheriff Winders advised Petitioner to contact Ted Sauls at
the Commission. Sheriff Winders testified that Petitioner consulted with him and after discussing
the criminal case against Petitioner, Petitioner decided it was in his best interest to enter a plea for
misdemeanor offenses rather than risk a trial involving multiple felonies. Sheriff Winders testified
that the case as he had heard during trial appears to be “fuzzy math.” Sheriff Winders believed that
after hearing the evidence there was a lot a speculation with regard to the State’s case. (Tr. at pg.
226-29).

         43.    Sheriff Winders continues to allow Petitioner to work at the Sheriff’s Department
“because he is a trustworthy person, does a good job for [the Sheriff], …and I trust him to do the job
as he’s continued always to do.” (Tr. at pg. 228). Sheriff Winders wants Petitioner to continue to
work with the Wayne County Sheriff’s Department. He intends to continue to employ Petitioner as
long as the Commission allows Petitioner to remain certified as a peace officer. Sheriff Winders
continues to hold Petitioner in high regard and continues to find him trustworthy and dependable.
(Tr. at pg. 229-31).



        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 of
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.      Pursuant to 12 NCAC 10B .0204(d)(1), the Respondent Sheriffs’ Commission may
revoke, suspend, or deny the certification of a justice officer when the Commission finds that the
applicant for certification or the certified officer has committed or been convicted of a crime or
unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred
after the date of initial certification.

        3.      The Petitioner stands convicted of the Class B misdemeanor offense larceny by trick,
in violation of North Carolina General Statute § 14-72. This conviction constitutes a violation of 12
NCAC 10B .0204(d)(1). The Respondent has the authority to revoke Petitioner’s Justice Officers
certification.


                                                 10
        4.      Pursuant to 12 NCAC 10B .0205(2)(h), the Commission may either reduce or suspend
the periods of sanction or substitute a period of probation following an administrative hearing when
extenuating circumstances brought out at the administrative hearing warrant such a reduction or
suspension, in the discretion of the commission.

        5.      The Undersigned is struck by the fact that Petitioner was provided a receipt for his
rental of the properties for each block of time he reserved them. Understanding that he could
perhaps save the State money by reserving a block of time as opposed to a nightly rental; the
evidence is silent as to why this was not discussed for review and approval with those in authority
prior to reserving the time, or certainly prior to submitting a travel voucher..

         6.     Despite having a receipt showing payment, the Petitioner came to the rental agency
and requested a separate memo which reflected the nights he stayed in the property on State business,
which appears to be an unusual request. More strange, however, is a request that the rental agency
recite the State reimbursement rate as opposed to its actual rental rate for the particular lodging.

         7.     As the party attempting to change the status quo, Respondent has the burden of proof
as to its actions against Petitioner. The responsible party for the burden of proof must carry that
burden by a greater weight or preponderance of the evidence. Black’s Law Dictionary cites that
“preponderance means something more than weight; it denotes a superiority of weight, or
outweighing.” The finder of fact cannot properly act upon the weight of evidence, in favor of the one
having the onus, unless it overbear, in some degree, the weight upon the other side.



       BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned
makes the following:

                                 PROPOSAL FOR DECISION

        It is the decision of the Undersigned that Respondent has carried its burden of proof by a
preponderance of the evidence that Petitioner’s certification be revoked for a period of five years.
The evidence of this case upholds Respondent’s contention that Petitioner committed or has been
convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B
misdemeanor and which occurred after the date of initial certification, without explanation
discomfiting Respondent’s reasons for its decision. Due to the excellent character references
provided to the Undersigned on behalf of the Petitioner, and in light of the fact that Petitioner was
found guilty of a misdemeanor, the Undersigned recommends that the Commission consider a time
less than the five year period based on findings consistent with past comparable cases.




                                               11
                                                 NOTICE

     The agency making the final decision in this contested case 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.G.S. § 150B-40(e).

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

     A copy of the final agency decision or order shall be served upon each party personally or by
certified mail addresses to the party at the latest address given by the party to the agency and a copy
shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a).


        IT IS SO ORDERED.

        This the 23rd day of January, 2006.



                                               _____________________________________
                                               Augustus B. Elkins II
                                               Administrative Law Judge




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