STATE OF NORTH CAROLINA
COUNTY OF GRANVILLE
RONALD CALVIN CAMP JR.,
Petitioner,
v.
N.C. SHERIFFS’ EDUCATION
AND TRAINING STANDARDS COMMISSION,
Respondent. / )
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ADMINISTRATIVE HEARINGS
07 DOJ 0727
PROPOSAL FOR DECISION

On September 25, 2007, Administrative Law Judge Shannon R. Joseph heard this case in Raleigh, North Carolina. This case was heard after Respondent requested, under N.C.Gen.Stat. § 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:Amber M. Liggon, Attorney, Watson, Dunlow & Wilkinson, P.A.

Respondent:John J. Aldridge, III, Special Deputy Attorney General

E. Mike Heavner, Assistant Attorney General

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer by the North Carolina Sheriffs’ Education and Training Standards Commission?

STATUTES AND RULES

The North Carolina Sheriffs’ Education and Training Standards Commission (“The Sheriffs’ Commission”) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.

12 NCAC 10B.0204(c)(1) and (2) state that the Sheriffs’ Commission may deny the certification of a justice officer when the Commission finds that the applicant has:

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

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

FINDINGS OF FACT

  1. Both parties are properly before this Administrative Law Judge. Jurisdiction and venue are proper, both parties timely received notice of hearing, and Petitioner received by certified mail the proposed Denial of Justice Officer’s Certification letter, which was mailed by Respondent on March 19, 2007.
  2. Petitioner Ronald C. Camp, Jr. (“Petitioner”) was born in 1972. He completed the 10th grade and earned his GED in 1993. He participated in some community college training. He wanted to be an EMT but did not pass the state tests.
  3. Petitioner was appointed as a detention officer through the Vance County Sheriff’s Office on August 24, 2000. Approximately six (6) years later, Petitioner sought a transfer to GranvilleCounty because his family had moved. Petitioner left the Vance County Sheriff’s Office in July 2006, and currently works as a detention officer at the Granville Sherriff’s OfficeDetentionCenter.
  4. As part of his employment application with the Vance County Sheriff’s Department, Petitioner completed a Personal History Statement (Form F-3) on or about August 23, 2000.
  5. Question No. 44 of the Sheriffs’ Commission Form F-3 reads, “Have you ever used marijuana? YES  NO  If yes, what were the circumstances?” When Petitioner completed this Personal History Statement on August 23, 2000 under oath, he responded “No” to Question No. 44.
  6. When Petitioner completed Form F-3 in August 2000, he was given the form with no written or verbal instructions.
  7. Years later, on or about July 24, 2006, Petitioner completed another Personal History Statement in connection with seeking a transfer to the Granville County Sheriff’s Office. This Personal History Statement was again completed by Petitioner under oath. In 2006, Petitioner responded to Question No. 44, by checking the “Yes” box. Further, in response to the part of the question asking him to list the circumstances of his use of marijuana, he indicated “experimentation as a teenager.”
  8. When Petitioner completed Form F-3 in July 2006, First Sergeant Edward Cash (“Sgt. Cash”)of the Granville County Sheriff’s OfficeDetentionCenterexplained questions on Form F-3 to Petitioner, giving instructions related to each. With regard to Question No. 44, Sgt. Cash instructed Petitioner that if he had ever tried marijuana, experimented with it, or even puffed one marijuana cigarette, he should answer “yes” to that question. Petitioner testified that after Sgt. Cash’s instructions, Petitioner understood that the question encompassed experimentation with marijuana. He then recalled an incident at a party when he was approximately sixteen (16) years old where some of his friends were smoking marijuana and he tried the marijuana. Petitioner therefore responded “yes” to Question No. 44 in 2006.
  9. When the staff for Respondent reviewed and compared Petitioner’s 2006 Personal History Statement with his 2000 Personal History Statement, there was a noticeable discrepancy between the responses to Question No. 44. Staff for Respondent asked Petitioner to submit a statement explaining this discrepancy.
  10. Petitioner responded in a sworn Affidavit, dated November 28, 2006. In his affidavit, Petitioner explained that, when he filled out his 2000 Personal History Statement, the form was just handed to him and no explanation or instruction was provided. He stated that he answered Question No. 44 to the best of his knowledge but that, in 2000, he had misunderstood the question about drug use because, as he read it, the question’s wording did not suggest that one-time experimentation would be responsive to the question. He attributed the difference in his answers to his misunderstanding of the question in 2000, contrasted with the meaning of the question as it was explained to him when he completed the form in 2006. He explained that he had never regularly or repeatedly used any type of recreational drug. He stated that when he was approximately 16 years-old, he tried marijuana one time with some friends at a party, it made him sick, and he has not touched it since then.
  11. Although not made under oath, Petitioner presented a second written statement dated April 9, 2007 regarding the circumstances of the discrepancy in his answers to Question No. 44 in 2000 and in 2006. Petitioner’s April 2007 statement maintains the same explanation as his November 2006 affidavit.
  12. Petitioner testified under oath at the hearing of this contested case and, while adding further detail, Petitioner’s testimony provided substantively the same explanation as his November 2006 affidavit and his April 2007 written statement. He described his use of marijuana. He stated that, when he was in high school, he puffed a marijuana cigarette with friends at a party at a friend’s house. He said he took one puff and did not like it. He further stated that it gave him a headache and made him feel lightheaded. He could not remember details related to the incident, including Petitioner could not recall many of the surrounding details, including at whose house he was, what year it was, what time of day or night it was, how many people were at the party, or how many people tried the marijuana.
  13. Petitioner testified that in 2000 he answered “no” to Question No. 44 because he understood the word “use” in the question to contemplate regularity, with “use” connoting more than one experiment.When considering whether Petitioner had engaged in any conduct that would amount to use of marijuana as Petitioner understood the question, the single incident in high school did not come to mind, such that he did not remember the incident at the time of completing Form F-3 in 2000. Petitioner further testified that, based on his understanding of Question No. 44 in 2000, even if he had remembered trying marijuana when he completed Form F-3, he still would have answered “no” because at that time he did not understand the question to cover his one-time experimentation. He stated that it was not until 2006, when Sgt. Edward Cash explained the question, that he remembered his one experiment with a marijuana cigarette. He further stated that it was also not until 2006 when Sgt. Cash explained the question that he understood that “use” was meant to include one-time experimentation.
  14. Having had the opportunity to observe Petitioner’s demeanor, behavior, and manner while testifying, the undersigned credits Petitioner’s testimony that his response to Question No. 44 in 2000 was a result of his understanding of the word “use” to contemplate some regularity or repetition. Petitioner appeared to attempt to answer questions at the hearing forthrightly, speaking evenly and calmly, and his account has remained consistent despite vigorous cross-examination by both lawyers for Respondent. Petitioner’s limitations in education and reading comprehension skills further support the finding that, in 2000 when Petitioner completed the form without elucidation from the Vance County Sheriff’s Office, he did not understand Question No. 44 to seek information regarding one-time ingestion as well as regular use. These limitations were perceptible from Petitioner’s testimony: among other indicia, he showed difficulty on more than one occasion following and understanding questions posed by Respondent’s counsel, as well as his own lawyer. In addition, Petitioner’s diminished aptitude for written question and answer performance is reflected by his failure to pass the state tests to become an EMT. Based on observation of Petitioner’s response to questioning and consideration of his limited educational background and aptitude, it appears likely that Petitioner would not readily comprehend the multiple meanings that the term “use” is intended to convey in Question No. 44 of Form F-3.
  15. Further, the definition of “use” bolsters the credibility of Petitioner’s position and illustrates that Petitioner’s understanding is neither nonsensical nor implausible. Specifically, when the word “use” is employed in conjunction with alcohol or drug use, multiple dictionaries reflect that regular use is contemplated. See, e.g. Webster’s II New College Dictionary 1215 (1995) (“To take or partake of regularly, as tobacco, alcohol or drugs”) (emphasis added).
  16. In 2000, Petitioner believed he answered Question No. 44 on Form F-3 truthfully and accurately. Since completing Form F-3 in 2006, Petitioner has acted in good faith in addressing the circumstances giving rise to the different answers to Question No. 44.
  17. Petitioner also presented character evidence tending to show his truthfulness, and to corroborate both his account of the circumstances and his difficulty with reading comprehension. On Petitioner’s behalf, Sgt. Cash, Joe Nalevaiko and Robin Camp testified.
  18. Sgt. Cash is Petitioner’s supervisor at GranvilleCountyDetentionCenter and has been employed there for approximately eleven (11) years. He is regularly involved in the hiring process, and was involved hiring Petitioner.
  1. Sgt. Cash testified that it is part of his procedure during the application process to explain certain questions to applicants. Specifically, Sgt. Cash testified that when he explains Question No. 44, he informs applicants that if they have ever tried, experimented with, or even taken one puff of marijuana, they should answer “yes” to Question No. 44. Sgt. Cash confirmed that he explained Question No. 44 to Petitioner. Sgt. Cash thereby corroborated Petitioner’s account of the circumstances surrounding Petitioner’s completion of Form F-3 in 2006.
  1. Sgt. Cash indicated that he was aware of the discrepancy between Petitioner’s two completed Forms F-3. He testified that he verified and confirmed with VanceCounty that little or no verbal instructions were given when Petitioner was asked to complete Form F-3 in August 2000.
  1. Sgt. Cash testified that Petitioner is a hard-working, dependable employee and that it would be in the best interest of GranvilleCountyDetentionCenter for Petitioner to continue his employment there.
  1. Joe Nalevaiko is a Senior Correctional Officer with the Federal Bureau of Prisons in Butner, North Carolina. He has worked there for approximately one and a half years, and before that he was a Correctional Officer in WarrenCounty for approximately four (4) years.
  1. Mr. Nalevaiko testified that he has known Petitioner for approximately six (6) years and testified favorably regarding Petitioner’s honesty, truthfulness, dependability and overall character.
  1. Robin Camp is the Petitioner’s wife. She has known him for seventeen (17) years, and they have been married for approximately eleven (11) years. She teaches exceptional students at ButnerElementary School and has done so for approximately five (5) years. She has never known Petitioner to use drugs. She testified that Petitioner has some problems with reading comprehension and writing. For example, sometimes he does not know what a word means or how to spell it. She stated that he is honest and has a good work ethic. She helped him complete the 2000 Personal History Statement. He asked her to write down the answers he provided. At the time the form was completed, she was unaware of his one-time marijuana experimentation.
  1. The undersigned has considered and accepted the testimony of First Sgt. Cash, Joe Nalevaiko and Robin Camp. Each of these witnesses was credible and believable, and their testimony helpful and persuasive. Each of these witnesses has testified, in various degrees, that Petitioner is an honest, hardworking, trustworthy person and has otherwise corroborated Petitioner’s explanation for the discrepancy between the two answers he provided to Question No. 44 in Form F-3.
  1. Respondent proffered no evidence that rebutted or called this testimony into question. Apart from questioning Petitioner, Respondent presented only one witness: Julia Lohman, Director of the Sheriffs’ Standards Division. Ms. Lohman credibly testified about the Sheriff’s Standards’ Division’s review and the contents of Petitioner’s certification file. She testified that the Commission considers honesty and integrity to be essential attributes of all justice officers. She explained the materiality of an applicant truthfully answering Question No. 44. In contrast to the evidence that tended to corroborate Petitioner’s account, however, Respondent presented no evidence that undermined Petitioner’s explanation of the circumstances surrounding his answers to Question No. 44. Further, Ms. Lohman testified that knowledge of criminal acts is relevant to the hiring process because employing sheriffs and Respondent need to know about the details of any prior criminal conduct of applicants when making hiring decisions and how recent such criminal conduct took place. Respondent, however, proffered no evidence that Petitioner’s one-time, teenage experimentation with marijuana was material, such that knowledge of it would have resulted in denial of certification.

CONCLUSIONS OF LAW

1.The parties properly are before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2.Knowingly means “[w]ith knowledge; consciously; intelligently; willfully; intentionally” and is “equivalent to an averment that one knew what he was about to do, and, with such knowledge, proceeded to do the act [alleged].” Black’s Law Dictionary 784 (5th ed. 1979); cf. State v. Holloway, 69 N.C. App. 521, 525, 317 S.E.2d 14, 16 (1984) (“knowingly” “means that defendant knew what he was about to do, and, with such knowledge, proceeded to do the act charged”).

3.Petitioner did not knowingly make a material misrepresentation of information required for certification when he answered “No” to Question No. 44 on Form F-3 in 2000.

4.Honesty and integrity are essential attributes of a justice officer and in viewing the record as a whole, Respondent must rely on many factors, not just one, in determining the existence of these attributes in applicants for certification. In Petitioner’s case, his honesty is confirmed by evidence that Petitioner has an excellent reputation for honesty and truthfulness, as attested to by Sgt. Cash and Joe Nalevaiko.

5.Substantial evidence exists to conclude that Petitioner’s application for certification as a justice officer should be allowed.

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

DECISION

The following proposal for decision is fact specific to this case and to this Petitioner.

Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned recommends that Respondent approve Petitioner’s justice officer certification.

NOTICE AND ORDER

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

This the 17th day of October 2007.

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Shannon R. Joseph

Administrative Law Judge

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