State of North Carolina s103

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROBESON 09 DOJ 5650

KENNETH MAIDENE, JR., )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA SHERIFFS’ )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

)

______)

In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge Donald W. Overby heard this contested case in Fayetteville, North Carolina on February 10, 2010.

APPEARANCES

Petitioner: Kenneth Maidene, Jr.

834 Lovette Road

Lumberton, North Carolina 27536

Respondent: Jane Ammons Gilchrist, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is Respondent’s proposed suspension of Petitioner’s justice officer certification based upon Petitioner’s knowingly making a material misrepresentation of any information required for certification and knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtaining certification from the North Carolina Criminal Justice Education and Training Standards Commission supported by a preponderance of the evidence?

RULES AT ISSUE

12 NCAC 10B.0204(c)(1)

12 NCAC 10B.0204(c)(2)

12 NCAC 10B.0205(2)(b)

12 NCAC 10B.0205(2)(c)

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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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 witness, 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. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to suspend justice officer certification letter mailed by the Respondent on September 25, 2009.

2. The North Carolina Sheriffs’ Education and Training Standards 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 revoke, suspend, or deny such certification.

3. 12 NCAC 10B .0204(c)(1) provides that the Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer has 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.

4. 12 NCAC 10B .0204(c)(2) provides that the Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer has 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.

5. The Robeson County Sheriff’s Department submitted to the Sheriffs’ Standards Division a Report of Appointment, Form 4, for Petitioner to be a detention officer on September 23, 2008. (Respondent’s Exhibit 3)

6. As a part of the application process with the Robeson County Sheriff’s Department, Petitioner completed a Personal History Statement, Form F-3, on September 19, 2008. (Respondent’s Exhibit 4)

7. In completing the Personal History Statement Form F3, Petitioner signed the Personal History Statement before a Notary Public on September 19, 2008. Petitioner's signature is below the following statement:

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omissions of information will subject me to disqualification or dismissal.

8. Immediately above Question 43 on the Personal History Statement Form F3 (Respondent's Exhibit 4) is a note, which states:

NOTE: In questions 43, 44, 45, and 46, the words “drink or used” mean one time or more, including experimentation. If any answer is YES, give FULL and COMPLETE DETAILS.

9. Immediately above Question 44 on the Personal History Statement Form F3 (Respondent's Exhibit 4) is a note, which states:

NOTE: Answer all of the following questions completely and accurately. Any falsification or misstatement of facts may be sufficient to disqualify you from certification. Applicants for the position of Justice Officer must disclose all prior criminal conduct.

10. Question 44 on the Personal History Statement Form F-3 (Respondent’s Exhibit 4) asks, “Have you ever used marijuana?”

11. In response to Question 44, Petitioner checked the box adjacent to "Yes." Petitioner wrote, “I have experimented with marijuana in college on a few different occasions. Have not used marijuana in the last 3 to 4 years.” (Respondent's Exhibit 4)

12. Petitioner attended college from 1997 through 2005. Petitioner graduated from UNC Pembroke in December, 2005. (Respondent’s Exhibit 4)

13. Prior to applying for certification with the Respondent, Petitioner was certified as a correctional officer through the North Carolina Criminal Justice Education and Training Standards Commission.

14. The North Carolina Department of Correction submitted to the Criminal Justice Standards Division a Report of Appointment/Application for Certification, Form F5A, for Petitioner on or about February 27, 2006. (Respondent's Exhibit 1)

15. In response to Question 3 on page one of Form F-5A which asks, “Have you ever used any illegal drugs?” Petitioner circled “No.” Form F-5A does not have the detailed instructions for this question which are on Respondent’s Form F-3. (Respondent’s Exhibit 1)

16. In completing the Report of Appointment, Petitioner signed the Report of Appointment before a Notary Public on February 10, 2006. On page two of Form F-5A Petitioner's signature is below the following statement:

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, 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 omissions, 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. ... (Respondent’s Exhibit 1)

17. Petitioner was issued Probationary Certification on March 23, 2006 and General Certification on February 27, 2007 to work as a correctional officer with the North Carolina Department of Correction. (Respondent’s Exhibit 2)

18. When Petitioner applied for certification with the Respondent, the Report of Appointment and Personal History Statement that were completed as a part of his application with the Robeson County Sheriff’s Department were compared to the Report of Appointment that Petitioner completed as a part of his application with the North Carolina Department of Correction.

19. Petitioner provided Respondent a written statement, dated May 26, 2009, explaining the discrepancy between his answer to Question 44 on the Personal History Statement, Form F-3, that he completed as a part of his application with the Robeson County Sheriff’s Department and his answer to Question 3 on the Report of Appointment/Application for Certification, Form F5A, that he completed as a part of his application with the North Carolina Department of Correction. (Respondent's Exhibit 5)

20. Petitioner’s statement indicated he made a mistake on his “Criminal Justice Education and Training Standards Commission personal history statement. I read the question wrong and responded to the question incorrectly. However, I never meant to misrepresent myself it was a honest mistake.” (Respondent’s Exhibit 5)

21. Petitioner received from the Respondent Notification of Probable Cause to Deny Justice Officer Certification, dated September 25, 2009, for knowingly making material misrepresentations of any information required for certification from the Respondent or the North Carolina Criminal Justice Education and Training Standards Commission. The proposed denial was also for knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever obtaining certification from the Respondent or the North Carolina Criminal Justice Education and Training Standards Commission. (Respondent's Exhibit 6)

22. The proposed denial was based upon the inconsistencies between Petitioner’s answer to Question 44 on the Personal History Statement, Form F3, that he completed as a part of his application with the Robeson County Sheriff's Department and his answer to Question 3 on the Report of Appointment/Application for Certification, Form F5A, that he completed as a part of his application with the North Carolina Department of Correction. (Respondent’s Exhibit 6)

23. By letter dated September 30, 2009, Petitioner requested an administrative hearing in this matter. In his request for a hearing, Petitioner stated that he did not understand the question on the personal history statement form for DOC. He further stated that he answered “no” to the question of whether he ever used illegal drugs because he did not consider himself a “user” of any illegal drugs. When completing the personal history statement for the Robeson County Sheriff’s Department, it was explained to him by Lt. Brenda Thomas that when answering the question as to whether he had ever used marijuana he needed to answer “yes” even if he had only used marijuana one time. (Respondent's Exhibit 7)

24. The Respondent’s F-3 Form is 15 pages long with very specific instructions. He had the assistance of a superior officer in completing the F-3 Form. The North Carolina Criminal Justice Education and Training Standards Commission’s F-5A Form is 2 pages long with practically no instructions, and he did not have the assistance of anyone in completing the F-5A Form.

25. Petitioner responded to Request for Admissions submitted to him by Respondent. Petitioner admitted that he completed the Report of Appointment/ Application for Certification for the Department of Correction and answered “no” when asked about illegal drug use. Petitioner further admitted that he had in fact used marijuana prior to the completion of this form. (Respondent's Exhibit 8)

26. Petitioner further admitted that he completed the Personal History Statement for the Robeson County Sheriff’s Department and answered “yes” when asked whether he ever used marijuana.

27. Brenda Thomas testified that she is a lieutenant with the Robeson County Detention Center. She told Petitioner that the question regarding use of marijuana asks if you had ever used marijuana and that it does not matter how many times you used it. Thomas did not think Petitioner intentionally lied. She further testified that Petitioner is a good officer, he does not have any problems and he carries himself in a professional manner. Petitioner is currently working toward receiving his law enforcement officer certification by attending Basic Law Enforcement Training.

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 over this contested case. The parties received proper notice of the hearing in this 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.

3. A preponderance of the evidence exists to support the conclusion that Petitioner applied for certification from the Respondent in September, 2008.

4. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he failed to indicate “Yes” in response Question 3, which asks “Have you ever used any illegal drugs?” on the Report of Appointment/Application for Certification, Form F-5A (DOC) signed by Petitioner on February 13, 2006 and completed as a part of his application for certification with the North Carolina Department of Correction.

5. 12 NCAC 10B .0204(c)(2) provides that the proscribed acts be committed “knowingly and designedly.” This language requires that the actor has the requisite knowledge, that he knew what he was about to do, and that he proceeded with the specific intention of committing one of the enumerated acts with the specific purpose of obtaining or attempting to obtain certification. The language requires the specific knowledge of the falsehood, and an actual knowledge and intent to deceive, causing another to do something that he or she would not otherwise have done. It requires a specific intention to perpetuate some subterfuge or fraud in order to obtain the certification.

6. A preponderance of the evidence does not exist to support the conclusion that Petitioner knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained certification from the North Carolina Criminal Justice Education and Training Standards Commission when he failed to indicate "Yes" in response to Question 3, which asks "Have you ever used any illegal drugs?" on the Report of Appointment/Application for Certification, Form F5A (DOC) signed by Petitioner on February 13, 2006 and completed as a part of his application for certification with the North Carolina Department of Correction.

7. The Respondent may properly suspend Petitioner’s certification pursuant to 12 NCAC 10B .0204(c)(1) for material misrepresentation. Pursuant to 12 NCAC 10B .0205(2)(b), the period of sanction shall be not less than five (5) years for material misrepresentation of any information required for certification.