STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF HENDERSON 09 DOJ 3070

PAUL BRIAN EVINGTON, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA CRIMINAL JUSTICE )

EDUCATION AND TRAINING )

STANDARD COMMISSION, )

Respondent. )

On October 1, 2009, Administrative Law Judge Beecher R. Gray heard this contested case in Raleigh, North Carolina. This case was heard after Respondent requested, under N.C. Gen. Stat. § 150B-40(e), the 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

For Petitioner: R. Daniel Boyce

Boyce & Isley, PLLC

107 Fayetteville Street, Suite 500 (27601)

Post Office Box 1990

Raleigh, NC 27602-1990

Telephone: (919) 833-7373

Facsimile: (919) 833-7536

For Respondent: Jane A. Gilchrist, Esq.

Assistant Attorney General

NC Department of Justice

Law Enforcement Liaison Section

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

Telephone: (919) 716-6725

Facsimile: (919) 716-6760

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: 26 through 30, 33-35

For Respondent: 1 through 25

ISSUES

(1) Whether Respondent substantially prejudiced Petitioner’s rights in finding probable cause to deny Petitioner’s certification for failing to comply with the minimum standards for certification as a law enforcement officer as set forth in 12 NCAC 9A.0204(b)(2) and 12 NCAC 9B.0101(3).

(2) Whether Respondent had probable cause to find that Petitioner failed to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B.0100, and, if so, whether Respondent substantially prejudiced Petitioner’s rights by finding that Petitioner failed to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B.0100.

(3) Whether Respondent had probable cause to find that Petitioner lacked good moral character under N.C. Gen. Stat. § 17C-10 and as determined by a thorough background investigation, and, if so, whether Respondent substantially prejudiced Petitioner’s rights by finding that Petitioner lacked good moral character under N.C. Gen. Stat. §17c-10 and as determined by a thorough background investigation.

(4) Whether Respondent substantially prejudiced Petitioner’s rights in finding probable cause exists to deny Petitioner’s certification because the North Carolina Sheriff’s Education and Training Standards Commission denied Petitioner’s certification, 12 NCAC 9A.0204(b)(14).

(5) Whether any or all of Respondent’s actions exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously and failed to act as required by law or rule.

FINDINGS OF FACT

Stipulated Facts

  1. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, to certify criminal justice officers and to revoke, suspend, or deny such certification.
  1. Petitioner applied for certification as a law enforcement officer with the Asheville Police Department. The Asheville Police Department submitted to the Criminal Justice Standards Division a Report of Appointment/Application for Certification, Form F5A, for Petitioner on December 7, 1994. (Respondent's Exhibit 1)
  1. Petitioner was issued a probationary certification (PRA XXXXX6693) by the Commission effective December 7, 1994 and general certification (GNI XXXXX6693) effective December 7, 1995 to serve as a law enforcement officer with the Asheville Police Department. (Respondent's Exhibits 2 and 3)
  1. On September 23, 1997, Petitioner provided a written statement to the Asheville Police Department regarding the situation where while on duty, he picked up a white female, took her back to the office, and she performed oral sex on him. (Respondent’s Exhibit 4)
  1. The following information is from Petitioner's statement to the Asheville Police Department on September 23, 1997:
  1. The incident at issue here is that Petitioner picked up a female who stated that she needed a ride.
  1. While in transport, the female passenger became friendly with Petitioner and made sexual overtures.
  1. Petitioner transported the female [to] a district office of the Asheville Police Department where she performed oral sex on Petitioner.
  1. After the encounter, the female asked Petitioner for $3.00 to purchase a pack of cigarettes.
  1. Petitioner provided the female the requested $3.00 for cigarettes.
  1. In his written statement, Petitioner stated the incident was "a mistake" and "a one and only time." He stated, "I understand that I made a mistake and I am willing to take any consequences that come."
  1. The Asheville Police Department submitted to the Criminal Justice Standards Division a Report of Separation, Form F5B, for Petitioner on October 1, 1997. (Respondent's Exhibit 5)
  1. The Report of Separation indicated that the reason for separation was resignation. The Report indicated that the agency would not consider this individual for reappointment. The agency's comments indicated that “under NO circumstances would I ever consider this person for rehire.” (Respondent’s Exhibit 5)
  1. By letter dated February 2, 1998, Petitioner requested that he be allowed to keep his law enforcement certification. (Respondent’s Exhibit 6)
  1. Jeffrey L. Slagle, Field Services Coordinator for the Criminal Justice Standards Division, submitted an Investigative Memorandum regarding Petitioner’s separation from the Asheville Police Department. This summary along with supporting documentation was presented to the Members of the Standards Committee of Respondent on March 5, 1998. (Respondent’s Exhibit 7)
  1. By letter dated March 13, 1998, Petitioner was notified that the Standards Committee found probable cause to suspend his certification as a law enforcement officer based upon Petitioner’s failure to meet and maintain the minimum employment standard which requires every certified law enforcement officer in the State of North Carolina to be of good moral character. (Respondent’s Exhibit 8)
  1. The finding that Petitioner failed to be of good moral character was based upon evidence that was presented to the Standards Committee that there was reason to believe that on or about, or prior to, September 22, 1997, Petitioner was involved in an incident with an adult female which occurred at an Asheville Police Department district office or substation. The evidence indicated that while on-duty and in police uniform Petitioner picked up a female subject in his patrol vehicle, within the City of Asheville, transported the female in his patrol vehicle to a police department district office and this female performed oral sex on him at the police office. (Respondent’s Exhibit 8)
  1. By letter dated March 31, 1998, Petitioner requested an administrative hearing. (Respondent’s Exhibit 9)
  1. By letter dated August 5, 1998, Respondent withdrew his request for an administrative hearing. (Respondent’s Exhibit 10)
  1. In 2004, Petitioner applied for certification as a deputy sheriff with the Buncombe County Sheriff’s Department. (Respondent’s Exhibit 11) An F-3 was submitted to the North Carolina Sheriffs’ Education and Training Standards Commission as a part of the application process. (Respondent’s Exhibit 12)
  1. The Sheriffs’ Standards Division requested that Petitioner provide an explanation for his response to question #26 on the F-3. Petitioner provided two statements to the Sheriffs’ Commission, one dated March 30, 2004 and one dated July 1, 2004. (Respondent’s Exhibit 13)
  1. A memorandum, dated August 3, 2004, concerning the application of Petitioner for certification with the Sheriffs’ Commission was submitted to the Probable Cause Committee of the Sheriffs’ Commission. (Respondent’s Exhibit 14)
  1. Petitioner submitted a written statement dated August 9, 2004 which was submitted to the Probable Cause Committee of the Sheriffs’ Commission. (Respondent’s Exhibit 15)
  1. By letter dated September 3, 2004, Petitioner was notified that the Sheriffs’ Commission found probable cause to deny his application for justice officer certification on the basis that his certification had been suspended or revoked by the North Carolina Criminal Justice Education and Training Standards Commission and because of Petitioner’s lack of good moral character. (Respondent’s Exhibit 16)
  1. By letter dated October 28, 2004, Sheriff Bobby Medford, who had submitted Petitioner’s application for certification to the Sheriffs’ Commission, was notified that Petitioner was denied certification and had not requested an administrative hearing. (Respondent’s Exhibit 17)
  1. On December 15, 2008, Respondent received a Report of Appointment Form F-5A from the Hendersonville Police Department requesting certification for Petitioner. (Respondent’s Exhibit 18)
  1. In response to a request from the Criminal Justice Standards Division, Petitioner provided written statements, dated December 30, 2008, concerning his application to the Buncombe County Sheriff’s Office; status of certification with the North Carolina Sheriffs’ Education and Training Standards Commission; resignation from the Asheville Police Department; and his moral character. (Respondent’s Exhibit 19)
  1. Upon request from the Criminal Justice Standards Division, the Hendersonville Police Department provided a copy of the Petitioner’s Personal History Statement, Form F-3, (Respondent’s Exhibit 20) and a copy of the Mandated Background Investigation Form, Form F-8, (Respondent’s Exhibit 21).
  1. Sixteen (16) characters letters/letters of reference were submitted on behalf of Petitioner which [the] Training Standards Commission had copies of prior to the Probable Cause Committee's finding that probable cause existed to deny Petitioner's certification because of lack of good moral character. (See Petitioner's Exhibits 26a through 26p attached hereto)
  1. The Training Standards Commission has nine (9) statements from Petitioner, from 1997 to 2008 about the incident surrounding his separation from the Asheville Police Department (September 23, 1997; February 2, 1998; March 31, 1998; July 1, 2004; March 30, 2004; August 9, 2004; December 30, 2008; December 30, 2008; and April 23, 2009). (See Petitioner's Exhibits 27a through 27i attached hereto)
  1. Petitioner received from the Respondent a Proposed Denial of Law Enforcement Officer Certification, dated March 30, 2009. The proposed denial was based upon a probable cause finding that Petitioner had failed to comply with the minimum standards for certification as a law enforcement officer set forth in 12 NCAC 09A .O204(b)(2) and 12 NCAC 9B .0101(3). (Respondent's Exhibit 22) Probable cause was found that Petitioner failed to meet the minimum employment standard that requires that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. §17C10 and as determined by a thorough background investigation.
  1. The Probable Cause Committee determined that a second basis to deny Petitioner’s certification existed under 12 NCAC 09A .O204(b)(14). The proposed denial was based upon a probable cause finding that Petitioner had been denied certification or had such justice officer certification suspended or revoked by the North Carolina Sheriffs’ Education and Training Standards Commission.
  1. By letter dated April 23, 2009 Petitioner requested an administrative hearing. (Respondent's Exhibit 23)
  1. Petitioner gainfully has been y employed since leaving law enforcement with numerous companies, namely T.J. Maxx Co. (October, 1997 through May, 1998), JCPenney Co., Inc. (May, 1998 through May, 2000 and again in October, 2004 through February, 2009), Variety Wholesalers, Inc. (May, 2000 through October, 2002), J.Crew Co. (October, 2002 through October, 2004), Belk (February, 2009 through April, 2009), Kmart (May, 2009 through July, 2009); and Kohl's (August, 2009 through current) in loss prevention.
  1. Petitioner has completed Basic Law Enforcement Training ("BLET") twice since 1997: April, 2003 and August, 2008 at Blue Ridge Community College. (See Petitioner's Exhibits 28a and 28b attached hereto)
  1. In lieu of live testimony, the following affidavits were submitted on behalf of Petitioner. (See Petitioner's Exhibits 29a through 29c attached hereto):
  1. By affidavit, Cynthia Cathcart has stated, "I find Petitioner to be of good moral character and can attest to his reputation within the community for being truthful and honest."
  1. By affidavit, Greg Cathcart has stated, "I find Petitioner to be of good moral character and can attest to his reputation within the community for being truthful and honest."
  1. By affidavit, Rebecca Nelms Evington has stated, "I find Petitioner to be of good moral character and can attest to his reputation within the community for being truthful and honest."
  1. That 12 NCAC 09A .0204(b)(2) provides that the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer:

(2) fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B .0100 for the category of the officer's certification or fails to meet or maintain one or more of the minimum training standards required by 12 NCAC 9B .0200 or 12 NCAC 9B .0400 for the category of the officer's certification.

  1. That 12 NCAC 09B .0101(3)provides that every criminal justice officer employed by an agency in North Carolina shall:

(3) be of good moral character pursuant to G.S. 17C10 and as determined by a thorough background investigation.

  1. That 12 NCAC 09A .0204(b)(14) provides that the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer:

(14) has been denied certification or had certification suspended or revoked by the North Carolina Sheriffs' Education and Training Standards Commission.

Adjudicated Facts

1. Both parties received notice of this hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

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

3. Under 12 NCAC 9A.0204(b)(2) and 12 NCAC 9B.0101(3), “[t]he Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer:

(2) fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B.0100 for the category of the officer’s certification … , to wit: 12 NCAC 9B.0101(3), which requires that every criminal justice officer employed by an agency in North Carolina shall be good moral character pursuant to N.C. Gen. Stat. § 17C-10…”

Incident at Issue

4. Paul Brian Evington was hired by the Asheville Police Department in December, 1994. As part of that hiring process, Petitioner applied for and obtained his law enforcement certification from the Criminal Justice Education and Training Standards Commission in December, 1994. Petitioner was employed with the Asheville Police Department from December, 1994 until September, 1997.