STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF COLUMBUS 05 DOJ 0995

Glenn Eric Nealy
Petitioner
vs.
N. C. Criminal Justice Education
and Training Standards Commission
Respondent / )
))
)
)))) / PROPOSAL FOR DECISION

THIS MATTER was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on November 21, 2005, in Lumberton, North Carolina.

APPEARANCES

Petitioner: Gregory A. Bullard

Attorney and Counselor at Law

Bullard and Bullard, PLLC

PO Box 1182

Pembroke, NC 28372

Respondent: Ashby T. Ray, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether the Respondent has just cause to suspend Petitioner’s certification as a correctional officer.

RULES AT ISSUE

12 NCAC 09G .0504(b)(6)

12 NCAC 09G .0504(b)(9)

12 NCAC 09G .0505(b)(5)

12 NCAC 9G .0505(b)(7)

12 NCAC 09G .0302

FINDINGS OF FACT

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 May 24, 2005.

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. On November 14, 1992, Petitioner was charged with Misdemeanor Assault on a Female, in violation of N.C.G.S. § 14-33(B)(2) in Columbus County. This charge was voluntarily dismissed on November 30, 1992.

4. On November 6, 1993, Petitioner was charged with Misdemeanor Assault on a Female in violation of N.C.G.S. § 14-33(B)(2) in Columbus County. Petitioner pled guilty to this charge on November 16, 1993, was found guilty and placed on probation for two (2) years.

5. On October 4, 1994, the Petitioner completed and signed a Personal History Statement (Form F-3) as part of his application process for the NC Department of Correction.

6. Question 47 of the Personal History Statement (Form F-3), completed and signed by Petitioner, asks about previous criminal charges and convictions. The instructions immediately prior to question 47 read:

NOTE: Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol or drugs), failure to stop in the event of an accident, and driving while license permanently revoked or permanently suspended.

Answer all of the following questions 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 answer “Yes”. You should answer “No”, only if you have never been arrested or charged, or your record was expunged by a judge’s court order. (Emphasis in original.)

7. Question 47 of the Personal History Statement (Form F-3), which was completed and signed by Petitioner on October 4, 1994, as part of his application with the NC Department of Correction, asks, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” In response to this question, Petitioner checked, “NO”.

8. Petitioner signed, and had notarized, the Personal History Statement (Form F-3), which contained the following language immediately above Petitioner’s notarized signature, “I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omission of information will subject me to disqualification or dismissal.”

9. Petitioner had full knowledge and memory of the 1992 Assault on a Female charge that was dismissed and of the 1993 Assault on a Female conviction when he completed and signed the Personal History Statement (Form F-3).

10. Petitioner was still serving a period of probation for the 1993 Assault on a Female conviction when he completed and signed the Personal History Statement on October 4, 1994.

11. On October 24, 1994 Petitioner signed a REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F-5A) as part of his application with the NC Department of Correction.

12. The REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F-5A) has a section for the applicant to list prior criminal history. The instructions for this section read, “CRIMINAL OFFENSE RECORD Exclude minor traffic offenses unless they were charged at the same time you were charged with DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked or suspended or duty to stop in event of an accident.” Petitioner did not list any criminal charges or convictions in this section, or anywhere else on the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F-5A).

13. Petitioner signed the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION, which contained the following language immediately above his signature, “I further understand and agree that any omission, 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; now or later.”

14. On November 10, 1994, Petitioner was issued a Probationary Certification (PRB XXXXX4629) as a correctional officer.

15. On November 10, 1995, Petitioner was issued a General Certification (GNB XXXXX4629) as a correctional officer.

16. On February 5, 2002, while certified as a correctional officer through the Respondent, Petitioner was charged with Communicating Threats, in violation of N.C.G.S. § 14-277.1, in Columbus County, North Carolina. Petitioner was found not guilty on March 4, 2002.

17. Petitioner was dismissed by the NC Department of Correction on November 22, 2004. As a result of this dismissal, the NC Department of Correction submitted a Report of Separation (PD-105) to the Respondent.

18. The reason given on the Report of Separation (PD-105) for Petitioner’s dismissal was, “DISMISSED DUE TO UNACCEPTABLE PERSONAL CONDUCT AND GROSSLY INEFFICIENT JOB PERFORMANCE.”

19. Upon receipt of the Report of Separation (PD-105), Edward Zapolsky, an Investigator for Respondent, conducted a criminal history check on Petitioner, which resulted in the discovery of the 1992 Assault on a Female charge, the 1993 Assault on a Female conviction, and the 2002 charge of Communicating Threats.

20. Investigator Zapolsky then reviewed the Petitioner’s REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION and requested Petitioner’s Personal History Statement (Form F-3). It was at this time that Investigator Zapolsky determined that Petitioner had failed to list either Assault on a Female charge and that Petitioner had failed to notify the Respondent of his 2002 charge of Communicating Threats.

21. Investigator Zapolsky contacted Nicolle Grissom with the NC Department of Correction and determined that there was no record that Petitioner ever reported the 2002 charge of Communicating Threats to the NC Department of Correction.

22. Correctional officers are required to notify both the Respondent and their employing agency of all criminal offenses for which the officer is charged, arrested, pleads no contest, pleads guilty, or of which the officer is found guilty.

23. Petitioner failed to notify Respondent of the 2002 charge of Communicating Threats and its disposition, as required by 12 NCAC 09G .0302(a).

24. Petitioner failed to notify his employing agency, the NC Department of Correction, of the 2002 charge of Communicating Threats and its disposition, as required by 12 NCAC 09G .0302(b).

CONCLUSIONS OF LAW

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction is proper, and both parties received notice of hearing.

2. 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 correctional officers and to deny, revoke, or suspend such certification.

3. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the 1992 charge of Assault on a Female (92 CR 007801) and the 1993 conviction for Assault on a Female (93 CR 007555) on the Personal History Statement (Form F-3), which he completed and signed on October 4, 1994, as part of his application process with the NC Department of Correction.

4. There is sufficient evidence that Petitioner knowingly made a material misrepresentation of information required for certification, in violation of the Commission’s rules, by failing to list the 1992 charge of Assault on a Female (92 CR 007801) and the 1993 conviction for Assault on a Female (93 CR 007555) on the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F-5A), which Petitioner signed on October 24, 1994.

5. Petitioner was required by 12 NCAC 09G .0302 to notify Respondent of any criminal charges that were brought against him while he held officer certification.

6. There is sufficient evidence that Petitioner violated 12 NCAC 09G .0302 by failing to notify the Respondent of his criminal charge of Communicating Threats, which was filed in Columbus County on February 5, 2002.

7. There is sufficient evidence that Petitioner violated 12 NCAC 09G .0504(b)(6), which states that the Commission may suspend the certification of a correctional officer when the Commission finds the certified officer has knowingly made a material misrepresentation of any information required for certification or accreditation.

8. The Commission has sufficient grounds under 12 NCAC 09G .0504(b)(6), 12 NCAC 09G .0504(b)(9) , 12 NCAC 09G .0505 (b)(5) and 12 NCAC 09G .0505(b)(7) to suspend the Petitioner’s certification for a period of not less than three years.

Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:

PROPOSAL FOR DECISION

It is hereby PROPOSED that the Petitioner’s correctional officer certification be suspended for a period of not less than three years for making a material misrepresentation of fact on both the Personal History Statement and the Report of Appointment, as well as for failing to notify the Respondent of a criminal charge of Communicating Threats while certified as a correctional officer.

NOTICE

The agency making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Recommended Decision, to submit proposed findings of fact, and to present oral and written arguments to the agency. N.C. Gen. Stat. § 150B-40(e). The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

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 15th day of December, 2005.

______

Fred G. Morrison Jr.

Senior Administrative Law Judge

2