COUNTY OF MECKLENBURG
JOHN THOMAS SUTTLE,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF JUSTICE, COMPANY POLICE PROGRAM,
Respondent.
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ADMINISTRATIVE HEARINGS
05 DOJ 1026
DECISION
APPEARANCES
Petitioner: Roy H. Wiggins, Esq.
Attorney for Petitioner
PO Box 36291
Charlotte, NC 28236-6291
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 Respondent has just cause to deny Petitioner’s commission as a company police officer.
RULES AT ISSUE
12 NCAC 02I .0202(4)
12 NCAC 09A .0204(b)(6)
12 NCAC 02I .0213(a)(4)
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12 NCAC 02I .0202(9)
12 NCAC 02I .0212(c)(1)
12 NCAC 02I .0213(b)(2)
FINDINGS OF FACT
1. Respondent found probable cause to deny Petitioner’s company police officer’s commission as a result of Petitioner’s material misrepresentation of facts on the Personal History Statement (Form F3) which he completed as part of his application with Metro Special Police on or about February 25, 2005. (Respondent’s Exhibit 4)
2. Respondent found probable cause to deny Petitioner’s company police officer commission for failure to meet the minimum requirement that all criminal justice officers must be of good moral character, in compliance with 12 NCAC 02I .0202(9) and N.C.G.S. § 17C-10. (Respondent’s Exhibit 4)
3. On the Personal History Statement (Form F3) completed and signed by Petitioner on or about February 25, 2005, for Metro Special Police Department, Petitioner responded by writing “N/A” to question 26, which reads, “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details”. (Respondent’s Exhibit 1)
4. Question 31 of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police, reads, “List all jobs you have held in the last ten years. Put your present or most recent jobs first. If you need more space, you may attach additional sheets...” In response to this question Petitioner listed five (5) previous jobs. None of the entries by Petitioner contained any information about his employment with Harris McBurney, Inc. in 1998. (Respondent’s Exhibit 1)
5. Question 45 of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police, reads, “Have you ever used any other illegal drugs, including but not limited to opiates, pills, heroin, cocaine, crack, LSD, etc?” In response to this question, Petitioner checked “NO”. (Respondent’s Exhibit 1)
6. Page ten (10) of the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police, contains the following paragraph just above Petitioner’s notarized signature:
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I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.
(Respondent’s Exhibit 1)
7. On May 12, 2005 Petitioner underwent a polygraph examination conducted by Special Agent A.C. Bridges of the North Carolina State Bureau of Investigation.
8. During the pre-test interview portion of the examination, Petitioner was asked about his employment history and previous drug use. Petitioner admitted to Agent Bridges that he had tried Ecstacy on 4 or 5 occasions in 2001 and 2002. Petitioner also told Agent Bridges that he had worked for Harris McBurney, Inc. and was terminated from that position. (Respondent’s Exhibit 2)
9. On May 18, 2005 Petitioner wrote a letter to Company Police Administrator, Vickie M. Huskey, in which he explained why he failed to list his Ecstacy use and termination from Harris McBurney on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police. In this letter, Petitioner stated:
I failed to include my use of ecstacy on my F-3 form because at the time I filled it out I had forgotten about it. It wasn’t until talks with friends afterwards that I was reminded about it. I experimented with it 3 or 4 times in 2001. The last time I used it was around June or July of 2001 and I did not use it at all in 2002.
I was terminated from Harris-McBurney for what is known as “curbing”. I was running behind on some work for the day and a friend told me to do this to catch up. “Curbing” is just typing in numbers based on the previous reading rather than actually reading the power meter. I worked for Harris-McBurney in the summer of 1998 for about two months...
(Respondent’s Exhibit 3)
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10. On October 20, 2005 Petitioner completed and verified his responses to RESPONDENT’S FIRST SET OF INTERROGATORIES, REQUESTS FOR ADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS TO PETITIONER. (Respondent’s Exhibit 5) Question three (3) asked Petitioner to explain why he failed to list his use of Ecstacy on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police. In response to this question Petitioner wrote:
I failed to disclose my use of the drug Ecstacy because at the time I filled out the F-3 form I simply did not remember about the 2 occasions that I tried the drug. I ran into an old friend about a week before the polygraph and was reminded about the occasions.
11. Question six (6) of RESPONDENT’S FIRST SET OF INTERROGATORIES, REQUEST FOR ADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS asked Petitioner to describe the circumstances of his Ecstacy use. Petitioner wrote, “I experimented with Ecstacy on 2 occasions. I was 20 years old. Both occasion happened within the same week in November of 2000. (Respondent’s Exhibit 5)
12. Question seven (7) of RESPONDENT’S FIRST SET OF INTERROGATORIES, REQUEST FOR ADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS asked Petitioner to describe why he failed to list his employment with and termination from Harris McBurney, Inc. In response to question seven (7), Petitioner wrote:
I failed to disclose this information on my F-3 form because I ran out of room on the job listings and did not see where you needed to add additional pages if necessary. As far as question #26 I must have overlooked and just answered “no”.
(Respondent’s Exhibit 5)
13. Petitioner testified that when he completed the Personal History Statement (Form F3), on or about February 25, 2005 as part of his application with Metro Special Police, he remembered that he had worked for Harris McBurney, Inc. and he remembered that he had been terminated from Harris McBurney, Inc.
14. Request for Admission number three (3), contained in Respondent’s FIRST SET OF INTERROGATORIES, REQUEST FOR ADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS, which was completed and verified by Petitioner on or about October 20, 2005, asked Petitioner, “Do you admit that you told Special Agent A. C. Bridges that you used the drug Ecstacy either four (4) or five (5) times between 2001-2002 during your pre-test interview conducted on May 12, 2005?” Petitioner responded, “No. I said I used it twice in 2000 or 2001.” (Respondent’s Exhibit 5)
15. 12 NCAC 02I .0212(c)(2) states that a company police commission shall be denied upon a finding that the officer fails to meet any of the required minimum standards as specified in 12 NCAC 02I. 0202.
16. 12 NCAC 02I .0202(4) states that every company police officer must meet the following requirements to obtain and maintain a company police commission; meet the minimum standards for criminal justice officer established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 9 of the North Carolina Administrative Code; which standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material.
17. 12 NCAC 09A .0204(b)(6) states that the Commission may deny the certification of a criminal justice officer when the Commission finds that the applicant for certification has knowingly made a material misrepresentation of any information required for certification or accreditation.
18. 12 NCAC 02I .0202(9) states that every company police officer must be of good moral character as referred to in G.S. § 17C-10(c).
19. 12 NCAC 02I .0212(c)(1) states that a company police commission shall be denied upon a finding that the officer lacks good moral character as referred to in G.S. 17C-10(c).
20. 12 NCAC 02I .0213(a) states that:
When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 2I .0212(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:
(4) material misrepresentation of any information required for company police commissioning.
21. The Personal History Statement (Form F3) completed by Petitioner was a necessary and required part of the application process to become a commissioned company police officer.
CONCLUSIONS OF LAW
1. Both parties properly are 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 Deny Petitioner’s company police officer commission letter mailed by Respondent on May 27, 2005.
2. Petitioner made material misrepresentations of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police in that he did not list his Ecstacy use or his employment with and termination from Harris McBurney, Inc.
3. There is no evidence on the record to show that Petitioner lacks good moral character which is required by 12 NCAC 2I .0202(9) and N.C.G.S. §17C-10(c).
Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
Petitioner’s company police officer commission should be denied for a period of not less than three (3) years for making material misrepresentations of fact on the Personal History Statement (Form F3), which was completed and signed by Petitioner on or about February 25, 2005 as part of his application with Metro Special Police, in violation of 12 NCAC 02I .0213(a)(4).
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 Department of Justice.
This the 21st day of November, 2005.
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Beecher R. Gray
Administrative Law Judge
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