STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CABARRUS 06 DOJ 1746

James Mitchell Postell
Petitioner
vs.
N. C. Sheriffs' Education and
Training Standards Commission
Respondent / )
))
)
)))) / PROPOSAL FOR DECISION

On June 4, 2007, Administrative Law Judge Selina M. Brooks, heard this case in Charlotte, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 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: G. Bruce Park, Attorney-at-Law

Respondent: John J. Aldridge, III, Special Deputy 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?

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 that the Petitioner received by certified mail, the proposed Denial of Justice Officer’s Certification letter, mailed by Respondent Sheriffs’ Commission on September 11, 2006.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “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.

3. 12 NCAC 10B.0204(c)(1) and (2) states that the Sheriffs’ Commission may deny certification as 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, defraud, misrepresentation, 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.

4. The Petitioner was appointed as a detention officer through the Mecklenburg County Sheriff’s Office on August 18, 1993. The Petitioner was appointed as a deputy sheriff through the Mecklenburg County Sheriff’s Office on December 28, 1993. The Petitioner separated from the Mecklenburg County Sheriff’s Office as a detention officer and as a deputy sheriff on January 19, 2000.

5. The Petitioner completed a Personal History Statement (Form F-3), on or about January 22, 1993, as part of his original employment application with the Mecklenburg County Sheriff’s Office and in order to obtain certification as a justice officer from the Sheriffs’ Commission. (Exh. 2)

6. Question No. 44 of the Sheriffs’ Commission Form F-3 asked the applicant to disclose whether or not he had ever used marijuana, and if so, to describe the circumstances. When the Petitioner completed this Personal History Statement on January 22, 1993, he indicated that he had not previously used marijuana. Petitioner testified that he knew this answer to be false.

7. Subsequently, on January 25, 2000, the Petitioner completed another Personal History Statement in furtherance of his employment with Hoosier Special Police, in Charlotte, North Carolina. This Personal History Statement, administered through the North Carolina Criminal Justice Education and Training Standards Commission, was again completed by the Petitioner under oath. In response to Question No. 44, asking if the Petitioner had ever used marijuana, the Petitioner again indicated that he had never used the drug. (Exh. 3) Petitioner testified that he knew this answer to be false.

8. As part of his application for employment as a special police officer for Hoosier Special Police, an independent background investigation was conducted on the Petitioner by Shannon Cochran, on March 10, 2000. This background investigation included, in part, detailed questions concerning whether or not the Petitioner had ever been involved with any illegal drugs or had ever used any illegal drugs, specifically noting marijuana. On all such questions, the Petitioner told the investigator that he had never been exposed to or used any illegal drugs. (Exh. 4, Att.I, pp. 3-4) Petitioner testified that he knew this answer to be false.

9. On June 28, 2001, the Petitioner completed yet another Personal History Statement through the North Carolina Criminal Justice Education and Training Standards Commission as part of his application for employment with Metro Special Police in Charlotte, North Carolina. This Personal History Statement, again signed by the Petitioner under oath, asked in Question No. 44, if the Petitioner had ever used marijuana. The Petitioner again responded “no.” (Exh. 5) Petitioner testified that he knew this answer to be false.

10. On October 28, 2005, the Petitioner completed another Personal History Statement through the North Carolina Sheriffs’ Education and Training Standards Commission in an effort to become re-employed with the Mecklenburg County Sheriff’s Office as a deputy sheriff. On this occasion, the Petitioner, in response to Question No. 44 asking about his previous use of marijuana, indicated “yes,” that he had used marijuana. The Petitioner went on to explain in his response that in 1975 he was at a party and marijuana was being passed around. The Petitioner indicated that he took three (3) or four (4) puffs from the marijuana cigarette. This is the first occasion that the Petitioner had disclosed to the Respondent his prior use of marijuana. (Exh. 1)

11. When the staff for the Respondent reviewed and compared the Petitioner’s 2005 Personal History Statement with his previous Personal History Statements, it was determined that there was a noticeable discrepancy in response to the question concerning the Petitioner’s prior use of marijuana. Staff for the Respondent requested the Petitioner submit a statement explaining this discrepancy.

12. The Petitioner responded in a sworn Affidavit, dated April 25, 2006, stating “My 1993 personal history statement was read to me by Larry Ward and to the best of my memory I answered yes to question 44 and have done so on all of my personal history statements. I do not know why question 44 was answered with no.” (Exh. 7) Petitioner testified that he knew his affidavit and his testimony conflict.

13. When this matter was considered by the Probable Cause Committee of the Respondent, the Petitioner appeared to speak to the Committee concerning his answers pertaining to the use of marijuana. The Petitioner told the Committee that he did not deny using marijuana, and that he made a serious mistake by not initially disclosing this use in 1993 on the Personal History Statement. The Petitioner stated that he thought he could cover it up by completing all subsequent applications the same way. The Petitioner went on to state that in 2005, when he completed the most recent Personal History Statement to become re-employed with the Mecklenburg Sheriff’s Office, he decided that he needed to do the right thing and tell the truth about his use of marijuana. The Petitioner stated that he initially denied the use of marijuana in 1993 because he feared that he would not be a law enforcement officer if he had disclosed this use. The Probable Cause Committee of the Respondent subsequently found probable cause to believe that the Petitioner’s application for certification should be denied, based upon his making a knowing material misrepresentation of information required for certification by not disclosing his prior use of marijuana. (Exh. 6)

14. In response to the Respondent’s First Set of Interrogatories and Request for Admissions, the Petitioner stated that with regard to the January 22, 1993 Personal History Statement, he disclosed his previous use of marijuana to a Mecklenburg County Sheriff’s Office polygraph examiner and former deputy, Larry Ward, of the Sheriff’s Office. (Exh. 8, p. 4) The Petitioner testified at the administrative hearing that former deputy Ward is the individual who checked the “no” block in response to Question No. 44. Petitioner testified however, that despite reviewing this document and knowing that this response was false, he intentionally signed and swore to the accuracy of the responses in the Personal History Statement so as not to jeopardize his chance for employment.

15. As to the June 28, 2001 Personal History Statement, and the January 25, 2000 Personal History Statement, the Petitioner testified that he wanted these applications to be consistent with his earlier 1993 application on the marijuana question. The Petitioner testified that he signed these documents under oath knowing his response to Question No. 44 was false.

16. The Petitioner testified that when he applied for re-employment with the Mecklenburg County Sheriff’s Office in 2005, he discussed the marijuana issue with Sergeant Mark Brown of the Sheriff’s Office. The Petitioner stated that he “wanted to set the record straight” and admitted to his previous use of marijuana. This is the reason that the Petitioner stated that he responded accurately to Question No. 44 on the October 28, 2005 Personal History Statement.

17. The Petitioner further testified that he previously used marijuana in 1975 at a high school party. The Petitioner was a member of his high school football team, and the marijuana consumed at the party was supplied by one of the cheerleaders. The Petitioner stated that another individual passed the marijuana cigarette around to everyone and he took several puffs from it.

18. The Petitioner could not offer an explanation as to why his affidavit dated April 25, 2006 did not discuss his admitted previous intentional falsification of Question No. 44 on the 1993 Personal History Statement. The Petitioner agrees that honesty and integrity are essential attributes to be a law enforcement officer. The Petitioner has been married for twenty-nine (29) years and has three (3) children. The Petitioner expressed a desire to continue in the law enforcement profession. The Petitioner testified that he regrets his decision not to tell the truth about using marijuana.

19. Mr. Allen Taylor is the Minister of Education for the Petitioner’s church. He has known the Petitioner for sixteen (16) years. Based on his association with the Petitioner, he feels that the Petitioner has a positive reputation for honesty. Mr. Taylor considers the Petitioner a friend and considers him to be a truthful person.

20. Sergeant Robert Willis is employed with the Mecklenburg County Special Police. He has known the Petitioner for approximately two (2) years. Sergeant Willis has seen the Petitioner interact with other individuals and based on his association with the Petitioner, believes that he has a good reputation for honesty. Sergeant Willis testified the Petitioner had always told the truth with him. Sergeant Willis agrees that honesty and integrity are essential attributes to be a law enforcement officer.

21. Olivia Watts is the Human Resources Officer for the Mecklenburg County Sheriff’s Office. She testified that she would like to see the Petitioner continue his employment with the Mecklenburg County Sheriff’s Office. She further testified that in the application process for employment with the Mecklenburg County Sheriff’s Office, she emphasizes the need for all applicants to be honest. While the Petitioner’s previous use of marijuana would not in and of itself be a bar to his employment, applicants who have knowingly omitted their previous use of illegal drugs would normally be denied employment.

22. The Petitioner’s testimony explaining his omission of his previous use of marijuana is not consistent with his 2006 affidavit attempting to explain this omission. In response to the Respondent’s First Set of Interrogatories and in his sworn testimony, the Petitioner admitted knowingly omitting his previous use of marijuana so that his opportunity for employment would not be jeopardized. He thereafter continued this deception in subsequent Personal History Statements and background interview questions. Despite these representations, the Petitioner in his 2006 affidavit to the Commission, stated that he thought he had answered yes on all the Personal History Statements. Moreover, the Petitioner had numerous opportunities to correct his original omission. He failed to do so. An officer’s knowing material misrepresentations of fact may negatively impact on that officer’s ability to testify in various proceedings. These factors lead to the conclusion that the Petitioner made a knowing material misrepresentation of information from his 1993 Personal History Statement by failing to notify the Commission of his previous use of marijuana.

CONCLUSIONS OF LAW

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

2. The Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his prior 1975 use of marijuana on his 1993 Personal History Statement.

3. The Petitioner’s knowing material misrepresentation of information required for certification constitutes a violation of 12 NCAC 10B.0204(c)(1) and (2) . The Respondent’s proposed denial of the Petitioner’s application for certification is supported by substantial evidence.

PROPOSAL FOR DECISION

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

NOTICE

The Agency making the Final Decision in this contested case are required to give each party an opportunity to file Exceptions to this Proposal for Decision, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. § 150B-40(e).

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

This the 11th day of June 2007.

______

Selina M. Brooks

Administrative Law Judge

XXX