STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 DOJ 0023

Anita Allen Coats, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. Criminal Justice Education )

and Training Standards Commission, )

On July 30, 2001, Administrative Law Judge Fred G. Morrison Jr. heard this case in Raleigh, 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: No one attended for:

Anita Allen Coats

233-F Farrington Drive

Raleigh, North Carolina 27615

Respondent: Amy L. Yonowitz

Assistant Attorney General

Department of Justice

Law Enforcement Liaison Section

P.O. Box 629

Raleigh, N.C. 27602-0629

ISSUE

1. Did the Petitioner knowingly make a material misrepresentation of any information required for certification in violation of 12 NCAC 9A.0204(b)(6)?

2. Did Petitioner fail to comply with the minimum standard for certification as a Correctional Officer set forth in 12 NCAC 9A.0204(b)(2) and 12 NCAC 9B .0101(8) by failing to notify the Criminal Justice Standards Division of all offenses she was found guilty of?

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 December 7, 2000.

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. Petitioner was charged with the following criminal offenses:

a. Simple Worthless Check (1991CR000349) in Franklin County for which she received a guilty verdict on August 5, 1991.

b. Simple Worthless Check (1991CR000361) in Franklin County for which she received a guilty verdict on August 5, 1991.

c. Simple Worthless Check (1991CR000059) in Vance County for which she received a guilty verdict on June 28, 1991.

d. Misdemeanor Assault and Battery (1993CR028966) in Wake County for which she received a guilty verdict on August 20, 1993.

e. Communicating Threats (1996CR004764) in Franklin County for which she was served with a warrant for arrest on August 17, 1996 and subsequently found not guilty on September 30, 1996.

f. Simple Worthless Check (1996CR007519) in Franklin County for which she received a guilty verdict on June 3, 1997.

g. Simple Worthless Check (1997CR006429) in Vance County for which she received a guilty verdict on August 26, 1997.

h. Injury to Personal Property in Franklin County (1998CR003218) for which she received a dismissal on June 23, 1998.

4. On August 8, 1996, Petitioner completed a Personal History Statement (Form F-3) as a part of her application with Respondent for certification as a correctional officer with the North Carolina Correctional Institution for Women. Question number 47 of that form asks: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” Petitioner answered “No”.

5. In August of 1996, Petitioner, through the North Carolina Department of Correction, filed a Report of Appointment/Application for Certification (Form F-5A(CJP)) with Respondent. On this form, Petitioner indicated that she had no criminal record by leaving the Criminal Offense Record Section blank. Petitioner signed this form on August 23, 1996.

6. Petitioner was issued a Probationary Certification (PRB 241027128) as a Correctional Officer by Respondent effective September 23, 1996.

7.  Petitioner was employed as a correctional officer with the North Carolina Correctional Institution for Women from September 23, 1996, until August 31, 1998.

8.  On April 27, 1999, Petitioner completed another Personal History Statement (Form F-3) as a part of her application for employment as a correctional officer with Polk Youth Institution. Petitioner was reissued Probationary Certification on October 8, 1999.

9.  Petitioner completed Question Number 47 of the 1999 Personal History Statement by listing the following charges and convictions:

-Worthless Checks, 1991, 1996, 1997, Disposition: paid off.

-Assault and Battery 1990, 1992, 1996, Disposition: dismissed.

-Injury to Personal Property, 1998, Disposition: dismissed.

None of these charges or convictions was listed on Petitioner’s 1996 application forms.

10.  12 NCAC 9B.0101 was amended effective April 1, 1999, to require certified officers to report charges, as well as convictions. Prior to this date, only reporting of convictions was required by this Rule.

11.  Petitioner was charged with Simple Worthless Check in Franklin County and convicted of this charge on June 3, 1997. She failed to notify the Standards Division of Respondent, as required by 12 NCAC 9B.0101(8), within 30 days of the disposition of this charge.

12.  Petitioner was charged with Simple Worthless Check in Vance County and convicted of this charge on August 26, 1997. She failed to notify the Standards Division of Respondent, as required by 12 NCAC 9B.0101(8), within 30 days of the disposition of this charge.

13.  Petitioner responded to Question Number 44 of her 1996 Personal History Statement, “Have you ever used marijuana?” by checking the answer, “No”.

14.  Petitioner responded to Question Number 44 of her 1999 Personal History Statement, “Have you ever used marijuana?” by checking the answer, “Yes” and stating that it was once while in college in the spring of 1990.

15.  Petitioner responded to Question Number 54 of her 1996 Personal History Statement, “Was your license ever suspended or revoked?” by checking, “Yes” and stating that her license was suspended for 30 days when she was 16 years old.

16.  Petitioner responded to Question Number 54 of her 1999 Personal History Statement, “Was your license ever suspended or revoked?” by checking, “No”.

17. Petitioner has contended that her failure to report subject offenses was due to faulty memory and misunderstanding concerning the result of dispositions in some of the cases. She denies that she intentionally misrepresented her prior criminal record.

18. Petitioner faxed a request for continuance three days prior to the hearing, which was denied because it was untimely and she could not be reached on the cell phone number given therein.

19. Petitioner did not appear when the case was called for hearing. Attempts to reach her by phone were not successful. The hearing proceeded. Petitioner’s pleadings and responses to written interrogatories were considered in reaching this decision.

CONCLUSIONS OF LAW

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

2. 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:

(6) had knowingly made a material misrepresentation of any information required for certification or accreditation; or

12 NCAC 9A.0204 (b)(6).

3. 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 fails to meet the minimum standard for law enforcement officers that the officer:

(8) notify the Standards Division of all criminal offenses which the officer is found guilty of.

12 NCAC 09B.0101 (8)

4. Petitioner knowingly made a material misrepresentation of information required for certification by failing to list any charges or convictions on her 1996 Personal History Statement or Report of Appointment form.

5.  Petitioner knowingly made a material misrepresentation of information required for certification by answering “No” to Question Number 44 on her 1996 Personal History Statement.

6. Petitioner knowingly made a material misrepresentation of information required for certification by answering “No” to Question Number 54 on her 1999 Personal History Statement.

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7.  Petitioner failed to meet a minimum standard of a justice officer by failing to notify the Standards Committee of Respondent that she had been convicted of Simple Worthless Check on June 3, 1997 in Franklin County.

8.  Petitioner failed to meet a minimum standard of a justice officer by failing to notify the Standards Committee of Respondent that she had been convicted of Simple Worthless Check on August 26, 1997 in Vance County.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent suspend Petitioner’s law enforcement certification for not less than five years because Petitioner made material misrepresentations in her materials for certification. In addition, the undersigned recommends Respondent suspend Petitioner’s law enforcement certification for not less than five years because Petitioner did not meet the minimum standards for a law enforcement officer by failing to notify Respondent of convictions received while certified. It is further proposed that Respondent give consideration to substituting a period of probation for an active suspension in view of Petitioner’s work record as an 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 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 Criminal Justice Education and Training Standards Commission.

This the 7th day of September 2001.

______

Fred G. Morrison Jr.

Senior Administrative Law Judge

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