STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JONES 04 DOJ 1587

Jose Joaquin Guzman
Petitioner
vs.
N. C. Sheriffs' Education and
Training Standards Commission
Respondent / )
))
)
)))) / PROPOSAL FOR DECISION

This matter came on for hearing on April 22, 2005, in Raleigh, North Carolina before Fred G. Morrison Jr., Senior Administrative Law Judge, by request of Respondent pursuant to G.S. § 150B-40(e) for 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

Petitioner: Thomas Reston Wilson, Attorney at Law,

Attorney for Petitioner

Respondent: John J. Aldridge, III, Special Deputy Attorney General,

Attorney for Respondent

ISSUE

Is revocation or suspension of Petitioner’s certification as a justice officer an appropriate sanction where Petitioner made knowing material misrepresentations of information required for certification and where the basis of these omissions were Uniform Military Code of Justice (UMCJ) Article 15 “non-judicial” punishments?

FINDINGS OF FACT

1. That both parties received Notice of Hearing, and that Petitioner received Notice of the Proposed Suspension of his justice officer certification mailed by Respondent on September 3, 2004. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter Commission or Respondent) received its authority under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B.

2. Pursuant to 12 NCAC 10B .0204(c)(1) and (2), the Commission may revoke, suspend, or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer:

(1) Has 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) Has knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation or 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.

3. Petitioner was appointed as a deputy sheriff with the Jones County Sheriff’s Office on February 5, 2003. In furtherance of his application for certification, Petitioner completed a Personal History Statement, dated December 20, 2002. In response to Question No. 38 of this Personal History Statement, Petitioner indicated that his discharge from the military was considered neither honorable or bad conduct, and just beside this Petitioner wrote out that his discharge was characterized as “other than honorable.” Petitioner answered, “No”, in response to Question No. 39, which asked if Petitioner had any other disciplinary actions while a member of the military. A copy of Petitioner’s military discharge (DD Form 214) was also forwarded to Respondent with his application for certification. This form indicated Petitioner received a military discharge “under other than honorable conditions”. Petitioner was issued general deputy sheriff certification through Respondent for his application for certification with the Jones County Sheriff’s Office.

4. In Julia Lohman’s experience as Director of the Sheriffs’ Standards Division, discharges from the military under less than honorable conditions would normally be associated with disciplinary actions. As a consequence, Ms. Lohman directed her staff on February 28, 2003 to request a copy of Petitioner’s military records from the Department of the Army. This was the first time Petitioner’s military history had been requested by Respondent as they had not previously received a copy of his DD Form 214.

5. In a series of documents dated December 16, 2003, the Department of the Army provided to Ms. Lohman a summary of Petitioner’s military service. These documents indicated that Petitioner received an Article 15 non-judicial punishment action on November 13, 1990 for disobeying an order from a superior officer not to use his meal card in the mess hall while on leave in Korea. Petitioner was found to have committed this offense and was ordered to forfeit $228.00 pay and received 14 days restriction and 14 days extra duty. Petitioner received a second Article 15 non-judicial punishment action on September 27, 1992 for displaying disrespect to a senior non-commissioned officer. Petitioner was found to have committed this offense and was ordered to forfeit $320.00 pay (which was suspended) and to serve 14 days extra duty and 14 days restriction. The suspension of this $320.00 forfeiture was vacated when it was found that Petitioner broke restriction on October 15, 1992. Petitioner received a third Article 15 non-judicial punishment action on November 3, 1992, also for breaking restriction. This restriction was imposed on Petitioner as a result of the second Article 15 he received. Sufficient and independent grounds existed for the third Article 15. He was again found by his commanding officer to have committed this offense and was ordered to be reduced in rank from the grade of sergeant (E5) to the grade of specialist (E4). Petitioner also lost his non-commissioned officer status as a result of this reduction in rank. Petitioner was ordered to forfeit $608.00 pay per month for two months, received 45 days extra duty, and was restricted to the battery area, place of duty, place of worship and the dining facility for 45 days.

6. Upon discovering, for the first time in over eight years, that Petitioner had not listed the aforementioned Article 15s on his Jones County Personal History Statement, Ms. Lohman reviewed Petitioner’s responses to previous Personal History Statements he had completed for Respondent and the North Carolina Criminal Justice Education and Training Standards Commission, for his previous law enforcement positions in North Carolina. Petitioner listed in his Jones and Bladen County Personal History Statements that his discharge from the Army had been “other than honorable.” He did not list his discharge as being “other than honorable” in his Tabor City statement. He rather checked the block indicating his discharge was not honorable.

7. A review of Petitioner’s certification history revealed that he was appointed as a police officer with the Tabor City Police Department on July 27, 1995. He completed a Personal History Statement in furtherance of this application for certification on July 17, 1995. In response to Question No. 39, asking if he had ever been “court-martialed, tried on charges or the subject of a summary court, deck court, captain’s mast or company punishment, or any other disciplinary action while a member of the armed forces,” Petitioner answered “No”. In response to question #38, Petitioner answered that his last discharge was not honorable.

8. Petitioner was appointed as a deputy sheriff with the Bladen County Sheriff’s Office on April 3, 1996. Petitioner again completed a Personal History Statement in furtherance of this application for certification. This Personal History Statement for Bladen County was completed on April 3, 1996. In response to Question No. 39 asking if he had any disciplinary actions while in the military, Petitioner checked the block “No” but, nonetheless, listed that he had received one Article 15 for breaking restriction. In response to Question No. 38, Petitioner answered that his last discharge was not honorable, writing out “other than honorable” on the application. Respondent did not request Petitioner’s military records from the Department of the Army at that time as the DD Form 214 had not been received.

9. These omissions were brought to the attention of the Probable Cause Committee of Respondent, which in turn found probable cause to believe that Petitioner had made knowing material misrepresentations of information required for certification by failing to disclose on his Tabor City Personal History Statement, Bladen County Personal History Statement, and Jones County Personal History Statement his previous three Article 15 non-judicial punishment actions from the United States Army.

10. At the beginning of this contested case hearing, Petitioner, after consultation with counsel, stipulated that his omissions of all of his previous three Article 15 actions imposed on him while a member of the United States Army were knowing material misrepresentations, in violation of 12 NCAC 10B .0204(c)(1) and (2).

11. A Stipulation of Expected Testimony was presented by Petitioner. This Stipulation of Expected Testimony reflects that had Mr. Robert Wooster appeared and testified in this contested case hearing that he would have testified that in the time frame of 1995, he served as the Police Chief of Tabor City. He is no longer employed in law enforcement and currently owns and operates a trucking business with his son. Mr. Wooster hired Petitioner around July of 1995 as a police officer. Petitioner discussed with Mr. Wooster his military service to include Petitioner receiving disciplinary action through Article 15 actions. While he does not remember the number or the substance of the disciplinary actions, Mr. Wooster recalled one specific action had to do with Petitioner’s alleged relations with a non-commissioned officer’s daughter. He remembered thinking that the military violations disclosed to him would not have affected his decision to hire Petitioner as a law enforcement officer. He felt Petitioner would have been an attractive law enforcement candidate because he was fluent in Spanish. He remembers telling Petitioner to disclose the Article 15 actions on the Tabor City Personal History Statement. Petitioner did not do so. Petitioner separated from the Tabor City Police Department on March 12, 2001, and the then police chief, Tommy Barnes, indicated that the agency would not consider Petitioner for reappointment.

12. Sheriff Steve Bunn of the Bladen County Sheriff’s Office conducted the background investigation on Petitioner on August 30, 1996, in furtherance of Petitioner’s application for certification and employment through the Bladen County Sheriff’s Office. In the course of this application process, Petitioner disclosed to Sheriff Bunn that he had received a single Article 15 for breaking restriction while in the United States Army. Petitioner listed this single Article 15 on his Personal History Statement. No other Article 15s, or other issues with the military, were communicated by Petitioner to Sheriff Bunn. As a consequence, Petitioner was hired as a deputy sheriff with the Bladen County Sheriff’s Office. He remained employed and certified through the Bladen County Sheriff’s Office until August 18, 1999, when he resigned to take employment with another agency. Sheriff Bunn described Petitioner’s work performance as average. He testified further that, in light of Petitioner’s knowingly material misrepresentations of his prior military disciplinary actions, he would be reluctant to consider re-employing him. Sheriff Bunn was not familiar with all the circumstances surrounding Petitioner’s Article 15s. When asked if he would take into consideration these circumstances to determine if they were relevant to service as a justice officer, he said he would. He said he would be less concerned if it were shown that the nature of the disciplinary action involved failing to comply with informal orders at a social event, such as was described by Petitioner. Sheriff Bunn sits as a member of the Respondent Commission and the Probable Cause Committee.

13. Phillip Little is the Chief Deputy for Bladen County. He is also retired from the United States Army Reserve after serving 33 years. He knows Petitioner and is aware of his work performance while he was employed with the Bladen County Sheriff’s Office. He recalled Petitioner having a couple of incidents that occurred while employed at Bladen County which required verbal counseling, one of which involved his relationship with a female. Chief Deputy Little described Petitioner’s work performance as average but stated that he would not consider re-employment of Petitioner because of his knowing material misrepresentations of his prior disciplinary actions while in the United States Army. Based on Petitioner’s performance as a justice officer at Bladen County, but before knowing of his knowing material misrepresentations, Chief Deputy Little recommended Petitioner to other law enforcement agencies because of his ability to speak Spanish.

14. Sheriff Timothy Morton of the Jones County Sheriff’s Office hired Petitioner as a deputy sheriff in approximately December, 2002. Sheriff Morton recalled having discussions with Petitioner at the time of his hiring about an Article 15 received by Petitioner while he was in the military. He does not recall the exact details of the discussion or the number of Article 15s Petitioner had. Sheriff Morton deferred the background investigation of Petitioner to David Arthur. Sheriff Morton described Petitioner as a moderate worker and he would consider rehiring him. Sheriff Morton testified that in his experience, sheriff’s deputies rarely stand out as “above average”. He stated in kind that deputies generally show up, do their duty, and go home. Petitioner is currently on Sheriff Morton’s staff serving auxiliary duty. Sheriff Morton recalled one complaint filed against Petitioner while he was employed with the Jones County Sheriff’s Office. Sheriff Morton stated that he handles many types of these complaints form his staff and deputies. The complaint against Petitioner involved Petitioner’s personal relationship with a female dispatcher in the agency. Sheriff Morton testified that he instructed Petitioner that his personal relationships should be pursued off duty and should not interfere with his on duty performance. Sheriff Morton did not testify to any further problems with Petitioner.

15. David Arthur is a Professor in Criminal Justice at the Pamlico County Community College. He is also a sworn law enforcement officer and holds law enforcement officer certification through the Pamlico County Sheriff’s Office. In 2003, he was sworn as a deputy sheriff through the Jones County Sheriff’s Office. He was tasked with the responsibility for conducting a background investigation of Petitioner.

16. In the process of conducting a background investigation on Petitioner, Mr. Arthur had conversations with Petitioner and reviewed his responses to the questions on his Personal History Statement. Mr. Arthur does not recall Petitioner telling him about any Article 15 actions taken against him while in the United States Army. In the course of his background investigation of Petitioner, Mr. Arthur discovered that he had been dismissed from the Surf City Police Department on March 17, 1999, as result of a dispute with a supervisor involving an alleged insubordinate action. Petitioner was dismissed from the Craven County Sheriff’s Office on March 26, 2003, due to a dispute over inappropriate behavior. Petitioner explained the inappropriate behavior issue involved trying to quiet a jury. Mr. Arthur opined that he would not consider Petitioner for rehiring in a law enforcement position because of his knowing material misrepresentations of his prior military disciplinary actions. Mr. Arthur testified that he was unfamiliar with the circumstances surrounding Petitioner’s Article 15s for violating an order not to eat in the mess hall; insubordination (which Petitioner described as occurring at a social event); and breaking restriction imposed on Petitioner from his previous Article 15. In Mr. Arthur’s Summary of Background information on Petitioner from 2003, he wrote “Applicant is honest and courteous.”