State of North Carolina s91

STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF BEAUFORT ADMINISTRATIVE HEARINGS

01 DOJ 0470

MARK J. SMITH, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. SHERIFFS’ EDUCATION AND )

TRAINING STANDARDS )

COMMISSION )

Respondent. )

On September 5, 2001, Administrative Law Judge Beecher R. Gray heard this case in Beaufort, 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: Mark J. Smith

Pro se

5896 US Hwy 264 W

Washington, NC 27889

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 Petitioner, after the date of initial certification, commit a crime or unlawful act defined in 12 NCAC 10B .0103(10) (b) as a Class B Misdemeanor?

2. Did Petitioner’s actions constitute a failure to maintain the minimum employment standard that every law enforcement officer shall be of good moral character in violation of 12 NCAC 9A.0204(b)(2) and 9B.0101(3)?

FINDINGS OF FACT

Stipulated Facts

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 Notification of Probable Cause to Revoke Justice Officer Certification letter mailed by Respondent on March 2, 2001.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (Respondent) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, Subchapter 10B, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such certification.

3. Petitioner was issued general deputy certification (GNH 243116782) on January 10, 1997, by the Commission to serve as a full-time justice officer with the Beaufort County Sheriff’s Office.

4. That 12 NCAC 10B .0204(d)(1) provides that 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 has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of initial certification.

5. That 12 NCAC 10B .204(b)(2) provides that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300.

6. That 12 NCAC 10B .0301(a)(8) provides that every Justice Officer employed or certified in North Carolina shall:

Be of good moral character.

7. On or about May 18, 2000, Deputy P. Whitaker of the Henderson County Sheriff’s Office was notified by the Henderson County Communications Division that there was an intoxicated person in the parking lot of The Triangle Stop on Highway 64 East. Prior to Deputy Whitaker’s arrival at the parking lot, the suspect (Petitioner) exited the parking lot onto Highway 64 in the direction of Edneyville. The vehicle then turned into the parking lot of Barnwell’s Packing House on Highway 64. As Deputy Whitaker exited his vehicle and approached Petitioner’s vehicle, Petitioner pulled back out onto Highway 64. Deputy Whitaker caught back up with and pulled in behind the Petitioner’s vehicle and initiated a traffic stop with blue lights and siren. The Petitioner then emitted blue lights from his vehicle. Deputy Whitaker approached the Petitioner and detected a strong odor of alcohol, as well as very slurred speech. An open container of Natural Light Beer and one sealed container were observed in the Petitioner’s vehicle. Petitioner advised Deputy Whitaker that he was in Henderson County to attend a management class at the Edneyville Campus of the North Carolina Justice Academy. Petitioner was arrested and charged with the Class A misdemeanor offense of driving while impaired. Petitioner registered a .18 on the intoxilyzer test. Petitioner was operating his Beaufort County Sheriff’s Office patrol vehicle at the time of his arrest.

8. On or about October 9, 2000, Petitioner was convicted of the Class A misdemeanor offense of driving while impaired.

9. On or about May 18, 2000, after Petitioner’s arrest for driving while impaired, Major D.E. Watkins of the Henderson County Sheriff’s Office found marijuana and a small marijuana smoking pipe in Petitioner’s patrol vehicle. Petitioner admitted that the marijuana and smoking pipe were his and that he had smoked marijuana in his patrol vehicle the day of his arrest for driving while impaired.

10. Possession of drug paraphernalia in violation of N.C.G.S. § 90-113.22 is a Class B misdemeanor. Possession of less than 1oz. of marijuana in violation of N.C.G.S. § 90-95(a)(3) is a Class A misdemeanor.

11. The criminal offense of possession of drug paraphernalia in violation of N.C.G.S. § 90-113.22 constitutes a “Class B misdemeanor” pursuant to 12 NCAC 10B .0204(d)(1) of the Commission’s administrative rules.

Adjudicated Facts

12. At the time of these incidents, Petitioner was employed by Sheriff R. Alan Jordan, Sheriff of Beaufort County. Sheriff Jordan testified that he was informed that Petitioner had been stopped in Henderson County and arrested for Driving While Impaired. Sheriff Jordan, along with Chief Deputy Cecil Leggett, traveled to Henderson County to inventory and retrieve Petitioner’s patrol vehicle. At that time, marijuana and drug paraphernalia (a small pipe) were found in the vehicle. Sheriff Jordan testified that he was extremely angered and upset by these incidents.

13. Sheriff Jordan spoke with Petitioner regarding the incidents of May 18, 2000. The Sheriff found Petitioner to be forthcoming. Petitioner took responsibility for his wrongdoings and immediately resigned. Sheriff Jordan testified that, had Petitioner not resigned, he would have terminated him.

14. Ted Sauls, the Assistant Director of the North Carolina Sheriffs’ Education and Training Standards Commission testified that honesty and integrity are essential attributes for a law enforcement officer. He further testified that Petitioner was honest in taking responsibility for his actions. However, Mr. Sauls testified that the actions of Petitioner on May 18, 2000, bring his integrity into question.

15. Pursuant to his conviction of Driving While Impaired, Petitioner was ordered by the court to attend forty hours of substance abuse counseling. Petitioner completed this court-ordered counseling.

CONCLUSIONS OF LAW

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

2. 12 NCAC 10B .0204(d)(1) provides that the Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds:

3. 12 NCAC 10B .204(b)(2) provides that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment or certification standards required by 12 NCAC 10B .0300.

4. 12 NCAC 10B .0301(a)(8) provides that every Justice Officer employed or certified in North Carolina shall:

Be of good moral character.

5. On May 18, 2000, after the date of his initial certification, Petitioner committed the Class B misdemeanor of possession of drug paraphernalia (N.C.G.S. § 90-113.22) by possessing a marijuana smoking pipe in his patrol vehicle.

6. Petitioner’s actions do not constitute a lack of good moral character.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent revoke Petitioner’s law enforcement certification for a period of five (5) years for commission of a Class B misdemeanor after his initial date of certification. It is further recommended that such revocation be suspended for a period of five (5) years, during which time Petitioner shall undergo monitoring and substance abuse counseling. It is recommended that a re-evaluation of Petitioner shall be performed by Respondent at the end of the five (5) year period of suspension.

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 Sheriffs’ Education and Training Standards Commission.

This the 11th day of October, 2001.

______

Beecher R. Gray

Administrative Law Judge