State of North Carolina s64

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 07 DOJ 0599

Norman Jerome Turner )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

North Carolina Criminal Justice Education )

and Training Standards Commission, )

Respondent. )

______)

In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge Donald W. Overby heard this contested case in Fayetteville, North Carolina on August 17, 2007.

APPEARANCES

Petitioner: Norman Jerome Turner

411 Tradewinds Drive - Apt.G

Fayetteville, North Carolina 28314

Respondent: J. Joy Strickland, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly suspend Petitioner’s correctional officer certification?

RULES AT ISSUE

12 NCAC 09G .0302

12 NCAC 09G .0504(b)(9)

12 NCAC 09G.0505(b)(7)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the documents and exhibits received and admitted into evidence, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

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 Petitioner received the notification of probable cause to suspend correctional officer certification letter mailed by the Respondent on March 20, 2007.

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9G, to certify correctional officers and to revoke, suspend, or deny such certification.

3. Petitioner was granted General Certification from the North Carolina Criminal Justice Education and Training Standards Commission on December 19, 1996. (Respondent’s Exhibit 2)

4. The Petitioner testified that he began working for the Department of Correction in 1995 and has worked there continuously for the last eleven years. He said that he began this employment after serving twenty (20) years in the military. There is no evidence that the Petitioner has ever had any disciplinary problems during the eleven years he has been employed with the Department of Corrections.

5. On or about April 6, 2004, the Petitioner was served with a warrant for arrest for the charge of “Misdemeanor Stalking”, in violation of N.C.G.S. § 14-277.3, in Cumberland County file number 04 CR 056635. The Petitioner was served with the warrant for arrest by a Fayetteville police officer and taken before a magistrate in Cumberland County. This charge was dismissed on July 2, 2004. (Respondent’s Exhibit 3) The Petitioner testified that he turned himself in at the magistrate’s office and he was released without posting a secured bond.

6. Petitioner was subsequently served with the charges of “Trespassing” and “Harassing Phone Calls” in the same manner in which he was charged with the case of “Misdemeanor Stalking.” All of the charges had the same alleged victim, arising out of a troubled domestic situation. However, the Petitioner reported these subsequent arrests/charges to his superiors at the Department of Correction and the North Carolina Criminal Justice Education and Training Standards Division.

7. Petitioner admitted that he did not notify his superiors at the Department of Correction about his arrest for “Misdemeanor Stalking” nor did he report this arrest to the North Carolina Criminal Justice Education and Training Standards Division. Petitioner testified that he did not report this charge because it was handled through mediation and not in the courtroom. In disposing of this case, the Petitioner had reported to a courtroom in the courthouse in Fayetteville where he answered the calendar call and was then called out of the courtroom and referred to mediation.

8. Despite the fact that the Petitioner had been a corrections officer for eleven years, and despite the fact that he had reported other cases with which he was “charged”, the Petitioner seemed genuinely confused about the concept of being “charged” with a criminal offense as opposed to some form of disposition. He seemed genuinely confused by the fact that the stalking case was resolved “outside of court” in that the dismissal was not actually done in the courtroom as was the case in the other cases with which he was charged.

9. Edward Zapolsky, an investigator with the North Carolina Criminal Justice Education and Training Standards Division, testified that he is familiar with the Petitioner’s certification file, and he reviewed the file and concluded that the Petitioner did not notify the Standards Division of the charge of “Misdemeanor Stalking” in Cumberland County file number 04 CR 056635.

10. North Carolina Administrative rule 12 NCAC 09G.0302 states that:

Every person employed and certified as a correctional officer ... shall notify the Standards Division of all criminal charges for which the officer is charged, arrested, pleads no contest, pleads guilty, or of which the officer is found guilty. Criminal offenses shall include all felony offenses and shall specifically include those misdemeanor offenses delineated in 12 NCAC 09G .0102.

11. North Carolina Administrative Rule 12 NCAC 09G .0102(9) classifies the list of misdemeanor offenses for corrections officers. Subsection (tt) of 12 NCAC 09G .0102(9) includes “14-277.3, Stalking.”

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

3. Pursuant to 12 NCAC 09G .0504(b)(9), the Commission may, based on the evidence for each case, suspend, revoke, or deny the certification of a corrections officer when the Commission finds that the applicant for certification or the certified officer ... has failed to notify the Standards Division of all criminal charges or convictions as required by 12 NCAC 09G .0302. (Emphasis added)

4. Pursuant to 12 NCAC 09G.0505(b)(7), when the Commission suspends or denies the certification of a corrections officer, the period of sanction shall be not less than three years; however, the Commission may either reduce or suspend the period of sanction under Paragraph (c) of this Rule or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is ...failure to make either of the notifications required by 12 NCAC 09G .0302.

5. The Petitioner failed to notify the North Carolina Criminal Justice Education and Training Standards Division of his criminal charge of “Misdemeanor Stalking” in Cumberland County File number 04 CR 056635.

7. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C. Gen. Stat. § 150B-34(a).

8. Based upon the evidence presented in this case, a probationary suspension is appropriate.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent suspend the Petitioner’s correctional officer certification for a period of not less than three (3) years based upon Petitioner’s failure to notify the Standards Division of all his criminal charges. However, the entire period of suspension is stayed and the Petitioner shall be on a probationary status for the three (3) year period.

NOTICE AND ORDER

The North Carolina Sheriffs’ Education and Training Standards Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

IT IS SO ORDERED.

This the 19th day of September, 2007.

______

Donald W. Overby

Administrative Law Judge