STATE OF NORTH CAROLINAIN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF MARTIN07 DOJ 0143
Joseph Lester Early IIPetitioner
vs.
North Carolina Sheriffs' Education and
Training Standards Commission
Respondent / )
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)
)))) / DECISION
On July 16, 2007, Administrative Law Judge Melissa Owens Lassiter heard this case in Farmville, North Carolina. This case was heard pursuant to Respondent’s request under N.C. Gen. Stat. § 150B-40(e), for designation of an administrative law judge to preside at a contested case hearing under Article 3A, Chapter 150B of the North Carolina General Statutes.
APPEARANCES
Petitioner:Joseph Lester Early, II, Pro Se
5436 NC 903
Oak City, NC 27857
Respondent:John J. Aldridge, III
Special Deputy Attorney General
N. C. Department of Justice
Law Enforcement Liaison Section
9001 MailServiceCenter
Raleigh, NC 27699-9001
ISSUES
Did Petitioner knowingly make a material misrepresentation of information required for certification as a justice officer by the North Carolina Sheriffs’ Education and Training Standards Commission? Does Petitioner stand convicted of four (4) or more Class A Misdemeanors within two (2) years of his date of appointment?
EXHIBITS ADMITTED INTO EVIDENCE
Petitioner:None
Respondent:1 - 19
FINDINGS OF FACT
1.Both parties properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, and that both parties received notice of hearing.
2.On December 5, 2006, Petitioner received, via certified mail, Respondent’s proposed revocation of justice officer’s certification.
3.The North Carolina Sheriffs’ Education and Training Standards Commission (hereafter 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.
4.On May 18, 2005, Petitioner was appointed as a detention officer through the Bertie-Martin Regional Jail. On June 1, 2005, Petitioner signed a Report of Appointment form attesting that he was aware that any information he provided in the certification process must be thorough, complete, and accurate to the best of his knowledge. He further attested that he understood and agreed that any omission, falsification, or misrepresentation of any fact or portion of such information, may be the sole basis for termination of his employment and/or denial or revocation of his certification at any time.
5.On or about March 21, 2005, Petitioner completed a Personal History Statement (Form F3) as part of his employment application with the Bertie-Martin Regional Jail, and in order to obtain certification as a justice officer from the Sheriffs’ Commission.
6.Question No. 47 of the Sheriffs’ Commission Form F3 asked the applicant to disclose his/her criminal offense record. Specifically, the question indicates:
Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol or drugs), failure to stop in the event of an accident (hit and run), and Driving While License are permanently revoked or permanently surrendered (DWLR). If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some point in your life, or whether an offense remains on your record, you should answer “yes.” You should answer “no,” only if you have never been arrested or charged, or your record has been expunged by a judge’s court order.
7.When the Petitioner completed this Personal History Statement, he answered Question No. 47 by listing the following criminal offenses (minor traffic offenses are excluded from this recitation):
a.In 1995, Petitioner was found guilty and paid a fine for possessing striped bass during closed season/littering.
b.In 1992, Petitioner was found guilty and paid costs for a simple worthless check.
c.In 1990, the Court dismissed a charge against Petitioner for driving while impaired (DWI) and underage possession of a malt beverage.
d.In 1987, Petitioner was found guilty and paid a fine for displaying an artificial light after 11:00 p.m. and
e.In 1987, the Court dismissed an indecent exposure charge against Petitioner.
Excluding minor traffic offenses, Petitioner listed no other criminal offenses on this Personal History Statement. Neither did Petitioner advise either Respondent or officials with the Bertie-Martin Regional Jail of any other criminal offenses.
8.Based upon Petitioner’s answers to Question No. 47 of the Personal History Statement, Bertie-Martin Jail officials and Respondent’s staff solicited criminal history record checks on the Petitioner under the name of “Joseph Lester Early, II” for Martin County, Wake County, Edgecombe County, and Pitt County.
9.The criminal history records maintained by the Martin County Clerk of Court under the name of “Joseph Lester Early, II,” dated May 25, 2005, reflected the following charges:
a.1995 charge against Petitioner for possession of striped bass during a closed season. Petitioner was found guilty of such charge on June 26, 1995;
b.A plea and finding of guilty for misdemeanor littering entered on June 26, 1995;
c.A charge of Driving While Impaired (DWI), which was nol pros on September 22, 1990;
d.A misdemeanor charge of underage possession of a malt beverage, which was dismissed on June 12, 1991; and
e.Numerous traffic violations.
10.Petitioner’s WakeCounty criminal history record check under the name of “Joseph Lester Early, II,” reflected a misdemeanor charge of indecent exposure, which was dismissed on February 22, 1988. This criminal history record check also reflected minor traffic charges.
11.An Edgecombe County criminal history record check in the name of “Joseph Lester Early, II,” dated May 11, 2005, reflected a) a misdemeanor charge against the Petitioner for worthless check, for which Petitioner was found guilty on June 25, 1992; and b) a misdemeanor charge against Petitioner for displaying an artificial light after hours, for which Petitioner was found guilty on July 28, 1987.
12.A Pitt County criminal history record check in the name of “Joseph Lester Early, II,” dated November 16, 2006, reflected Petitioner was charged with misdemeanor simple assault, and that Petitioner pled guilty to second degree trespass on June 11, 1990 in return for the simple assault charge being dismissed.
13.On or about November 2006, Diane Konopka, Deputy Director for the Respondent, received an inquiry from officials with the Martin County Sheriff’s Office whether Petitioner would be eligible for certification as a deputy sheriff in light of his prior criminal history record.
14.To assist Ms. Konopka in evaluating Petitioner for this prospective position, numerous criminal history records were forwarded to Ms. Konopka for review. In addition to the criminal offenses listed on Petitioner’s Personal History Statement, additional charges, not known to Respondent, were forwarded to Ms. Konopka’s attention. Specifically, the Martin County Clerk of Court’s office conducted a criminal history records check for Petitioner under the name “Joey Early.”
a.This records check reflected Petitioner was charged on February 27, 2005, with the criminal offense of trapping beavers without a current trapping license, in violation of N.C. Gen. Stat. § 113-270.5(a). Petitioner was served with a citation for this criminal offense, and signed the citation on February 27, 2005. On April 8, 2005, the Petitioner pled guilty to this offense, and paid a fine before the Martin County Clerk of Court.
b.This computerized criminal history record also reflected Petitioner was charged with second degree trespass on October 8, 1991, in violation of N.C.G.S. § 14-159.13. It noted that Petitioner received a Prayer for Judgment Continued (PJC) for such charge on October 21, 1991.
c.Petitioner had failed to disclose either of these criminal offenses to Respondent or his employer.
15.As a result of these omissions, on November 30, 2006, Bertie-Martin Regional Jail officials terminated Petitioner from employment as a detention officer.
16.Subsequently, Ms. Konopka presented these materials to Respondent’s Probable Cause Committee. On December 5, 2006, that Committee found probable cause to believe that Petitioner’s justice officer certification was subject to revocation for knowingly making material misrepresentations of his criminal history record to Respondent by failing to disclose the 1991 second degree trespass charge, and the 2005 trapping without a license charge. The Probable Cause Committee also found probable cause to revoke the Petitioner’s certification based upon his criminal history record, which reflected more than four (4) Class A misdemeanors with a conviction date within two (2) years of his date of appointment. (Resp Exh 18) On December 7, 2006, Petitioner received Respondent’s Notification of Probable Cause to Revoke.
17.In his answers to Respondent’s First Set of Interrogatories, Petitioner explained that the 1991 second degree trespass charge from MartinCounty occurred on October 8, 1991, when he was scouting for deer in the pre-season on land he and others leased for hunting. Petitioner explained that he crossed a narrow streak of another person’s land in order to access the land he leased for hunting. Peter Belflower was living in an abandoned school bus on this small streak of land. Mr. Belflower objected to Petitioner crossing this land, unless Petitioner brought him some beer. Petitioner refused Belflower’s request. As a result, Belflower went to a local magistrate and procured a criminal summons against the Petitioner for second degree trespass.
18.A local deputy sheriff notified Petitioner of the criminal summons, and advised Petitioner to go to the local law enforcement office to receive service of such summons. After being served, Petitioner subsequently appeared in court, along with his father and then wife. Petitioner and Belflower testified at the hearing. To the best of Petitioner’s recollection, the judge dismissed the case.
19.Petitioner explained that he omitted this particular offense from his Personal History Statement because he simply did not remember it.
20.Regarding the 2005 trapping without a license charge, Petitioner explained that on February 27, 2005, he and his nephew were on rented hunting land where Petitioner was going to show his nephew how to trap beavers. Petitioner waited in his truck while his nephew explored a nearby deer rub. A wildlife officer approached Petitioner and asked if he had a trapping license. Petitioner told the officer he did not have one, and did not believe that he had to have one.
a.After approximately forty-five (45) minutes of attempting to confirm the law in this area, Petitioner procured a cell phone from his nephew, and loaned it to the wildlife officer. The officer telephoned his superiors to ascertain the current status of the law. The officer learned that the law regarding a beaver trapping license has just changed. As a result, the officer issued Petitioner a citation for unlawfully trapping beavers without a license. Petitioner signed for this citation.
b.At the time of this occurrence, Petitioner was in Basic Law Enforcement Training, and knew that this offense was criminal in nature. Petitioner subsequently paid off the citation at the Clerk of Court’s office, thus resulting in a guilty finding.
21At the administrative hearing, Petitioner explained that he did not list the 1991 trespass and 2005 trapping without a license charges, because they were not on his computerized criminal history record, and therefore, nothing in his memory was triggered about the occurrence of these two criminal offenses.
22.It is imperative for all applicants for justice officer certification fully and accurately answer all questions concerning their prior criminal history record, as not all criminal charges will be revealed on a computerized criminal history record check. The Respondent has found that honesty and integrity are essential attributes to be a justice officer.
23.Petitioner’s omission of the October 8, 1991 second degree trespassing charge and the February 27, 2005 trapping without a license charge is not consistent with Petitioner’s explanation for why he omitted these offenses. Petitioner demonstrated a detailed recollection of the events forming the basis of these two charges. Specifically, Petitioner demonstrated a detailed recollection of the second degree trespassing charge, and explained the personal characteristics of the complainant witness, Mr. Belflower. Petitioner appeared in court on this charge, and actually testified, as did Mr. Belflower. It is not reasonable that an individual would forget such an occurrence.
24.When Petitioner completed his Personal History Statement on March 21, 2005, he had just recently, on February 27, 2005, been issued a criminal citation for trapping beaver without a license. When Petitioner completed his Personal History Statement, he had not resolved the outstanding criminal charge against him for trapping without a license. It was only in April 2005 that Petitioner paid the fine for this criminal offense. It is not reasonable that Petitioner would forget about a pending criminal charge, when completing his Personal History Statement, when he specifically took affirmative steps, one (1) month later, to pay off such citation.
25.Based on the foregoing factors, the undersigned finds that Petitioner knowingly and intentionally omitted the two subject offenses after such offenses were not listed on a computerized criminal history record check under the name of “Joseph Lester Early, II.” Petitioner had numerous opportunities to disclose the circumstances of these offenses to officials with Bertie-Martin Regional Jail and the Respondent, but he failed to do so.
CONCLUSIONS OF LAW
1.The parties properly are before the undersigned Administrative Law Judge, and jurisdiction and venue are proper.
2.The North Carolina Sheriffs’ Education and Training Standards Commission (hereafter 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 revoke the certification of 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)Has 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.
4.12 NCAC 10B .0204(d)(4) states that the Sheriffs’ Commission may revoke the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has been convicted of any combination of four (4) or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A Misdemeanor, regardless of the date of commission or conviction, except the applicant shall be certified if the last conviction or commission occurred more than two (2) years prior to the date of appointment.
5.A preponderance of the evidence proved that Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his October 8, 1991 second degree trespassing charge in Martin County, North Carolina, and his February 27, 2005 charge of trapping beaver without a license charge in Martin County, North Carolina on his March 21, 2005 Personal History Statement.
6.Petitioner’s knowing material misrepresentations of information required for certification constitute a violation of 12 NCAC 10B .0204(c)(1) and (2). Respondent’s proposed revocation of the Petitioner’s justice officer certification is supported by substantial evidence.
7.When Respondent’s Probable Cause Committee made its findings, Petitioner stood convicted of four (4) or more Class A misdemeanors, as defined in 12 NCAC 10B .0103(10)(a), in violation of 12 NCAC 10B .0204(d)(4). The last of these Class A misdemeanor convictions was an April 8, 2005 conviction for trapping beaver without a license. As of the date of this administrative hearing, two (2) years has expired from the date of the Petitioner’s last conviction for a Class A Misdemeanor. Therefore, the Petitioner is no longer barred, pursuant to 12 NCAC 10B.0204(d)(4), should he become reappointed as a justice officer in the future, assuming no intervening convictions occur.
PROPOSAL FOR DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent’s initial decision to revoke Petitioner’s justice officer certification for a period of five (5) years for knowingly making a material misrepresentation of his prior criminal history record, should be AFFIRMED.
ORDER AND NOTICE
The North Carolina Sheriffs’ Education and Training and 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.
This the 28th day of September, 2007.
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Melissa Owens Lassiter
Administrative Law Judge
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