STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF UNION 02 DOJ 2042
ALLEN WILSON YORK,Petitioner,
v.
NORTH CAROLINA SHERIFFS’ EDUCATION AND TRAINING STANDARDS COMMISSION,
Respondent. / )
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PROPOSAL FOR
DECISION
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THE ABOVE-ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, on April 9, 2003, in Charlotte, 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: Allen Wilson York
704 Lancaster Avenue
Monroe, North Carolina 28112
Respondent: John J. Aldridge, III, Special Deputy Attorney General
Attorney for Respondent
Department of Justice
Law Enforcement Liaison Section
P.O. Box 629
Raleigh, North Carolina 27602-0629
EXHIBITS
The Respondent offered nine (9) exhibits which were admitted without objection.
ISSUE
Should Petitioner’s certification as a justice officer be revoked for his failure to notify the North Carolina Sheriff’s Education and Training Standards Commission within five days of being charged with a criminal offense?
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, 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
Stipulated Facts
1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and the Petitioner received the Notification of Probable Cause to Revoke Certification letter mailed by the Respondent on September 30, 2002.
2. The North Carolina Sheriffs' Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, to certify justice officers and to revoke, suspend, or deny such certification.
3. On January 7, 2002, Petitioner was criminally charged with the misdemeanor crime of larceny, in violation of N.C.G.S. § 14-72(a). (2002 CR-1633)
4. The provision found in the North Carolina Administrative Code at 12 NCAC 10B .0301(a)(7) provides, in pertinent part, that:
(a) Every Justice Officer employed or certified as a Deputy Sheriff or Jailer in North Carolina shall:
(7) within five working days notify the Standards Division and the appointing department head in writing of all criminal offenses with which the officer is charged: and shall also give notification, in writing to the Standards Division and the appointing department head following the adjudication of these criminal charges. This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under the Influence (DUI) or Driving While Impaired (DWI).
Adjudicated Facts
1. Ted Sauls, Assistant Director of the Sheriffs Standards Division, testified that the Petitioner was appointed as a deputy sheriff with the Mecklenburg County Sheriff's Office on or about September 27, 1996. He was subsequently issued General Deputy Sheriff Certification on or about October 23, 1996. The Sheriffs' Standards Division received two separate Reports of Separation on the Petitioner, dated on or about April 26, 2002. One Report of Separation indicates that the Petitioner was “terminated for cause” and the other Report of Separation indicates the Petitioner “resigned.” The Petitioner’s certifications are currently in a lapsed status as the Petitioner has not been affiliated with a law enforcement agency for over one year.
2. In approximately May of 2002, Mr. Sauls received an e-mail from Olivia Watts of the Mecklenburg County Sheriff’s Office concerning the Petitioner. In this e-mail, Mr. Sauls was informed for the first time that a criminal charge of larceny had been brought against the Petitioner. As a result of this notification, the Sheriffs' Standards Division initiated an investigation into the nature of the charge against the Petitioner, and why the Petitioner had failed to notify the Sheriffs' Standards Division of such charge.
3. Mr. Sauls further testified that in approximately 1999, he had conversations with officials at the Mecklenburg County Sheriff's Office concerning past problems with certified deputy sheriffs and detention officers of the Mecklenburg County Sheriff's Office who had failed to notify the Sheriffs' Standards Division of criminal charges brought against them. As a result of these discussions, Mr. Sauls was apprized that the Mecklenburg County Sheriff's Office was going to initiate a memorandum for its employees.
4. The investigation into the criminal charge brought against the Petitioner by the Sheriffs' Standards Division revealed that the Petitioner was charged on or about January 7, 2002 with the criminal misdemeanor offense of larceny. Documentation reflecting this charge and its disposition was retrieved and presented to the Probable Cause Committee of the Sheriffs' Commission. By letter dated September 30, 2002, the Probable Cause Committee of the Sheriffs' Commission determined probable cause existed to believe the certification of the Petitioner as a justice officer was subject to be revoked based upon his failure to notify the Sheriffs' Commission of his being charged with the criminal offense of larceny on or about January 7, 2002, in violation of 12 NCAC 10B .0301(a)(7) & 12 NCAC 10B .0204(b)(2).
5. The Petitioner testified that he held certification as a detention officer through the Mecklenburg County Sheriff's Office in a reserve status from approximately April 24, 1996 to approximately December 6, 2001. He also held certification through the Mecklenburg County Sheriff's Office as a deputy sheriff in a reserve status from approximately September 27, 1996 through December 6, 2001. In this reserve status, the Petitioner volunteered approximately 18 hours time per month to the Sheriff's Office.
6. The Petitioner has attended Basic Law Enforcement Training in 1990 at the North Carolina Justice Academy in Salisbury North Carolina; Basic Detention Officer School; and a class on courtroom proceedings and civil process.
7. From approximately October, 2000 through December, 2001, the Petitioner was employed with D.S.C. Logistics in Hunterville, North Carolina. In his employment with this company, the general manager instructed the Petitioner to order a batch of gifts to be handed out as awards to employees of D.S.C. Logistics. At the conclusion of this program, 10-15 prizes were left remaining from the batch ordered by the Petitioner. The Petitioner testified that his general manager then told him that he could take numerous items from the remaining prizes as gifts. It was these circumstances that formed the basis of the January 7, 2002 criminal charge against the Petitioner for larceny. The warrant for the Petitioner's arrest for larceny alleged that he stole, took and carried away a fishing rod, coffee maker and a tool box, the personal property of D.S.C. Logistics, such property having a value of two hundred dollars ($200.00). This change was voluntarily dismissed on March 28, 2002.
8. The Petitioner maintained a notebook reflecting his contacts with officials at the Mecklenburg County Sheriff's office concerning this larceny charge. The Petitioner testified that on December 6, 2001 he had a conversation with Commander Bruce Treadaway of the Mecklenburg County Sheriff's office concerning the investigation of the Petitioner by the Huntersville Police Department concerning the larceny allegations. The Petitioner was served with the warrant for arrest for larceny on January 10, 2002. The Petitioner testified that he sent a copy of this arrest warrant via facsimile to Commander Treadaway on this date. The Petitioner also testified that after the case was dismissed, he took a copy of the dismissal to the Commander's office and left it with his secretary.
9. The Petitioner testified that on December 6, 2001, he was suspended by Commander Treadaway as a result of the pending investigation concerning the larceny. The Petitioner testified that he was under the impression that his notice to Commander Treadaway of the charge and its disposition was what he needed to do to notify the proper persons of charges against him.
10. The Petitioner testified that on February 2, 2000, he attended a meeting headed by Commander Treadaway for reserve officers. He testified that approximately 25-30 officers were at this meeting and that when the meeting adjourned, he was instructed to go see Captain Beavers, who was stationed at the back door of the room. It was at this time the Petitioner alleges that he was given the notification memorandum found at Respondent's Exhibit 5 and instructed to sign and date it. The Petitioner denied reading this paper.
11. The Petitioner testified that he was discharged from the Mecklenburg County Sheriff's office in December, 2001, as a result of his involvement in the incidents that formed the basis of the criminal charge of larceny. The Petitioner would like to retain his certification as a justice officer. He is proud of his achievement in law enforcement. The Petitioner stated that he has previously received an award for heroism from Governor Hunt.
12. Commander Bruce Treadaway testified that he is in charge of the internal affairs unit of the Mecklenburg County Sheriff’s Office. Commander Treadaway recalls a meeting on February 2, 2000 for reserve officers. The recollection of Commander Treadaway was that the meeting lasted approximately one and one-half hours. During this meeting, copies of the memorandum found at Respondent's Exhibit 5 were distributed to the attendees. The attendees were instructed to read and sign this form. Commander Treadaway testified that it is the policy of the Mecklenburg County Sheriff's office that such notifications are to be made by the individual. The Commander testified that problems in the past had surfaced when individuals employed by the Sheriff's office had been charged with crimes and had failed to make notifications to the Sheriffs' Standards Division.
13. Commander Treadaway testified he did not know if Exhibit 5 was Rule .0301 (12 NCAC 10B .0301). He further testified that he did not know who wrote Exhibit 5.
14. The Memorandum distributed on February 2, 2000 is incorrectly labeled “Sheriff’s Standards Rule .0301” in that it does not cite the rule as it is written. Further in Paragraph 2 of the memorandum it is stated as follows: “This basically means that no matter what the outcome of the case for our employee may be, we still have to notify Sheriff Standards of the Arrest or Citation within 5 business days of the incident occurring or face the employee’s certification possibly being revoked.” (Underlines added by Undersigned).
15. Mr. Sauls testified that in his experience some law enforcement agencies in the State have a process set up where employees report charges to them (the individual law enforcement agency) and that the agency then notifies the Sheriff’s Standards Commission. Mr. Sauls stated that process satisfied the requirements of Rule .0301.
16. In December 2001, the Sheriff of Mecklenburg County notified Commander Treadaway of a pending investigation against the Petitioner by the Huntersville Police Department concerning allegations of larceny. Commander Treadaway contacted the Petitioner and told him to keep him apprized of the status of the case.
17. Also in December 2001, Commander Treadaway called the Petitioner into his office and suspended him pending the outcome of the internal affairs investigation. Commander Treadaway recalls receiving a faxed copy of the warrant by the Petitioner. A copy of this warrant was placed in the Petitioner's file. Sometime later the Petitioner told Commander Treadaway that the case had been voluntarily dismissed.
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 parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.
2. There is a duty, pursuant to 12 NCAC 10B .0301(a)(7) to provide notice to the Respondent within five (5) working days of all criminal offenses with which an individual such as Petitioner has been charged. That notification obligation falls upon “every Justice Officer employed or certified as a Deputy Sheriff or Jailer in North Carolina.” Besides individual notification, the obligation to Respondent may be satisfied by individual law enforcement agencies that receive notification from their justice officer employees and then notify the Sheriffs’ Education and Training Standards Commission themselves.
3. The Petitioner was charged on January 7, 2002 with the misdemeanor criminal offense of larceny, in violation of N.C.G.S. § 14-72. The Petitioner was served with an arrest warrant on January 10, 2002. The Petitioner faxed a copy of the warrant to Commander Bruce Treadaway of the internal affairs unit of the Mecklenburg County Sheriff's Office. In fact, the Mecklenburg County Sheriff’s Office was aware of and Petitioner had spoken to Commander Treadaway about the investigation surrounding the warrant in December 2001.
4. By stating “This basically means that no matter what the outcome of the case for our (emphasis added by Undersigned) employee may be, we (emphasis added by Undersigned) still have to notify Sheriff Standards of the Arrest or Citation within 5 business days of the incident occurring or face the employee’s certification possibly being revoked,” the Mecklenburg County Sheriff’s Office indicated in their memorandum signed by the Petitioner that they (Mecklenburg County Sheriff’s Office) would be notifying “Sheriff Standards” of the “Arrest or Citation.” It appears to the Undersigned that Mecklenburg County Sheriff’s Office wanted to take on the responsibility of notification due to a past history of individual employees failing to notify the Respondent individually and to prevent their “employee’s certification possibly being revoked.”
5. The Petitioner's failure to make notification to the Respondent of his criminal charge of misdemeanor larceny technically constitutes a violation of 12 NCAC 10B .0301(a)(7). However, the Mecklenburg County Sheriff’s Office failed to notify the Respondent of Petitioner’s charges within 5 days as they stated they would in their memorandum even though they received a copy of those charges the same day that the Petitioner did.