STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF HOKE 03 DOJ 0517

______

MARY KATHERINE MCVEY, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. CRIMINAL JUSTICE )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

______

On July 14, 2003, Administrative Law Judge Beryl Wade heard this case in Fayetteville, 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: Mary Katherine McVey, Pro Se

1188 Gold Course Road

Raeford, N.C. 28376

Respondent: Lorrin Freeman

Assistant Attorney General

Department of Justice

Law Enforcement Liaison Section

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

1. Did the Petitioner knowingly make a material misrepresentation of any information required for certification in violation of 12 NCAC 9G.0504(b)(6)?

FINDINGS OF FACT

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 by certified mail the Proposed Suspension of Correctional Officer Certification letter mailed by Respondent on February 24, 2003.

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

3. Pursuant to Commission Rule 12 NCAC 9G.0504 (b)(6) “[t]he Commission may suspend, revoke, or deny the certification of a corrections officer when the Commission finds that the applicant for certification or the certified officer:

(6) has knowingly made a material misrepresentation of any information required for certification or accreditation.”

4. Petitioner was granted Probationary Certification as a Correctional Officer (PRB 246196518) on June 30, 2000. (Respondent’s Exhibit 6) Petitioner was granted General Certification (GNB 246196518) as a Correctional Officer on June 12, 2001. (Respondent’s Exhibit 7)

5. On or about October 4, 1984, Petitioner was charged with the felony offenses of Grand theft (2 counts); Burglary of Conveyance (5 counts); and Burglary of Structure (1 count). On March 15, 1985 Petitioner entered a plea of Nolo Contendere to these charges, was convicted and placed on three years probation. (Respondent’s Exhibit 3)

6. Petitioner completed a Personal History Statement (Commission Form F-3(DOC)) on May 16, 2000 as part of her application with the Department of Correction which was submitted to the Commission in order to obtain certification as a correctional officer.

7. Question 14 of this Form F-3 asks the applicant to divulge his/her Criminal Offense Record. Specifically the question indicates

All offenses other than minor traffic offenses must be reported below. Please note that a “DWI/DUI (alcohol or drugs)”, “Duty to Stop in the Event of an Accident,” “Driving While License Permanently Revoked,” and “Speeding to Elude Arrest” are NOT minor traffic offenses and, therefore, MUST be reported below. Provide all information completely and accurately. Any falsifications or misstatements of fact may be sufficient to disqualify you. 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 check the block labeled “Criminal Charges as Reported Below” and give details. If you have no criminal charges other than minor traffic offenses, please check the block labeled “No Criminal Charges other than Minor Traffic Offenses”. You should check the “No Criminal Charges” block ONLY if you have never been charged or arrested, or your record/citation was expunged by a judge’s court order. Criminal offenses that have been “Dismissed” MUST be reported.

8. In response to Question 14 of the Personal History Statement (Form F-3 (DOC)), Petitioner listed only one offense charge, that of Driving While Impaired. Petitioner did not disclose the following charges or convictions:

1. Felony Grand Theft (2 counts); Date of Offense- October 4, 1984; Ocala Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985, Placed on Probation 3 years.

2. Felony Burglary of Conveyance (5 counts); Date of Offense- October 4, 1984; Ocala Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985, Placed on Probation 3 years.

3. Felony Burglary of Structure (1 count); Date of Offense- October 4, 1984; Ocala Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985, Placed on Probation 3 years.

(Respondent’s Exhibit 4)

9. Question 16 of the Personal History Statement (Commission Form F-3(DOC)) asks “Have you ever been placed on probation? If yes, give details in the Explanation Section (page 4).”

10. In response to Question 16, Petitioner did not disclose that she was placed on three years probation on March 15, 1985 as a result of her plea of “Nolo Contendere” to eight felony charges in Ocala, Florida. (Respondent’s Exhibit 4)

11. Petitioner submitted to Respondent a Report of Appointment/Application for Certification (Commission Form F-5A), dated May 16, 2000, in which she did not disclose the felony charges or disposition of the aforementioned felonies with which she was charged on or about October 4, 1984 in response to the request that she disclose all criminal history information. (Respondent’s Exhibit 5)

12. Petitioner understood that Question 14 of the Personal History Statement (Commission Form F-3 (DOC)) and the Report of Appointment/Application for Certification (Commission Form F-5A) required that she list all criminal offenses with which she had been charged regardless of disposition.

13. Petitioner did not believe that the felony charges had been expunged.

14. In a written explanation that Petitioner provided to the Department of Correction at the request of the Respondent, Petitioner indicated that she had not done anything wrong to justify having been charged with the felony offenses, that she was only playing cards with some men in her apartment complex when the police arrived, and that she was arrested along with others. (Respondent’s Exhibit 8) During her testimony, Petitioner admitted to having been in the car with her co-defendants when they went to the location where the felony offenses occurred. She first testified that she went along with them because they were going to “the store” and that she and others frequently went to “the store” to purchase beer and other items. She subsequently testified that she did not know exactly what type of building she and her co-defendants had been to that evening; that

it was closed; and that she remained in the car behind the building while her co-defendant committed the criminal offenses.

15. Petitioner’s testimony at trial was not consistent and her explanations were not credible.

16. In a letter written March 21, 2003 to request a hearing on this matter, Petitioner made the

following statements:

a. “I honestly felt that if I had submitted the information, which I believed to be resolved, it

would not have reflected my true character and lifestyle.”

b. “So when I completed the employment application I did not record the convictions because I felt it would hamper my efforts to secure a position and would undermine all of my efforts for the past eighteen years that have led me to this point.”

(Respondent’s Exhibit 9)

These statements indicate that Petitioner’s failure to disclose information required to be certified as a correctional officer was intentional and knowingly.

17. Petitioner was 21 at the time she was charged and convicted of the 1984 felonies.

18. The felony offenses in question occurred almost twenty years ago.

19. Petitioner reasonably believed upon advice of her court appointed counsel that if she pled “Nolo Contendere” that it would “take care of” the charges.

20. Petitioner did not know that pleading “Nolo Contendere” would result in a conviction for the offenses.

21. Petitioner completed her probation and was released from it prior to the three year period to which she was initially sentenced.

22. Petitioner is a single mother who supports her teenage child.

23. Petitioner, in not disclosing the information of the 1984 felony charges, was attempting to obtain employment that would better her and her son’s life.

24. Petitioner has been a valued employee of the Department of Correction.

CONCLUSIONS OF LAW

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

2. Pursuant to 12 NCAC 9G.0504 (b)(6) “[t]he Commission may suspend, revoke, or deny the certification of a corrections officer when the Commission finds that the applicant for certification or the certified officer:

(6) has knowingly made a material misrepresentation of any information required for certification or accreditation.”

3. Petitioner knowingly made a material misrepresentation of information required for certification by failing to list the following charges and dispositions on the Personal History Statement (Commission Form F-3(DOC)) and Report of Appointment/Application for Certification (Commission Form F-5A) that she submitted to Respondent for certification:

a. Felony Grand Theft (2 counts); Date of Offense- October 4, 1984; Ocala

Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985, Placed on Probation 3 years.

b. Felony Burglary of Conveyance (5 counts); Date of Offense- October 4,

1984; Ocala Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985, Placed on Probation 3 years.

c. Felony Burglary of Structure (1 count); Date of Offense- October 4, 1984;

Ocala Florida; Disposition- “Nolo Contendere” plea, Convicted March 15,1985,

Placed on Probation 3 years.

4. Petitioner further knowingly made a material misrepresentation of information required for certification by failing to divulge that she was placed on probation on March 15, 1985 for a period of three years and the details of such probation in response to question 16 on the Personal History Statement (Form F-3 (DOC)).

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 three years and that such revocation be suspended and Petitioner placed on probation during which time she is not to commit any criminal offenses under Federal or State law and is not to violate the rules of the North Carolina Criminal Justice Education and Standards Commission.

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 Criminal Justice Education and Training Standards Commission.

This the 11th day of August, 2003.

______

Beryl E. Wade

Administrative Law Judge