STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CHEROKEE 04 DOJ 0259
04 DOJ 1215
ROBERT ALAN KILPATRICK, )
Petitioner, )
)
v. )
)
NORTH CAROLINA CRIMINAL )
JUSTICE EDUCATION AND )
TRAINING STANDARDS )
COMMISSION, ) PROPOSAL FOR DECISION
Respondent. ) GRANTING SUMMARY
______) JUDGMENT
)
ROBERT ALAN KILPATRICK, )
Petitioner, )
)
v. )
NORTH CAROLINA SHERIFFS’ )
EDUCATION AND TRAINING )
STANDARDS COMMISSION, )
Respondent. )
Upon consideration of Respondent’s Motion for Summary Judgment filed on November 18, 2004, the response thereto filed by the Petitioner, and the oral stipulations of the parties on a telephone conference with the undersigned Administrative Law Judge on December 17, 2004, the undersigned hereby proposes that the Respondent’s Motion for Summary Judgment be granted as hereinafter set out.
FINDINGS OF FACT
1. 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 9, to certify law enforcement officers and to deny, revoke or suspend such certification.
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 10B, to certify justice officers and to revoke, suspend or deny such certification.
3. Petitioner applied to the North Carolina Criminal Justice Education and Training Standards Commission for law enforcement officer certification and was issued probationary certification (PRA 243062263) effective October 29, 1990 and general certification (GNA 243062263) effective October 29, 1991.
4. Petitioner applied to the North Carolina Sheriffs’ Education and Training Standards Commission for telecommunicator certification and was issued grandfather certification (GFT 243062263) effective August 7, 1989.
5. On January 22, 2003, Petitioner was charged with and pled guilty to the criminal offense of “Failure to Notify the Secretary of Health and Human Services and the Local Health Director of the Death of a Prisoner in a Local Confinement Facility”, in violation of N.C. Gen. Stat. § 153A-225(b), in Cherokee County District Court. Petitioner was not represented by counsel.
6. On November 10, 2003, Petitioner was sent a Proposed Suspension of General Law Enforcement Officer Certification letter from the Respondent, Criminal Justice Education and Training Standards Commission, based on Petitioner’s conviction of the Class B misdemeanor offense of Failure to Notify the Secretary of Health and Human Services and the Local Health Director of the Death of a Prisoner in a Local Confinement Facility.
7. On April 6, 2004, Petitioner was sent a Notification of Probable Cause to Revoke Justice Officer Certification letter from the Respondent, North Carolina Sheriffs’ Education and Training Commission, based on Petitioner’s conviction of the Class B misdemeanor offense of Failure to Notify the Secretary of Health and Human Services and the Local Health Director of the Death of a Prisoner in a Local Confinement Facility.
8. Petitioner was the Sheriff of Cherokee County at the time of the death of Christopher Lee Wood, a prisoner in the Cherokee County Jail. Mr. Wood died on September 5, 2002 as a result of complications arising from diabetes.
9. Petitioner was required to report the death of inmate Christopher Wood on forms developed and distributed by the Department of Health and Human Services. At the time of inmate Wood’s death, there were no such forms readily available in the Cherokee County Jail to complete.
10. By virtue of his authority as Cherokee County Sheriff and N.C. Gen. Stat. § 162-22, Petitioner appointed Judy Ann Barton Mason as Jail Administrator for Cherokee County during his tenure as Sheriff. She was the Jail Administrator at the time of Mr. Wood’s death. Judy Mason currently has an involuntary manslaughter charge pending against her for the death of inmate Christopher Wood in Cherokee County Superior Court.
11. Petitioner immediately notified the North Carolina State Bureau of Investigation of the inmate death on September 5, 2002. However, the Petitioner did not report the death to the North Carolina Department of Health and Human Services until September 16, 2002, under the circumstances herein set out.
12. The required Report of Death Form was faxed to the Cherokee County Sheriff’s Department, Attention Judy Mason, on September 16, 2002, and the report was completed by Judy Mason and submitted back to the Department of Health and Human Services via facsimile on September 16, 2002.
13. The Petitioner has no conviction other than that described in Paragraph 5 hereof and Petitioner has had no prior disciplinary action or complain with regard to the certifications described in Paragraph 3 and 4 hereof.
14. Sheriff Bobby L. Medford of Buncombe County, North Carolina has supported Petitioner by his appointment of Petitioner as a reserve Deputy Sheriff of the Buncombe County Sheriff’s Department and Sheriff Terry Johnson of Alamance County, North Carolina, has indicated that he considers the Petitioner a fit subject for employment as a law enforcement officer in the event his certification is not suspended or revoked.
15. The Petitioner is currently unemployed. Petitioner’s certification as a reserve deputy sheriff is currently held by the Buncombe County Sheriff’s Office. Petitioner is seeking employment as a deputy sheriff with the Alamance County Sheriff’s Office.
CONCLUSIONS OF LAW
1. The parties properly are before the undersigned Administrative Law Judge and jurisdiction and venue are proper.
2. Pursuant to 12 NCAC 9A .0204(b)(3)(A) and 12 NCAC 10B .0204(d)(1), the Commissions may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103(22)(b) and 12 NCAC 10B .0103 (10)(b) as a Class B misdemeanor. (Emphasis Added)
3. “Failure to Notify the Secretary of Health and Human Services and the Local Health Director of the Death of a Prisoner in a Local Confinement Facility” is a Class 1 misdemeanor under N.C. Gen. Stat. § 153A-225(c) which constitutes a Class B misdemeanor as defined in 12 NCAC 9A .0103(22)(b) and 12 NCAC 10B .0103(10)(b) of the Commissions’ rules.
4. That pursuant to 12 NCAC 9A .0103(5) and 12 NCAC 10B .0103(2), “convicted” or “conviction” means and includes the entry of a plea of guilty; a verdict or finding of guilt by a jury, judge, magistrate, or other duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or military; or a plea of no contest, nolo contendere, or the equivalent.
5. Pursuant to 12 NCAC 9A .0205(b)(1), when the Commission suspends, revokes or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years for commission or conviction of a Class B misdemeanor.
6. Pursuant to 12 NCAC 10B .0205 (2)(a), when the Commission suspends, revokes, or denies the certification of a justice officer, the period of sanction shall be not less than five years for commission or conviction of a Class B misdemeanor.
7. Pursuant to 12 NCAC 9A .0205(b)(1) and 12 NCAC 10B .0205(2)(h), the Commissions may, after the administrative hearing, in their respective discretion, lessen or reduce such period of sanction when extenuating circumstances warrant such a reduction or suspension, in the discretion of the Commission.
PROPOSAL FOR DECISION
Based on the foregoing Findings of Facts and Conclusions of Law, the undersigned hereby proposes that Respondent’s Motion for Summary Judgment be granted. The undersigned further proposes that the Petitioner’s certifications be suspended, with a period of probation for two (2) years substituted in lieu of suspension, on the condition that the Petitioner not violate any Federal or State laws, with the exception of minor traffic violations, or Rules of the Commission.
NOTICE AND ORDER
The agencies making the final decision in this contested case are 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 pursuant to N.C. Gen. Stat. § 150B-40(e). In accordance with N.C. Gen. Stat. § 150B-36(b), each agency shall also serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina, 27699-6714.
The agencies that will make the final decision in this contested case are the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission.
This the 10th day of January, 2005.
______
Beryl E. Wade
Administrative Law Judge
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