Burgess v. N. Carolina Criminal Justice Educ. & Training Standards Comm'n

Full title: ROY LEE BURGESS Plaintiff v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND…

Court: NORTH CAROLINA COURT OF APPEALS

Date published: Aug 16, 2011

NO. COA10-1456 (N.C. Ct. App. Aug. 16, 2011)

Opinion

NO. COA10-1456

08-16-2011

ROY LEE BURGESS Plaintiff v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION Defendant

Vandeventer Black LLP, by David P. Ferrell, for Plaintiff-appellant. Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for Defendant-appellee.

HUNTER

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Wake County No. 09 CVS 13710

Appeal by Plaintiff from Order entered 30 July 2010 by Judge Shannon R. Joseph in Wake County Superior Court. Heard in the Court of Appeals 27 April 2011.

Vandeventer Black LLP, by David P. Ferrell, for Plaintiff-appellant.

Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for Defendant-appellee.

HUNTER, JR., Robert N., Judge.

Roy Lee Burgess ("Plaintiff") appeals from a superior court Order affirming the Final Agency Decision of the North Carolina Criminal Justice Education and Training Standards Commission ("Defendant" or "CJ Commission"). Plaintiff assigns three errors. First, Plaintiff contends Defendant failed to follow the requirements set forth by N.C. Gen. Stat. § 150B-36(b3) when Defendant rendered its Final Agency Decision. Secondly, Plaintiff contends he did not knowingly make a material misrepresentation of any information required for certification by Defendant. Based on our record review, we disagree. Finally, Plaintiff contends the trial court erred when it refused to adopt the sanction regarding Plaintiff's certification as ordered by the Administrative Law Judge ("ALJ"). We disagree and affirm the trial court's decision modifying the ALJ's recommended sanction.

I. Factual and Procedural History

The North Carolina Department of Justice ("NC DOJ"), pursuant to N.C. Gen. Stat. § 17C, oversees educational and training standards for law enforcement through the CJ Commission. The CJ Commission certifies North Carolina law enforcement officers have met these professional training standards for employment including a criminal background investigation requirement that the applicant has truthfully acknowledged any criminal history prior to certification. N.C. Gen. Stat. § 17C-10(b)(2009).

The Department of Correction Application

On 12 October 2006, Plaintiff applied to the CJ Commission for certification as a law enforcement officer at the North Carolina Department of Correction ("the DOC Application"). Question six on the DOC Application asked Plaintiff to list his "Criminal Conviction Record." The following instruction was included above question six:

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 you were convicted of a criminal offense at some point in your life, you should check the block labeled, 'Criminal Convictions as Reported Below' and give details. You should check the 'No Criminal Convictions' block ONLY if you have never been convicted of a Misdemeanor or Felony, or your record/citation was expunged by a judge's court order.

Plaintiff checked the box marked "No Criminal Convictions" while also listing the offenses of "brandishing a firearm" and "disturbing the peace." Next to each offense, Plaintiff wrote "DA reject." Plaintiff did not provide details for either listed offense.

The two charges Plaintiff listed resulted from a single incident on 24 February 1976 in Oakland, California involving an altercation between Plaintiff and Plaintiff's mother-in-law. Plaintiff claims his mother-in-law entered his bedroom and began arguing over a phone bill. He claims the argument escalated and she reached for a knife and then he reached for his gun in self-defense. The police were called and Plaintiff was taken into custody for "brandishing a firearm" and "disturbing the peace." According to Plaintiff, he was held in custody overnight and for most of the next day. He claims he was not made aware of any charges pertaining to his detention.

On 8 November 2006, Richard Damm from the NC Department of Correction notified Plaintiff that a background check revealed a 1976 arrest record in the state of California. The record was from the Oakland Police Department and listed the charge of "brandishing a firearm" and "disturbing the peace." The documents obtained by the CJ Commission from the Oakland Police Department in California list Plaintiff as the "suspect" and a block is checked for "in custody." Additionally, there are a total of nine references to Defendant's "arrest" on one of the documents provided by the Oakland Police Department regarding this California incident. That document also lists an arrest number, the date arrested, time arrested, arresting officer, arresting citizen's name, address, and age. The form also required the arresting citizen to sign beneath a statement noting that he/she has filed a complaint against the person who has been arrested and he/she has asked the officer to charge the person and take him into custody. Although there is ample evidence of Plaintiff's arrest, the documents do not show the warrant or other disposition of any charges. On 9 November 2006, Plaintiff went to Mr. Damm's office and amended his original DOC application to include a statement about this California incident. Plaintiff wrote once he was in custody, he was told he was "being held pending charges." He further explained that he was "not arrested or charged as far as [he] knew, but [was] released and told to leave."

The Louisburg College Campus Police Application

On 26 October 2006, fourteen days after Plaintiff applied for certification to work as a criminal justice officer at the Department of Correction, Plaintiff filled out an application for commission as a campus police officer for the Louisburg College Campus Police ("the Campus Police Application"). Question 47 on the Campus Police Application asked "Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? (The term 'charged' as used in this question includes being issued a citation or criminal summons.)" Directly above question 47 on the Campus Police Application, the following instruction was included:

Include all offenses other than minor traffic offenses. . . . Answer all of the following questions 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 answer "Yes." You should answer "No," only if you have never
been arrested or charged, or your record was expunged by a judge's court order. (Emphasis added).

Plaintiff checked the box marked "Yes" and listed three offenses unrelated to the California incident, and noted, "See attached sheets. Wake County criminal record."

In November 2006, James Williamson, Chief of Louisburg Campus Police, contacted Plaintiff to write a statement about the California incident to supplement Plaintiff's Campus Police Application.

Plaintiff testified he prepared a statement that explained this California incident. The statement was neither dated nor signed by Plaintiff and was not mailed in with Plaintiff's Campus Police Application. Defendant received Plaintiff's Campus Police Application on 27 November 2006, but Plaintiff's statement was not attached.

Denial of Commission as Campus Police Officer

On 12 March 2007, Vickie Huskey, an Administrator with the NC DOJ notified Plaintiff that she found probable cause to deny Plaintiff's application for commission as a campus police officer with the Louisburg College Campus Police because of the "material misrepresentations" he made on his Campus Police Application. The material misrepresentations included failing to report the offenses of "brandishing a firearm" and "disturbing the peace" resulting from the California incident.

It was not until 10 April 2007, after probable cause had been found to deny Plaintiff's commission as a campus police officer, that Chief Williamson sent Ms. Huskey a fax notifying her that he found a statement from Plaintiff in a "November Incident Sheet's folder" explaining the California incident. The CJ Commission received this statement five months after it had received Plaintiff's application. At a hearing, Plaintiff testified this was the statement he had typed and gave to Chief Williamson to submit.

Plaintiff disagreed with the NC DOJ's finding of probable cause and requested the dispute be resolved through an administrative hearing pursuant to Chapter 150B of the North Carolina General Statutes. At the administrative hearing on 6 August 2007, Plaintiff testified he filled out the Campus Police Application with the assistance of Chief Williamson and he only listed the charges he knew of, which were from Wake County. Administrative Law Judge Beecher R. Gray found Plaintiff made a material misrepresentation in his response to question number 47 of his Campus Police Application when he failed to list "brandishing a firearm" and "disturbing the peace." Judge Gray recommended that Defendant commission Plaintiff as a campus police officer with a probationary status of one year.

Denial of Law Enforcement Officer Certification

On 17 March 2008, Plaintiff was notified by Wayne Woodard with the NC DOJ that Defendant found probable cause to deny Plaintiff's law enforcement officer certification based on material misrepresentations he made on his Campus Police Application. Plaintiff disagreed with the finding of probable cause and requested an administrative hearing to resolve the dispute.

On 24 November 2008, a second administrative hearing was held with Administrative Law Judge Donald W. Overby presiding. Judge Overby found Plaintiff made material misrepresentations in response to question number 47 on his Campus Police Application by failing to list "brandishing a firearm" and "disturbing the peace." Judge Overby recommended Defendant deny Plaintiff's law enforcement officer certification for a period of not less than one year and Plaintiff be on probationary status for an additional three years once he receives certification.

Final Agency Decision

Plaintiff was provided notice by both Judge Gray and Judge Overby that Defendant would make a final decision regarding the sanction and suspension period of Plaintiff's case. On 7 June 2009, Defendant issued its Final Agency Decision denying Plaintiff's criminal justice officer certification for a period of not less than five years pursuant to Title 12 of the North Carolina Administrative Code.

Pursuant to N.C. Gen. Stat. § 150B-48, Plaintiff filed a Petition for Judicial Review of the Final Agency Decision to deny Plaintiff's criminal justice officer certification, primarily contending Plaintiff did not make material misrepresentations on his Campus Police Application and arguing the Final Agency Decision was not supported by substantial evidence in the record. Judge Shannon Joseph of Wake County Superior Court affirmed the Final Agency Decision.

II. Jurisdiction and Standard of Review

As Plaintiff appeals from the final judgment of a superior court entered upon review of a decision of an administrative agency, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009).

The scope of this Court's review depends upon the error which was alleged to have occurred. Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994) (citing Walker v. N.C. Dep't of Human Res., 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990)). "[I]n cases appealed from administrative tribunals, 'questions of law receive de novo review,' whereas fact-intensive issues 'such as sufficiency of the evidence to support [an agency's] decision are reviewed under the whole-record test.'" N.C. Dept. of Env't & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004) (quoting In re Greens of Pine Glen Ltd. Part., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

Plaintiff alleges the CJ Commission's conclusion that Plaintiff made "material misrepresentations" on his Campus Police Application was not supported by substantial evidence. Therefore, we review the sufficiency of the evidence to support the trial court's conclusion under the whole record test. When the Court applies the whole record test,

it may not substitute its judgment for the agency's as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo. Rather, a court must examine all the record evidence—that which detracts from the agency's findings and conclusions as well as that which tends to support them—to determine whether there is substantial evidence to justify the agency's decision. Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion.

Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (citations and quotation marks omitted).

Our Supreme Court has held "where the findings of fact of an administrative agency are supported by substantial competent evidence in view of the entire record, they are binding on the reviewing court, and that court lacks authority to make alternative findings at variance with the agency's." Carroll, 358 N.C. at 663, 599 S.E.2d at 897.

Because Plaintiff argues the CJ Commission failed to apply the applicable statute in affirming the sanction, we review the trial court's decision to affirm the sanction regarding Plaintiff's certification as ordered by the Defendant's Final Agency Decision de novo. This Court, under a de novo standard of review, considers the matter anew and freely substitutes its own judgment for that of the CJ Commission. Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002).

III. Analysis

Plaintiff contends Defendant failed to follow the requirements set forth by N.C. Gen. Stat. § 150B-36(b3), Article 3 of the Administrative Procedure Act. The portion of the Act sets forth in pertinent part:

Except as provided in G.S. 150B-34(c), the agency shall adopt the decision of the administrative law judge unless the agency demonstrates that the decision of the administrative law judge is clearly contrary to the preponderance of the admissible evidence in the record. If the agency does not adopt the administrative law judge's decision as its final decision, the agency shall set forth its reasoning for the final decision in light of the findings of fact and conclusions of
law in the final decision, including any exercise of discretion by the agency.

N.C. Gen. Stat. § 150B-36(b3)(2009). Specifically, Plaintiff argues Defendant failed to state specific reasons for rejecting the decision recommended by Administrative Law Judge Overby to Defendant for its Final Agency Decision. Defendant contends this Court cannot address this issue because Plaintiff failed to raise the issue in his Petition for Judicial Review.

We first find Plaintiff sufficiently raised this issue when Plaintiff stated in paragraph 16 of his Amended Petition for Judicial Review that his substantial rights were prejudiced because Defendant's "findings of fact, inferences, conclusions of law, and decisions [were]: . . . (3) Made upon unlawful procedure; (4) Affected by other error of law; . . . or (6) Arbitrary, capricious, or an abuse of discretion."

Next, we address the merits of Plaintiff's argument that Defendant was required by statute to state specific reasons for rejecting the decision recommended by Judge Overby to Defendant for its Final Agency Decision. The ALJ hearing was both requested and brought before Judge Overby in accordance with N.C. Gen. Stat. § 150B-40(e). N.C. Gen. Stat. § 150B-40(e) falls under Article 3A of the Administrative Procedure Act.

Article 3 requires that when an agency does not adopt an ALJ's final decision it must provide reasoning for its final decision in light of the findings of fact and conclusions of law in the final decision, including any exercise of discretion. N.C. Gen. Stat. § 150B-36(b3). However, Article 3A does not set forth any such requirement. We find it important to note the provisions of Article 3 do not apply to cases governed by Article 3A. Homoly v. N.C. State Bd. of Dental Exam'rs, 121 N.C. App. 695, 699, 468 S.E.2d 481, 484 (1996).

The ALJ hearing was requested under Article 3A and was conducted under Article 3A. For these reasons we find that Article 3A governs the issue before us. Under Article 3A, Defendant was not required by statute to provide reasoning for its final decision. We find the superior court did not err when it affirmed Defendant's Final Agency Decision.

Plaintiff further contends he did not knowingly make a material misrepresentation of any information required for certification by Defendant. Under the whole record test, this Court must look for substantial, relevant evidence that a reasonable mind might accept as adequate to support the conclusion that Plaintiff made "material misrepresentations" on his Campus Police Application. Carroll, 358 N.C. at 660, 599 S.E.2d at 895. "A misrepresentation or omission is 'material' if, had it been known to the party, it would have influenced the party's judgment or decision to act." Latta v. Rainey, ___ N.C. App. ___, ___, 689 S.E.2d 898, 909 (2010) (citation omitted). At the first ALJ hearing, Plaintiff stated, "When I filled out the application for Chief Williamson, I only put on the charges that I knew about, which was [sic] the Wake County charges."

Approximately two weeks prior to filling out the Campus Police Application, Plaintiff filled out the DOC Application. The DOC Application required Plaintiff to list his criminal conviction record. Although the record is devoid of evidence of any "convictions," Plaintiff included what he believed was a "detention" by listing the offenses of "brandishing firearm" and "disturbing the peace." It is clear from the record that Plaintiff was aware of the charges at the time he filled out the DOC Application. He was also aware of them two weeks later when he filled out the Campus Police Application which required disclosure of events. However, when Plaintiff filled out the Campus Police Application he chose to omit the events he previously listed on the DOC Application.

Plaintiff's actions meet both components of a material misrepresentation. Plaintiff provided an incomplete statement on his Campus Police Application when he did not include the charges resulting from the California incident. Plaintiff also knew that the CJ Commission attaches importance to full disclosure of information provided by their applicants because Plaintiff learned while at BLET that it was important to make sure all applications with the CJ Commission were complete and consistent. Therefore, Plaintiff made a material misrepresentation by omission when he provided an incomplete statement.

After reviewing the record, we conclude that it contains sufficient substantial evidence to support the finding both by the ALJs and the superior court that Plaintiff made "material misrepresentations" on his Campus Police Application. Thus, the superior court properly utilized the whole record test and did not err.

Lastly, Plaintiff contends the trial court erred when it failed to require Defendant to adopt the sanction recommended by either Administrative Law Judge Beecher or Judge Overby. We find no error in the trial court's decision.

Pursuant to Title 12 of the North Carolina Administrative Code, the CJ Commission has the authority to suspend, revoke, or deny the certification of a criminal justice officer when it finds the applicant has knowingly made a material misrepresentation on his application for certification. 12 N.C. Admin. Code 09A.0204(b)(6) (2010). When the CJ Commission suspends or denies certification, the sanction imposed shall be not less than five years. 12 N.C. Admin. Code 09A.0205(b)(4) (2010). However, the CJ Commission has discretion, following an administrative hearing, to reduce the period of sanction imposed on the applicant. Id.

After two administrative hearings, Defendant decided not to follow either of the ALJ's proposed sanctions and instead denied Plaintiff's criminal justice officer certification for five years. Pursuant to N.C. Gen. Stat. § 17C-6(a)(3)(2009), the CJ Commission was within their authority to take such action, as they have exclusive authority to certify law enforcement officers and determine their period of sanction. Additionally, pursuant to 12 N.C. Admin. Code 09A.0204(b)(6) and 12 N.C. Admin. Code 09A.0205(b)(4), the CJ Commission was within their authority to impose the five year sanction on Plaintiff. Thus, the trial court did not err when it affirmed Defendant's decision to impose a five year suspension period on Plaintiff.

IV. Conclusion

We find N.C. Gen. Stat. § 150B-40(e) inapplicable to this case, as the ALJ hearing was brought in accord with Article 3A, not Article 3, of the Administrative Procedure Act. We also conclude substantial evidence existed for the trial court to find that Plaintiff made "material misrepresentations" on his Campus Police Application. Finally, we conclude the trial court did not err when it affirmed the Defendant's decision to impose a five year suspension period on Plaintiff's criminal justice officer certification.

Affirmed.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).