STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF HALIFAX
03 DOJ 1880
____________________________________________________________________________
EMMETT HAMILTON BARNES, JR.,
)
)
Petitioner,
)
)
v.
)
PROPOSAL FOR DECISION
)
NORTH CAROLINA SHERIFFS’
)
EDUCATION AND TRAINING
)
STANDARDS COMMISSION,
)
)
Respondent.
)
_____________________________________________________________________________
In accordance with N.C. Gen. Stat. § 150B-40(e), Respondent requested the designation of an
Administrative Law Judge to preside at an Article 3A, N.C. General Statute § 150B, contested case
hearing of this matter. On March 17, 2004, Administrative Law Judge Melissa Owens Lassiter heard
this contested case in Farmville, North Carolina. Pursuant to the undersigned March 19, 2004 Order,
the Respondent filed a draft Proposal for Decision on March 24, 2004.
APPEARANCES
Petitioner:
Pro Se
358 Orange Blossom Trail
Roanoke Rapids, NC 27870
Respondent:
John J. Aldridge, III
Special Deputy Attorney General
NC Dept of Justice
Law Enforcement Liaison Section
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent’s proposed denial of Petitioner’s justice officer certification is
supported by substantial evidence?
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FINDINGS OF FACT
1.
Both parties are properly before this Administrative Law Judge, and jurisdiction and venue
are proper. Both parties received Notice of Hearing.
2.
Respondent has the authority to issue, deny, or suspend certifications for justice officer
applicants.
3.
On November 21, 2002, Petitioner applied through the Northampton County Sheriff’s Office,
for certification as a detention officer with the Respondent. In the process of applying for
certification as a detention officer, Petitioner completed a Personal History Statement on November
11, 2002. Question No. 26 of this Personal History Statement, asks, “Have you ever been discharged
or requested to resign from any position because of criminal misconduct or rules violations?”
Petitioner answered “Yes” to this question.
In further explanation of his answer to question 26, Petitioner stated, “I had to resign from
Greenville Correctional Center, because of Drug Policy 5-55. I took a drug test and the doctor stated
that I had a very small trace of marijuana in my system. At the time I was around people smoking
marijuana but do not use drugs.”
4.
As part of his application, Petitioner also completed an “Authorization for Release of
Information” for Respondent. Respondent used this authorization for release to gather information
from the Virginia Department of Corrections concerning Petitioner’s prior positive drug screen.
5.
On August 20, 2001, Petitioner had been employed as a Correctional Officer with the
Virginia Department of Corrections for approximately 9 years. Petitioner was aware that the use of
drugs was inconsistent with his duties as a Virginia Department of Corrections’ employee.
6.
On August 20, 2001, the Virginia Department of Correction conducted a random urinalysis
test and asked Petitioner to submit a urine sample. Petitioner’s test came back positive for the
presence of marijuana in the Petitioner’s system.
7.
By letter dated September 12, 2003, the Respondent proposed to deny the Petitioner his
justice officer certification based on his lack of good moral character. Specifically, the Respondent
found that the Petitioner’s use of marijuana, and voluntary association with other individuals who
were smoking marijuana, while employed as a Virginia Department of Corrections’ officer
constituted a lack of good moral character on his part.
8.
Subsequent to the Petitioner testing positive for marijuana on his Virginia drug screen, the
Petitioner was contacted by Dr. Arthur E. Ryan, a certified Medical Review Officer to determine if
there was a legitimate explanation for the Petitioner’s positive urinalysis test result for marijuana.
Dr. Ryan is certified to act as a Medical Review Officer from the American Association of Medical
Review Officers. He has received training, and has experience, in the field of evaluating passive
inhalation or passive ingestion of drugs. Basically, passive ingestion of drugs is where an individual
would take into their system a quantity of a controlled substance without a conscious knowledge of
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them doing so. Passive inhalation is where individuals who have tested positive for marijuana in
their system claim that they did not ingest marijuana but were rather around individuals who were
smoking the drug.
9.
The drug test conducted on the Petitioner’s urine was administered in accordance with the
procedures authorized and mandated by the United States Department of Health and Human Services
for federal workplace drug testing programs. Petitioner’s urine was tested using the immunoassay
screen, and was later subjected to a confirmation test using the gas chromatography/mass
spectrometry (GC/MS) method of testing. The test conducted on the Petitioner’s urine revealed a
level of marijuana above the threshold established for screen and confirmation tests conducted in
accordance with the standards established by the United States Department of Health and Human
Services for federal workplace drug testing programs.
10.
The cutoff threshold adopted by the United States Department of Health and Human Services
is 50 nannagrams per milliliter ng/ml for marijuana as a screen cutoff, and 15 nannagrams per
milliliter ng/ml for the confirmation cutoff level. The purpose of this cutoff limit is to prevent any
possibility of a trace amount of the illicit drug, marijuana in this case, from being reported as positive
if it is detected in the person’s system.
11.
Dr. Ryan has reviewed the Petitioner’s representation in Question No. 26 of the Personal
History Statement, and specifically denies making this comment to the Petitioner. Dr. Ryan stated
that he would doubt making such a comment since he would not have had the quantitative result at
the time he had a telephone conversation with the Petitioner.
12.
After Petitioner’s positive urinalysis test result, Dr. Ryan telephoned the Petitioner. Dr. Ryan
verified the Petitioner’s identity and confirmed that Petitioner was indeed the subject of the urine
sample that tested positive for marijuana on August 20, 2001. Dr. Ryan informed the Petitioner that
the purpose of his interview was to provide Petitioner an opportunity to volunteer information with
Dr. Ryan that might explain the positive result, such as anything from his medical history,
prescriptions, recent treatment, or other valid medical explanation. Petitioner denied any medical
cause for the marijuana being in his system. At no time during the interview with Dr. Ryan did
Petitioner inform Dr. Ryan that he was in the presence of others smoking marijuana prior to his urine
sample being taken on August 20, 2001.
13.
Dr. Ryan found no medically indicated cause for the drugs being in the Petitioner’s system.
He therefore reported the Petitioner’s urinalysis test from August 20, 2001 as positive to the Virginia
Department of Corrections. Subsequently, Virginia Department of Corrections Petitioner to resign
from his position with them.
14.
The quantitative report showing the specific level of marijuana in the Petitioner’s urine was
82 nannagrams per milliliter. In Dr. Ryan’s professional judgment and experience, it is impossible
for this high a level to be explained, except by the Petitioner actually using marijuana. In Dr. Ryan’s
opinion, it is impossible for secondhand smoke to give this level of marijuana in a person’s system.
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15.
Dr. Ryan’s opinion is supported by the “Guidelines for Federal Workplace Drug Testing
Program,” as administered by the Department of Health and Human Services and by independent
studies conducted on the passive inhalation of marijuana. In Dr. Ryan’s Stipulation of Expected
Testimony, he further stated that the half-life of marijuana in the human body is 24 hours. In other
words, the level of marijuana in the system will be reduced by half in a 24-hour period. As a
consequence, if Petitioner was exposed to marijuana smoke from his friends on a Saturday, and gave
a urine sample on Monday, then Dr. Ryan could see no possibility that the sample could result in a
level of 82 nannagrams per milliliter on Monday.
16.
At the administrative hearing, Petitioner alleged that the Saturday prior to his submission of a
urine sample on August 20, 2001, he went to a home in Richmond, Virginia. Petitioner did not know
who lived in, or owned the home, and could not state where the home was specifically located.
Petitioner merely followed an individual by the name of “Jake” to this home, although Jake was not
that individual’s real name. Petitioner could not give the real name of Jake. Petitioner followed Jake
to this home where he played cards for approximately three to four hours with three other
individuals.
17.
Petitioner did not know the individuals he played cards with, prior to going to the house. He
also could not give the names of any of the people present at the home. At no time during his visit at
the home, did anyone ask Petitioner where he worked. Despite this lack of knowledge of his fellow
card players, Petitioner stated that the other individuals, at various times over the four-hour period,
produced and smoked approximately three to four marijuana cigarettes. The room that Petitioner and
the other individuals played cards in approximately 8’ x 8’ in size. Petitioner estimated that he was
exposed to the marijuana smoke for this period of time except for bathroom breaks.
18.
The undersigned specifically finds that Petitioner’s testimony is not credible. It is
implausible that an individual who worked for the Virginia Department of Corrections would
accompany an unknown individual to an unknown location, and yet these unknown people would
feel so comfortable with Petitioner that they would begin to smoke marijuana in his presence.
Moreover, the record is complete that the Petitioner could not have achieved the level of marijuana
in his system except by directly using the drug.
19.
The Petitioner admits to a “lapse of judgment” in remaining at this residence while marijuana
was being smoked. Nonetheless, Petitioner consistently denied his use of marijuana.
CONCLUSIONS OF LAW
1.
Both parties are properly before this Administrative Law Judge and jurisdiction is proper.
2.
The North Carolina Sheriff’s 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 deny, revoke or suspend
such certification.
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3.
Under 12 NCAC 10B .0204(b)(2) and 12 NCAC 10B .0301(a)(8), the Commission may
revoke, deny, or suspend the certification of a justice officer when the Commission finds that the
applicant for certification or the certified officer lacks the good moral character required of a justice
officer.
4.
Substantial evidence exists to support the proposed denial of Petitioner’s justice officer
certification based upon the Petitioner’s positive urinalysis test result from August 20, 2001. The
quantitative test results of Petitioner’s urine sample from August 20, 2001 indicate that the Petitioner
actively smoked marijuana. His representation that his positive urinalysis test result was caused by
secondhand exposure to marijuana smoke is not plausible, and is not supported by the evidence.
Moreover, Petitioner voluntarily remained at a location where marijuana was being used while he
was employed with the Virginia Department of Corrections.
5.
Respondent’s proposed denial of Petitioner’s application for certification on the grounds of
lack of good moral character, is supported by a preponderance of the evidence, and by substantial
evidence in the record.
PROPOSAL FOR DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned
proposed that Respondent’s denial of Petitioner’s justice officer certification for an indefinite period
of time should be UPHELD.
NOTICE AND ORDER
The North Carolina Sheriffs’ Education and Training Standards Commission will make the
final decision in this matter. N.C. General Statute § 150B-36(b), (b1), (b2), and (b3) enumerate the
standard of review and procedures the Agency must follow in making it’s Final Decision, and
adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. General Statute § 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. General
Statute § 150B-36(b)(3) requires the Agency to serve a copy of it’s Final Decision on each party, and
furnish a copy of it’s Final Decision to each party’s attorney of record and to the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714.
This the 5th day of May, 2004.
__________________________________
Melissa Owens Lassiter
Administrative Law Judge
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