STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 DOJ 1588
COUNTY OF MECKLENBURG
Stephen Charles Conley
Petitioner
vs.
N. C. Sheriffs' Education and
Training Standards Commission
Respondent
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PROPOSAL FOR DECISION
UPON CONSIDERATION Of Respondent’s Motion for Summary Judgment filed on
February 22, 2002, the undersigned determines the following:
UNDISPUTED FACTS
1.
Pursuant to 12 NCAC 10B .0204(d)(1), the Commission may revoke, suspend, or
deny the certification of a justice officer when the Commission finds that the applicant for
certification or the certified officer has committed or been convicted of a crime or unlawful act
defined in 12 NCAC 10B .0103(10)(b) as a Class B Misdemeanor and which occurred after the
initial date of certification. (Emphasis Added).
2.
12 NCAC 10B .0301(a)(8) provides that every justice officer employed or
certified in North Carolina shall be of good moral character. Pursuant to 12 NCAC .0204(b)(2),
the Commission may revoke, suspend, or deny the certification of a justice officer when the
Commission finds that the applicant for certification or the certified officer fails to meet or
maintain any of the minimum employment or certification standards required by 12 NCAC 10B
.0300.
3.
Petitioner applied through the UNC-Charlotte Police Department to the North
Carolina Criminal Justice Education and Training Standards Commission for law enforcement
certification and was issued probationary certification (PRA 215820889) effective March 25,
1997 and general certification (GNA 215820889) effective March 25, 1998.
4.
On October 12, 1999, Petitioner was dismissed from UNC-Charlotte Police and
Public Safety for Unacceptable Personal Conduct.
5.
On or about October 11, 2000, Petitioner completed a Personal History Statement
(Form F-3) as part of his application for certification as a justice officer through Respondent.
Question number 26 states: “If you have ever been discharged or requested to resign from any
position because of criminal misconduct or rules violations, give details.” Petitioner answered,
“Yes. I violated UNC Charlotte Police Policy by entering a locked office, accessing the Internet,
e-mail, and using the phone without permission.”
6.
On August 29, 2001, Petitioner was sent a Notification of Probable Cause to
Revoke Certification of Justice Officer Certification letter from the Respondent. This revocation
of certification was based on Rule .0204(d)(1) of Chapter 10B of Title 12 of NCAC. Pursuant to
12 NCAC 10B .0204(d)(1), the Commission “may” revoke, suspend, or deny the certification of
a justice officer when the Commission finds that the applicant for certification or the certified
officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B
.0103(10)(b) as a Class B Misdemeanor and which occurred after the initial date of certification.
7.
Specifically, the Commission found probable cause exists to believe that
Petitioner committed the Class B misdemeanor offenses of Breaking and Entering, Illegally
Accessing a Computer, and Failure to Discharge the Duties of his Office.
8.
The Commission further found Petitioner’s commission of the Class B
Misdemeanor offenses of Breaking and Entering, Illegal Access of a Computer, and Failure to
Discharge the Duties of his Office establishes probable cause to believe that Petitioner no longer
possesses the minimum standard of good moral character which is required of all justice officers
as set out in Rule 12 NCAC 10B .0301.
9.
Regarding the Class B Misdemeanor offense of Breaking and Entering, in
violation of N.C.G.S § 14-54(b), in response to RESPONDENT’S FIRST SET OF REQUEST
FOR ADMISSIONS, Petitioner admitted that he entered a locked office (Room Number 306,
Kennedy Building), between December 1, 1998 and September 29, 1999, while on-duty as a
UNC-Charlotte police officer. Petitioner admitted that he did not have permission to enter the
locked office. Petitioner admitted that he was not directed to enter the locked office by a
superior law enforcement officer and that he had no legitimate law enforcement reason to enter
the locked office.
10.
Regarding the Class B Misdemeanor offense of Illegally Accessing a Computer,
in violation of N.C.G.S. § 14-454(b), in response to RESPONDENT’S FIRST SET OF
REQUEST FOR ADMISSIONS, Petitioner admitted that he entered the locked office (Room
Number 306, Kennedy Building) for the purpose of using the computer located in the office to
access the Internet. Petitioner admitted that he did not have permission to use the computer
located in the locked office (Room Number 306, Kennedy Building). Petitioner further admitted
that he did not have permission or authorization to access the Internet by using the computer
located in the locked office (Room Number 306, Kennedy Building). Petitioner admitted that he
did in fact access the Internet by using the computer located in the locked office (Room Number
306, Kennedy Building) between December 1, 1998 and September 29, 1999. Petitioner
admitted that he used the computer located in the locked office (Room Number 306, Kennedy
Building) between December 1, 1998 and September 29, 1999 to access and view pornographic
web sites.
11.
Regarding the Class B misdemeanor offense of Willfully Failing to Discharge
Duties, in violation of N.C.G.S. § 14-230, in response to RESPONDENT’S FIRST SET OF
REQUEST FOR ADMISSIONS, Petitioner admitted that when he entered the locked office
(Room Number 306, Kennedy Building), between December 1, 1998 and September 29, 1999,
for the purpose of using the computer to access the Internet, he was, at all times, employed by
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and on-duty with the UNC-Charlotte Police Department. Petitioner admitted that he violated
UNC-Charlotte Police and Public Safety General Order 6.6, which prohibits police officers from
entering locked areas/spaces without authority or directive or for their personal use. Petitioner
admitted that he used the computer located in the locked office (Room Number 306, Kennedy
Building) to access and view pornographic web sites while on-duty with the UNC-Charlotte
Police Department.
12.
Petitioner’s annual performance evaluation from UNC Charlotte Police and
Public Safety for the period 3/1/97 to 2/28/98 rated Petitioner as having “very good
performance.” Petitioner rated “very good” or “outstanding” in ten (10) out of twelve (12)
primary job responsibilities.
13.
Petitioner’s annual performance evaluation from UNC Charlotte Police and
Public Safety for the period 3/1/98 to 2/28/99 rated Petitioner as having “very good
performance.” Petitioner rated “very good” or “outstanding” in five (5) out of eleven (11)
primary job responsibilities. Petitioner’s supervisor commented, “Officer Conley takes pride in
his appearance and always looks professional on duty. Officer Conley shows his concern when
dealing with the public and he continually conducts himself in a professional manner.”
14.
Petitioner’s annual performance report from the Mecklenburg County Sheriff’s
Office for the year 2001 to 2002 rated Petitioner as “exceeds expectations”. Petitioner’s
performance level was graded as exceeds expectations in four (4) out of (5) job tasks.
15.
Petitioner has a good reputation among his co-workers and supervisors.
Petitioner’s field training officers and shift commander spoke highly of Petitioner’s
professionalism and work performance.
16.
Petitioner is currently a member of the North Carolina Air National Guard. As a
Senior Airman in the Air National Guard, Petitioner has not been the subject of disciplinary
action during his eight years of service.
CONCLUSIONS OF LAW
1.
This matter is properly before the undersigned Administrative Law Judge and
jurisdiction and venue are proper.
2.
One basis of the Respondent’s action is whether the Petitioner committed the
offenses alleged. If it is shown by substantial evidence that the Petitioner committed the three
Class B misdemeanors, as alleged, the sanction is revocation, suspension, or denial of
certification for a period of not less than five (5) years.
3.
Substantial evidence does exist to show Petitioner committed the Class B
misdemeanor offenses of Breaking and Entering, Illegally Accessing a Computer, and Failure to
Discharge the Duties of his Office between December 1, 1998 and September 29, 1999.
Therefore, there are no litigable issues for the Administrative Law Judge to decide.
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4.
Another basis of the Respondent’s action is whether the Petitioner possesses the
minimum standard of good moral character which is required of all justice officers. If it is
shown by substantial evidence that the Petitioner no longer possesses the minimum standard of
good moral character which is required of all justice officers, the period of sanction shall be for
an indefinite period.
5.
Substantial evidence does exist to show that Petitioner no longer possesses the
minimum standard of good moral character which is required of all justice officers. Petitioner’s
admissions that he committed the Class B Misdemeanor offenses of Breaking and Entering,
Illegally Accessing a Computer and Failure to Discharge the Duties of his Office, are prima facia
evidence that Petitioner no longer possesses the minimum standard of good moral character
which is required of all justice officers as set forth in Rule 12 NCAC 10B .0301(a)(8).
6.
Pursuant to 12 NCAC 10B .0205(h), Respondent, in its discretion, may reduce or
suspend a period of sanction or substitute a period of probation in lieu of revocation, suspension
or denial.
ORDER
Based on the foregoing Undisputed Facts and Conclusions of Law, the undersigned
hereby grants the Respondent’s Motion for Summary Judgment and proposes that this hearing
petition be dismissed.
The undersigned further recommends that the Respondent Commission exercise its
discretion under 12 NCAC 10B .0205(h) and consider a period of suspension or probation in lieu
of denial of Petitioner’s certification.
NOTICE AND ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance
with G.S. 150B-36(b).
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 pursuant to G.S. 150B-40(e).
The agency that will make the final decision in this contested case is the N. C. Sheriffs'
Education and Training Standards Commission
This the 8th day of March, 2002.
_____________________________
Fred G. Morrison, Jr.
Senior Administrative Law Judge
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