Krueger v. North Carolina Criminal Justice Education & Training Standards Commission

750 S.E.2d 33, 230 N.C. App. 293, 2013 WL 5912030, 2013 N.C. App. LEXIS 1156
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2013
DocketNo. COA13-288
StatusPublished
Cited by4 cases

This text of 750 S.E.2d 33 (Krueger v. North Carolina Criminal Justice Education & Training Standards Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krueger v. North Carolina Criminal Justice Education & Training Standards Commission, 750 S.E.2d 33, 230 N.C. App. 293, 2013 WL 5912030, 2013 N.C. App. LEXIS 1156 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

Jay Krueger (“petitioner”), an officer with the Raleigh Police Department, appeals from a Superior Court order entered 18 July 2012, affirming the final agency decision issued by the North Carolina Criminal Justice Education and Training Standards Commission (“respondent”) which suspended petitioner’s law enforcement certification for 180 days. For the following reasons, we affirm the trial court’s order and hold that respondent did not violate petitioner’s constitutional rights.

I. Factual Background

The present appeal is the second to come before this Court in this matter. Our previous opinion laid out the factual background:

In May 2005, petitioner, a certified law enforcement officer employed since 2000 by the Raleigh Police Department (“the Department”), was interviewed by the Department. after allegations surfaced that he had submitted falsified or inaccurate radar training records. Petitioner admitted [295]*295that he had signed forms [Form SMI 15] for two other law enforcement officers showing that those officers had completed radar training with petitioner when they had not in fact done so.
As a result, petitioner was suspended without pay for 20 days and barred from applying for special assignments or promotions within the Department. The Commission then initiated action to revoke petitioner’s law enforcement certification. 12 N.C. Admin. Code 09A.0204(b)(8) (2008) provides that the Commission may suspend, revoke, or deny an officer’s or applicant’s certification if the Commission finds that the officer or applicant “knowingly and willfully, by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, aided another person in obtaining or attempting to obtain credit, training or certification from the Commission[.]”
When the suspension is for such a reason, “the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction ... or substitute a period of probation in lieu of suspension of certification following an administrative hearing ...” 12 N.C. Admin. Code 09A.0205 (b)(5) (2008). To that end, the Commission has adopted a policy authorizing its Probable Cause Committee, “[i]n those cases that it deems to be appropriate,” to enter into a consent agreement with an officer to reduce the sanction imposed before a Final Agency Decision is reached.

Krueger v. North Carolina Criminal Justice Educ. & Training Standards Com’n, 198 N.C. App. 569, 571, 680 S.E.2d 216, 218 (2009). We held that the case was not appropriate for disposition on summary judgment because there were genuine issues of material fact relevant to whether respondent’s decision was arbitrary and capricious and whether it violated petitioner’s constitutional rights. Id.

On remand, the parties conducted additional discovery and presented evidence regarding approximately thirty other officers whose cases had been considered by respondent’s Probable Cause Committee. Petitioner again claimed that respondent had treated him differently from other officers who had violated respondent’s standards and that this differential treatment violated his constitutional rights. The Administrative Law Judge (ALJ) made findings of fact with regard to [296]*296petitioner’s case and that of the other officers whose cases had been presented. The AU found that petitioner was subject to suspension under the relevant regulations and that he was not treated dissimilarly from officers similarly situated. The AU therefore concluded that petitioner’s constitutional rights had not been violated. The final agency decision issued on or about 11 November 2010 adopted the AU’s findings and conclusions, essentially verbatim.

Petitioner again petitioned the Superior Court to review the final agency decision. By order entered 18 July 2012, the Superior Court concluded that respondent had not acted arbitrarily or capriciously and that petitioner’s constitutional rights had not been violated. Petitioner was served with the order on 21 November 2012 and filed written notice of appeal on 19 December 2012.

II. Analysis

Petitioner argues that respondent’s decision to suspend his law enforcement certification for 180 days violates his right to due process and equal protection because it decided not to offer him a “consent agreement” with lesser sanctions. We disagree.

A. Standard of Review

[I]n reviewing a superior court order examining an agency decision, an appellate court must determine whether the agency decision (1) violated constitutional provisions; (2) was in excess of the statutory authority or jurisdiction of the agency; (3) was made upon unlawful procedure; (4) was affected by other error of law; (5) was unsupported by substantial admissible evidence in view of the entire record; or (6) was arbitrary, capricious, or an abuse of discretion. In performing this task, the appellate court need only consider those grounds for reversal or modification raised by the petitioner before the superior court and ... argued on appeal to this Court.

Shackleford-Moten v. Lenoir County Dept. of Social Services, 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (citations omitted), disc. rev. denied, 357 N.C. 252, 582 S.E.2d 609 (2003).

Petitioner’s arguments on appeal are limited to issues of due process and equal protection.1 Thus, the only error petitioner asserts is [297]*297one of law, which we review de novo. Hardee v. North Carolina Bd. of Chiropractic Examiners, 164 N.C. App. 628, 633, 596 S.E.2d 324, 328, cert. denied and disc. rev. denied, 359 N.C. 67, 604 S.E.2d 312 (2004).

B. Required Findings and Discretion

Petitioner first argues that Respondent violated his due process rights — though he does not specify which type of due process — by declining to offer him a consent agreement without making findings about why it declined to do so.

Petitioner mischaracterizes what findings are required. Respondent was required to make adequate findings of fact to support its decision to suspend petitioner’s law enforcement certification. See Cameron v. North Carolina State Bd. of Dental Examiners, 95 N.C. App. 332, 339, 382 S.E.2d 864, 869 (1989) (holding that the State Board of Dental Examiners did not act arbitrarily or capriciously when it suspended a dentist’s license after finding that he had been negligent and incompetent in the practice of dentistry). It is undisputed that respondent’s decision to suspend petitioner’s certification was supported by extensive findings. Petitioner cites no case, statute, or regulation requiring an agency to make findings about sanctions it elected not to impose. The cases petitioner does cite simply do not support his argument to the contrary.

Respondent found that petitioner had knowingly and willfully falsified Form SMI-15 three times, that such conduct was in violation of 12 N.C. Admin.

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Bluebook (online)
750 S.E.2d 33, 230 N.C. App. 293, 2013 WL 5912030, 2013 N.C. App. LEXIS 1156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krueger-v-north-carolina-criminal-justice-education-training-standards-ncctapp-2013.