Mullins v. N.C. Criminal Justice Educ. and Train. Stds. Comm., 125 NC App 339 (96-388) 02/18/1997 Link to original WordPerfect file

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Mullins v. N.C. Crim. Justice Educ. and Train. Stds. Comm.

No. COA96-388

(Filed 18 February 1997)

1.    Administrative Law and Procedure § 10 (NCI4th)-- law enforcement officer certification -- Commission rules -- not in excess of statutory authority

    The adoption and implementation by the Criminal Justice Education and Training Standards Commission of rules used in this case to revoke petitioner's law enforcement officer certification were not in excess of the statutory authority granted to the Commission. The intent of the Legislature was to enhance the criminal justice profession through mandated education, training and standards regarding character and moral fitness and the provisions of Chapter 17C evidence an intent by the Legislature for the Commission to have the authority to ensure professionalism and integrity of criminal justice officers. To effectuate the legislative mandate, the Commission considered what conduct it deemed unacceptable and enacted rules providing that a person may not be certified as an officer if that person has committed or been convicted of a felony, giving the Commission the power to revoke certification of officers who have committed or been convicted of a felony, and defining the commission of an offense as a finding by the Commission or an administrative body that a person performed the acts necessary to satisfy the elements of a specified criminal offense.

     Am Jur 2d, Administrative Law §§ 225 et seq.

2.    Sheriffs, Police, and Other Law Enforcement Officers § 2 (NCI4th)-- law enforcement officer certification -- Commission rules -- commission of felony -- interpretation of criminal statutes

    Rules of the Criminal Justice Education and Training Standards Commission used in this case to revoke petitioner's law enforcement officer certification were not in violation of N.C.G.S. § 150B-19(1) in that the Commission had to interpret and implement the sections of the General Statutes which establish felony offenses in concluding that there was sufficient evidence that petitioner had committed acts necessary to satisfy the elements of felonious larceny and felonious breaking or entering. The adoption of the "commission of an offense" rule does not constitute an "interpretation" of criminal statutes, but is merely an approach used to establish minimum standards regarding the moral character of criminal justice officers. The reference to criminal statutes is solely for the purpose of providing guidance to officers and applicants. Here, the petitioner committed the acts necessary to satisfy the elements of N.C.G.S. § 14-54(a) and N.C.G.S. § 14-72(b) in that he entered the police station with a stolen key with the intent to take the money seized in an arrest without consent and with the intent to deprive the police of the money.

     Am Jur 2d, Sheriffs, Police & Constables §§ 26-36.

3.    Constitutional Law § 34 (NCI4th)-- law enforcement certification -- commission of felony -- power of Commission to conduct hearings -- no constitutional violation

    The trial court properly determined that neither the Criminal Justice Education and Training Standards Commission nor its rules violated petitioner's constitutional rights pursuant to Article IV, Section 3 of the North Carolina Constitution, which provides in part that the General Assembly may vest such judicial powers in administrative agencies as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies were created. The disputed judicial power vested in the Commission is the power to conduct hearings and take administrative action involving revocation of a certification issued by the Commission. The ability to hold hearings is a power that is reasonably necessary for the Commission to accomplish the purposes for which it was created. It is necessary for the Commission to have a means by which to gather evidence and investigate to determine if individuals are complying with statutory provisions.

     Am Jur 2d, Constitutional Law § 339.

NO. COA96-388


Filed: 18 February 1997






     Appeal by petitioner from order entered 19 December 1995 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 6 January 1997.

    John C. Hunter for petitioner appellant.

    Attorney General Michael F. Easley, by Special Deputy Attorney General Robin P. Pendergraft, for respondent appellee.


    SMITH, Judge.

    On 12 January 1988 respondent, the North Carolina Criminal Justice Education and Training Standards Commission, (the Commission) issued a probationary law enforcement officer certification to petitioner James B. Mullins (petitioner) to enable him to work with the Mount Holly Police Department. Respondent issued a general certification on 12 January 1989. In 1989 Mullins left Mount Holly and continued his law enforcement career with the Belmont Police Department. On or about 1 December 1991, while a law enforcement officer with Belmont, petitioner and other Belmont officers arrested Mark Anthony Bowen. Upon arrest, various items to be used as evidence in the case were seized from Bowen including approximately $831.00 in United States currency. The money was counted and inventory taken by Officer Gene Thompson, Sergeant Don Johnson, and petitioner. The money was placed in an evidence locker shared by petitioner and Officer Thompson. Thereafter, petitioner experienced financial difficulties and was subsequently dismissed from the Belmont Police Department in April of 1991.

    Sometime in April of 1991, after Mullins was no longer employed by the Belmont Police Department, he returned to the department after a shift change, when few officers would be in the building. He entered the building through the back door and went into the Sergeant's office and removed the evidence room key from a desk. Using the key, he opened the evidence room and unlocked his former evidence locker with a duplicate key. He removed an envelope from the locker that contained the money seized in the Bowen criminal case. He locked the evidence locker and room and returned home with the money.

    On 6 July 1992, petitioner was indicted for feloniously breaking or entering a building occupied by the Belmont Police Department with the intent to commit the felony of larceny, and for feloniously stealing $831.00 in U.S. currency, such property in the custody and control of the Belmont Police Department. On 3 November 1992, petitioner pled guilty to the misdemeanor offenses of breaking or entering, a violation of N.C. Gen. Stat. § 14-54(a) (1993) and to misdemeanor larceny, a violation of N.C. Gen. Stat. § 14-72(b) (1993). He was sentenced to a term of imprisonment of not less than nor more than two years, which was suspended upon the following conditions: He was to be placed on supervised probation for three years; pay a $60.00 monthly probation supervision fee, $85.00 in costs and $831.00 as restitution; serve sixty days electronic house arrest; and not go on or about the premises of the Belmont Police Department.

    By notice dated 30 November 1993, the Commission notified petitioner that the Standards Committee of the Commission had found that "probable cause exist[ed] to believe [petitioner's] certification as a law enforcement officer should be permanently revoked." Petitioner requested an administrative hearing to challenge the Commission's proposed permanent revocation of his certification.

    An administrative hearing was held on 8 November 1994 by Administrative Law Judge, Beecher R. Gray. He rendered a proposal for decision, and on 2 June 1995 the Commission adopted the proposed decision permanently revoking petitioner's certification. On 27 July 1995 petitioner filed a petition for judicial review of the final agency decision. On 19 December 1995 the trial court issued an order upholding the final agency decision. From this order petitioner appeals.

    Appellate review of a final agency decision is governed by N.C. Gen. Stat. § 150B-51(b) (1995), which provides that the reviewing court may affirm the decision of the agency or remand the case for further proceedings.

    It may also reverse or modify the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are: