Certification Legal Issues
Certification Eligibility Evaluation Process
Information is submitted to the Sheriffs’ Standards Division staff to evaluate an applicant/officer for certification as a justice officer. Where the applicant/officer clearly fails to meet the minimum standards, the Standards Division may take action on its own.
Discretionary matters are evaluated by the Probable Cause Committee of the Commission which is composed of five members of the Sheriffs’ Commission. Members do not discuss any matters evaluated with the full Commission. Members do not sit to hear, discuss or vote on Final Agency Decisions.
Discretionary matters within the purview of the Probable Cause Committee include:
- Did the applicant/officer commit a criminal offense?
- Does the conviction of a particular criminal offense warrant suspension or denial of certification?
- Did the applicant/officer make a material misrepresentation of information required for certification?
Upon a determination by staff or by the Probable Cause Committee that an applicant/officer is not eligible to receive or continue to be certified, a notification will be sent to the applicant/officer explaining why. Upon receipt of this letter, the applicant/officer has the options of either curing the deficiency, complying with the periods of sanctions or requesting a contested case hearing before the Office of Administrative Hearings
Prohibitive Criminal Histories
The Commission shall revoke or deny the certification of a justice officer when the Commission finds that the applicant/officer has committed or been convicted of a felony or crime for which the authorized punishment could have been imprisonment for more than two years.
Legislative changes made in the Structured Sentencing Act have required to the evaluation of Class A and B misdemeanors.
Class A misdemeanors which occurred prior to October 1, 1994, will be any offense for which the term of imprisonment is no more than 6 months. Traffic offenses, except for Level III, IV, or V impaired driving offenses, are not considered Class A misdemeanors.
Class A misdemeanors occurring on of after October 1, 1994, will mean any offense in violation of any common law, duly enacted ordinance or criminal statute which is not classified as a Class B misdemeanor as set forth in the Class B Misdemeanor Manual
. Level III, IV, or V impaired driving offenses are still included as Class A misdemeanors. For offenses occurring in jurisdictions other than North Carolina, Class A misdemeanors, will mean any offenses other than traffic violations punishable for a term of not more than 6 months. Here again, the Commission will consider impaired driving offenses.
Class B misdemeanors which occur prior to Oct. 1, 1994, will mean any offense for which the term of imprisonment is more than six months but not more than two years. Similarly, traffic offenses are not considered Class B misdemeanors under this rule, except for Level I or II impaired driving offenses; first or subsequent offenses of N.C.G.S. 20-138(a) or (b), N.C.G.S. 20-166 (duty to stop in the event of an accident); or N.C.G.S. 20-28(b) (driving while license permanently revoked or suspended.)
The Commission may revoke, suspend, or deny the certification of an applicant/officer when the Commission finds that the applicant/officer has “committed” or been “convicted of” certain Class A and B misdemeanors:
- A Class B misdemeanor which occurred after the date of initial certification; or
- A Class B misdemeanor dated within the 5-year period of time prior to the date of appointment; or
- Four or more Class B misdemeanors regardless of the date of commission or conviction; or
- An accumulation of four or more Class A misdemeanors, except the applicant may be certified if the last conviction or commission occurred more than 2 years prior to the date of appointment; or
- A combination of 4 or more Class A or Class B misdemeanors regardless of the date of commission or conviction.
“Convicted” or “conviction” means the entry of:
- a plea of guilty
- a verdict or finding of guilt
- a plea of no contest, nolo contendere or the equivalent
“Commission” means a finding by the Commission or an administrative body, pursuant to the provisions of Chapter 150B of the General Statutes that a person performed the acts necessary to satisfy the elements of a specified criminal offense.
Military Offenses may be prohibitive depending on the venue through which the offense was processed.
If an offense was processed through means of a court martial, then it is further evaluated by the length of punishment which could be adjudged by the particular court-martial convened:
- Summary Court-Martial (maximum punishment = 30 days);
- Special Court-Martial (maximum punishment prior to May 15, 2002 = 6 months; as of May 15, 2002 = 1 year);
- General Court-Martial (maximum punishment = death).
If an offense was processed by means of Non-Judicial Punishment, then is not judicial in nature; however, an underlying offense may be evaluated and compared to the schedule of all allowable punishments pursuant to the U.C.M.J. (Uniform Code of Military Justice).
A question may arise when an applicant's Personal History Statement fails to list or falsely lists information that is contradicted by the background investigation or the results of the fingerprint record check. Such a situation may be resolved by Division staff only when the applicant discussed or otherwise divulged the charge(s) to the hiring agency prior to the submission of the application to the Division.
If the matter cannot be resolved by staff, then the file must be presented to the Probable Cause Committee for its determination as to whether the applicant falsified the application. If so, the Committee still has discretion to determine whether or not such falsification is such that certification should be deferred.