Mullins v. North Carolina Criminal Justice Educ. and Training Standards Com'n

• Decision Date: 18 February 1997
• Docket Number: No. COA96-388,COA96-388
• Court: North Carolina Court of Appeals
• Parties: James B. MULLINS, Petitioner, v. N.C. CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION, Respondent.

Page 297

481 S.E.2d 297

125 N.C.App. 339

James B. MULLINS, Petitioner, v. N.C. CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS

COMMISSION, Respondent.

No. COA96-388.

Court of Appeals of North Carolina.

Feb. 18, 1997.

John C. Hunter, Raleigh, 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:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary or capricious.

N.C. Gen.Stat. § 150B-51(b).

The proper manner of review by this Court depends upon the particular issues presented on appeal. If it is alleged that the agency's decision was based on an error of law then de novo review is required. If, however, it is alleged that the agency's decision was not supported by the evidence or that the decision was arbitrary or capricious, then the reviewing court must apply the "whole record" test.

In re Appeal of Ramseur, 120 N.C.App. 521, 524, 463 S.E.2d 254, 256 (1995) (citations omitted).

Petitioner first argues that the adoption and implementation of the Commission rules at issue are in excess of the statutory authority granted to the Commission. We disagree. Petitioner argues that by adopting and implementing N.C. Admin. Code tit. 12, r. 9A.0103(4) (January 1995) and N.C. Admin. Code tit. 12, r. 9A.0204(a) (August 1995), the Commission exceeded its statutory authority. N.C. Admin. Code tit. 12, r. 9A.0103(4) (January 1995) provides:

"Commission of an offense" means a finding by the North Carolina Criminal Justice Education and Training Standards Commission or an administrative body that a person performed the acts necessary to satisfy the elements of a specified criminal offense.

N.C. Admin. Code tit. 12, r. 9A.0204(a) (August 1995) provides:

The Commission shall revoke the certification of a criminal justice officer when the Commission finds that the officer has committed or been convicted of:

(1) a felony offense: or

(2) a criminal offense for which the authorized punishment included imprisonment for more than two years.

This Court in General Motors Corp. v. Kinlaw, 78 N.C.App. 521, 338 S.E.2d 114 (1985), held that administrative agencies have powers expressly vested by statute and implied powers reasonably necessary for the agency to function properly. "In addition to the powers expressly vested in an agency by statute, those powers reasonably necessary for the agency to function properly are implied from the legislature's general grant of authority." Id. at 530, 338 S.E.2d at 121 (citing In re Broad and Creek Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654-55 (1980); Charlotte Liberty Mut. Ins. Co. v. State ex rel. Lanier, 16 N.C.App. 381, 384, 192 S.E.2d 57, 58 (1972)). "An issue as to the existence of power or authority in a particular administrative agency is one primarily of statutory construction." State ex rel. Comr. of Insurance v. North Carolina Rate Bureau, 300 N.C. 381, 399, 269 S.E.2d 547, 561 (1980) (citing Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242, 101 N.E.2d 665 (1951), rev'd on other grounds, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952)), reh'g denied, 301 N.C. 107, 273 S.E.2d 300 (1980).

In construing the laws creating and empowering administrative agencies, as in any area of law, the primary function of a court is to ensure that the purpose of the Legislature in enacting the law, sometimes referred to as legislative intent, is accomplished. The best indicia of that legislative purpose are "the language of the statute, the spirit of the act, and what the act seeks to accomplish."

Comr. of Insurance v. Rate Bureau, 300 N.C. at 399, 269 S.E.2d at 561 (citations omitted).

The intent of the Legislature in enacting Chapter 17C was to enhance the criminal justice profession through mandated education, training and standards regarding character and moral fitness. Chapter 17C of the North Carolina General Statutes governs the education and training of criminal justice officers. N.C. Gen.Stat. § 17C-1 (1995) provides:

The General Assembly finds that the administration of criminal justice is of statewide concern, and that proper administration is important to the health, safety and welfare of the people of the State and is of such nature as to require education and training of a professional nature. It is in the public interest that such education and training be made available to persons who seek to become criminal justice officers, persons who are serving as such officers in a temporary or probationary capacity, and persons already in regular service.

Further, certain powers have been delegated to the Commission by the Legislature in N.C. Gen.Stat. § 17C-6(a) (1995):

In addition to powers conferred upon the Commission elsewhere in this Chapter, the Commission shall have the following powers, which shall be enforceable through its rules and regulations, certification procedures or the provisions of G.S. 17C-10:

(1) Promulgate rules and regulations for the administration of this Chapter....

* * * *

(3) Certify, pursuant to the standards that it has established for the purpose, persons as qualified under the provisions of this Chapter to be employed at entry level and retained as criminal justice officers;

* * * *

(8) Investigate and make such evaluations as may be necessary to determine if criminal justice agencies, schools, and individuals are complying with the provisions of this Chapter; ...

Also, in N.C. Gen.Stat. § 17C-10(c) (1995) the Legislature addresses the standards for criminal justice officers. In pertinent part the statute provides:

In addition to the requirements of subsection (b) of this section, the Commission, by rules and regulations, shall fix other qualifications for the employment, training, and retention of criminal...