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Britt v. N.C. Sheriffs' Education and Training Standards Commission

July 09, 1998

MARILYN JEAN BRITT, PETITIONER
v.
N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION, RESPONDENT



The opinion of the court was delivered by: Whichard, Justice.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 128 N.C. App. 81, 493 S.E.2d 86 (1997), affirming an order entered by Cobb, J., on 26 September 1996 in Superior Court, Onslow County, that reversed the final agency decision of the North Carolina Sheriffs' Education and Training Standards Commission revoking plaintiff's deputy sheriff's certification. Heard in the Supreme Court 27 May 1998.

The North Carolina Sheriffs' Education and Training Standards Commission (Commission) appeals from a decision of the Court of Appeals reviewing the Commission's interpretation and application of the North Carolina Administrative Code provisions governing the certification of justice officers in this state.

The facts giving rise to this appeal are not in dispute. In February 1990 Marilyn Jean Britt, petitioner, was indicted for felonious perjury based on her false testimony under oath in a divorce proceeding. On 10 April 1992, as part of a plea arrangement under which the State agreed to dismiss the felonious perjury charge, petitioner pled no contest to the misdemeanor offense of obstruction of Justice. Petitioner understood that she could receive a maximum sentence of two years' imprisonment for this offense. After accepting petitioner's plea of no contest, however, the superior court entered a prayer for judgment continued upon payment of the costs.

On 5 September 1994 petitioner was appointed to be a deputy with the Onslow County Sheriff's Department. Petitioner applied for and received certification as a Deputy Sheriff effective 14 September 1994. A subsequent background check by the Commission revealed petitioner's no-contest plea.

On 8 December 1994 the Commission notified petitioner that probable cause existed to revoke her certification as a Justice officer based upon her conviction of the class B misdemeanor offense of obstruction of Justice. Petitioner requested an administrative hearing pursuant to Chapter 150B of the North Carolina General Statutes. The Commission held a hearing and in its final agency decision ordered that petitioner's sheriff's certification be revoked pursuant to 12 NCAC 10B .0204(d)(2), the regulation authorizing revocation of a previously issued sheriff's certification. Petitioner appealed to the trial court pursuant to N.C.G.S. § 150B-43. The trial court reversed the Commission, concluding that petitioner had not been "convicted" of a class B misdemeanor within the meaning of that term as used in 12 NCAC 10B .0204(d)(2). On the Commission's appeal, the Court of Appeals affirmed, holding that a plea of no contest, followed by a prayer for judgment continued, was not a "conviction" under the North Carolina Administrative Code, and that the Commission improperly revoked petitioner's certification. Britt v. N.C. Sheriffs' Educ. & Training Standards Comm'n, 128 N.C. App. 81, 83-84, 493 S.E.2d 86, 87 (1997).

The Commission contends that petitioner's plea of no contest was a "conviction" for purposes of petitioner's deputy sheriff's certification despite the trial court's entry of a prayer for judgment continued. We agree.

The Administrative Procedure Act (APA) governs this appeal and defines the scope of our review of the Commission's final agency decision. N.C.G.S. § 150B-51 provides that a court reviewing a final agency decision may 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.G.S. § 150B-51(b) (1995). This appeal presents an issue under N.C.G.S. § 150B-51(b)(4): Was the Commission's interpretation of "conviction," as used in 12 NCAC 10B .0204(d)(2) (quoted in ...


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