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.
The present appeal is the second to come before this Court in this matter. Our previous opinion laid out the factual background:
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 petitioner's case and that of the other officers whose cases had been presented. The ALJ found that petitioner was subject to suspension under the relevant regulations and that he was not treated dissimilarly from officers similarly situated. The ALJ therefore concluded that petitioner's constitutional rights had not been violated. The final agency decision issued on or about 11 November 2010 adopted the ALJ'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.
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.
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.
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. Code 9A.0204(b)(8) (2010), and that petitioner's certification was therefore subject to no less than a five year suspension. Respondent then reduced petitioner's sanction to a 180-day suspension, as authorized by 12 N.C. Admin. Code 9A.0205(b)(5) (2010) (permitting the reduction of an otherwise five-year suspension where the suspension is for "obtaining, attempting to obtain, aiding another person to obtain, or aiding another person to attempt to obtain credit, training or certification by any means of false pretense, deception, defraudation, misrepresentation or cheating.").
Moreover, respondent did make findings about a number of other officers who were suspended or received a lesser sanction and found that those officers who had committed similar offenses were treated similarly. These findings are sufficient to address petitioner's due process and equal protection arguments, which we address below.
Petitioner further argues that the lack of regulations or rules as to when an officer who violates respondent's standards is eligible for a consent agreement vests respondent with unfettered discretion and is therefore unconstitutional. Petitioner does not explain how such discretion is unconstitutional or whether he grounds this challenge on the state or federal constitution.
Petitioner cites no case invalidating a regulation promulgated pursuant to statutory authority on the basis that it vests the agency with discretion in determining the level of sanction for violation of its rules. The cases petitioner cites simply stand for the unremarkable proposition that "[a]n ordinance which vests unlimited or unregulated discretion in a municipal officer is void." Lewis v. City of Kinston, 127 N.C. App. 150, 154, 488 S.E.2d 274, 277 (1997) (quoting Maines v. City of Greensboro, 300 N.C. 126, 131, 265 S.E.2d 155, 158 (1980)). This case concerns neither an ordinance nor a municipal officer.
Additionally, the regulations at issue do not vest respondent with unfettered discretion. The regulations specify which violations must result in revocation and which may result in suspension. See 12 N.C. Admin. Code 9A.0204. The regulations require suspensions for five years or more, but permit reduction or suspension of the sanction for certain violations, including petitioner's. 12 N.C. Admin. Code 9A.0205(b). The fact that respondent has the authority to exercise some discretion in deciding whether to punish petitioner with a suspension or something less severe does not render the regulations unconstitutional.
Petitioner next argues that respondent violated his right to substantive due process by not offering him a consent agreement and reduced sanctions. We disagree.
"Substantive due process protection prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty." State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (citations and quotation marks omitted). "The touchstone of due process is protection of the individual against arbitrary action of government." Jones v. City of Durham, 183 N.C. App. 57, 61, 643 S.E.2d 631, 634 (2007) (citation, quotation marks, and brackets omitted). A government action is not arbitrary if it had "a rational relation to a valid state
Petitioner admitted to falsifying respondent's Form SMI 15 regarding his training of two officers for their radar certification and respondent found that he did so. Respondent has the authority pursuant to 12 N.C. Admin. Code 9A.0203 to suspend the certification of someone who violates Commission rules. 12 N.C. Admin. Code 9A.0204(b) further specifies that respondent may suspend the certification of someone who "has 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." 12 N.C. Admin. Code 9A.0204(b)(8). Finally, respondent may reduce or suspend the sanction of someone subject to suspension under 12 N.C. Admin. Code 9A.0204(b)(8). 12 N.C. Admin. Code 9A.0205(b)(5).
A 180-day suspension of a law enforcement certification cannot be said to "shock the conscience" when the certified officer knowingly and willfully falsifies training records. Additionally, on these facts, we have no difficulty concluding that there was a rational basis for respondent to suspend petitioner's certification. Law enforcement officers are entrusted with a great deal of responsibility by the State and effective law enforcement requires a number of specialized skills, including accurate use of radar devices. An officer's qualifications and training are vital to his credibility. When an officer misrepresents his training and qualifications, there can be significant consequences for the State. See, e.g., State v. Peterson, ___ N.C.App. ___, ___, 744 S.E.2d 153, 160 (2013) (affirming an order for a new trial where one of the State's key law enforcement witnesses lied about his experience and qualifications).
We conclude that respondent's actions were not arbitrary because preserving the credibility of law enforcement certifications is a valid state objective and suspending the certification of officers who undermine that credibility is rationally related to that objective. Cf. Matter of DeLancy, 67 N.C. App. 647, 654, 313 S.E.2d 880, 885 (holding that "the Board's authority to regulate the licensing of dental hygienists is within the police power of the State, and that the Board's action in the present case [suspending a hygentist for 12 months after it found the hygienist had violated its rules] was rationally related to the legislative goal of protection of the public health and welfare."), app. dismissed and disc. rev. denied, 311 N.C. 756, 321 S.E.2d 130 (1984). Therefore, we hold that respondent did not violate petitioner's right to substantive due process either under the Fourteenth Amendment or the North Carolina Constitution. See City-Wide Asphalt Paving, Inc., 132 N.C.App. at 539, 513 S.E.2d at 339.
Petitioner next claims respondent's actions violated his right to equal protection. Petitioner also argues that we must subject respondent's decision not to grant him a lesser sanction to strict scrutiny because it infringes on his "fundamental right" to earn a living. We disagree that respondent's decision merits strict scrutiny and hold that respondent did not violate petitioner's right to equal protection.
Liebes v. Guilford County Dept. of Public Health, 213 N.C. App. 426, 428-29, 713 S.E.2d 546, 549 (citations and quotation marks omitted), disc. rev. denied, 365 N.C. 361, 718 S.E.2d 396 (2011).
Under any level of scrutiny, petitioner's equal protection challenge must fail if the officers who received lesser punishments were not similarly situated to him. Yan-Min Wang v. UNC-CH School of Medicine, ___ N.C.App.: ___, ___, 716 S.E.2d 646, 658 (2011) ("Petitioner was required to show as an integral part of her equal protection claim that similarly situated individuals were subjected to disparate treatment." (citation omitted)); see Jones v. Keller, 364 N.C. 249, 260, 698 S.E.2d 49, 57 (2010) ("[E]qual protection of the laws is not denied by a statute prescribing the punishment to be inflicted on a person convicted of crime unless it prescribes different punishment for the same acts committed under the same circumstances by persons in like situation." (citation and quotation marks omitted) (emphasis added)), cert. denied, ___ U.S. ___, 131 S.Ct. 2150, 179 L.Ed.2d 935 (2011). "[P]ersons who are in all relevant respects alike are similarly situated." Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259, 272 (citation and quotation marks omitted), disc. rev. denied, 360 N.C. 174, 625 S.E.2d 785 (2005).
To the extent respondent did treat petitioner differently than similarly situated officers, respondent's actions must meet the appropriate level of scrutiny. Petitioner claims that he is in the class of officers who were not given consent agreements and implies that there was no reason to treat them differently from the officers who did receive consent agreements and the lesser sanctions that accompany such agreements. He argues that there were other officers who committed worse offenses but received consent agreements and that therefore respondent violated his right to equal protection by not offering him a similar agreement. Petitioner does not claim that respondent has discriminated on the basis of race, religion, or any other protected class.
Nevertheless, petitioner contends that we should subject respondent's decision to strict scrutiny because our courts have sometimes described the right to earn a living as "fundamental" under the state constitution. See, e.g., Roller v. Allen, 245 N.C. 516, 518-19, 96 S.E.2d 851, 854 (1957) ("The right to work and earn a livelihood is a property right that cannot be taken away except under the police power of the State in the paramount public interest for reasons of health, safety, moral, or public welfare. The right to conduct a lawful business or to earn a livelihood is regarded as fundamental." (citation and quotation marks omitted)).
Yet, even in those cases, our courts have not applied strict scrutiny. Rather, when the fundamental right to work and earn a livelihood under Article I, §§ 1, 19, and 35 of the North Carolina Constitution have been implicated, our courts have considered whether the challenged governmental action is "rationally related to a substantial government purpose." Treants Enters. v. Onslow Cty., 320 N.C. 776, 778-79, 360 S.E.2d 783, 785 (1987) ("This is the requirement article I, section 1 [of the North Carolina Constitution] imposes on government regulation of trades and business in the public interest."); see also Roller, 245 N.C. at 525, 96 S.E.2d at 859 ("[W]here ... no substantial public interest is shown to be involved or adversely affected, regulation is not justified."). "The test used to interpret the validity of state regulation of business under Article I, Section 1 is the same as that used ... for an equal protection" challenge of such regulation under our Constitution. Sanders v. State Personnel Com'n, 197 N.C. App. 314, 326, 677 S.E.2d 182, 190 (2009).
We first note that "[t]he regulations at issue here do not ... [regulate] an ordinary and simple occupation ... intended to be free from governmental regulation," but police officers entrusted with the authority to
Thus, we must consider (1) whether petitioner was similarly situated with those officers who were given lesser sanctions, and if so, (2) whether there is some rational relationship between the distinctions drawn by respondent and the government's substantial interest in preserving the credibility of law enforcement training and certification.
In deciding how to sanction an officer who violated the rules and regulations promulgated by respondent, respondent looks not to the bare fact of some violation, but considers the specific violation that occurred and the context of that violation. See 12 N.C. Admin. Code 9A.0204; 12 N.C. Admin. Code 9A.0205; Clayton, 170 N.C.App. at 458, 613 S.E.2d at 273 (observing that no "party would ever make decisions about the proper response to a claim based only on bare-bones information" and looking to the city's factors in making the determination). Thus, the particular violation found by the Probable Cause Committee is a relevant aspect for purposes of our equal protection analysis.
Petitioner falsified respondent's Form SMI 15, which records the amount of time an officer spends training with a radar device. All but two of the officers who received lesser sanctions had committed different violations. Most of those officers who were given written warnings or reprimands had failed to disclose a prior criminal conviction or had committed a misdemeanor.
There are twelve officers in the record who had falsified respondent's Form SMI 15, as petitioner did. Of those twelve, all but two received suspensions comparable to or more severe than petitioner's. Two officers who had falsified Form SMI 15 received official written reprimands. In both cases, the officers had been misinformed by a superior officer about what was required of them. Petitioner had no such mitigating excuse. It is reasonable for respondent to treat more senior or supervisory officers who violate its training regulations differently than more novice officers who had been misinformed about what was expected of them.
Petitioner was not alike in "all relevant respects" to the officers who received reprimands or warnings instead of a suspension for other violations. Additionally, there was a rational relation between respondent's decision to distinguish between petitioner and other officers who had falsified Form SMI 15, but received lesser sanctions, and the government's substantial interest in preserving the credibility of law enforcement certifications. Accordingly, we hold that respondent did not violate petitioner's right to equal protection by suspending his law enforcement certification for 180 days. See Clayton, 170 N.C.App. at 457, 613 S.E.2d at 272; Yan-Min Wang, ___ N.C.App. at ___, 716 S.E.2d at 658.
For the foregoing reasons, we hold that respondent's decision to suspend petitioner's law enforcement certification for 180 days
AFFIRMED.
Judges CALABRIA and HUNTER, JR., ROBERT N. concur.
