{ "id": 4169024, "name": "JAY EDUARD KRUEGER, Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION & TRAINING STANDARDS COMMISSION, Respondent", "name_abbreviation": "Krueger v. North Carolina Criminal Justice Education & Training Standards Commission", "decision_date": "2009-08-04", "docket_number": "No. COA08-679", "first_page": "569", "last_page": "579", "citations": [ { "type": "official", "cite": "198 N.C. App. 569" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "673 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642838, 12642839 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/se2d/673/0129-01", "/se2d/673/0129-02" ] }, { "cite": "666 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641836 ], "year": 2008, "pin_cites": [ { "page": "147", "parenthetical": "\"While it is true that a trial court may not, on summary judgment, make findings of fact resolving disputed issues of fact, when - as here - the material facts are undisputed, an order may include a recitation of those undisputed facts.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0140-01" ] }, { "cite": "363 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "192 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160887 ], "year": 2008, "pin_cites": [ { "page": "329", "parenthetical": "\"While it is true that a trial court may not, on summary judgment, make findings of fact resolving disputed issues of fact, when - as here - the material facts are undisputed, an order may include a recitation of those undisputed facts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0321-01" ] }, { "cite": "559 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220028 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0269-01" ] }, { "cite": "552 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357914 ], "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0388-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "897" }, { "page": "898" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "596 S.E.2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "272" }, { "page": "723" }, { "page": "273-74" }, { "page": "274-75" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898906 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "553" }, { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0550-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "546 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "180", "parenthetical": "quoting In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993)" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435233 ], "year": 2001, "pin_cites": [ { "page": "473", "parenthetical": "quoting In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0470-01" ] } ], "analysis": { "cardinality": 812, "char_count": 24439, "ocr_confidence": 0.735, "pagerank": { "raw": 1.0728834798555971e-07, "percentile": 0.5601859413425262 }, "sha256": "4b81c23ae1858decb58abd34d54fc4708d893ea2435f9509316b77671490b824", "simhash": "1:b7e0d6c07e09af53", "word_count": 3819 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "JAY EDUARD KRUEGER, Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION & TRAINING STANDARDS COMMISSION, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nPetitioner Jay Eduard Krueger appeals from the trial court\u2019s order upholding the decision of respondent, the North Carolina Criminal Justice Education and Training Standards Commission (\u201cthe Commission\u201d), to suspend his law enforcement certification for five years. The trial court, in reviewing the Commission\u2019s decision, failed to make the necessary determination under N.C. Gen. Stat. \u00a7 150B-51(d) (2007) as to whether petitioner\u2019s evidence gave rise to a genuine issue of material fact on his claims that the Commission\u2019s decision was unconstitutional and/or arbitrary and capricious. Because the parties\u2019 arguments on appeal demonstrate that genuine issues of material fact exist, we reverse the trial court\u2019s order granting summary judgment to respondent and remand to the superior court for remand for an evidentiary hearing before an administrative law judge of the Office of Administrative Hearings.\nFacts\nIn May 2005, petitioner, a certified law enforcement officer employed since 2000 by the Raleigh Police Department (\u201cthe Department\u201d), was interviewed by the Department after allegations surfaced that he had submitted falsified or inaccurate radar training records. Petitioner admitted that he had signed forms for two other law enforcement officers showing that those officers had completed radar training with petitioner when they had not in fact done so.\nAs a result, petitioner was suspended without pay for 20 days and barred from applying for special assignments or promotions within the Department. The Commission then initiated action to revoke petitioner\u2019s law enforcement certification. 12 N.C. Admin. Code 09A.0204(b)(8) (2008) provides that the Commission may suspend, revoke, or deny an officer\u2019s or applicant\u2019s certification if the Commission finds that the officer or applicant \u201cknowingly 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[.]\u201d\nWhen the suspension is for such a reason, \u201cthe period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction ... or substitute a period of probation in lieu of suspension of certification following an administrative hearing . . . 12 N.C. Admin. Code 09A.0205(b)(5) (2008). To that end, the Commission has adopted a policy authorizing its Probable Cause Committee, \u201c[i]n those cases that it deems to be appropriate,\u201d to enter into a consent agreement with an officer to reduce the sanction imposed before a Final Agency Decision is reached.\nPetitioner submitted evidence to the administrative law judge (\u201cALT\u2019) of five officers who were allowed to enter into consent agreements reducing their punishments under this policy. Petitioner was not, however, given an opportunity to reduce his punishment, but rather, on 16 February 2006, the Probable Cause Committee voted to suspend petitioner\u2019s certification for five years. Petitioner gave notice of appeal from this decision to the superior court, but the Commission requested that the matter be heard first before an AU.\nIn petitioner\u2019s pre-hearing statement before the ALJ, petitioner asserted that the imposition of a five-year suspension of his certification \u201cwould constitute a violation of his constitutional rights, including but not limited to his rights to substantive due process and equal protection.\u201d He asked that the Commission \u201ceither suspend any sanction that has been issued, or, at most, subject Petitioner to a probationary period.\u201d Petitioner argued that a lesser sanction was warranted \u201cbased on his history, his performance as a law enforcement officer, and his overall good character.\u201d He also contended that he had \u201csuffered very substantial sanctions imposed on him by the Raleigh Police Department, and that those sanctions are more than sufficient and appropriate to assure that there will be no reoccurrence of such lapses on his part.\u201d\nOn 7 December 2006, petitioner filed a motion for summary judgment attaching his own affidavit; exhibits relating to petitioner\u2019s disciplinary action and suspension of his law enforcement certification; exhibits relating to the suspension of the certification of other officers and consent agreements for lesser sanctions entered into between the Probable Cause Committee and the other officers; and exhibits relating to respondent\u2019s policy and procedure regarding consent agreements. Petitioner also attached respondent\u2019s verified response to a motion to compel stating that it had no information concerning the criteria and standards used to decide whether to issue a sanction of less than a suspension of an officer\u2019s certification.\nIn his motion, petitioner argued that his exhibits \u201cshow[ed] that while Petitioner engaged in some inappropriate actions for which he has received substantial discipline from his employer, his actions were comparable to, or less serious than actions in which other law enforcement officers engaged who received a sanction from Respondent less than a suspension of their law enforcement certification.\u201d Petitioner further asserted that he has \u201cnever been offered the opportunity by Respondent to enter into a consent agreement for a lesser sanction, and that Respondent [did] not apply uniform criteria and standards in deciding when to offer a law enforcement officer a sanction less than suspension of their certification.\u201d In conclusion, petitioner contended that \u201c[t]he exhibits accompanying this Motion show that there is no genuine issue as to any material fact, and that Respondent has acted in an arbitrary fashion in exercising its discretion, violating Petitioner\u2019s rights to due process and equal protection guaranteed by the North Carolina Constitution and the Constitution of the United States.\u201d\nOn 14 December 2006, respondent filed an unverified response to petitioner\u2019s motion for summary judgment. In that response, respondent stated that in the cases of officers who received consent agreements, \u201cthe law enforcement officers fully admitted culpability and wrongdoing.\u201d Respondent further asserted that the Probable Cause Committee had treated petitioner and other officers employed by the Department that had been accused of the same violation \u201cidentically.\u201d The record on appeal indicates that respondent relied on the 16 February 2006 Probable Cause Committee minutes as its sole exhibit. Respondent contended that petitioner\u2019s motion should be denied, but did not formally seek summary judgment on its own behalf.\nOn 22 March 2007, the AU issued a proposed decision recommending that summary judgment be granted to respondent and that petitioner\u2019s certification be suspended for 240 days. In that proposed decision, the AU included findings of fact that petitioner admitted he knowingly and willfully signed false forms in order to aid other officers in obtaining radar certification, that petitioner admitted he did not respond to calls, that he was suspended from the Department for 20 days without pay, that he was ineligible to apply for promotions or specialized positions for two years, and that he also received reduced merit raises. The AU then stated: \u201cNo findings are made as to the constitutional issues raised by Petitioner.\u201d The final finding of fact stated: \u201cBased upon the admissions of Petitioner, there are no genuine issues of material fact as to whether Petitioner 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.\u201d\nThe AU\u2019s conclusions of law noted first that the parties were properly before the Office of Administrative Hearings and recited the terms of the governing provisions of the Administrative Code. The AU then concluded:\nThat based upon Petitioner\u2019s admission that he knowingly and willfully signed a falsified Form SMI 15 for C.B. Mingia in order to aid C.B. Mingia in obtaining radar certification from the Commission; and based upon Petitioner\u2019s admission that he knowingly and willfully signed two falsified Form SMI 15s for K.A. O\u2019Neal in order to aid K.A. O\u2019Neal in obtaining radar certification from the Commission; and based upon the fact that Officer K.A. O\u2019Neal received radar certification from the Commission based upon his submission of the Form SMI 15s to the Commission, there are no litigable issues for the Administrative Law Judge to decide on whether Respondent properly found probable cause to suspend Petitioner\u2019s law enforcement officer certification.\nThe AU then proposed \u2014 even though respondent had not, according to the record on appeal, moved for summary judgment\u2014 \u201cthat Respondent\u2019s Motion for Summary Judgment be granted on grounds that there are no litigable issues for the administrative law judge to decide . . . .\u201d The ALJ further recommended that petitioner\u2019s certification be suspended for a period of 240 days. The ALJ ended his proposed decision by stressing again that \u201c [t]he undersigned does not address constitutional issues raised by Petitioner.\u201d The ALJ\u2019s recommended decision did not specifically mention petitioner\u2019s claim that the Commission\u2019s refusal to lessen the sanction was arbitrary and capricious.\nOn 8 June 2007, the Commission issued a Final Agency Decision adopting essentially verbatim the AU\u2019s findings of fact and conclusions of law. The Commission neither modified nor added any findings of fact. The Commission, however, did add one conclusion of law, stating only: \u201cThat the Respondent\u2019s actions and decisions are not arbitrary and capricious.\u201d The Commission then ordered petitioner\u2019s certification suspended for a period of not less than five years from the date that the order became final, although it further provided that the suspension would be active for only 180 days with the remainder suspended on condition that petitioner violate no law or any administrative code provision of the State of North Carolina.\nOn 13 July 2007, petitioner filed a petition for judicial review in Wake County Superior Court, and on 26 February 2008, the superior court entered an order affirming the Final Agency Decision. In that order, the superior court noted: \u201cPetitioner did not dispute that he violated Commission Rule 12 NCAC 09A.0204(b) (8) in that he knowingly and willingly, 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.\u201d The superior court also noted that petitioner \u201cdid not dispute that the Commission had the authority to suspend his certification for a violation of this rule.\u201d\nThe superior court then found that \u201c[t]he sanction imposed by [the Commission] was within the limits permitted by 12 NCAC 9A.0205(b)(5).\u201d The court concluded, based on its findings of fact, that respondent\u2019s findings and conclusions were \u201cmade pursuant to lawful procedure and [we]re not affected by error of law\u201d and that they \u201care supported by substantial admissible evidence in view of the whole record as submitted, and such Findings and Conclusions are not arbitrary or capricious.\u201d Finally, the trial court concluded that respondent\u2019s Final Agency Decision and the sanction imposed were \u201cwithin the discretion given to the Respondent\u201d and \u201cthe exercise of this discretion did not violate the due process or equal protection rights of Petitioner.\u201d Petitioner timely appealed to this Court.\nDiscussion\n\u201cWhere there is an appeal to this Court from a trial court\u2019s order affirming an agency\u2019s final decision, we must \u2018(1) determine the appropriate standard of review and, when applicable, (2) determine whether the trial court properly applied this standard.\u2019 \u201d Blalock v. N.C. Dep\u2019t of Health & Human Servs., 143 N.C. App. 470, 473, 546 S.E.2d 177, 180 (2001) (quoting In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993)). In determining the appropriate standard of review in this case, we first observe that the Final Agency Decision granted summary judgment to respondent on the ground that there were \u201cno genuine issues of material fact\u201d to be resolved.\nThe trial court, in reviewing that decision, applied the standard of review set out in N.C. Gen. Stat. \u00a7 150B-51(b):\nExcept as provided in subsection (c) of this section, in reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency\u2019s decision, or adopt the administrative law judge\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(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\n(6) Arbitrary, capricious, or an abuse of discretion.\nBoth parties presume this is the correct standard of review and have argued that standard on appeal.\nOur legislature, however, specifically addressed review of a final agency decision granting summary judgment in N.C. Gen. Stat. \u00a7 150B-51(d):\nIn reviewing a final agency decision allowing judgment on the pleadings or summary judgment, or in reviewing an agency decision that does not adopt an administrative law judge\u2019s decision allowing judgment on the pleadings or summary judgment pursuant to G.S. 150B-36(d), the court may enter any order allowed by G.S. 1A-1, Rule 12(c) or Rule 56. If the order of the court does not fully adjudicate the case, the court shall remand the case to the administrative law judge for such further proceedings as are just.\nIn York Oil Co. v. N.C. Dep\u2019t of Env\u2019t Health & Natural Res., 164 N.C. App. 550, 553, 596 S.E.2d 270, 272 (2004), as in this case, the final agency decision adopted the ALJ\u2019s recommended decision granting summary judgment to the agency. On review in the superior court, the court affirmed the Final Agency Decision, applying the whole record test and holding that there was sufficient evidence to support the final agency decision. Id. This Court, however, concluded that the trial court had applied the wrong standard of review, explaining that \u201c \u2018[i]n reviewing a final agency decision allowing . . . summary judgment. . ., the [trial] court may enter any order allowed by . . . Rule 56.\u2019 \u201d Id. at 554, 596 S.E.2d at 723 (quoting N.C. Gen. Stat. \u00a7 150B-51(d)). Instead of applying the whole record test, the trial court should have determined \u201cwhether there were any genuine issues of material fact and whether any party was entitled to judgment as a matter of law.\u201d Id. at 555, 596 S.E.2d at 273-74.\nThus, as an initial matter, we hold that the trial court, in this case, erred in reviewing the Final Agency Decision under the standard set out in \u00a7 150B-51(b) as opposed to following \u00a7 150B-51(d) and applying the standard established by Rule 56 of the Rules of Civil Procedure: whether \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.R. Civ. P. 56(c). Even though the trial court acted under a misapprehension of the law, this error does not require remand to the trial court for application of the proper standard of review.\nIn N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 664, 599 S.E.2d 888, 897 (2004), our Supreme Court explained that generally, when an appellate court determines that a trial court entered an order \u201c \u2018under a misapprehension of the applicable law,\u2019 \u201d the appellate court should \u201cremand for application of the correct legal standards.\u201d (Quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004).) On the other hand, \u201cin cases appealed from administrative tribunals, the trial court\u2019s erroneous application of the appropriate standard of review does not automatically necessitate remand.\u201d Id. The Court held that in administrative cases, an appellate court\u2019s \u201cobligation to review for errors of law\u201d can be fulfilled \u201c \u2018by addressing the dispositive issue(s) before the agency and the superior court\u2019 and determining how the trial court should have decided the case upon application of the appropriate standards of review.\u201d Id. at 664-65, 599 S.E.2d at 898 (quoting Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting), rev\u2019d per curiam for reasons stated in the dissent, 355 N.C. 269, 559 S.E.2d 547 (2002)).\nSince the decision at issue is a summary judgment decision and an appellate court reviews a grant of summary judgment de novo, this Court can \u2014 and, according to Carroll, should \u2014 go ahead and review the final agency decision under the correct Rule 56 standard. Thus, in York, 164 N.C. App. at 555-56, 596 S.E.2d at 274-75, this Court proceeded to review the final agency decision under Rule 56, determined that issues of fact existed, and reversed and remanded the order affirming the final agency decision.\nWe, therefore, turn to the question whether the Final Agency Decision in this case properly determined that the record contained no genuine issues of material fact and that respondent was entitled to judgment as a matter of law. We note first that petitioner has never disputed that he violated the Commission\u2019s regulations or that the suspension of his certification for five years was a sanction expressly authorized by the regulations. Instead, petitioner argued in his motion for summary judgment filed with the AU that the Commission\u2019s failure to exercise its discretion to reduce the sanction was, in light of actions taken as to other law enforcement officers, arbitrary and capricious and violated his constitutional rights to due process and equal protection.\nIn the AU\u2019s proposed decision, however, the findings of fact and conclusions of law addressed only the points that petitioner conceded: that he violated the regulations and was sanctioned in accordance with those regulations. The AU failed to address either of the two issues actually raised by petitioner. The AU expressly stated that it was making no findings of fact on the constitutional issues and did not mention at all petitioner\u2019s claim that the failure to impose a lesser sanction was arbitrary and capricious in light of sanctions imposed by respondent on other officers. In short, the two disputed claims in the case went completely unaddressed by the ALJ.\nThe Commission also expressly declined to address petitioner\u2019s constitutional claim. It did, however, add a conclusion of law, without any explanation of the basis for the conclusion, that its decision to suspend petitioner\u2019s license was not arbitrary and capricious.\nAlthough, generally, findings of fact are not appropriate at the summary judgment stage because issues of fact may not be resolved, they may be used to set out the undisputed facts. See In re Estate of Pope, 192 N.C. App. 321, 329, 666 S.E.2d 140, 147 (2008) (\u201cWhile it is true that a trial court may not, on summary judgment, make findings of fact resolving disputed issues of fact, when \u2014 as here \u2014 the material facts are undisputed, an order may include a recitation of those undisputed facts.\u201d), disc. review denied, 363 N.C. 126, 673 S.E.2d 129 (2009). In this case, the ALJ\u2019s and the Commission\u2019s findings of fact suggest that neither one considered the evidence submitted in support of petitioner\u2019s motion for summary judgment. Neither the AU nor the Commission mentioned that evidence or provided any explanation as to why the evidence was not addressed.\nRespondent, in seeking to have the grant of summary judgment affirmed, does not make any argument that it is entitled to judgment as a matter of law based on petitioner\u2019s evidence, but instead points to evidence countering the evidence presented by petitioner in support of his motion. Although respondent also makes some assertions in its brief regarding \u201cfacts\u201d that it identifies as undisputed, we cannot find any support in the record on appeal for those facts. On the other hand, petitioner does not argue that the facts are undisputed, but rather urges this Court, contrary to Rule 56, to make its own findings of fact.\nThis case cannot be resolved on summary judgment given the evidence set forth in the record. As the parties\u2019 briefs demonstrate, resolution of petitioner\u2019s claims that respondent acted arbitrarily and capriciously and violated his constitutional rights are dependent on a determination of the facts relating to petitioner\u2019s suspension and the facts relating to the other officers who received lesser punishments. While petitioner argues that he was given a harsher punishment than other officers who were accused of actions comparable to or less serious than his violations, respondent counters that petitioner was \u201ctreated identically\u201d to other officers accused of the exact same violation and that the officers referenced by petitioner were less culpable. Our review of the record indicates that genuine issues of material fact exist. We must, therefore, reverse the trial court\u2019s entry of summary judgment and remand for an evidentiary hearing before an AU of the Office of Administrative Hearings. Because of our resolution of this appeal, we need not reach petitioner\u2019s remaining contentions.\nReversed and remanded.\nJudges McGEE and BRYANT concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Edelstein & Payne, by M. Travis Payne, for petitioner-appellant.", "Attorney General Roy Cooper, by Special Deputy Attorney General Mark A. Davis and Assistant Attorney General Jane Ammons Gilchrist, for respondent-appellee." ], "corrections": "", "head_matter": "JAY EDUARD KRUEGER, Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION & TRAINING STANDARDS COMMISSION, Respondent\nNo. COA08-679\n(Filed 4 August 2009)\n1. Administrative Law\u2014 judicial review of final agency decision \u2014 improper standard of review did not require remand\nAlthough the trial court erred by reviewing a final agency decision under the standard set out in N.C.G.S. \u00a7 150B-51(b) instead of N.C.G.S. \u00a7 150B-51(d) and applying the standard established by N.C.G.S. \u00a7 1A-1, Rule 56, this error does not require a remand to the trial court for application of the proper standard of review because the Court of Appeals can review the final agency decision under the correct Rule 56 standard since the decision at issue is a summary judgment decision and an appellate court reviews a grant of summary judgment de novo.\n2. Police Officers\u2014 suspension of law enforcement certification \u2014 submission of falsified or inaccurate radar training records\nThe trial court erred by granting summary judgment in favor of respondent NC Criminal Justice Education and Training Standards Commission on its decision to suspend petitioner\u2019s law enforcement certification for five years based on his submission of falsified or inaccurate radar training records, and the case is remanded to the superior court for further remand for an evidentiary hearing before an administrative law judge (ALJ) of the Office of Administrative Hearings because: (1) the two disputed claims in the case went completely unaddressed by the ALJ, and the Commission expressly declined to address petitioner\u2019s constitutional claim; (2) the ALJ\u2019s and the Commission\u2019s findings of fact suggest that neither one considered the evidence submitted in support of petitioner\u2019s motion for summary judgment; and (3) the case cannot be resolved on summary judgment given the evidence set forth in the record as the parties\u2019 briefs demonstrated that resolution of petitioner\u2019s claims that respondent acted arbitrarily and capriciously and violated his constitutional rights are dependent on a determination of the facts relating to petitioner\u2019s suspension and the facts relating to the other officers who received lesser punishments.\nAppeal by petitioner from order entered 26 February 2008 by Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 3 December 2008.\nEdelstein & Payne, by M. Travis Payne, for petitioner-appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General Mark A. Davis and Assistant Attorney General Jane Ammons Gilchrist, for respondent-appellee." }, "file_name": "0569-01", "first_page_order": 595, "last_page_order": 605 }