ALJDEC decisions subject to certification as final

2023-111-POST · Peace Officers Standards and Training · 2023-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter Regarding the Denial of the Peace Officer Certification of:

Raymond Ocasio, Jr.

Applicant

No. 2023-111-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 6, 2023

APPEARANCES: Applicant Raymond Ocasio, Jr. appeared on his own behalf. The Arizona Peace Officers Standards and Training Board (POST) was represented by Assistant Attorney General Joseph Dylo.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: POST Exhibits 1 through 9.

_____________________________________________________________________

FINDINGS OF FACT

On or about October 28, 2020, Raymond Ocasio, Jr. (Applicant) completed an Arizona POST Statement of Personal History and Application for Certification (POST Statement) when seeking employment with the Phoenix Police Department. Applicant answered “No” to the question, “Have you ever operated a motor vehicle or watercraft after consuming alcohol, drugs, or medication when you knew you should not have driven because you were impaired?” Applicant signed the POST Statement under the following statement:

After viewing the contents of this document, I agree that the contents are true and accurate and are my statements as I have conveyed them to the interviewer. I have not withheld, falsified, or concealed any information from the Background Investigator.

On or about November 6, 2020, Applicant was administered a pre-employment polygraph examination. During the pre-test interview, Applicant went through his Applicant Background Screening Form with the examiner and made no changes. Applicant signed a statement stating that he had made no changes.

During the testing, the examiner noted that Applicant demonstrated significant responses to the relevant questions regarding the background screening form.

During the post-test interview, Applicant was asked about his responses to the relevant questions about the background screening form. At first, Applicant stated that he was bothered by that question because his parents were divorced. When asked why that would cause him to react on the test, Applicant was unable to provide an explanation. Applicant eventually acknowledged that his reaction to the test was because of the driving history question.

The examiner asked Applicant what about his driving history would cause a reaction on the test. Applicant stated that he had driven a car while under the influence of alcohol. Applicant indicated he did this approximately once a year with the first time being when he was 20 years old and the last time being when he was 25 years old. Applicant denied that anything adverse ever occurred as a result and he said no. Applicant stated that he failed to disclose this because he was concerned that it would be a disqualifier.

Applicant wrote the following statement to explain the polygraph test results:

I was bothered by the question about falisfying [sic] the background investigation question. This caused me to fail the polygraph examination. The reason behind my score was me not disclosing the fact that I had operated a motor vehicle while under the influence of alcohol. There had been instances where I have drank several beers at a bar and have driven home afterwards when I know I should not have having known this weighed on my thoughts causing me to fail the polygraph examination.

The reason for me not disclosing this earlier is for the fact that I hold this job to the highest standard and such an act would disqualify me from the hiring process.

Phoenix Police Department determined that Applicant was permanently disqualified for hiring as a result of being untruthful during his background interview.

On or about June 14, 2023, Applicant completed a Personal History Questionnaire during the hiring process with the Yavapai County Sheriff’s Office (YCSO). In the Personal History Questionnaire, Applicant answered “No” to the question, “At any time in your life, have you ever committed any of the following acts? . . . . Driving under the influence of alcohol and/or drugs.” Applicant digitally signed the Personal History Questionnaire certifying that he had personally completed each page of the form and all the statements were true and correct to the best of his knowledge and belief.

On or about June 14, 2023, Applicant completed a face-to-face interview in which he reviewed and verified the answers he provided on the Background Interview Questionnaire. Applicant was asked the following questions and provided the following answers:

When is the last time you operated a motor vehicle after consuming three or more alcoholic drinks or after taking any illegal drug?

Never

Driving under the influence –

3 or more drinks between 1-2 hours

How many times have you driving after drinking more then one drink during the a one hour period? Zero

How many time have you driving after drinking or taking an illegal drug when you don’t think you should have driven? Zero

How many drinks does it take to make you feel impaired?

6 or more beers (Takes about 3 hours to drink 6 or more beers)

After drinking those 6 or more beers in a 3 hour period, have you ever driven? No

Have you ever driven after drinking but feel like you shouldn’t have? No

Applicant signed the Background Interview Questionnaire under the following statement:

All the information I have revealed in this face-to-face interview is true, correct, and complete. I have not intentionally withheld, falsified, or misrepresented any information during this background process. By signing below, I give my word that I have been 100% truthful in all stages of the background process.

On or about June 23, 2023, Applicant was appointed by the YCSO as a deputy recruit. During the background audit, information was discovered that Applicant willfully provided false information during the 2020 police recruit hiring process with the Phoenix Police Department in an effort to obtain certification as a peace officer in the State of Arizona.

During a pre-polygraph interview, Applicant was asked about the Phoenix Police Department polygraph. The examiner wrote the following in her polygraph report:

[Applicant] stated that he has never driven while intoxicated. During his first polygraph with Phoenix PD, he was interrogated over this issue, and he did say that when he was younger, he had driven after having a couple of drinks over time. He denied ever driving while intoxicated, but he was eventually coerced into signing a paper saying that he had driven while “inebriated” in the past and then he was told he failed the polygraph. This has followed him through several attempts to work in law enforcement and has kept him from qualifying for Police Officer positions. [Applicant] stated that he rarely drinks alcohol, maybe one or 2 drinks on a holiday or at a party. He stated that he drank more frequently when he was younger, but he has never driven when he felt intoxicated, he would call his parents or another designated driver.

On or about June 23, 2023, YCSO hired Applicant.

After his hiring, Applicant’s information was forwarded to POST for a new hire audit. Mark Post, Compliance Specialist, conducted a review of Applicant’s file. During the course of the review, Mr. Post reviewed the Phoenix Police Department information relating to Applicant’s responses on the POST Statement and during the pre-polygraph and post-polygraph interviews.

On or about August 16, 2023, POST issued a Notice of Denial to Applicant advising him that POST had voted to initiate proceedings to deny him peace officer certification. Applicant filed a timely request for hearing.

On or about October 2, 2023, POST issued a Notice of Hearing. The Notice of Hearing charged Applicant with violations A.A.C. R13-4-109(A)(2) and (12).

On December 6, 2023, a hearing was held at the Office of Administrative Hearings on the issue of whether cause existed for POST to deny Applicant peace officer certification. POST submitted 9 exhibits and presented the testimony of Mr. Post. Applicant testified on his own behalf.

Applicant testified that he had never driven while intoxicated, but he believed he needed to provide an explanation for his response to the polygraph administered by Phoenix Police Department. Applicant stated that everything he wrote after the polygraph examination was false, but he thought he had to lie and it was “part of the process.” Applicant asserted that his statements to YCSO were the truth and noted that he passed the polygraph with YCSO.

Mr. Post testified that Applicant specifically noted in his written statement that he withheld the information on the POST Statement because he erroneously believed that an affirmative answer would disqualify him from being hired by the Phoenix Police Department.

CONCLUSIONS OF LAW

Applicant bears the burden of proof and must establish that he is qualified to receive peace officer’s certification by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”

A.A.C. R13-4-109(A) allows POST to deny certified status for the following causes:

Willfully providing false information in connection with obtaining or reactivating certified status;

. . . .

12. Engaging in any conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.

The preponderance of the evidence established that Applicant provided false information in connection with obtaining certified status. Applicant either lied to the Phoenix Police Department on the POST Statement or in his written statement following the polygraph examination. Applicant’s testimony that he felt like he had to lie to explain his response on the polygraph was not credible. Further, Applicant’s responses on the YCSO Personal History Questionnaire were also in contradiction to the statement Applicant made to Phoenix Police Department during the post-polygraph interview. The fact that Applicant answered essentially the same question two different ways during the hiring process with two different agencies established he provided false information to one of them in an effort to obtain certification. This constitutes cause under A.A.C. R13-4-109(A)(2) for POST to deny Applicant certification.

The public expects police officers to be honest. Taken together, Applicant’s failure to accurately report his history of driving while intoxicated established that Applicant engaged in “conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.” This constitutes cause under A.A.C. R13-4-109(A)(12) for POST to deny Applicant’s application for certification.

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-54864001

001

-137160-45720000Done this day, December 26, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Matt Giordano, Director

Peace Officers Standards and Training

By: OAH Staff