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1-2402-15627-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF PEACE OFFICER STANDARDS AND TRAINING
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In the Matter of the Peace Officer License of Larry Joseph Costello, License No. 912 |
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION |
The above-entitled matter came on for Prehearing Conference before Administrative Law Judge George A. Beck commencing at 1:30 p.m. on December 18, 2003, at 100 Washington Avenue South, Suite 1700, 100 Washington Square, Minneapolis, Minnesota.
Thomas M. O’Hern, Jr., Assistant Attorney General, 400 Sibley St., Suite 300, St. Paul, Minnesota 55101-1998, appeared on behalf of the Minnesota Board of Peace Officer Standards and Training (POST) Complaint Investigation Committee. Larry Joseph Costello (“Respondent”) did not appear at the hearing. The Record closed December 18, 2003 upon the Respondent’s failure to appear.
This report is a recommendation, not a final decision. The POST Board will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Board shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Board. Parties should contact Neil W. Melton, Executive Director, MN Board of Peace Officer Standards and Training, Compliant Investigation Committee, 200 Spruce Tree Center, 1600 University Avenue, St. Paul, MN 55104-3825 to learn the procedure for filing exceptions or presenting argument.
If the Board fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Board, or upon the expiration of the deadline for doing so. The Board must notify the parties and the Administrative Law Judge of the date on which the record closes.
Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.
STATEMENT OF ISSUE
The issue in this case is whether or not disciplinary action should be taken against the Respondent for a violation of Minn. Rules pts. 6700. 1600L.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On November 14, 2003, a Notice of and Order for Prehearing Conference and hearing in this matter was mailed to the Respondent’s attorney Thomas P. Martin, P.O. Box 1745, Fargo, North Dakota 58107-1745. The Notice of and Order for Prehearing Conference and Hearing scheduled the prehearing conference for December 18, 2003.
2. By a letter dated November 28, 2003, Mr. Martin advised counsel for the Board staff that he was no longer representing Mr. Costello in this matter.
3. The Notice of and Order for Prehearing Conference and Hearing that was mailed to the Respondent contained the following statement
The Respondent’s failure to appear at the prehearing conference or the hearing may result in a finding that the Respondent is in default, that the Board’s allegations contained in this Notice and Order may be accepted as true, and its proposed action may be upheld.
4. The Respondent did not appear at the December 18, 2003, Prehearing Conference. Respondent did not contact the Board or the Administrative Law Judge to request a continuance. No Notice of Appearance was filed by Respondent in this matter.
5. The allegations set forth in the Notice of and Order for Prehearing Conference, are deemed proved and are incorporated into these FIndings by reference.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The POST Board and the Administrative Law Judge have subject matter jurisdiction herein pursuant to Minn. Stat. §§ 214.10 and 14.50.
2. The Respondent was given timely and proper notice of the Prehearing Conference in this matter.
3. The POST Board has complied with all relevant substantive and procedural requirements of statute and rule.
4. Under Minn. Rule 1400.6000 the Respondent is in default as a result of his failure to appear at the scheduled Prehearing Conference.
5. Under Minn. Rule 1400.6000 when a party defaults, the allegations and the issues set out in the Notice of and Order for Prehearing Conference and Hearing may be taken as true and deemed proved. The Administrative Law Judge therefore takes those allegations and issues as true and deemed proved.
6. Based upon the facts set out in the Notice of and Order for Prehearing Conference and Hearing, the Respondent has violated Minn. Rule pt. 6700.1700L, and is subject to disciplinary action by the POST Board.
7. An order by the Board prescribing disciplinary action against the Respondent is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that disciplinary action be taken against the Peace Officer License of Larry Joseph Costello.
Dated this 19TH day of December, 2003.
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S/ George A. Beck |
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GEORGE A. BECK |
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Administrative Law Judge |
Reported: Default.