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Misdemeanor

Started by duffman1741, July 15, 2013, 05:18:49 AM

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JeffDG

Quote from: Ned on July 16, 2013, 05:02:32 PM
Seniors may be terminated for even a single incident of "conduct involving moral turpitude." And theft is a classic example of moral turpitude. 
My experience, dealing with people in general, very few people who have not encountered the legal definition of "moral turpitude" would ever relate theft to moral turpitude...I know it because I'm very careful how I fill out US government forms, and one of the questions on the immigration paperwork was "Have you ever been arrested or convicted for a crime involving moral turpitude?" 

Now, I've never been arrested or convicted of any crime (OK, I've got some speeding tickets in my past...but not criminal matters), but I was curious about what I was answering, so I researched it, and it has nothing to do with "moral" issues (most people I ask think it deals with prostitution or other such crimes), not theft, larceny, bribery, etc.

Storm Chaser

According to 9 FAM 40.21(a) N2.2, "[t]he most common elements involving moral turpitude are:

     (1) Fraud;

     (2) Larceny; and

     (3) Intent to harm persons or things."

USLegal.com provides additional examples of crimes of moral turpitude:

     ■ murder;
     ■ voluntary manslaughter;
     ■ rape;
     ■ statutory rape;
     ■ domestic violence;
     ■ prostitution;
     ■ fraud and crimes where fraud is an element
     ■ all theft offenses (but see receipt of stolen property below);
     ■ blackmail;
     ■ malicious destruction of property;
     ■ arson;
     ■ alien smuggling;
     ■ harboring a fugitive;
     ■ bribery;
     ■ perjury

Майор Хаткевич

Once upon a time, an 18 year old cadet got into some trouble over some airsoft toys. He wasn't arrested, but the police did the typical "X  can try to press charges regardless" thing.

He told his chain of command. They told him he was an idiot. Nothing ever came of it legally, but the CoC knew.

bflynn

Quote from: Ned on July 16, 2013, 05:02:32 PM
Finally, if the question is "Should we have a clear regulation that requires members to report arrests and/or convictions?" I would answer yes.  That just seems like good policy for our Congressionally chartered 501c3 charitable corporation that has occasional Federal instrumentality status and an active cadet program training thousands of young people.

I've made a not to talk with the leadership about this.  Maybe a minor regulation tweak is in order to make it clear that reporting arrests is required.

If I could make a suggestion, this should be a requirement to report convictions or at least a restriction that a mere arrest is not grounds for dismissal.  CAP is probably under no obligation to follow it, but the basis of our legal system is a presumption of innocence unless proven guilty.  As a Congressionaly chartered 501c3 corporation, there might be a legitimate argument that CAP operates under the color of government authority and therefore is required to use the basis of the legal system.  I'm not sure I like where that leads, so I'd rather avoid the issue all together.

Today an arrest is not even an accusation and I'm not at all comfortable with an arrest being a justification for a commander to dismiss someone.  There was an item in the news this morning where a bona-fide journalist was arrested for video taping a police arrest, I think in Detroit.  Eventually the journalist was released without a charge, but under what you're proposing, if that person were a CAP member, they would have to report the arrest to their commander and could potentially be dismissed for it. 

mwewing

Quote from: JeffDG on July 16, 2013, 02:35:45 PM
Quote from: mwewing on July 16, 2013, 01:24:39 PM
Reg. 39-2. 3-2 d.(2)
"A pattern of arrests and/or convictions including but not limited to sex offenses, child abuse, DUIs, dishonesty and violence."
You don't need to even go that far down the list:
"(1) Conduct involving moral turpitude."

Moral turpitude is not some reference to sexual morals, but a much more general category of behaviour.  Theft is defined by the federal government as a "crime involving moral turpitude", along with others like fraud, perjury, bribery, and tax evasion (among a host of others).
I saw that as well and I agree with your statement. I chose to focus on the language that specifically mentioned arrests/convictions because the OP stated he was arrested. You are correct about the definition of moral turpitude, and if I were terminating someone for a single act, I would likely use that as my basis for the 2B.

Quote from: Ned on July 16, 2013, 05:02:32 PM
Finally, if the question is "Should we have a clear regulation that requires members to report arrests and/or convictions?" I would answer yes.  That just seems like good policy for our Congressionally chartered 501c3 charitable corporation that has occasional Federal instrumentality status and an active cadet program training thousands of young people.

I've made a not to talk with the leadership about this.  Maybe a minor regulation tweak is in order to make it clear that reporting arrests is required.
Quote from: bflynn on July 17, 2013, 01:09:33 PM
If I could make a suggestion, this should be a requirement to report convictions or at least a restriction that a mere arrest is not grounds for dismissal.  CAP is probably under no obligation to follow it, but the basis of our legal system is a presumption of innocence unless proven guilty.  As a Congressionaly chartered 501c3 corporation, there might be a legitimate argument that CAP operates under the color of government authority and therefore is required to use the basis of the legal system.  I'm not sure I like where that leads, so I'd rather avoid the issue all together.

Today an arrest is not even an accusation and I'm not at all comfortable with an arrest being a justification for a commander to dismiss someone.  There was an item in the news this morning where a bona-fide journalist was arrested for video taping a police arrest, I think in Detroit.  Eventually the journalist was released without a charge, but under what you're proposing, if that person were a CAP member, they would have to report the arrest to their commander and could potentially be dismissed for it. 
I agree that we need a clear regulation that spells out this requirement. I also agree with Bflynn that we should be careful including arrests in the requirement. I have seen many people arrested and not charged with a crime, or arrested and found not guilty of a crime. I don't think it is responsible to terminate membership of people based only on an alleged criminal act, just to later find out they were acquitted or not charged at all. Of course if the membership termination is based on a number of factors (the arrest/alleged crime being only one) then termination may still be the best course of action. I just would not suggest citing criminal activity for which there is no conviction.

A question for Ned or other "legal-types"... If we terminate a membership based only on an arrest, do we open open ourselves up to any legal issues if that person is not formally charged, or is acquitted of the charges? If so, would we be better advised to include regulations that allow for "suspension" or "leave" of some kind while the judicial process unfolds? A suspension would probably be best applied to more serious charges, where we see a need to protect our membership or the integrity of our organization by limiting participation until a matter is resolved.

I think it is important that we hold our members to high standards, and we certainly have an obligation to protect our membership - especially cadets. I just also think we owe it to our members to wait until they are found guilty of a crime before we punish them for it.
Maj. Mark Ewing, CAP
Commander
West Michigan Group (GLR-MI-703)

Eclipse

There seems to be an assumption here that reporting an arrest equals an automatic, or highly likely, termination, which I don't see.
However as a commander, I want to know immediately that someone was arrested, especially if it involves abuse or anything else that
would put the membership or organization in harm's way.

At a protest and get arrested but not charged?  No issue with membership, but the CC should know.
Get charged and on bond?  Membership suspended until you are cleared.  Someone would have to look hard
at traffic tickets, because at a certain level they are, effectively bond.  DUI arrests should certainly get a member suspended.

The way the courts are these days, you can be arrested for some pretty bad things, and spend a fair amount of time on bond while your
lawyer sorts things out.  Do we really want members who are on bond involved with cadets, airplanes, or assets?  I don't.

Being "arrested", doesn't mean much, however being charged certainly does.  I'd say a statement or clause that suspends membership
until any legal situation that would lead to incarceration is adjudicated and closed is fair and appropriate.

I don't think there much legal issue here since membership is wholly voluntary and "at will".


"That Others May Zoom"

UH60guy

I'd have to weigh in that we shouldn't even include blanket rules for convictions (not just arrests). Leaving it to the commander's discretion can be a good thing.

I say that because even in the case of a conviction, I wouldn't say that necessarily implies the person isn't capable and worthy of fulfilling their CAP roles and being an upstanding member of society. It really depends not only on the crime/conviction, but the circumstances thereof. I don't know the OP's situation, but is it plausible the theft could be because of the foreclosure? I submit the following made up example:

Capt Cappy loses his house for some non-criminal reason such as a foreclosure or eviction for safety reasons. He had borrowed neighbor Bob's leaflower, which was in the garage at the time. When Capt Cappy is eventually allowed to return, the belongings have already been auctioned off. Bob wants the $300 blower back, and claims Capt Cappy owes him for it. Capt Cappy has no money and the possessions have been sold. Capt Cappy had no legal rights to sell something that wasn't his, so Bob presses charges for petty theft.

Now the above is just an example, and as I'm no lawyer, I admit it may not even be a realistic situation. But the point is, should we as CAP punish Capt Cappy just because he was convicted for theft? The circumstances of the conviction to me don't violate "moral turpitude" as there was no intentional crime, and the CC should have the leeway to puruse a 2B only if he/she feels the need to- not because of some reg written with no regard for circumstance of something that by its very nature has a lot of gray area.
Maj Ken Ward
VAWG Internal AEO

Brad

#27
Quote from: mwewing on July 17, 2013, 02:57:09 PM
A question for Ned or other "legal-types"... If we terminate a membership based only on an arrest, do we open open ourselves up to any legal issues if that person is not formally charged, or is acquitted of the charges? If so, would we be better advised to include regulations that allow for "suspension" or "leave" of some kind while the judicial process unfolds? A suspension would probably be best applied to more serious charges, where we see a need to protect our membership or the integrity of our organization by limiting participation until a matter is resolved.

I think it is important that we hold our members to high standards, and we certainly have an obligation to protect our membership - especially cadets. I just also think we owe it to our members to wait until they are found guilty of a crime before we punish them for it.

Nothing wrong with that, as that would be a matter of policy choice and not law. As long as it doesn't violate our internal non-discrimination policy then just because someone is acquitted in a criminal case doesn't mean we can't pursue internal discipline, same as you can be found not guilty in a criminal case but still found liable in a civil suit arising from the same. If it's laid out clearly enough it won't be a problem. Here's what we have in place with my employer:

QuoteAn employee arrested, charged or indicted for a violation of Federal or State law which adversely reflects on his suitability for continued employment or which causes adverse publicity against the department may be suspended immediately pending final disposition by the courts or further investigation by the department. If the employee is exonerated or charges are dismissed by the court, the employee may be eligible for reinstatement with back pay. The department, however, may conduct its own investigation and take disciplinary action based upon its own findings. That is, the department is not bound to reinstate an employee simply because criminal charges are dismissed or withdrawn or because an employee is acquitted at trial.

Bear in mind it is a law enforcement agency ;)
Brad Lee
Maj, CAP
Assistant Deputy Chief of Staff, Communications
Mid-Atlantic Region
K4RMN

JeffDG

Honestly, you don't even need an arrest or a police action of any kind to invoke the "moral turpitude" removal authority.

Say Capt. Bagodonuts steals something from Maj Coffeepot.  The good Captain has engaged "Conduct involving moral turpitude."  The fact that Maj Coffeepot decides not to pursue charges on the matter does not change that fact, and the Unit/CC can initiate a termination based upon the event, depending on the seriousness of the event.

Storm Chaser

Quote from: UH60guy on July 17, 2013, 03:21:33 PM
Now the above is just an example, and as I'm no lawyer, I admit it may not even be a realistic situation. But the point is, should we as CAP punish Capt Cappy just because he was convicted for theft? The circumstances of the conviction to me don't violate "moral turpitude" as there was no intentional crime, and the CC should have the leeway to puruse a 2B only if he/she feels the need to- not because of some reg written with no regard for circumstance of something that by its very nature has a lot of gray area.

In your example, "Capt Cappy" wouldn't be charged with "petty theft", since this is a civil matter. If "neighbor Bob" wants to recoup his loses, he can sue; no criminal charges can be filed for this.

Now, I do understand your point that there may be extenuating circumstances where someone may be charged (even convicted), but the person can still be a productive CAP member. I think those situations need to be evaluated in a case by case basis and, at the end, the needs and wellbeing of the organization need to be placed ahead of the desire of one member to volunteer and serve his/her community through CAP.

mwewing

Perhaps the regulation could require notification for both criminal charges and convictions, instead of arrests. I might further suggest it specify misdemeanor and felony charges to eliminate any confusion regarding minor traffic violations and other civil infractions.

In theory, I also agree with a suspension pending the resolution of a criminal charge. I am not sure I like it as a requirement, but this may be another area where commander discretion is the key. For example - A member is charged with a minor misdemeanor (unrelated to CAP) that would not require membership termination. The commander already knows that they want to keep the member, even if convicted. I don't see where the suspension accomplishes anything.

I am not in favor of any internal investigation into matters that are unrelated to CAP. If the member is acquitted or otherwise not convicted of a criminal charge unrelated to our organization, we should not use it as grounds for a termination.
Maj. Mark Ewing, CAP
Commander
West Michigan Group (GLR-MI-703)

CAPAPRN

A lot of talk has centered on felonies vs misdemeanors- but as previously stated, we are a non profit that runs a cadet program. What about a member who has received one or more tickets for marijuana possession? In Mass. this is decriminalized (and in other states) and is treated the same as a ticket. Does CAP have an obligation to address this? Ultimately, commanders need latitude.
Capt. Carol A Whelan CAP CTWG,
CTWG Asst. Director of Communications
CTWG Director of Admin & Personnel
Commander NER-CT-004
DCS CTWG 2015 Encampment

Майор Хаткевич

Ciggarets are decriminalized for adults. So is Alcohol. Should SMs abstain from those as well?

Flying Pig

#33
Interesting that the OP has checked back several times but hasnt commented beyond the initial post unless I missed it.

I do like the part about " my mindset wasnt on CAP... just attending meetings and doing my work".   Yeah Ok..... whatever.   Dont act like you were attending meetings and not thinking about how your arrest was going to be handled once people found out the entire time you were there.  You got hooked and booked and tried to get it behind you before anyone found out. Im sure you were embarrassed, angry and all of the above.  I get it.   As a commander I wouldnt necessarily boot you for the arrest depending on what it was.  As a 16yr cop it sounds to me as if your issue may have been a borderline civil matter, but leaned more criminal. I dont know because I didnt see the details explained. Im on my tiny IPhone so maybe I missed it.  Regardless, Id have issues with your continued membership because you did know CAP had regs dealing with criminal arrests but chose to lay low vs pulling your CC aside for a one on one.   You could have potentially put your CC in a situation when the Group CC calls up and says "tell me about your member who is on probation" and she says "uhhhhhhh.... huh?"

I dont know if your situation is salvagable. Sounds like you need to throw yourself on your sword with your commander and beg for mercy. 

Devil Doc

So..... Maybe I should tell my Commander about my Speeding Ticket  :-\ :angel:
Captain Brandon P. Smith CAP
Former HM3, U.S NAVY
Too many Awards, Achievments and Qualifications to list.


Eclipse

Quote from: Devil Doc on July 20, 2013, 07:54:09 PM
So..... Maybe I should tell my Commander about my Speeding Ticket  :-\ :angel:

Maybe you should - if you ever want a CAP driver's license, he'll know anyway.

"That Others May Zoom"

Devil Doc

I was going to get a CAP drivers license  :( Oh well. 2nd Speeding ticket in 5 Years, well at least in this state anyway.
Captain Brandon P. Smith CAP
Former HM3, U.S NAVY
Too many Awards, Achievments and Qualifications to list.


Flying Pig

Quote from: Eclipse on July 20, 2013, 07:56:35 PM
Quote from: Devil Doc on July 20, 2013, 07:54:09 PM
So..... Maybe I should tell my Commander about my Speeding Ticket  :-\ :angel:

Maybe you should - if you ever want a CAP driver's license, he'll know anyway.

Sure..... Go ahead and tell your CC.  At least your CC won't think you are a slouch for not getting a CAP DL and will know the reason behind you not getting one! 

Private Investigator

When I was a Squadron Commander and we had a van. I did not approved "everyone" for a CAP DL. Some people can not take care of their personal car so why would I let just anyone drive my corporate van?  8)

Private Investigator

Quote from: duffman1741 on July 15, 2013, 05:18:49 AMThe story behind it, isn't the issue. I've had a couple of cops tell me, the entire situation was bogus.

Anyway back to the story, so I pretty much lost my apartment, had my car repossessed the same time the incident occurred.

#1, I have been a cop 30+ years and I hate it when other cops want to sugar coat things. A mug shot? You are in deep kimchi.

#2, you got much more important things in life to resolve than just having fun with CAP. I know several people who overlooked their day jobs to have fun or fly a mission in CAP. You got to be focused and good luck.   8)