This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Shanasha Ollie Whitson,
Commissioner of Human Services,
Department of Human Services
File Nos. 97737, 830971 R31
Shanasha Whitson, 1406 Vincent Avenue, Minneapolis, MN 55411 (pro se relator)
Lori Swanson, Attorney General, Cara M. Hawkinson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.
Relator challenges the decision on reconsideration by the commissioner of human services that relator is disqualified from having direct contact with, or access to, persons who receive services from programs licensed by the Department of Human Services. We affirm.
In November 2005, relator Shanasha Whitson was convicted of misdemeanor domestic assault arising from an altercation with the father of her son. Whitson was employed by two programs licensed by the Department of Human Services—We Do Care, Inc., which, among other things, provides personal-care services to children with special needs, and Model Cities of St. Paul, Inc., which provides supportive housing for homeless single parents and their children. Because her positions required Whitson to have direct contact with persons who are served by the programs, the commissioner of human services conducted a background study and risk-of-harm assessment and concluded that, under Minn. Stat. § 245C.14, subd. 1(a) (2004), Whitson’s conviction disqualified her from having direct contact with those served by the programs. The commissioner notified Whitson that she had the right to request reconsideration of the disqualification decision.
Whitson challenged her disqualification in February 2006, arguing that (1) her offense was an isolated incident, (2) she merely vandalized her son’s father’s car with a knife, and (3) the victim of the offense has no similarity to the persons receiving services through We Do Care or Model Cities. Whitson attached several character references, certificates of education and volunteer activity, and a letter from her probation officer advising the commissioner that Whitson had completed a 12-week domestic-abuse program.
The commissioner conducted a second risk-of-harm assessment using the factors set forth in Minn. Stat. § 245C.22, subd. 4(b) (Supp. 2005), giving preeminent weight to the safety of each person to be served by the programs over Whitson’s interests. After concluding that Whitson failed to demonstrate that she does not pose a risk of harm to the persons served by the licensed programs, the commissioner denied Whitson’s request. We Do Care and Model Cities were ordered to immediately remove Whitson from any position having direct contact with, or access to, persons receiving services from the programs. This certiorari appeal followed.
D E C I S I O N
A party may appeal “from a final
order, decision or judgment affecting a substantial right made in an
administrative or other special proceeding.”
To grant an application to set aside a disqualification, the commissioner must find that the applicant does not pose a risk of harm to any person served by the applicant. Minn. Stat. § 245C.22, subd. 4(a) (Supp. 2005). Specifically, the commissioner shall consider: (1) the event that led to the disqualification, (2) whether there was more than one event, (3) the age and vulnerability of the victim, (4) the harm suffered, (5) the similarity between the victim and the persons served by the program from which the applicant was disqualified, (6) the time elapsed without a repetition of the event, (7) whether the applicant has completed relevant training or rehabilitation, and (8) any other relevant information. Id., subd. 4(b) (Supp. 2005). Any one of these factors may be determinative of the commissioner’s decision, and the preeminent consideration is the safety of the persons served by the program from which the applicant was disqualified. Id., subd. 3 (Supp. 2005).
The commissioner declined to set aside Whitson’s disqualification because: (1) it had been less than one year since Whitson’s conviction and, under Minn. Stat. § 245C.15, subd. 4(a)(1), (2), Whitson is disqualified for seven years following her discharge from probation; (2) the people Whitson served are vulnerable because of their age, illness, or disability; and (3) Whitson’s request for reconsideration demonstrated that she has not taken responsibility for the action that disqualified her.
The commissioner’s findings that section 245C.15 disqualifies Whitson for seven years after the discharge of her sentence and that Whitson provides services to vulnerable people are not in dispute. And Whitson’s failure to take full responsibility for her actions, the commissioner’s third finding, is supported by substantial evidence in the record. In the request for reconsideration, Whitson characterized her conduct as vandalism of property. But according to the police report that Whitson submitted, the victim and two witnesses reported that, after pushing and hitting the victim and his pregnant girlfriend, Whitson attempted to stab the victim with a knife. Whitson then struck the trunk of the victim’s car with the knife. As a result, Whitson pleaded guilty to misdemeanor domestic assault, not criminal damage to property. The record supports the commissioner’s finding that “[i]t appears [that Whitson] ha[s] not taken full responsibility for [her] actions.”
Whitson contends that the domestic assault was an “isolated incident” from which she has been rehabilitated and that there is no similarity between the victim of the domestic assault and the vulnerable persons with whom she works. Whitson asserts that she will remain law-abiding and could “never act out this crime/incident . . . with a client.” The commissioner acknowledged that “some of the factors [on relator’s risk‑of‑harm assessment] may indicate a lesser risk of harm.” But the commissioner also considered the recency of the offense as a basis for denying the request to set aside Whitson’s disqualification. There is a presumptive seven-year disqualification under Minn. Stat. § 245C.15, subd. 4(a)(1), (2), for domestic assault. The commissioner accounted for Whitson’s low-risk factors, such as a victim who was “not very vulnerable” and who suffered little harm, as well as the high-risk factors, such as the intentional and violent nature of Whitson’s offense and the very vulnerable program clients, including children with disabilities. When viewed in its entirety, the record establishes that the commissioner properly weighed the appropriate factors in conjunction with the mitigating circumstances. We will not “substitute our judgment for that of the agency” when, as here, its decision is supported by substantial record evidence. In re Denial of Eller Media Co.’s Application for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn. 2003).
The commissioner correctly applied the law and reached a decision that is supported by the record evidence.