This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals
                              C9-95-2253

     Patricia Ann Matejka,
     Relator,
     vs.

Commissioner of Minnesota

Department of Human Services,
     Respondent.
     Filed May 14, 1996
Affirmed
Peterson, Judge

Department of Human Services

File No. C-950010

Jack E. Setterlund, Sullivan & Setterlund, Ltd., 825 Alworth Building, 306
West Superior Street, Duluth, MN 55802 (for Relator)

Hubert H. Humphrey, III, Attorney General, Kim Buechel Mesun, Assistant
Attorney General 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101
(for Respondent)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and
Peterson, Judge.
                                     
                        Unpublished Opinion

PETERSON, Judge (No lower court judge)

The Commissioner of the Department of Human Services (DHS) determined that
relator Patricia Ann Matejka was a perpetrator of maltreatment of minors
and refused to set aside Matejka's disqualification from holding a position
allowing direct contact with persons receiving services from programs
licensed by the DHS. We affirm.
                                     
                               Facts

The facts in this case are substantially the same as the facts in Rodne
v. Commissioner of Human Services, ___ N.W.2d ___ (Minn. App. May __,
1996), which has been released simultaneously with this opinion. Both cases
arise from a January 8, 1995, incident that was investigated by the DHS. We
incorporate the facts in Rodne and present additional facts that are
relevant only to this case.

In the DHS investigation memorandum regarding the January 8, 1995,
incident, the DHS determined that Matejka was
        
        culpable for neglect by failure to protect children
        from conditions or actions which imminently and


        seriously endangered the children's physical and
        mental health when reasonably able to do so.

The memorandum also stated that Matejka had ``actively decided not to
notify law enforcement or rescue services of the situation.''

The DHS disqualified Matejka from a position allowing direct contact with
persons receiving services from programs provided by DHS. Matejka requested
reconsideration of the disqualification. The Department denied Matejka's
request to set aside her disqualification.
                                     
                              Decision

The DHS is not required to conduct a contested case proceeding when an
individual requests reconsideration under Minn. Stat. § 245A.04, subd.
3b (1994), and it did not do so when Matejka requested reconsideration.
Therefore, Matejka's certiorari appeal is before this court pursuant to
Minn. Stat. § 480A.06, subd. 3 (1994) and Minn. Stat. ch. 606 (1994),
rather than the administrative procedure act, Minn. Stat. §䅊.63-
.69 (1994).

On certiorari appeal from a quasi-judicial agency decision that is not
subject to the administrative procedure act, we inspect the record to
review
        
        questions affecting the jurisdiction of the
        [agency], the regularity of its proceedings, and, as
        to merits of the controversy, whether the order or
        determination in a particular case was arbitrary,
        oppressive, unreasonable, fraudulent, under an
        erroneous theory of law, or without any evidence to
        support it.

Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quoting
State ex rel. Ging v. Board of Educ., 213 Minn. 550, 571, 7 N.W.2d
544, 556 (1942), overruled on other grounds by Foesch v.
Independent Sch. Dist. No. 646, 300 Minn. 478, 485, 223 N.W.2d 371, 375
(1974) ).

The issues presented by this appeal differ from the issues presented in
Rodne because Matejka's request for reconsideration of her notice of
disqualification under Minn. Stat. § 245A.04, subd. 3b does not claim
that the information the Commissioner relied upon is incorrect.

Matejka argues that her disqualification should have been set aside because
the information relied upon by the Commissioner, even if correct, does not
support the determination that she was a perpetrator of maltreatment of
minors under Minn. Stat. § 626.556, subd. 10e (1994). Matejka contends
that her failure to contact law enforcement personnel regarding the missing
children does not constitute maltreatment. We disagree.

``Maltreatment'' includes neglect. Minn. Stat. § 626.556, subd. 10e(a)
(2). ``Neglect'' is defined as
        
        failure by a person responsible for a child's care
        to * * * protect a child from conditions or actions
        which imminently and seriously endanger the child's
        physical or mental health when reasonably able to do
        so.

Id., subd. 2(c).

The DHS investigation memorandum demonstrates that Matejka was responsible
for the care of several children who were lost in the woods on a bitterly-
cold day. The memorandum also demonstrates that Matejka was aware that the
clothing the children were wearing was not adequate to protect them from

the cold and that the children were lost for several hours. The severe
cold, coupled with the children's inadequate clothing, imminently and
seriously endangered the children's physical health. Matejka was reasonably
able to contact law enforcement personnel to obtain assistance in finding
the children. The DHS did not err in concluding that her failure to do so
constituted neglect, and was, therefore, maltreatment.

Matejka also argues that the Commissioner's decision denying her request to
set aside her disqualification because she did not demonstrate that she
does not pose a risk of harm to persons served by the DHS is not warranted
by the evidence and was arbitrary and unreasonable.

A reviewing court will not disturb an administrative agency's decision
solely because it does not agree with the determination. Village of
Goodview v. Winona Area Indus. Dev. Ass'n, 289 Minn. 378, 381, 184
N.W.2d 662, 664 (1971). A court
        
        can only interfere where it appears that the agency
        has not kept within its jurisdiction, that it has
        proceeded upon an erroneous theory of law, or that
        its actions are arbitrary and unreasonable or
        without adequate support in the record.

Id., 184 N.W.2d at 664  (quoting State ex rel. Saari v. State
Civil Serv. Bd., 265 Minn. 441, 443, 122 N.W.2d 174, 175-76 (1963) ).
        
        Where there is room for two opinions on the matter,
        such action is not ``arbitrary and capricious,''
        even though it may be believed that an erroneous
        conclusion has been reached.

Id., 184 N.W.2d at 664 (quoting Brown v. Wells, 288 Minn.
468, 472, 181 N.W.2d 708, 711 (1970) ).

When determining whether an individual poses a risk of harm to persons
served by the DHS, the Commissioner shall consider the following:
        
        (1) the nature and severity of the disqualifying
        event;

(2) the consequences of the disqualifying event;

(3) the number of disqualifying factors or events;

(4) the relationship between the disqualification and the health, safety,
and rights of persons served by the program, including factors such as:
        
        (a) the age and vulnerability of victims at the time
        of the incident;

(b) the harm suffered by a victim; and

(c) the similarity between a victim and persons served by the program;
        
        (5) the time elapsed without a repeat of the same or
        similar event;

(6) documentation of successful completion of training or rehabilitation
pertinent to the incident; and

(7) any other information relevant to the reconsideration decision.

Minn. R. 9543.3080, subpt. 3(B) (1993); see also Minn. Stat. §
245A.04, subd. 3b(b) (when reconsidering a disqualification, Commissioner
shall review number of disqualifying events, consequences of events,
victim's vulnerability, time elapsed without repeat of similar events, and

documentation of training or rehabilitation pertinent to event;
Commissioner must give preeminent weight to safety of persons served).

Matejka argues that all evidence submitted to the Commissioner, including
her excellent record, her acknowledgement of an error in judgment on the
day of the incident, and her statement that she is committed to improvement
and has a sincere desire to continue to serve troubled youths, clearly
demonstrates that she does not pose a risk of harm to persons served by the
DHS.

The letter informing Matejka that her disqualification had not been set
aside states:
        
        Taking into account the recency and severity of your
        maltreatment, the information you submitted did not
        demonstrate that you do not pose a risk of harm.
        Therefore, it did not allow a determination that
        your disqualification should be set aside.

This letter demonstrates that the Commissioner considered the required
factors when determining whether to set aside Matejka's disqualification.
There is evidence in the record to support the Commissioner's determination
that there was recent, severe maltreatment. Although there is also evidence
in the record indicating that Matejka is not likely to repeat the error in
judgment she made in this incident, there is room for two opinions on the
question whether Matejka poses a risk of harm to persons served by the DHS.
We, therefore, affirm the determination of the Commissioner.

Affirmed.