This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-611

 

 

Bradley Jay Jurk,

Relator,

 

vs.

 

Commissioner of Human Services,

Respondent.

 

 

Filed September 5, 2000

Affirmed; motion granted

Parker, Judge^*

 

Department of Human Services

File No. 830637R3

 

 

Philip G. Villaume, Philip G. Villaume and Associates, 5200 Willson Road, Suite 150, Edina MN 55424 (for relator)

 

Mike Hatch, Attorney General, Theresa Meinholz Gray, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Relator challenges the commissioner’s representative’s refusal to set aside his disqualification from providing direct-contact services for licensed facilities and unlicensed personal-care-provider organizations under Minn. Stat. § 245A.04 (1998 & Supp. 1999).  He argues his disqualification should have been set aside because it was based on two instances of inappropriate conduct that occurred fifteen and nine years ago, were not work-related, and did not involve children, and because he has since been rehabilitated.  Respondent has filed a motion to strike certain documents from the appendix of relator’s brief for being outside the record.  We affirm and grant the motion to strike.

D E C I S I O N

I.

            A quasi-judicial agency decision not subject to the Administrative Procedure Act is reviewed on writ of certiorari by inspecting the record to determine whether the decision was “‘arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.’”  Rodne v. Commissioner of Human Servs., 547 N.W.2d 440, 444-45 (Minn. App. 1996) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted)).

            To protect the health, safety, and rights of individuals served by programs licensed by the Department of Human Services (DHS), the DHS has set forth procedures for background checks of individuals affiliated with those programs.  Dozier v. Commissioner of Human Servs., 547 N.W.2d 393, 395 (Minn. App. 1996), review denied (Minn. July 10, 1996); see also Minn. Stat. § 245A.04, subd. 3 (1998) (describing background studies); Minn. R. 9543.3000-.3090 (1999) (same).  An individual is disqualified if the background study establishes a preponderance of evidence indicating the individual committed one or more acts meeting the definition of certain crimes delineated by statute.  Minn. Stat. § 245A.04, subd. 3d (Supp. 1999). 

            Indecent exposure, Minn. Stat. § 617.23 (1998), is one of the disqualifying crimes listed in the statute.  Minn. Stat. § 245A.04, subd. 3d(4) (Supp. 1999).  Relator was disqualified based on having committed acts of indecent exposure in Wisconsin in September 1985 and August 1991. 

            A disqualified individual may request reconsideration by the Commissioner of Human Services, and the commissioner may set aside the disqualification if the individual presents information showing that (1) the information underlying the disqualification is incorrect or (2) the individual “does not pose a risk of harm to any person served by the [program].”  Id., subd. 3b (1998); accord Minn. R. 9543.3080, subp. 3.  In this appeal, relator challenges the conclusion by the commissioner’s representative that relator failed to show he did not pose a risk of harm to the individuals served by the licensed program--in this case, children.

            In determining whether a disqualified individual poses a risk of harm, the commissioner is to consider

the consequences of the event or events that [led] to disqualification, whether there is more than one disqualifying event, the vulnerability of the victim at the time of the event, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event, and any other information relevant to reconsideration.

 

Minn. Stat. § 245A.04, subd. 3b(b).  The commissioner

shall give preeminent weight to the safety of each person to be served by the license holder or applicant over the interests of the license holder or applicant.

 

Id.

            The record contains completed “Assessment of Risk of Harm” worksheets listing the statutory factors to be considered.  Consistent with these assessment forms, the notice of decision to relator said that denial of reconsideration was based on (1) the “serious and repetitive nature” of relator’s disqualifying offense, (2) the similarity of the victims of relator’s 1985 crime to the people for whom he wished to provide direct-contact services, and (3) the vulnerability of the people for whom relator wished to provide direct-contact services.

            Relator argues that the decision was erroneous because (1) he never harmed any children, (2) his conduct did not occur in the workplace, (3) the incidents occurred many years ago, and (4) he has provided evidence of his rehabilitation.

            Both the police report and a police officer’s affidavit from the 1985 offense clearly state that relator’s indecent exposure was directed at children.  An officer at the scene spoke to several young boys involved in the incident, including a six-year-old, a twelve-year-old, and four teenagers.  The boys told the officer that relator’s actions made them nervous and frightened.  The record also shows that in 1991, relator committed a repeat offense of indecent exposure.  This evidence supports the decision because it shows relator’s 1985 offense was aimed at children, the same vulnerable category of people for whom he wishes to provide direct-contact services.

            Although neither offense was work-related and the second incident involved an adult victim, these facts do not negate the seriousness of relator’s offenses.  Moreover, while relator has not been convicted of this type of conduct since 1991, the record fails to establish that relator has successfully completed rehabilitation pertinent to the disqualifying events.  Rather, the record shows that relator has consistently denied that the victims of his 1985 offense were children and repeatedly lied about or attempted to conceal his record of indecent exposures and the ensuing revocation of his Wisconsin teaching license.

            It is clear from the record that the commissioner’s representative considered the relevant factors in reaching the decision and that the decision was not arbitrary, oppressive, unreasonable, fraudulent, or the product of an erroneous theory of law.  There is substantial evidence in the record supporting the conclusion that relator has failed to show that he poses no risk of harm to children.  We affirm.

II.

            Respondent has moved to strike two documents contained in the appendix of his brief as being outside the record.  The documents are copies of e-mail messages from the director of Dakota Child Care to relator showing her support for him and stating that she would like him to work there.  In addition, relator’s appendix contains what appears to be a copy of his teacher’s license.  None of these documents is contained in the agency file, and there is no indication that they were ever before the commissioner’s representative.

            The record on certiorari review consists of the documents filed with the agency.  SeeMinn. R. Civ. App. P. 110.01 (stating record on appeal includes papers filed in trial court, exhibits, and transcript), 115.04, subd. 1 (applying provisions of rule 110 to certiorari review and stating references to trial court shall be read as references “to the body whose decision is to be reviewed”).  On appeal, a reviewing court must strike matters that are outside the record.  Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987).  Therefore, the documents in relator’s brief not contained in the record are stricken, and respondent’s motion is granted.

            Affirmed; motion granted.