This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-592

 

Joseph Moranga Ouya,

Relator,

 

vs.

 

Minnesota Department of Human Services,

Respondent.

 

Filed April 17, 2007

Affirmed
Crippen, Judge*

 

Human Services Department

 

Joseph Moranga Ouya, c/o Linda Ouya, 7455 Brooklyn Boulevard, Apt. 9, Brooklyn Park,  MN 55443 (pro se relator)

 

Lori Swanson, Attorney General, Jonathan Geffen, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Relator Joseph Ouya was disqualified from a position involving direct contact with vulnerable persons as a result of his conviction of criminal vehicular injury.  Because the decision denying reconsideration of the disqualification is supported by the evidence and is not otherwise defective, we affirm.

FACTS

 

            In December 2003, relator was involved in a traffic accident in which another driver was injured.  In August 2004, he pleaded guilty to and was convicted of criminal vehicular injury.

            Relator was employed by Seek Home, Inc., which provides services to vulnerable adults.  Relator’s job included providing direct-contact services.  Late in 2005, Seek Home requested a background study on relator.  In November 2005, Seek Home and relator were notified that relator was disqualified by statute from direct-contact services and should be immediately removed.

            Relator requested reconsideration of his disqualification.  Concluding that relator “failed to demonstrate that [he does] not pose a risk of harm [to vulnerable adults],” the commissioner of the Minnesota Department of Human Services (DHS) declined to set aside relator’s disqualification.  This conclusion occurred notwithstanding relator’s undisputed report that the patients he has served are not drivers and that he does not provide driving services for them, prompting the commissioner’s agreement that there is “little similarity” between relator’s clients and the victim of his 2003 misconduct.

            The Minnesota Department of Health also denied relator’s request for reconsideration, but this court issued an order restricting this appeal to the DHS denial.

D E C I S I O N

            Because no contested case hearing was held, this certiorari appeal is not brought under the Minnesota Administrative Procedure Act, Minn. Stat. §§ 14.63-.69 (2006).  See Rodne v. Comm’r of Human Servs., 547 N.W. 2d 440, 444 (Minn. App. 1996).  In reviewing such a decision, this court considers whether it was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”  Id. at 445.

            To grant an application to set aside a disqualification, the DHS 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) (2006).  The next subdivision of the statute states seven factors to be considered, four related to the wrongful conduct, one related to the specific risk of further harm to vulnerable adults, and two related to the subsequent conduct of the applicant, namely, (a) the time elapsed without a repetition of the event and (b) whether the applicant has completed relevant training or rehabilitation. Id., subd. 4(b) (2006).  Although the preeminent consideration is the safety of the persons served in the program from which the applicant was disqualified, any one of the statutory factors may be determinative of the commissioner’s reconsideration decision.  Id., subd. 3 (2006).

            The commissioner, after observing the undisputed fact that relator serves a vulnerable population, rested his denial on findings as to the short time elapsing since the conviction and the evidence that relator has not taken responsibility for the act that disqualified him. 

            The commissioner recited evidence that relator blamed his vehicle accident on the victim of his wrongdoing, minimized the harm to the victim, and made little mention of his drinking prior to the accident; the commissioner noted that the police report on the accident indicates that relator “struck a car from behind causing an accident, left the scene and [was] subsequently arrested for fourth degree driving while intoxicated.”  Relator’s report to the commissioner said, “I hit his car behind but I made a mistake of leaving before the police.  But good luck the driver did not die.  Nothing happened only a small injury.”  In another document relator acknowledged that the other driver was hospitalized overnight; relator also submitted hospital records showing that the other driver suffered a head injury. 

            This evidence supports the commissioner’s finding on the topic of relator’s rehabilitation and permits the decision to deny, in March 2006, relators’ request for reconsideration of his statutory disqualification.

            Relator notes that he completed his jail sentence, attended AA meetings, and abstained from use of alcohol.  The commissioner was aware of this, but the commissioner found it was “too soon” to conclude that relator’s attitude had changed, given that only two years had passed since the conviction and the legislature provided for a ten-year disqualification from the time when the offender’s sentence, including probationary time, was completed.  This is also a proper consideration supporting the commissioner’s decision.

            Affirmed.