This opinion will be unpublished and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

A06-945

 

Kelly Anne Rosier,
Relator,

vs.

Commissioner of Human Services,
Respondent.

 

Filed April 10, 2007

Affirmed; motion granted

Stoneburner, Judge

 

Commissioner of Human Services

File Nos. 21014472 & 21141317

 

Kelly Anne Rosier, 8388 Gardenia Street, Virginia, MN 55792 (pro se relator)

 

Lori Swanson, Attorney General, Jonathon Geffen, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator challenges respondent commissioner’s refusal to set aside relator’s ten-year disqualification from working in direct contact with persons served by programs licensed by the Minnesota Department of Human Services (DHS) based on her June 10, 2005 conviction of gross misdemeanor offering a forged check.  We affirm and grant respondent’s motion to strike portions of relator’s reply brief that are not part of the record.

FACTS

 

            The DHS commissioner is required to perform background studies for all employees and volunteers of DHS licensed programs who have direct contact with persons served by those programs.  Minn. Stat. § 245C.03 (Supp. 2005).  If the background study reflects a disqualifying characteristic, which includes convictions of specified criminal conduct, the commissioner must disqualify the individual from such contact.  Minn. Stat. § 245C.14, subd. 1 (2004).

            A disqualified individual may request that the commissioner reconsider the disqualification on the grounds that (1) the information relied on to disqualify the individual was incorrect or (2) despite the disqualifying characteristic, the individual does not pose a risk of harm to the persons served by the particular DHS program involved.  Minn. Stat. § 245C.21, subds. 1, 3 (2004).  If the commissioner finds that the information relied on is correct but the person does not pose a risk of harm to persons served by a licensed program, the commissioner may set aside the disqualification for that program.  Minn. Stat. § 245C.22, subd. 4 (Supp. 2005).  The commissioner’s decision to grant or deny a request to set aside a disqualification is subject to review by writ of certiorari to this court.  Minn. Stat. § 245C.27, subd. 1(c) (Supp. 2005); Minn. R. Civ. App. P. 115.01.

            Relator Kelly Ann Rosier worked for Granite Care Home, Inc. and Accessible Space, Inc., both of which are licensed by DHS to provide treatment to adult patients with developmental delays.  Accessible Space requested a background study on Rosier.  The study revealed Rosier’s June 10, 2005 conviction of offering a forged check.  The commissioner notified Rosier, Accessible Space, and Granite Care Home that Rosier was disqualified from providing direct-contact services to clients of those programs.  Rosier’s notice provided information on how to request reconsideration.

            Rosier requested reconsideration, listing “Catholic Charities St. Joe’s Home for Children” as another program she worked for and arguing that she did not pose a risk to children.  Rosier did not address her risk to the clients of Granite Care Home and Accessible Space.  She provided information that at the time she committed the crime, she was “overwhelmed by things going on” in her life and was not thinking about her future or goals that she had for herself.  Rosier stated that after her conviction, she realized what she wanted in life and completed college while holding two jobs.  Rosier included the police reports from the incident; a copy of the judgment, showing conviction of a gross misdemeanor; and a letter from a county-community-corrections division coordinator stating that Rosier had met all of the conditions of probation and was eligible to be discharged from supervision.

            DHS denied Rosier’s request to set aside her disqualification.  In the letter notifying Rosier of the denial, DHS identified the disqualifying conviction as a felony and informed Rosier that she had failed to demonstrate that she does not pose a risk of harm based on the vulnerability of the clients of Granite Care Home and Accessible Space to forgery and misuse of checks and the fact that it had been less than one year since Rosier’s conviction.  The letter stated: “This type of offense is a disqualification for 15 years from the time you have completed your sentence, including probation.  It is therefore too soon to conclude that you have changed your attitude and behavior.”  Two weeks later, DHS sent Rosier a “corrected letter” that was identical to the earlier letter except that DHS corrected the level of the disqualifying offense to “gross misdemeanor” and the length of disqualification to ten years.  Each letter contained a copy of the risk-of-harm form used by DHS to assess Rosier’s risk.  The forms are identical except for the change in the severity level of the conviction and length of disqualification.  This pro-se certiorari appeal followed.

D E C I S I O N

 

            In a judicial review of an agency decision, the court may affirm, remand for further proceedings, or

may reverse or modify the decision if the substantial rights of the [relator] may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:

            (a)       in violation of constitutional provisions; or

            (b)       in excess of the statutory authority or jurisdiction of the agency; or

            (c)       made upon unlawful procedure; or

            (d)       affected by other error of law; or

            (e)       unsupported by substantial evidence in view of the entire record as submitted; or

            (f)        arbitrary or capricious.

 

Minn. Stat. § 14.69 (2004).

            The DHS commissioner may rescind a disqualification if the commissioner finds that the information submitted by the disqualified individual demonstrates that the individual does not pose a risk of harm to persons served by the license holder.  Minn. Stat. § 245C.22, subd. 4(a) (Supp. 2005).  In evaluating whether the individual poses a risk of harm, the commissioner must consider eight factors:

(1)              the nature, severity, and consequences of the event or events that led to the disqualification;

(2)              whether there is more than one disqualifying event;

(3)              the age and vulnerability of the victim at the time of the event;

(4)              the harm suffered by the victim;

(5)              the similarity between the victim and persons served by the program;

(6)              the time elapsed without a repeat of the same or similar event;

(7)              documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and

(8)              any other information relevant to reconsideration.

 

Id., subd. 4(b) (Supp. 2005).

            In reviewing a request for reconsideration of a disqualification, the commissioner shall give preeminent weight to the safety of each person served by the license holder, applicant or other entities as provided in this chapter over the interests of the license holder, applicant, or other entity as provided in this chapter, and any single factor under subdivision 4, paragraph (b), may be determinative of the commissioner’s decision whether to set aside the individual’s disqualification.

 

Id., subd. 3 (Supp. 2005).

            Rosier’s pro-se brief does not identify the statutory basis for her appeal.  She argues that the commissioner only relied on three of the eight factors set out in Minn. Stat. § 245C.22, subd. 4(b), and that because DHS only provided a conclusory explanation of the application of those three factors, refusal to reconsider the disqualification cannot be sustained.  In her pro-se reply brief, Rosier specifically asserts that all of the commissioner’s findings “are unsupported by the evidence and are arbitrary and capricious.”

            Although DHS’s letter to Rosier stated that the determinative factors in denying her request for setting aside the disqualification were the vulnerability of the clients she served to forgery/check misuse and the recentness of her conviction, DHS also provided Rosier with a copy of the form it used to assess her “risk of harm.”  The form is less than a model of clarity.[1]  The form lists 12 factors that include and elaborate somewhat on all of the factors contained in Minn. Stat. § 245C.22, subd. 4(b), each with descriptive terms that appear to determine whether that factor constitutes a lower, medium, or higher risk.  Rosier’s form indicates that (1) the “[n]ature/severity” of the disqualifying event was “intentional;” (2) the consequences of the event to the victim were between “little damage” and “short-term damage;” (3) there was only one disqualifier; (4) the victim was “not very vulnerable;” (5) the victim suffered between “little” and “moderate” harm; (6) the program clients are “very vulnerable;” (7) there is “some similarity” of the victim to the program clients; (8) less than four years is the “[t]ime elapsed since repeat of same or similar events;” (9) “placed on supv probation 6-10-05” is noted for the factor “[d]ocumentation of successful completion of pertinent training or rehabilitation;” (10) Rosier’s length of employment in health or human services is “2-5 years;” (11) “accepts responsibility” is circled next to the factor “[i]nsight since event;” and (12) nothing is written in opposite the factor labeled “[o]ther.”  Despite its lack of clarity or expansiveness, the form is evidence that DHS considered all of the factors, listed in Minn. Stat. § 245C, subd. 4(b), and some additional factors such as Rosier’s length of employment in human services and insight about the event.

            This case is distinguishable from Johnson v. Comm’r of Health, in which there was no evidence that DHS considered all of the statutory factors relating to risk.  671 N.W.2d 921, 924 (Minn. App. 2003).  And in 2004, after the Johnson decision, the Minnesota Legislature amended the disqualification statute to provide that “any single factor . . . may be determinative of the commissioner’s decision.”  2004 Minn. Laws ch. 288, § 61 at 1341.  We, therefore, find no merit to Rosier’s assertion that DHS failed to consider all of the statutory factors relating to risk or that basing its decision primarily on three of the factors entitles her to relief from the decision.

            Substantial evidence is “1. [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2. [m]ore than a scintilla of evidence; 3. [m]ore than some evidence; 4. [m]ore than any evidence; and 5. [e]vidence considered in its entirety.”  White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (quotation omitted), review denied (Minn. Oct. 31, 1997).  An agency’s conclusion is arbitrary and capricious if there is no rational connection between the facts and the agency’s decision.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001).

A decision will be deemed arbitrary and capricious if the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

 

Nat’l Audubon Soc’y v. Minn. Pollution Control Agency, 569 N.W.2d 211, 215 (Minn. App. 1997) (quotation omitted), review denied (Minn. Dec. 16, 1997).

When reviewing agency decisions we adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education and experience.  The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency’s authority, and judicial deference, rooted in the separation of powers doctrine, is extended to an agency decision-maker in the interpretation of statutes that the agency is charged with administering and enforcing.

 

Blue Cross, 624 N.W.2d at 278 (footnote omitted) (quotation and citation omitted).

            Rosier does not dispute the intentional nature of her crime, the vulnerability of the clients she served, or the recentness of the conviction to the disqualification.  We conclude that there is substantial evidence to support DHS’s denial of Rosier’s request to set aside the disqualification and that the decision was not arbitrary or capricious.

II.        Motion to Strike

            The commissioner moved to strike references in and documents attached to the reply brief concerning Rosier’s graduation from college and her victim’s view that Rosier deserves a second chance.  Because the documents were not submitted to DHS and are not part of the administrative record, we grant the motion to strike.  See Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn. App. 2005) (stating that “[a]ppellate courts may not consider matters outside the record on appeal and will strike references to such matter from the parties’ briefs”), review denied (Minn. July 19, 2005).

            Affirmed; motion granted.