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Birundu v. Commissioner of Human Services

September 23, 2003

NATASHA BIRUNDU, RELATOR,
v.
COMMISSIONER OF HUMAN SERVICES, RESPONDENT.



Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

The opinion of the court was delivered by: Toussaint, Chief Judge

Affirmed

UNPUBLISHED OPINION

On certiorari review of the commissioner's order disqualifying relator from working in any position allowing direct contact with persons receiving services from licensed programs, we affirm because substantial evidence in the record as a whole supports the commissioner's findings.

Decision

After completing a background study, the Department of Human Services (DHS) may disqualify an individual from working in any position allowing direct contact with persons receiving services from programs licensed by the DHS, the Minnesota Department of Health, or unlicensed personal-care-provider organizations. Fosselmann v. Comm'r of Human Serv., 612 N.W.2d 456, 465 (Minn. App. 2000). An individual shall be disqualified if the background study reveals a conviction of fifth-degree assault or domestic assault. Minn. Stat. § 245A.04, subd. 3d(a)(4) (2002) (requiring disqualification for seven years after conviction for certain crimes).

An individual may request reconsideration of a disqualification. Id., subd. 3b(a) (2002). Although the DHS makes the initial disqualification decision, the Commissioner of Health reviews and decides requests for reconsideration in accordance with the Human Services Licensing Act, Minn. Stat. §§ 245A.01-.65 (2002). An individual requesting reconsideration of a disqualification must show that:

(1) the information the commissioner relied upon in determining that the underlying conduct giving rise to the disqualification occurred... is incorrect; or

(2) the subject of the study does not pose a risk of harm to any person served by the applicant....

Minn. Stat. § 245A.04, subd. 3b(a). Unless it results from a contested hearing, which did not occur here, the commissioner's decision to grant or deny a reconsideration request is a final administrative decision subject to certiorari review. See Minn. Stat. § 245A.04, subd. 3b(e).

In reviewing quasi-judicial agency decisions not subject to the Minnesota Administrative Procedure Act, this court must determine 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 the law, or without any evidence to support it.

Rodne v. Comm'r of Human Serv., 547 N.W.2d 440, 444-45 (Minn. App. 1996) (quotations omitted). This court defers to the agency's fact-finding process and is careful not to substitute its judgment for that of the agency. See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 674 (Minn. 1990). In considering factual determinations, we determine whether substantial evidence in the record as a whole supports the commissioner's findings. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 826 (Minn. 1977).

Relator does not contest the information upon which the disqualification was based. That information, contained in the record, is a Bureau of Criminal Apprehension report of two incidents: relator's June 27, 2002 arrest for fifth-degree domestic assault and a September 16, 2002 charge of second-degree assault. The Richfield Police Department incident report details the facts of the June 27 domestic assault and is also part of the record. The background check with Hennepin County revealed that relator pleaded guilty to the fifth-degree assault on July 30, 2002 and that there was no clear disposition for the September 16, 2002 assault.

Relator contests the factual determination that she poses a risk of harm to the people she was serving. She argues that her conduct at home is distinguishable from her conduct in the workplace ...


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