Considered at Special Term and decided by Toussaint, Chief Judge; Peterson, Judge; and Harten, Judge.
An individual who has been disqualified from holding positions involving direct contact with persons served by programs or entities identified in Minn. Stat. § 245C.03 (Supp. 2003) may request reconsideration of the decision under Minn. Stat. § 245C.21, subd. 1 (Supp. 2003). But a motion to reconsider the Commissioner of Human Services' decision refusing to set aside the disqualification is not authorized, and such a motion does not extend the time to appeal.
The opinion of the court was delivered by: Toussaint, Chief Judge
Writ of certiorari discharged
Relator Henry Hickman is a chemical-dependency counselor. Progress Valley, Inc. and My Home, Inc. submitted relator's background-study forms to the Commissioner of the Minnesota Department of Human Services (commissioner) for review. By letters dated October 24, 2003, and November 18, 2003, the Department of Human Services Licensing Division notified relator that, due to relator's 2003 conviction for attempt to coerce and relator's 1990 conviction for two counts of theft, relator is disqualified from providing direct-contact services for facilities licensed by the Minnesota Department of Human Services and the Minnesota Department of Health, from facilities serving children or youth licensed by the Minnesota Department of Corrections, and from unlicensed personal-care-provider organizations. The October 24 and November 18 letters notified relator of his right to seek reconsideration of the disqualification.
On November 13, 2003, relator requested reconsideration using a form provided by the Department of Human Services. In his reconsideration request, relator described the attempt-to-coerce offense as an isolated incident resulting from the end of a personal relationship. Relator expressed remorse for the incident but stated it did not show a risk of harm to relator's clients, with whom relator indicated he had always maintained a strictly professional relationship. Relator also cited his past employment and his unblemished record as a chemical-dependency counselor.
In a letter dated December 10, 2003, the commissioner notified relator that the October 24 and November 18 disqualifications were not set aside. The letter states that the commissioner determined that relator had failed to show that he did not pose a risk of harm, basing the determination on the number of disqualifying offenses, the recency of relator's attempt-to-coerce conviction, and the victimizing nature of the latest disqualifying offense. The December 10 letter stated that it was a final decision, and notified relator of his right to file a certiorari appeal with the court of appeals within 60 days after receipt of the decision.
Relator did not file a certiorari appeal with this court from the December 10 decision. Instead, relator sent a letter dated January 20, 2004, to the commissioner requesting reconsideration of the December 10 decision. The letter provides more information about the attempt-to-coerce offense, stating that relator was "scared and resentful" over the termination of his relationship with the victim and that the victim was demanding repayment of money given to relator throughout the course of the relationship. Relator provided examples of the victim's financial demands, and also enclosed letters and feedback statements from human services professionals and from clients that relator had counseled.
On February 2, the commissioner issued a decision denying relator's "second request for reconsideration." The decision states that the following factors are determinative: (1) the recency of the felony conviction for attempt to coerce; (2) the victimizing nature and consequences of relator's acts that led to the conviction; (3) information contained in a Dakota County Sheriff's Department report showing that relator placed the blame on the victim of the crime; (4) the number of disqualifying events; and (5) the lack of evidence that relator had undergone any training or rehabilitation as a result of the conviction, other than court-ordered time spent incarcerated. The February 2 decision, like the December 10 decision, states that it is a final agency decision subject to review in the court of appeals by certiorari.
On March 26, 2004, relator filed this certiorari appeal from the February 2 decision. This court questioned whether the December 10 decision was the final agency decision and, if so, whether the time to appeal that decision expired before this appeal was filed. The parties submitted memoranda addressing the jurisdiction question.
The appeal period and the acts required to invoke appellate jurisdiction in a certiorari appeal are governed by the applicable statute. Minn. R. Civ. App. P. 115.01. The commissioner's decision to grant or deny a request to set aside a disqualification is a final administrative-agency action reviewable by certiorari under Minn. Stat. ch. 606. Rodne v. Comm'r of Human Serv., 547 N.W.2d 440, 444 (Minn. App. 1996). No writ of certiorari shall be issued to correct any proceeding unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to ...