Natasha Birundu, Relator, vs. Commissioner of Human Services, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-471

Natasha Birundu,

Relator,

vs.

Commissioner of Human Services,

Respondent.

Filed September 23, 2003

Affirmed

Toussaint, Chief Judge

Natasha S. Birundu, 565 W. 35th Street, #7E, Hastings, MN 55033 (pro se relator)

Cynthia Beth Noren Jahnke, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)

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

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

            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.

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 Servs., 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. § 245 A. 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. § 245 A. 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. § 245 A. 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 Servs., 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 and that the conduct occurred almost one year ago.

The licensing act requires disqualification for domestic assault for as long as seven years after sentencing for the incident.  Minn. Stat. § 245 A. 04, subd. 3d(a)(4).  Here, relator was already on probation for a prior domestic assault when she was arrested in June, and, after the arrest, she was charged again in September.  The report before the commissioner also contained an allegation by a witness that relator had struck her one-month-old baby, had fought verbally with her husband and then slashed their furniture with a knife, and on yet another occasion threatened to strike the baby.  In light of the whole record of violent conduct, the fact that the conviction for fifth-degree assault was one year old does not negate the substantial evidence supporting disqualification.

In reviewing the disqualification, the commissioner was required to consider

the nature, severity, and consequences of the event or events that le[]d to disqualification, whether there is more than one disqualifying event, the age and vulnerability of the victim at the time of the event, the harm suffered by the victim, the similarity between the victim and persons served by the program, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual . . . of training or rehabilitation pertinent to the event, and any other information relevant to reconsideration.

Id., subd. 3b(b).  The statute provides that the commissioner must 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. 

Even though the violent conduct occurred at home and there was no allegation of bad conduct in the workplace, there was substantial evidence supporting the disqualification.  The commissioner cited the recency of the event, the violent nature of the event, and the vulnerability of the population that relator was prevented from serving.  The commissioner considered the relevant statutory factors, and her decision was not unreasonable in light of the record.

Affirmed.