Audrey Melody Ashford, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0902

Audrey Melody Ashford,
Relator,

vs.

Commissioner of Human Services,
Respondent.

Minnesota Department of Human Services
License No. 1063920 CD CS

Filed April 10, 2017
Affirmed
Bratvold, Judge

Samantha Clawson, Meghan R. Scully, Charles H. Thomas, Law Offices of Southern
Minnesota Regional Legal Services, Inc., St. Paul, Minnesota (for relator)

Lori Swanson, Attorney General, J ames Clark, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this certiorari appeal, relator challenges the Minnesota Commissioner of Human
Services’ decision denying a request to set aside relator’s disqualification from providing
2
direct care services for her sister in a state-licensed program. Relator does not dispute that
a 2014 theft conviction disqualifies her, but argues the set-aside decision must be reversed
because it is not supported by substantial evidence and is arbitrary and capricious, and that
she was denied procedural-due-process right s to an evidentiary hearing . We affirm the
commissioner’s decision because her determination that relator failed to prove no risk of
harm to program participants is supported by substantial evidence and is not arbitrary and
capricious. Additionally, relator was not entitled to an evidentiary hearing because she was
disqualified based on a conviction, for which she received ample due process.
FACTS
In September 2015, Community Involvement Programs (CIP) submitted a
background request to the Minnesota Department of Human Services (DHS) for relator
Audrey Ashford, who had been conditionally approved to provide paid care for her sister,
B.A. Ashford has physical and legal custody of B.A., who is 14 years old.
On February 10, 2016, the commissioner notified Ashford that she was disqualified
from serving in direct-contact positions for persons receiving services from DHS-licensed
programs because of her 2014 misdemeanor-theft conviction.
Ashford requested reconsideration, asking the commissioner to set aside her
disqualification and limiting the scope of her request to provide services only for B.A.
Ashford acknowledged she pleaded guilty to and was convicted of theft, she received a
stayed sentence of one year of probation, and she was discharged in August 2015. Ashford
also stated that she took “full responsibility” for her actions, explaining in her affidavit that
she attributed her “poor decisions” to a “very stressful time” during which she lost her only
3
source of income, she was behind on rent and lacked money for food, and the county had
removed B.A. from her home to a residential treatment facility, where B.A. was unhappy.
Ashford submitted two letters of support: one from B.A.’s social worker/therapist and the
other from Ashford’s daughter, both stating that Ashford’s home was safe and that Ashford
was “considerate and responsible” and provided good care for B.A, who is like a sister to
Ashford’s daughter.
On April 5, 2016, the commissioner denied Ashford’s set-aside request, noting that
she was required to consider nine statutory factors . While the commissioner discussed all
nine factors, she gave four reasons for the denial: (1) the nature of the disqualifying event
was that the 2014 theft was an intentional act; (2) CIP participants are “very vulnerable”
due to mental and/or physical disabilities; (3) while two years had passed since the theft
conviction, it was “too soon” to conclude whether Ashford would commit another “similar
act” because she was previously convicted of theft and forgery in 1995; and (4) Ashford’s
written request to the commissioner attempted to justify the theft, which indicated Ashford
was “less likely to change [her] behavior.”
Also, regarding the statutory factor for “other information,” the commissioner stated
that Ashford’s support letters did not indicate whether the authors were aware that, in 2013,
Ramsey County had determined that Ashford “maltreated [her] sister.” The commissioner
added that the county had also determined that “someone sexually abused [her] sister” and
Ashford would not allow B.A. to return to her home because Ashford was concerned that
B.A. “would lie ” about the abuser being in her home. The commissioner concluded that
4
the maltreatment determination and Ashford’s failure to protect her sister from the abuser
were “relevant to [Ashford’s] risk of harm.”
Finally, the commissioner sta ted that CIP caregivers “work unsupervised in the
client’s home and have unfettered access to the client’s property, including money.” The
commissioner noted that, even though Ashford had narrowed the scope of her
reconsideration request to serving B.A., a set aside would allow Ashford to provide
services “to anyone receiving services from the program without any restriction .” In
summary, the commissioner cited the statutory requirement that she must give “preeminent
weight to the safety of each person to b e served by the program” over other interests, and
concluded that Ashford had failed to demonstrate she did not pose a risk of harm.
On April 6, 2016, Ashford submitted four additional support letters. Like the support
letters initially provided, the addit ional letters stated that Ashford was an attentive
caregiver who provided a safe home for B.A and put B.A.’s best interests first.1
On May 3, 2016, Ashford challenged the commissioner’s denial of her set -aside
request in a letter, disputing the facts regar ding the maltreatment and sexual -abuse
allegations, which Ashford described as false and unsubstantiated. Ashford included a
Ramsey County Community Human Services letter stating, “it has been determined that
the finding of maltreatment was incorrect and y ou did not neglect the child” and that the

1 The letters were from a school social worker, who stated that Ashford is “very responsive”
to B.A.’s emotion al and behavioral needs; B.A., who called Ashford her “mom ”; a
minister, who stated that Ashford had “knocked down” doors to obtain good care for B.A.;
and Ashford’s friend of 10 years, who said that Ashford always put B.A.’s “best interest[s]
first.”
5
county “did not meet the burden of proof necessary to substantiate the allegation [of
maltreatment].” Ashford also included the county’s “case closing plan,” which stated that
B.A’s sexual-abuse allegations “were fabricated and the real issue was her mental health.”
Ashford also requested a hearing , stating that the commissioner had made findings about
maltreatment and abuse without notice and an opportunity to dispute the evidence.
The commissioner responded on June 3, 2016, stating that she reviewed Ashford’s
additional evidence, including the information from the county and support letters. While
the commissioner revised the analysis of the statutory fact ors to consider “new
information,” the commissioner reaffirmed Ashford’s disqualification and the decision to
deny a set aside, in part by noting that Ashford only challenged one statutory factor but
“any one” of the statutory factors discussed in the April 5, 2016 letter may be
determinative. The reasons given were the same as those listed in the April 5, 2016 letter,
with the exception that there was no reference to maltreatment or sexual abuse. The
commissioner stated that Ashford was not entitled to a hearing because her disqualification
was based on a conviction. This certiorari appeal follows.2

2 Ashford filed a petition for writ of certiorari on June 2, 2016, seeking revi ew of the
commissioner’s April 5 , 2016 decision. The commissioner’s statement of the case
discussed the revised decision, issued on June 3, 2016. Moreover, the commissioner’s
itemized list of the administrative record included the June 3 revised decision. Both
Ashford and the commissioner address the commissioner’s April 5 and June 3 decisions in
their respective appellate briefs. See generally Minn. R. Civ. App. P. 115.04, subd. 1
(stating that Minn. R. Civ. App. P. 110 generally applies to certiorari appeals); Minn. R.
Civ. App. P. 110. 01 (stating the record on appeal includes all documents, exhibits, and
transcripts filed).
6
D E C I S I O N
I. The commissioner’s decision denying Ashford’s request to set aside her
disqualification is supported by substantial evidence and is not arbitrary and
capricious.

This court may reverse an agency decision denying a set aside if it is not supported
by substantial evidence or is arbitrary and capricious. Rodne v. Comm’r of Human Servs.,
547 N.W.2d 440, 444 –45 (Minn. App. 1996). Substantial evidence is (1) “relevant
evidence that reasonable m ind[s] might accept as adequat e 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 Nat. Res., 567 N. W.2d 724, 730 (Minn. App. 1997) , review denied (Minn. Oct . 31,
1997). A decision is not arbitrary and capricious if there is a “rational connection between
the facts found” and the agency’s decision. In re Excess Surplus Status of Blue Cross and
Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001). Stated somewhat differently, an
agency’s decision is arbitrary and capricious if the agency (a) relied on factors not intended
by the legislature; (b) “entirely failed to consider an important aspect of th e problem”;
(c) offered an explanation that runs counter to the evidence; or (d) the “decision is so
implausible that it could not be ” explained as a difference in view or the re sult of the
agency’s expertise. In re Appeal of Staley, 730 N.W.2d 289, 295 (Minn. App. 2007).
A. Statutory framework
The DHS must complete a background study on any person who seeks to provide
direct-contact services to clients served in programs administered by DHS. Minn. Stat.
§ 245C.03–.04 (2016). In completing a background study, DHS must review records from
7
the Bureau of Criminal Apprehension , other law enforcement agencies, and the courts.
Minn. Stat. § 245C.08, subd. 1(a)(1) –(6) (2016). The department also reviews its own
“records relating to the maltreatment of minors . . . as indicated through the social service
information system.” Id., subd. 1(a)(2). A person who has been convicted of any crime
listed in Minn. Stat. § 245C.15 is automatically disqualified from providing direct-contact
services. Minn. Stat. § 245C.14, subd. 1(a)(1) (2016). The disqualification period varies in
length from seven years to permanent. Minn. Stat. § 245C.15 (2016).
A disqualified individual may request reconsideration. Minn. Stat. § 245C.21, subd.
1 (2016). Upon receiving a reconsideration request, the c ommissioner may affirm or
rescind th e disqualification, or may “set aside” the disqualification, which allows the
individual to work in a specified program, “if the commissioner finds that the individual
has submitted sufficient information to demonstrate that the individual does not pose a risk
of harm to any person served ” by the DHS program. Minn. Stat. § 245C.22, subd s. 4–5
(2016). In determining whether to grant a set aside, the commissioner must consider nine
statutory factors under Minn. Stat. § 245C.22, subd. 4(b)(1)–(9).
The individual seeking a set aside bears the bur den of establishing that he or she
does not pose a risk of harm to persons served by the program. Id. subd. 4(b). Any one of
the nine statutory factors may be determinative of the commissioner’s decision whether to
grant a set aside. Id., subd. 3. The commissioner must give “preeminent weight to the safety
of each person served by the license holder, applicant, or other entities . . . over the interests
of the disqualified individual.” Id.
8
A set aside, unlike a variance, does not allow the commissioner to place restrictions
on the conditions of the individual’s employment. Compare Minn. Stat. § 245C.22, subd.
5 (2 016) (describing scope of set aside and stating disqualified person “remains
disqualified, but may hold a license and have direct contact with or access to persons
receiving services ”) with Minn. Stat. § 245C.30, s ubd. 1(a) (2016) ( authorizing
commissioner to grant a time-limited variance to a license holder that allows a disqualified
individual to provide direct services under specified conditions).
B. Commissioner’s reasons for the decision
Preliminarily, misdemeanor theft is a seven-year disqualifying conviction ,
beginning from discharge of the sentence imposed. Minn. Stat. § 245C.15, subd. 4(a)
(2016) (citing Minn. Stat. § 609.52 (2016)). Ashford does not dispute the disqualifying
conviction or that the disqualification period has not expired. The commissioner found four
statutory factors determinative in her decision to deny Ashford’s set-aside request. Because
Ashford contests each factor, we will address each in turn.
1. Nature, severity, and consequences of the disqualifying event
In analyzing the first statutory factor, t he commissioner found that Ashford’s 2014
theft was intentional. Ashford concedes this fact , but argues that the offense was “only a
misdemeanor,” at the “low end of the severity spectrum,” and thus weighs in favor of a set
aside. Ashfo rd’s points are not well -taken because the commissioner related the thef t
conviction to the risk of harm by examining the intent involved, the recency of the
conviction, and Ashford’s “unfettered access” to client property while performing program
services. The commissioner is required to consider the risk of harm to “any person” served
9
by the relator if a set aside is granted. Minn. Stat. § 245C.22, subd. 4(a). Thus, the first
statutory factor weighs in favor of denying a set aside and the commissioner’s analys is is
supported by substantial evidence.
2. Vulnerability of persons served by the program
In considering the fifth statutory factor, the commissioner found that “[t]he program
clients are very vulnerable.” Ashford argues that the commissioner repeated the st atutory
language and the finding is “antithetical” to the commissioner’s finding under the sixth
statutory factor that the victim of the 2014 theft and the program clients are dissimilar.
Ashford’s arguments are not persuasive because the commissioner considered Ashford’s
affidavit, which stated that B.A. is “very vulnerable” because of her “age, past history of
trauma and abuse, and significant mental health problems.”3 The commissioner also found
that, if a set aside was granted, Ashford would be unsuperv ised in performing services, a
finding that Ashford does not dispute. Thus, the fifth statutory factor weighs in favor of
denying a set aside and the commissioner’s analysis is supported by substantial evidence.
3. The time elapsed without a repeat of the same or similar event
In analyzing the seventh statutory factor, the commissioner found, while two years
had passed since the 2014 theft, Ashford’s 1995 convictions for theft and forgery show “a

3 The commissioner asks us to take judicial notice of CIP’s website for evidence of client
vulnerability. Ashford opposes this request. We decline to take judicial n otice of the
website. See Graphic Commc’ns Local 1B Health & Welfare Fund “A” v. CVS Caremark
Corp., 850 N.W.2d 682, 686 n.2 (Minn. 2014) (declining to take judicial notice and noting
courts should act cautiously when asked to take judicial notice of a fact); In re Block, 727
N.W.2d 166, 177 (Minn. App. 2007) (cautioning against taking judicial notice of facts on
websites), review denied (Minn. Sep. 23, 2008).
10
pattern of crimes involving dishonesty,” and therefore it was “too soon” to conclude that
Ashford was unlikely to commit another similar act. Ashford argues that the
commissioner’s reliance on her 1995 conviction s was unreasonable because the
convictions are 20 years old and dissimilar to her 2014 conviction . We disagree. In both
instances, Ashford shoplifted and intentionally took something that did not belong to her.
In the case of the forgery, she used a co -worker’s stolen credit card to make purchases.
Dishonesty is a common theme in all three offenses, making th e passage of time less
significant.
The commissioner concedes that the denial letters erroneously stated t hat Ashford
was convicted of 12 counts of theft and forgery. In f act, Ashford was charged with 10
separate counts, but convicted of one count of theft and one count of forgery. Because
Ashford does not dispute that she was convicted of theft and forgery in 1995, the
commissioner’s error in stating the number of convictions appears to be harmless and does
not undermine the substantial evidence supporting the determination that Ashford’s history
shows a pattern of crimes involving dishonesty. We conclude that the seventh statutory
factor weighs in favor of denying a set aside and the commissioner’s analysis is supported
by substantial evidence.
4. Other information relevant to reconsideration
Under the ninth statutory factor, the c ommissioner concluded that Ashford
attempted to justify her theft, making it less likely that she would change her behavior.
Ashford argues that the commissioner mischaracterized her affidavit and disregarded
evidence about the steps she had taken since her conviction. The commissioner’s written
11
decision specifically noted that Ashford had been discharged from probation and had not
had any subsequent disqualifying events. T hus, Ashford’s claim that the commissioner
disregarded her rehabilitative information is incorrect. We conclude that the ninth statutory
factor weighs in favor of denying a set aside and the commissioner’s analysis is supported
by substantial evidence.
Ashford makes several additional arguments, none of which overcome the deference
we must show to the commissioner’s finding s when supported by substantial evidence .
First, Ashford argues that the commissioner’s denial of her set-aside request was based on
“false” facts about alleged maltre atment and sexual abuse of B.A. The co mmissioner,
however, revised the findings and removed all references to these allegations from the final
decision. Also, as already discussed, any single statutory factor is sufficient to support the
commissioner’s decision to deny a set aside and the commissioner’s revised decision
identified four statutory factors without making any reference to the maltreatment and
sexual-abuse allegations.
Second, Ashford contends that the commissioner’s decision is arbitrary because the
commissioner failed to consider that Ashford is the primary caregiver for B.A. But both
the April and June written decisions expressly acknowledged that the commissioner
considered all of A shford’s submissions and that Ashford i s seeking to provide care only
to B.A.
Third, Ashford argues that there is no evidence to establish that CIP would allow
her to serve other program clients. The record establishes that the commissioner considered
that a set aside would allow Ashford to provide services to oth er program clients under
12
Minn. Stat. § 245C.22, subd. 5(a). The plain language of the statutory provision provides
a broad scope for a set -aside decision and supports the commissioner’s conclusion . Also,
Ashford’s argument rests on a false premise. Ashford, not the commissioner, had the
burden of proof for the set-aside request and Ashford offered no evidence that she would
be unable to provide services to others if her set-aside request was granted.
Finally, Ashford argues that the commissioner ignored her support letters . But the
commissioner’s revised decision noted that the information she reviewed included letters
of support from “your sister and other persons who state that you keep your sister safe.”
In sum, the record establishes that the commissioner considered all of the evidence
and her decision to deny Ashford’s request for a set aside flows from the “preeminent
weight” given to the safety of “each person” served by the state program. Minn. Stat.
§ 245C.22, subd. 3. The commissioner wa s only required to find one statutory factor
determinative of her decision to deny the request, yet found four statutory factors weighing
against Ashford’s request. Based on our review of the record, we conclude that substantial
evidence supported the commissioner’s decision.
II. The commissioner’s decision to deny Ashford an evidentiary hearing did not
violate due process.

The due process provided under the Minnesota Constitution “is identical to the due
process guaranteed” under the U.S. Cons titution. Sartori v. Harnischfeger Corp ., 432
N.W.2d 448, 453 (Minn. 1988). This court reviews de novo the procedural due process
given to a party. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758 , 594 N.W.2d 216, 220
(Minn. App. 1999) , review denied (Minn. July 28, 1999) . To determine whether an
13
individual’s right to procedural due process has been violated, this court first assess es
whether a protected liberty or property interest is implicated and then determines wha t
process is due by applying the balancing test from Mathews v. Eldridge . Humenansky v.
Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994) (citing Mathews, 424
U.S. 319, 332 (1976)), review denied (Minn. Feb. 14, 1995).
The legislature has provided fair hearing rights in certain circumstances after the
commissioner’s reconsideration decision. A disqualified individual may be entitled to a
fair hearing when the disqualification is based on a preponderance of the evidence th e
individual committed an act that is a crime, substantiated maltreatment, or for failure to
make required reports. Minn. Stat. § 245C.27, subd. 1(a). On the other hand, no hearing is
permitted for disqualification of an individual based on a conviction, admission, or judicial
determination. Minn. Stat. § 245C.27, subd. 1(c). When an individual is disqualified based
on both a preponderance and a judicial determination, the individual may request a fair
hearing. Minn. Stat. § 245C.27, subd. 1(e).
Ashford agrees that no hearing is required for the “first prong” of the reconsideration
process, whether an individual is disq ualified based on a conviction. See Minn. Stat.
§ 245C.27, subd. 1(c) (2016). But Ashford contends that the denial of an evidentiary
hearing violated her due process rights because the commissioner’s decision turned on the
“second prong,” whether she poses a risk of harm to program participants. 4 The

4 Ashford does not challenge the constitutionality of chapter 245C because she challenges
the procedural due process in terms of the particular process she received and does not ask
the court to strike down any statutory provision.

14
commissioner responds that this court rejected a similar challenge when it held that section
245C.27, subdivision 1(c), did not offend due process by denying an evidentiary hearing
for reconsideration of a disqualification based on a conviction . See Sweet v. Comm’r of
Human Servs., 702 N.W.2d 314, 318 (Minn. App. 2005), review denied (Minn. Nov. 15,
2005).
We agree with the commissioner that precedent guides our analysis. In Sweet, the
relator was di squalified for providing direct -care services in a state -licensed chemical -
dependency program because he was convicted of disqualifying crimes and the
commissioner denied his request for reconsideration and set aside. Id. at 315–17. Relator
appealed, arguing, in relevant part, that section 245C.27 deprived him of procedural due
process because he did not receive an evidentiary hearing . Id. at 319. This court applied
the Mathews factors, initially concluding on the first factor that relator had a protected
property interest in pursuing public-sector employment. Id. at 320. Similarly, we conclude
that Ashford has a protected interest here.
In considering the second Mathews factor, Sweet examined the set-aside procedures
set out in chapter 245C and the potential risk of an erroneous decision and concluded there
was “no likely value to an evidentiary hearing.” Id. at 321. Because the relator had “the
unfettered right to present all evidence, i ncluding letters of support” and relator had “the
full panoply of rights in the criminal proceeding s leading up to his convictions, ” we held
that written submissions provided relator with an adequate opportunity to present his case
and affirmed the commissioner’s decision. Id. On the third Mathews factor, Sweet
identified the government’s interests as two -fold: protecting the public, especially
15
vulnerable individuals, and saving time and money by reconsidering disqua lification
quickly and efficiently. Id. We concluded that the costs of an evidentiary hearing
outweighed the limited benefit. Id. at 321 –22. Thus, Sweet held that section 245C.27
provided procedural due process.
Sweet’s reasoning was applied in Obara v. Minn. Dep’t of Health, where Obara was
disqualified from working as a nurse because he had been convicted of terroristic threats
and third -degree assault . 758 N.W.2 d 873, 876 –77 (Minn. App. 2008) . Among other
things, Obara argued that lack of an evidentiary hearing deprived him of procedural due
process. Id. at 877. We concluded that Obara’s criminal trial provided him with due process
and “was an evidentiary hearing.” Id. at 879. Thus, this court affirmed the commissioner’s
denial of a set-aside request. Id. at 881.
Ashford argues that her case is more like other cases in which appellants were
granted evidentiary hearings. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970);
Fosselman v. Comm’r of Human Servs. , 612 N.W.2d 456 (Minn. App. 2000). But
Ashford’s case is not like Goldberg and Fosselman because neither case involved a
previous evidentiary hearing or judicial determination, nor did those appellants have any
opportunity to dispute the facts. 397 U.S. at 258–60, 90 S. Ct. at 1015–16; 612 N.W.2d at
460–61. As stated in Sweet, when a criminal conviction is used as the disqualifying event,
“[r]elator has already been afforded the full panop ly of rights.” 702 N.W.2d at 321. Here,
Ashford, like the relators in Sweet and Obara, received full procedural due process in the
criminal proceedings as well as in the written submissions to the commissioner . And, like
the relator in Sweet, Ashford had the opportunity to submit the “same evidence” in writing
16
that she would have submitted at an evidentiary hear ing. Thus, Ashford’s challenge fails
on the second Mathews factor.
Ashford argues her case is distinguishable from Sweet because the commissioner
found new disputed facts that were not related to her 2014 conviction without any notice
to her. Ashford refers to the commissioner’s reliance on maltreatment and sexual -abuse
allegations. Ashford’s argument lacks merit because she received notice of the
commissioner’s review of these allegations in the April 5 decision and then disputed the
facts by submitting additional documentation. The commissioner reconsidered all of
Ashford’s evidence, reassessed and revised her decision, and removed all references to the
disputed facts. After concluding that Ashford’s 2014 theft conviction was determinative,
the commissioner affirmed the denial of a set aside. Because the commissioner considered
Ashford’s objection to allegations of maltreatment and sexual abuse and did not rely on
those disputed facts in its final decision, Ashford fails to distinguish her case from Sweet.
Ashford next argues that Sweet should be reexamined because “the second basis for
requesting a set aside has distinct risks of erroneous deprivation that lead to a different
Mathews analysis.” Ashford essentially argues that every time a relator contends that a set
aside does not pose a threat to program clients, an evidentiary h earing is required. Ruling
in Ashford’s favor would require us to overrule our own precedent. Sweet concluded that
the costs and burdens of holding an evidentiary hearing for every individual disqualified
for criminal convictions “outweighs the limited benefit, if any, of providing an evidentiary
hearing.” 702 N.W.2d at 321–322.
17
We overrule precedent only when a compelling reason exists to do so. State v.
Martin, 773 N.W.2d 89, 98 (Minn. 2009). Compelling reasons include when precedent is
unsound, “contrary to principles of equity,” or is at odds with other decisions of the court.
Cargill, Inc. v. Ace Am. Ins. Co., 784 N.W.2d 341, 352 (Minn. 2010). Sweet is not at odds
with other decisions of this court; in fact, we have repeatedly relied on Sweet’s analysis
and holding. Thompson v. Comm’r of Health, 778 N.W.2d 401, 405–08 (Minn. App. 2010)
(discussing Sweet and holding relator was entitled to an evidentiary hearing where
disqualification was not based on criminal conviction); Obara, 758 N.W.2d at 878 –79.5
We discern no compelling reason to overturn Sweet and therefore conclude that all three
Mathews factors, on balance, establish that the comm issioner’s decision to deny Ashford
an evidentiary hearing did not violate due process.
Finally, Ashford argues that the commissioner was not an “impartial decision -
maker” because the agency reconsidered its own decision to disqualify Ashford. “Parties
to an administrative proceeding are entitled to a decision by an unbiased decisionmaker.”
Buchwald v. Univ. of Minn. , 573 N.W.2d 723, 727 (Minn. App. 1998), review denied
(Minn. Apr. 14, 1998). A decision -maker is biased if their “situation could tempt ‘the
average [person]’ as a judge to forget the burden of proof required to rule against an alleged
violator.” In re Khan, 804 N.W.2d 132, 137 (Minn. App. 2011) (quoting Tumey v. Ohio,

5 Indeed, in unpublished decisions, we have expressly rejected the claim that Sweet was
wrongly decided. See Ford v. Comm’r of Human Servs. , No. A13 -0838, 2013 WL
6391181, at *3 (Minn. App. Dec. 9, 2013); McMoore v. Comm’r of Human Servs. , No.
A09-1801, 2010 WL 1966199, at *4–5 (Minn. App. May 18, 2010), review denied (Minn.
Aug. 10, 2010).

18
273 U.S. 510, 532, 47 S. Ct. 437, 444 (1927)). This argument is without merit for two
reasons. First, Ashford’s premise is incorrect. Because Ashford was automatically
disqualified by her 2014 theft conviction, her “reconsideration” request gave the
commissioner the first opportunity to consider whether to set aside her disqualific ation.
Second, Ashford fails to explain why or in what way the commissioner was biased . See
Withrow v. Larkin, 421 U.S. 35, 46–47, 95 S. Ct. 1456, 1464 (1975) (rejecting “contention
that the combination of investigative and adjudicative functions necessari ly creates an
unconstitutional risk of bias in administrative adjudication”); accord Dep’t of Health &
Human Servs. v. R.C., 249 S.W.3d 797, 806 (Ark. 2007) (rejecting argument that appellant
was denied due process of law merely because administrative deci sion-maker and
prosecutor “were employees of the same agency”).
Because the commissioner’s decision was supported by substantial evidence, was
not arbitrary and capricious, and did not violate Ashford’s procedural due process rights,
we affirm the decision to deny Ashford’s request to set aside her disqualification.
Affirmed.