K.A.J., 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This opinion will be unpublished and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
A17-2054

K.A.J.,
Relator,

vs.

Emily Piper, Commissioner of Human Services,
Respondent.

Filed August 13, 2018
Affirmed; motion to strike granted in part and denied in part;
motion to supplement denied
Smith, Tracy M., Judge

Minnesota Department of Human Services
Background Study No. 1150482

Nancy Hylden, Hylden Advocacy & Law, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, R.J. Detr ick, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Smith, Tracy M ., Presiding Judge; Bratvold, Judge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this certiorari appeal, relator K. A.J. challenges a decision by respondent
Minnesota Commissioner of Human Servic es disqualifying him from any position
allowing direct contact with, or access to, people receiving services from facilities licensed
by the Minnesota Department of Human Services or the Minnesota Department of Health,
from facilities licensed by the Minnesota Department of Corrections that serve children or
youth, and from personal care provider or ganizations (collectively “protected
individuals”). K.A.J. also challenges th e commissioner’s refusa l to set aside his
disqualification, arguing that he does not pose a risk of harm to protected individuals. He
argues that there was not substantial evidence for these decisions, that they were arbitrary
and capricious, and that the process by which they were made violated his procedural-due-
process rights. We affirm.
FACTS
K.A.J. is a licensed alcohol and drug c ounselor. From Octobe r 2016 to January
2017, K.A.J. was in a romantic relationship with V.A.N., while K.A.J. was married and
V.A.N. was living with her boyfriend. Af ter the relationship ended, K.A.J. began
threatening to send nude photos of V.A.N. (which he had received from V.A.N. during the
course of their relationship) to the male contacts in V.A.N.’s phone and to V.A.N.’s
boyfriend. On February 2, 2017, according to police reports, K.A.J. told V.A.N. “he was
going to destroy her life and was just getting started with Phase 1. . . . He told her to keep
checking her mailbox and the next planned event was for her graduation [on] May 1st.”

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On February 14, K.A.J. dropped off an envelope containing nude photos of V.A.N.,
printouts of text messages and emails between K.A.J. and V.A.N., and a letter from K.A.J.
to V.A.N.’s boyfriend, at the front desk of the boyfriend’s workplace. According to K.A.J.,
he did so “because [V.A.N.] threatened to go to his wife’s work and tell her about the
affair.” The next day, V.A. N.’s boyfriend brought the enve lope home and showed it to
V.A.N., and, the day after that, V.A.N. reported K.A.J.’s actions to the police. She also
told police that K.A.J. had “threatened to co ntact [her] ex-husband to help him get full
custody of her eight-year-old son” and had driven past her residence twice in the previous
week. V.A.N. reported that she was scared for her and her son’s safety.
Police arrested K.A.J. for stalking an d nonconsensual dissemination of private
sexual images. But he was ultimately charge d only with nonconsensual dissemination of
private sexual images. He pleaded guilty to that charge.
Before K.A.J. pleaded gu ilty to the criminal char ge, the police department
forwarded the information it received from V.A.N. to the Background Studies Division of
the Minnesota Department of Human Services (DHS). Based on that information, DHS
decided that a preponderance of the evidence sup ported the conclusion that K.A.J. had
committed gross-misdemeanor stalking. As a result, DHS notified K. A.J. that he was
disqualified from working with protected individuals. K.A. J. submitted a “request for
reconsideration of disqualification due to a criminal offense.” In that request, he admitted
that “[t]he information ab out [his] disqualification is correct,” but requested
“reconsideration of [his] disqualification because [he did not] think [he] pose[d] any risk
of harm to the people receivi ng services.” Without holdin g a hearing, the commissioner

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affirmed DHS’s decision to disqualify K.A.J. and denied his request to set aside the
disqualification based on the risk of harm to people receiving services.
K.A.J. petitioned for certiorari review. In the appendix of his appellate brief, K.A.J.
included materials not presented to the commissioner. The commissioner filed a motion
to strike the extra-record materials and an accompanying memorandum. K.A.J. filed a
memorandum opposing the motion, and then also filed a motion to supplement the record
with a consent order issued by the Board of Behavioral Health and Therapy (BBHT) that
arose out of the incident here at issue. A special term order of this court deferred ruling on
these motions to this panel.
D E C I S I O N
The Background Studies Act requires DHS to perform a background study on any
person who has direct contact with protected individuals. Minn. Stat. § 245C.03, subd. 1(a)
(Supp. 2017).
1 If “a preponderance of the evidence indicates the individual has committed
an act or acts that meet the definition of any of the crimes listed in section 245C.15,” the
individual shall be disqualified from any positi on allowing direct contact with protected
individuals. Minn. Stat. § 245C.14, subd. 1(a)(2) (2016).
“An individual who is the subject of a disqualification may request a reconsideration
of the disqualification . . . .” Minn. Stat. § 245C.21, subd. 1 (Supp. 2017). In making such
a request, the individual may challenge the disqualification on the ground that “the

1 Minn. Stat. § 245C.03 was amended in 2018. 2018 Minn. Laws ch. 166 § 6. The 2017
version of the statute was in effect at the time the commissioner’s decision was made, and
the amendment does not change the substance of the section as it relates to this case.

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information the commissioner relied upon in determining the underlying conduct that gave
rise to the disqualification is incorrect.” Id., subd. 3(a)(1) (2016). The individual may also,
in their request, seek that the disqualificati on be set aside on the gro und that “the subject
of the study does not pose a risk of harm to any person served by the applicant,” based on
certain statutory factors. Id., subd. 3(a)(3) (2016) (refere ncing Minn. Stat. § 245C.22,
subd. 4 (2016)). Those factors are:
(1) the nature, severity, and cons equences 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 th e victim at the time of the
event;
(4) the harm suffered by the victim;
(5) vulnerability of persons served by the program;
(6) the similarity between the victim and persons served by the
program;
(7) the time elapsed without a repeat of the same or similar
event;
(8) documentation of successful completion by the individual
studied of training or rehabilitation pertinent to the event;
and
(9) any other information relevant to reconsideration.

Minn. Stat. § 245C.22, subd. 4(b) (2016). The commissioner must consider all nine factors
in making her risk-of-harm assessment. See Johnson v. Comm’r of Health , 671 N.W.2d
921, 924 (Minn. App. 2003).
I. K.A.J. forfeited his challenge to th e commissioner’s disqualification decision,
and, in any event, the record supports that decision.

K.A.J. argues that the decision to di squalify him from working with protected
individuals was arbitrary, capricious, and unsupported by substa ntial evidence. The

6
commissioner argues that K.A.J. forfeited this issue by failing to challenge the factual basis
of his disqualification in his request for reconsideration. We begin with the forfeiture issue.
A. K.A.J. forfeited his challenge to the disqualification decision.
Whether a party may raise an argument on appeal presen ts a question of law this
court considers de novo. See Smith v. Minn. Dep’t of Human Servs., 764 N.W.2d 388, 391
(Minn. App. 2009). “A reviewing court must generally consider only those issues that the
record shows were presented and considered by the [decision-maker] in deciding the matter
before it.” Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted); see
also In re A.D., 883 N.W.2d 251, 261 (Minn. 2016) (applying forfeiture-by-failure-to-raise
analysis to the certiorari-appeal context).
The commissioner argues that K.A.J. forfeited review of the disqualification
decision because “[i]n his request for rec onsideration, [K.A.J.] admitted that the
information about his disqualification was correct and did not request reconsideration on
that basis.” We agree. Neither the rec onsideration form subm itted by K.A.J. nor the
accompanying letter gave any indication that K. A.J. contested any of the facts that DHS
relied upon or that he contested DHS’s conclu sion, based on those fact s, that he met the
statutory criteria (discussed belo w) for disqualification. Instead, the form and the letter
argue that K.A.J. should be permitted to c ontinue working with protected individuals
because he does not pose a risk of harm to them. Because K.A.J. did not argue before the
commissioner that he did not meet the criteria for disqualification, he cannot challenge that
determination on appeal.

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B. Even if K.A.J. could challenge the disqualification decision, that decision
is not based on an erroneous theory of law, arbitrary, or capricious, and
it is supported by substantial evidence.

Assuming, for purposes of argument, that K.A.J. did not forfeit the issue, we turn to
his challenge to the disqualif ication decision. K.A.J. argues that the commissioner
incorrectly decided that he should be disqualified. “This court reviews the commissioner’s
[disqualification] decision, a quasi-judicial agency decision not subject to the Minnesota
Administrative Procedure Act, to determine wh ether the decision is arbitrary, oppressive,
unreasonable, fraudulent, under an erroneous theo ry of law, or without any evidence to
support it.” Gustafson v. Comm’r of Human Servs. , 884 N.W.2d 674, 685 (Minn. App.
2016) (quotation omitted).
An individual is disqualified from worki ng with protected individuals if they
commit any crime listed in Minn. Stat. § 245C. 15. Minn. Stat. § 245C.14, subd. 1(a)(2).
Public dissemination of private images is not listed in section 245C. 15, but stalking is.
Minn. Stat. § 245C.15, subd. 3(a) (2016). As relevant to this cas e, stalking includes
engaging in conduct “which the actor knows or has reason to know would cause the victim
under the circumstances to feel frightened , threatened, oppressed, persecuted, or
intimidated, and causes this reaction on the part of the victim” by “directly or indirectly, or
through third parties, manifest[ing] a purpose or intent to injure th e person, property, or
rights of another by the commission of an unlawful act.” Minn. Stat. § 609.749, subds. 1,
2(1) (2016).

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1. Erroneous Theory of Law
K.A.J. first argues the commissioner reached her decision under an erroneous theory
of law because “[t]he Commissioner improper ly applied a preponderance of evidence
standard to conclude that K. A.J. committed a disqualifying offense for the same act for
which he had been criminally adjudicated for a nondisqualifying offense.” This argument
presents a question of law, which we review de novo. Smith, 764 N.W.2d at 391.
In support of his argument, K.A.J. cites to the Background Studies Act’s provision
regarding disqualification based on a judicial determination other than a conviction. It
reads:
When a disqualification is based on a judicial
determination other than a c onviction, the disqualification
period begins from the date of the court order. When a
disqualification is based on an admission, the disqualification
period begins from the date of an admission in court. When a
disqualification is based on an Alford Plea, the disqualification
period begins from the date the Alford Plea is entered in court.
When a disqualification is based on a preponderance of
evidence of a disqualifying act, the disqualification date begins
from the date of the dismissal, the date of discharge of the
sentence imposed for a conviction for a disqualifying crime of
similar elements, or the date of the incident, whichever occurs
last.

Minn. Stat. § 245C.15, subd. 3(e) (2016). Based on this statute, K.A.J. argues that, when
there has been a criminal conviction of a nondisqualifying offense, the commissioner may
not disqualify an individual based upon a preponderance of the evidence that a
disqualifying crime also occurred as part of the same series of ev ents; instead, a higher
burden of proof must be applied.

9
We disagree. Nothing in the text of th e statute suggests a higher burden of proof
should be applied in such circumstances. Ra ther, the language of Minn. Stat. § 245C.14,
subd. 1(a)(2), is clear: “The commissioner shall disqualify an individual . . . upon receipt
of information showing [that] . . . a preponderance of the evidence indicates the individual
has committed an act or acts that meet the de finition of any of the crimes listed in section
245C.15.” The commissioner’s disqualification decision was not made under an erroneous
theory of law.
2. Substantial Evidence
K.A.J. next argues that there was not substantial evidence to support the
commissioner’s disqualification decision. “S ubstantial evidence is 1. such relevant
evidence as a reasonable mind might accept as ad equate to support a conclusion; 2. more
than a scintilla of evidence; 3. more than some evidence; 4. more than any evidence;
and 5. evidence considered in its entirety.” Sweet v. Comm’r of Human Servs., 702 N.W.2d
314, 318 (Minn. App. 2005) (quotation omitted), review denied (Minn. Nov. 15, 2005).
In arguing that substantial evidence does not support the disqualification decision,
K.A.J. points to several pieces of evidence that he believes the commissioner should have
looked at, but did not, in deciding whether he engaged in stalking. Specifically, K.A.J.
points to evidence that, as recently as two weeks before he delivered the envelope, V.A.N.
was still sending him erotic photos, “that [V.A .N.] had initiated a call to K.A.J. on
February 13 and threatened hi m,” and “that K.A.J. and [V.A .N.] lived less than a mile
apart” (and that is why he was seen near he r home). K.A.J. also argues that, because the
Dakota County Attorney did not charge him with stalking, there could not have been

10
probable cause to believe that he had committed stalking, which means that there could not
be a preponderance of the evidence that he committed stalking, because a preponderance
of the evidence is a higher burden of proof.
We are unpersuaded. First, the additional evidence K.A.J. points to, although it may
provide additional context, does not impact whether K.A.J. caused V.A.N. to feel
frightened, threatened, oppressed, persecuted, or intimidated by manifesting a purpose to
injure her rights through the commission of an unlawful act (namely, disseminating private
sexual images). Second, the Dakota County Attorney’s charging decision is not dispositive
on whether stalking occurred. Nothing in the Backgrou nd Studies Act requires the
commissioner to defer to a prosecutor’s evalua tion of the evidence; rather, she is free to
make her own assessment. She did so and c oncluded that the eviden ce established that
K.A.J. committed stalking. Our own review of the record leads us to conclude that this
was a reasonable conclusion. Substantia l evidence supports the commissioner’s
disqualification decision.
3. Arbitrary and Capricious
Finally, K.A.J. argues that the commissi oner’s disqualifica tion decision was
arbitrary and capricious. An agency 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 the 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 result of the
agency’s expertise.

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In re Review of the 2005 Annual Automatic Adjustment of Charges for All Elec. & Gas
Utils., 768 N.W.2d 112, 118 (Minn. 2009).
K.A.J. argues that the disqualification decision was arbitrary and capricious because
the initial letter informing him of his disq ualification misled him into admitting to
disqualifying circumstances that he meant to contest. K.A.J.’s ar gument is unavailing.
DHS’s letter clearly stated that he was disq ualified due to “gross misdemeanor stalking,”
and the criminal complaint against K.A.J. was equally clear in stating that he was charged
only with “Nonconsensual Disse mination of Private Sexual Images.” And we see no
statements by DHS in the letter that would render the commissioner’s decision arbitrary or
capricious.
II. The decision to deny K.A.J. a set-asi de is supported by substantial evidence
and is not arbitrary or capricious.

K.A.J. also challenges the commissione r’s decision not to set aside his
disqualification, arguing that he does not pose a risk to protected i ndividuals. He argues
that the decision is unsupported by substantial evidence, arbitrary, and capricious.
A. The set-aside denial is supported by substantial evidence.
K.A.J. argues that the commissioner’s set-as ide denial is not based on substantial
evidence because the “risk of harm analysis fails to [marshal] significant facts favorable to
K.A.J.” K.A.J. points to (1) his lack of a pr ior criminal record, (2) the decision to grant a
downward durational departure by the court that sentenced him on his image-dissemination
charge, and (3) multiple supporting letters i ndicating that K.A.J. poses no risk to the

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individuals he serves. K.A.J. argues that, had the commissioner considered this evidence,
the evidence as a whole would not have supported the decision to refuse a set-aside.
We disagree. A substantial basis to support an agency determination exists “where,
considering the evidence in its entirety, there is relevant evidence that a reasonable person
would accept as adequate to support a conclusion.” A.D., 883 N.W.2d at 259. Such a basis
exists here. The factors identified as si gnificant by the commissioner—that K.A.J.’s
conduct “played out over multiple weeks” and involved “mak ing multiple threats”; that
V.A.N. “likely suffered emotional harm”; that people K.A.J. seeks to work with “are
vulnerable as a result of their chemical dependency”; that (at the time the commissioner’s
decision was made) less than a year had elapse d since K.A.J.’s cond uct; and that, due to
the recent nature of the offense, “there is not yet enough information to conclude [that
K.A.J. had] undergone changes that would make it unlikely the disqualifying offense would
reoccur”—make the commissioner’s conclusion reasonable, even in light of the evidence
K.A.J. argues the commissioner failed to consid er. This is particularly true because the
commissioner is required to “give preeminent weight to the safety of each person served.”
Minn. Stat. § 245C.22, subd. 3 (2016). We conclude that the commissioner’s set-aside
denial is supported by substantial evidence.
B. The set-aside denial is not arbitrary or capricious.
K.A.J. argues the commissioner’s set-asid e denial was arbitrary and capricious
because she failed to consider important evid ence—specifically, the decision of the court
that sentenced K.A.J. on his image-dissemi nation offense to grant him a downward
durational departure and the BBHT’s decision to stay suspension of K.A.J.’s counseling

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license. K.A.J. concedes that this info rmation was not availa ble at the time the
commissioner made her decision, but he argu es that she should have waited until it was
available before deciding.
We reject this “waiting” suggestion. First, at no point prior to this appeal did K.A.J.
ask the commissioner to delay making a decision. Second, K.A.J. provides no persuasive
reason why the commissioner could or should have delayed on her own, since the
Background Studies Act imposed a 15-working -day deadline fo r responding to K.A.J.’s
request for a set-aside. See Minn. Stat. § 245C.22, subd. 1(b) (2016) (“If the basis for a
disqualified individual’s reconsideration request is that the individual does not pose a risk
of harm, the commissioner shall respond to the request within 15 working days after
receiving a complete request for reconsiderati on and all required releva nt information.”).
We conclude that it was not arbitrary or capricious for the commissioner to deny a set-aside
without waiting for the results of K.A.J.’s sentencing or the BBHT’s decision.
III. The disqualification and set-aside de cision-making process did not violate
K.A.J.’s procedural-due-process rights.

K.A.J. argues that the commissioner’s de cision-making process violated his
procedural-due-process rights by failing to provide him with a hearing. “Whether
procedural due process has been violated is a question of law that [appellate courts] review
de novo.” Gams v. Houghton, 884 N.W.2d 611, 618 (Minn. 2016).
No person shall be deprived of liberty or property without due process of law. U.S.
Const. amend. XIV, § 1; Minn. Const. art. I, § 7. This due-process requirement applies to

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disqualification proceedings. See Fosselman v. Comm’r of Human Servs. , 612 N.W.2d
456, 461 (Minn. App. 2000). In determining what process is due, courts balance:
(1) the significance of the priv ate interest affected by the
official action; (2) the risk of an erroneous deprivation of that
interest under current procedures, and the probable value, if
any, of additional or substitute procedural safeguards; and
(3) the government’s interest, including the function involved
and the fiscal and administra tive burdens any additional
requirements would entail.

Thompson v. Comm’r of Health, 778 N.W.2d 401, 406 (Minn. App. 2010). In Thompson,
we analyzed our past cases applying this test in the disqualification and set-aside context
to conclude that an “in-person hearing requir ement” is triggered in circumstances when a
hearing would be the “first factual contest of the criminal allegations.” Id. at 408.
Such circumstances are not present here. As discussed above, at no point did K.A.J.
challenge the facts giving ri se to the commissioner’s conc lusion that he committed the
disqualifying act of stalking. This is not a case “where credibility and veracity are at issue.”
Id. (quoting Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct . 1011, 1021 (1 970)). K.A.J.
suggests that there was a factual contest beca use, in the exchange of letters between him
and DHS, (1) DHS failed to adequately explain that stalking was the basis for the
disqualification and (2) he admitted to the information about the di squalification only to
take responsibility for his actions. Neither argument is persuasive. Although DHS’s letter
did not inform K.A.J. that he would not recei ve a hearing if he admitted the information
about his disqualification, the letter clearly explained that the basis for disqualification was
gross-misdemeanor stalking. And K.A.J.’s motivation for admitting the information does
not create a due-process right to a hearing.

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Although K.A.J.’s “private interest affect ed by the official action” is significant,
there is little risk that the failure to provide a hearing resulted in “an erroneous deprivation
of that interest,” and thus the government’s interest in reducing fiscal and administrative
burdens outweighs what little benefit that pr oviding a hearing would give. We conclude
that the commissioner did not violate K.A.J.’s procedural-due-process rights in making her
disqualification and set-aside decisions.
IV. The commissioner’s motion to strike is granted in part and denied in part;
K.A.J.’s motion to supplement is denied.

The addendum to K.A.J.’s appellate brief contains materials that are not part of the
agency record. The commissione r moves to strike these mate rials. K.A.J. opposes the
commissioner’s motion and, in addition, moves to supplement the record with the results
of the BBHT investigation into this incident.
“The record on certiorari review includes the documents filed with the agency,” and
documents not contained in the record s hould be struck from a party’s brief. Fosselman,
612 N.W.2d at 467. A party is not allowed to expand the record for the purpose of reversing
a judgment. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 584 (Minn. 1977).
K.A.J. does not dispute that all but three of the documents the commissioner seeks
to strike are outside the record on appeal. Instead, K.A.J. argues that the extra-record
documents are relevant and shou ld be considered in the interest of pr oviding a complete
record of the related criminal proceedings. Applying the same reasoning, K.A.J. argues
the record should be expanded to include the BBHT investiga tion results. We disagree.
Plowman is clear: K.A.J. cannot add evidence to the record to reverse the commissioner’s

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decision. We therefore grant the commissi oner’s motion to strike the documents that
K.A.J. concedes are outside the record and deny K.A.J.’s motion to supplement the record.
The three remaining documents are two pages of a letter that is in the record (but is
missing the two pages in question) and two lette rs of support. K.A.J. contends that the
letters of support and the two pages were s ubmitted to the commissioner as part of his
request for reconsideration. We note that the commissioner’s October 27, 2017 decision
refers to K.A.J.’s positive letters of support. We conclude that K.A.J. has shown that the
two letter pages and the letters of support were submitted to the commissioner and are part
of the record for the appeal. The commissioner’s motion to strike these three documents
is denied. See Minn. R. Civ. App. P. 110.05 (providing that an appellate court may direct
that an omission of materials from the record be corrected).
Affirmed; motion to strike granted in part and denied in part; motion to
supplement denied.