Felicia Marie Thomas, 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This opinion will be unpublished and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
A18-0334

Felicia Marie Thomas,
Relator,

vs.

Commissioner of Human Services,
Respondent.

Filed October 1, 2018
Affirmed
Stauber, Judge*

Department of Human Services
File No. 900247

Felicia Marie Thomas, St. Louis Park, Minnesota (pro se relator)

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

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Stauber,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
STAUBER, Judge
In this certiorari appeal, relator challenges the commissioner’s decision refusing to
set aside relator’s disqualification from direct-care work in licensed facilities. We affirm.
FACTS
Relator Felicia Marie Thomas challenges the determination of respondent
Commissioner of Human Services (the commissioner) that she is disqualified from any
position involving direct contact with persons receiving services in a program licensed by
the Minnesota Department of Human Services (the department) or the Minnesota
Department of Health, as well as the Minnesota Department of Corrections youth and child
programs and unlicensed personal-care provider organizations.
In January 2014, Thomas’s boyfriend brought Thomas’s five -year-old son to the
Hennepin County Medical Center for a sexual -abuse examination. Thomas’s father had
pulled the child’s pants down several times and squeezed his buttocks. As a child, Thomas
had been sexually abused by her father. Thomas was on probation for a DWI offense, and
concerns about her alcohol use immediately arose. The child was placed in foster care, and
Thomas, after failing chemical testing, entered inpatient treatment. During the course of
the child -protection matter, the Hennepin County Human Services and Public Health
Department (the county) advised Thomas of i ts determination that maltreatment had
occurred and that child-protective services were necessary. The county also informed
Thomas that this determination could affect her ability to qualify for employment requiring
licensure by the department, the Minnesota Department of Health, the Minnesota

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Department of Corrections, and unlicensed personal-care-provider organizations. Thomas
was apprised of her right to challenge the maltreatment decision within 15 days.
Thomas successfully completed inpatient trea tment and recovered custody of her
son. In the fall of 2016, she enrolled in the addiction counseling program at Minnesota
Community and Technical College (MCTC). As part of this program, she was required to
complete an internship. Her request for a bac kground study resulted in a disqualification.
Thomas requested reconsideration on grounds that she did not pose a risk of harm to those
she would serve. The commissioner affirmed the disqualification and denied the request
to set it aside. By writ of certiorari, Thomas challenges this decision.
D E C I S I O N
1. The commissioner’s decision not to set aside Thomas’s disqualification was not
arbitrary, capricious, or unsupported by substantial evidence.

The commissioner’s decision whether to grant a recons ideration request following
disqualification is a quasi-judicial action that is not subject to the Minnesota Administrative
Procedure Act (MAPA). Anderson v. Comm’r of Health , 811 N.W.2d 162, 165 (Minn.
App. 2012), review denied (Minn. Apr. 17, 2012). We review such decisions to determine,
among other things, whether the commissioner’s decision was arbitrary and capricious, or
unsupported by substantial evidence. Id.; see also Sweet v. Comm’r of Human Servs., 702
N.W.2d 314, 318 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005). “An agency’s
conclusion is arbitrary and capricious if there is no rational connection between the facts
and the agency’s decision.” Sweet, 702 N.W.2d at 318.

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The department must conduct a background study of any person seeking to work in
a licensed program who will have direct contact with persons served by the program. Minn.
Stat. § 245C.03, subd. 1(3) (Supp. 2017). Thomas applied to work as an intern in a program
licensed by the department. In 2014, following the chi ld-protection case, the county
informed Thomas that the maltreatment finding potentially could affect her future
licensing, employment, or services, and advised her that she had 15 days to appeal the
finding of maltreatment. A maltreatment determination is conclusive if the individual does
not timely challenge it, and Thomas did not timely challenge the 2014 maltreatment
determination. Minn. Stat. § 245C.29, subd. 1(2) (2016).
A person who is the subject of an administrative determination, such as the county’s
maltreatment decision, is disqualified from having direct contact with persons served by a
licensed program. Minn. Stat. § 245C.14, subd. 1(a)(3) (2016). If there is an administrative
determination that a person committed serious maltreatment of a child, the disqualification
period is seven years from the date of the determination. Minn. Stat. § 245C.15, subd.
4(b)(2) (2016). By virtue of the 2014 child -protection action, Thomas was disqualified
from licensure for seven years.
A disqualified person may request reconsideration on two grounds: the disqualified
person can challenge the factual basis for the commissioner’s determination of what
conduct occurred or the seriousness of the maltreatment. In the alternative, a disqualified
person may request that the disqualification be set aside by showing that he or she does not
pose a risk of harm to individuals served by the licensed program. Minn. Stat. §§ 245C.21,
subd. 3 (a), .22, subd. 4(a) (2016). Thomas did not challenge the 2014 maltreatment

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determination or the commissioner’s 2017 fact -finding, but instead asked that the agency
set aside her disqualification because she did not pose a risk of harm. For a set -aside, the
commissioner is directed to consider nine different factors:
(1) the nature, severity, and consequences 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 the 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 found factors 1, 3, 4, 5, 6, 8, and 9 “to be determinative.” Briefly
restated, the commissioner found that (1) the maltreatment was considered serious; (2)
Thomas’s son was only five years old and, therefore, vulnerable; (3) he was “sexually
abused, which likely resulted in emotional harm” and he reported “it hurt” when his
grandfather squeezed his buttocks; (4) Thomas would be working with people who are
vulnerable because of their alcohol usage; (5) because these people are vulnerable, they are
similar to Thomas’s son; (6) Thomas had not submitted letters from her current therapists;
and (7) before 2014, Thomas had several incidents of alcohol abuse.

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One can take issue with some of these conclusions: there is not a gre at deal of
similarity between a five -year old and a person receiving treatment for alcohol abuse; in
the range of sexual abuse, this behavior was at the mild end; Thomas submitted letters of
support from others with knowledge of her progress; and Thomas had specifically worked
on her problems with alcohol, with no reported incidents since she completed treatment.
But there is evidentiary support in the record for the agency’s factual findings. See Sweet,
702 N.W.2d at 318 (explaining substantial-evidence standard). An agency’s decision is
not arbitrary and capricious if there is a rational connection between the facts and its
decision. Id. There is sufficient evidence and a rational connection between the facts and
the commissioner’s conclusions so that the refusal to set aside the disqualification is not
arbitrary and capricious.
As did the commissioner, we recognize the positive action Thomas has taken and
her commitment to sobriety. But a “court must also recognize the need for exercising
judicial restraint and for restricting judicial functions to a narrow area of responsibility lest
the court substitute its judgment for that of the agency.” In re Excess Surplus Status of
Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted)
(analyzing decision under MAPA). We, therefore, affirm the commissioner’s decision
refusing to set aside Thomas’s disqualification.
2. Thomas was not denied due process because no hearing was held on her
request for a set aside.
Thomas argues that she was deprived of her due -process rights because the
commissioner did not hold an evidentiary hearing on her claim that she did not pose a risk

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of harm. Thomas concedes that she did not have a right to a hearing about whether the
information supporting the maltreatment determination was accurate because that “had
been established through normal criminal law procedures.”
Minn. Stat. § 245C.29, subd . 2(c) (2016) states, “The commissioner’s decision
regarding the risk of harm shall be the final agency decision and is not subject to a hearing
under this chapter, [the MAPA], or section 256.045 [dealing with hearings for
administrative and judicial review of human services matters ].” We review the
constitutionality of a statute as question of law, subject to de novo review. Sweet, 702
N.W.2d at 319. “ We presume statutes are constitutional, and we will declare a statute
unconstitutional with extrem e caution and only when absolutely necessary . A party
challenging a statute carries the heavy burden of demonstrating beyond a reasonable doubt
that a statute is unconstitutional.” Id. (quotations omitted).
In Sweet, the relator made a similar challenge to the statute. This court concluded
that the statutory procedure provided adequate due process without an evidentiary hearing.
Id. at 321. Affirming that the relator had a property interest in the licensed employment,
this court applied the Mathews factors. Id. at 320-22 (analyzing relator’s claims based on
Mathews v. Eldridge , 424 U.S. 319, 332, 335, 96 S. Ct. 893, 901, 903 (1976)). This
requires a balancing of (1) the private interest affected; (2) the risk of erroneously depriving
a party of this i nterest, including an analysis of the procedures used and the value of
additional procedural safeguards; and (3) the government interest and relative burden of
providing additional procedural requirements. Id. at 320 (noting that procedural due
process is a flexible concept that can be tailored to the specific situation).

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As in Sweet, Thomas has a private property interest in a licensed employment
position. Id. Also like Sweet, Thomas had an “unfettered right to present all evidence,
including letters of support, that [she] thought the commissioner should consider in [the]
written submission” and was able to “mold [her] argument to the issues the decision maker
appears to regard as important in support of [her] application.” Id. at 321 (quotation
omitted). All of the information submitted to the commissioner was generated by Thomas
and, therefore, “a hearing was not necessary to permit cross -examination of agency
witnesses.” Id. This court concluded that a hearing would make no difference because the
same evidence would be submitted. Id. The same analysis is true for Thomas.
Finally, as in Sweet, “the governmental interest in protecting the public, especially
vulnerable individuals attending counseling for drug and alcohol addiction, is of paramount
importance.” Id. The commissioner is charged with giving “preeminent weight to the
safety of each person served by the . . . applicant . . . over the interests of the disqualified
individual.” Minn. Stat. § 245C.22, subd. 3 (2016). “The government also has an interest
in saving time and money by considering disqualifications quickly and efficiently, without
additional time, expenses, and personnel required to provide evidentiary hearings to
disqualified individuals.” Sweet, 702 N.W.2d at 321. This court concluded that “the cost
outweighs the limited benefit, if any, of providing an evidentiary hearing.” Id. at 322. The
same can be said for Thomas—it is unclear what an evidentiary hearing would have added
when she was given the opportunity to submit any supporting information. Thomas was

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given an adequate opportunity to present her arguments and evidence , and was not denied
due process by the lack of an evidentiary hearing.
Affirmed.