In the Matter of the Teaching License of Herandez Cortez Evans.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0624

In the Matter of the Teaching License of Herandez Cortez Evans.

Filed January 13, 2020
Affirmed
Johnson, Judge

Minnesota Professional Educator Licensing and Standards Board
File No. 459792

Herandez Cortez Evans, St. Paul, Minnesota (pro se relator)

Keith Ellison, Attorney General, Jennifer A. Kitchak, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Professional Educator Licensing and Standards
Board)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Klaphake,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The Minnesota Professional Educator Licensing and Standards Board revoked
Herandez Cortez Evans ’s teaching license after determining that he engaged in immoral
conduct and unreasonably disciplined students while working as a teacher at an elementary

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.

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school. We conclude that the board’s decision was not based on unlawful procedure s.
Therefore, we affirm.
FACTS
Evans was employed as a full -time second-grade teacher at a public elementary
school in Minneapolis from March 22, 2017 , to April 25, 2017. On or about April 19,
2017, several children reported to the school’s principal that they had been removed from
Evans’s classroom and left in a hallway without supervision, that Evans had squeezed their
hands in a painful manner, that Evans had spanked them and smacked their heads, and that
Evans had held a child in the air by the child’s wrist. Evans was warned by the prin cipal
that he “should never put his hands on the kids.” The principal contacted an investigator
employed by the Minnesota Department of E ducation (MDE) and was advised to file a
formal complaint if additional complaints were made.
The next day, the principal received a complaint from a special-education teacher,
who found two of Evans’s students alone in a hallway. The children indicated that Evans
had removed them from his classroom. One of the children was a special-education student
who was considered “medically fragile. ” The special-education teacher discovered that
Evans’s classroom door was locked. After the special-education teacher knocked on the
door, Evans said that the children could not return to class , and Evans became aggressive
when the special-education teacher challenged his actions. The principal warned Evans
again four days later, on April 24, 2017.
Also on April 24, 2017, three children in Evans’s class told another second-grade
teacher that Evans had squeezed their arms, spanked them, and hit them. The other teacher,

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who previously had observed Evans holding a child in the air by the child’s armpits,
reported the incident to the principal and filed a written maltreatment report with MDE.
The next day, Evans walked off the job in the middle of the school day. The
substitute teacher who replaced him later filed a maltreatment report w ith MDE after
children in the class reported that Evans had “hit and spanked and squeezed” them.
In December 2017, MDE notified Evans that it had made five determinations of
maltreatment. Evans did not dispute the determinations and did not request
reconsideration. See Minn. Stat. § 626.556, subd. 10i(a) (2018).
In February 2018, the Minnesota Professional Educator Licensing and Standards
Board gave notice to Evans that it had started its own investigation and that disciplinary
action could result . In July 2018, the board’s disciplinary c ommittee commenced
disciplinary proceedings against Evans. The amended notice alleged that Evans should be
disciplined on the grounds that he engaged in immoral conduct, see Minn. Stat. § 122A.20,
subd. 1 (2018), and that he engaged in unreasonable discipline of students, see Minn. R.
8710.2100, subps. 2(D), 5(E) (2019).
In February 2019, an administrative -law judge (ALJ) conducted an evidentiary
hearing. The board’s disciplinary committee called five witnesses, including Evans. After
the board’s disciplinary c ommittee rested its case, Evans testified on his own behalf but
did not call any other witnesses. In March 2019, the ALJ issued a 17-page, single-spaced
report with findings of fact, conclusions of law, and a recommendation. The ALJ
concluded that the board’s disciplinary c ommittee had proved by a preponderance of th e
evidence that Evans engaged in both immoral conduct and unreasonable discipline of

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students. The ALJ recommended that the board impose discipline on Evans. I n April
2019, the b oard adopted the ALJ’s report in its entirety and revoked Evans’s teaching
license. Evans appeals by way of a writ of certiorari.
D E C I S I O N
Evans argues that the board erred by revoking his teaching license based on two
procedural errors in the evidentiary hearing before the ALJ. He requests that this court
reverse the revocation of his teaching license and remand the matter to the board.
Before we consider Evans’s arguments for reversal, we will review the applicable
law. A person who wishes to teach in a public school is require d to hold a license issued
by the Minnesota Professional Educator Licensing and Standards Board. Minn. Stat.
§§ 122A.15, subd. 1, 122A.16 (2018). The board is composed of eleven Minnesota
residents, who a re appointed by the governor with the advice and consent of the senate.
Minn. Stat. § 122A.07, subd. 1 (2018). The board’s duties are defined by statute and
include the licensing of teachers. Minn. Stat. § 122A.09, subd. 4 (2018). The board is
authorized by statute to impose discipline on a licensed teacher by refusing to renew,
suspending, or revoking the teacher’s license for any of five specified reasons, including
“immoral character or conduct.” Minn. Stat. § 122A.20, subd. 1(a), 1(a)(1).
The board is authorized by statute to adopt administrative rules pursuant to chapter
14 of the Minnesota Statutes. Minn. Stat. § 122A.09, subd. 9 (2018). The board has done
so. See Minn. R. 8710.0100-.9010 (2019). The board’s rules provide that a teaching
license may be revoked or suspended for a violation of section 122A.20 or a violation of
the Code of Ethics for Minnesota Teachers, which is incorporated into an administrative

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rule. See Minn. R. 8710.0800, subp. 1 (2019 ) (citing Minn. R. 8710.2100 , subp. 2). A
disciplinary action to enforce the code of ethics must comply with certain procedures in
section 214.10 of the Minnesota Statutes. See Minn. R. 8710.2100, subp. 3 (2019) (citing
Minn. Stat. § 214.10, subds. 1, 2, 3).
A hearing on a complaint agains t a licensed teacher must be conducted “in
accordance with” chapter 14 of the Minnesota Statutes, the Minnesota Administrative
Procedure Act (MAPA). Minn. Stat. § 214.10, subd. 2 (2018). After such a hearing, a
disciplined teacher “ is entitled to judicia l review of the decision under the provisions of
sections 14.63 to 14.68.” Minn. Stat. § 14.63 (2018). On judicial review under MAPA,
this court may reverse or modify the board’s decision if it (a) violates constitutional
provisions, (b) exceeds the authority of the agency, (c) was made using unlawful procedure,
(d) was affected by an error of law , (e) is unsupported by substantial evidence , or (f) is
arbitrary or capricious. Minn. Stat. § 14.69 (2018 ). In conducting judicial review, we
generally defer to the board’s expertise and special knowledge in its field. See In re Cities
of Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502, 515 (Minn.
2007).
A.
Evans first argues that his discipline should be reversed on the ground that he “was
not able to submit the evidence [he] wanted to in the administrative hearing.” Specifically,
he contends that he was not allowed to introduce the testimony of the MDE investigator
who conducted the maltreatment investigation. He contends that the ALJ required the
attorney representing the board’s disciplinary c ommittee to assist him in serving a

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subpoena on the investigator but that the attorney did not provide such assistance , and he
further contends that the ALJ refused during a pre-hearing telephone conference to issue a
subpoena for the investigator . He also contends that he was unable to call additional
witnesses because of severe winter weather on the day of the evidentiary hearing. In
response, the board argues that Evans’s arguments are not supported by the record.
In a contested-case hearing, evidence is admi ssible if it “possesses probative value
commonly accepted by reasonable prudent persons in the conduct of their affairs” and is
inadmissible if it is incompetent, irrelevant, immaterial, or repetitive. Minn. Stat. § 14.60,
subd. 1 (2018); Minn. R. 1400.7300 , subp. 1 (2019) . Each party has a right to cross -
examine witnesses and to submit rebuttal evidence. Minn. Stat. § 14.60, subd. 3. But the
rules of evidence do not apply to a contested-case hearing before an ALJ. Falgren v. State,
Bd. of Teaching, 545 N.W.2d 901, 906-07 (Minn. 1996); Ostlund v. Independent Sch. Dist.
No. 47, 354 N.W.2d 492, 498 (Minn. App. 1984).
The record available to this court does not support Evans’s arguments. The agency
record includes a pre -hearing order, which advised Evans that he was required to request
subpoenas in writing by January 16, 2019, and provided him with a link to an online
subpoena-request form. It appears that Evans did not request any subpoenas. The agency
record does not include any transcripts of any pre -hearing conferences, so it is impossible
to determine whether the ALJ required the attorney representing the board’s disciplinary
committee to assist Evans in serving subpoenas or whether the ALJ refused to issue a
subpoena for the investigator. The transcript of the evidentiary hearing itself does not

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include any request by Evans for a subpoena for the investigator or any objection by Evans
to the absence of such a subpoena.
With respect to other witnesses, Evans stated during the evidentiary hearing that he
had “asked” one other person to come to the hearing but that she “had to work today, and
there was some problems with the weather.” Evans did not request a continuance to allow
that person to testify on another day , and he did not request permission to allow her to
testify by telephone, as one of the board’s disciplinary committee’s witnesses had done.
At the conclusion of the hearing, the ALJ asked Evans whether he had “any other evidence
or testimony . . . to offer.” Evans answered in the negative and rested his case.
Thus, the ALJ did not prevent Evans from introducing the testimony of the
investigator or any other person.
B.
Evans also argues that his discipline should be reversed on the ground that “[t]he
issues in the hearing went beyond the notice of hearing.” His argument has two parts.
First, he argues that the attorney representing the board’s disciplinary c ommittee
“presented evidence that I quit my job and discussed again in her closing arguments that I
worked at 12 different schools.” He also argues that he was not allowed to introduce
evidence that he had not quit. Second, Evans argues that the attorney representing the
board’s disciplinary committee stated that he had “left bruises on a child.”
The amended notice of hearing, which was served on Evans in January 2019,
alleged, among other things, that complaints were made that Evans had “engaged in
corporal punishment of five students, including spanking, slapping, and pinching students,

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as well as grabbing student’s wrists and hands in a painful manner, to reform the conduct
of the students.” The notice also alleged that MDE had determined that Evans had
“physically abused the students, using corporal punishment, including spanking, slapping,
pinching, and grabbing and squeezing students’ hands and wrists very hard.” The notice
identified two issues to be determined at the evidentiary hearing : “Whether Respondent’s
conduct . . . constitutes immoral conduct under Minnesota Statutes section 122A.20,
subdivision 1(a)(1)?,” and, “Whether Respondent’s conduct . . . to reform student conduct
is disciplinary action that is not reasonable, in violation of the Code of Ethics for Minnesota
Teachers, Minnesota Rule 8710.2100, subpart 2(D)?”
With respect to the first part of Evans’s argument, the record shows that it was
Evans—not the board’s disciplinary c ommittee—who introduced the evidence about
which he complains. Evans testified at length about quitting his job at the school where
the complaints arose. He agreed that he intentionally quit, that he understood at the time
that he was taking “action to terminate [his] own employment ,” and that the school
principal did not fire him. At no point in the hearing did Evans testify that he did not quit.
In addition, Evans testified that , “over my teaching career, I’ve taught at 12 different
schools.” The board’s disciplinary committee did not elicit any evide nce concerning the
number of schools at which Evans has taught. Furthermore, the attorney representing the
board’s disciplinary committee did not address Evans’s employment history in her written
closing argument.
With respect to the second part of Evans’s argument, the evidence and argument
was well within the scope of the amended notice. As stated above, the notice specifically

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referred to allegations and determinations that Evans had “grabb[ed] student’s wrists and
hands in a painful manner” and that he had “grabb[ed] and squeeze[ed] students’ hands
and wrists very hard.” During the hearing, the board’s disciplinary committee introduced
the written report prepared by the MDE investigator, which stated that a student “received
one mark on the wrist fro m being hit and squeezed by [Evans].” In a written closing
argument, the attorney representing the board’s disciplinary c ommittee highlighted th at
report by stating that Evans had grabbed a student’s hand “with sufficient force” to leave
“a lasting mark.” There is nothing improper in the reference to that part of the MDE report
in the closing statement.
Thus, the ALJ did not allow the evidentiary hearing to exceed the scope of the notice
of hearing.
In sum, the board did not revoke Evans’s teaching license based on unlawful
procedures.
Affirmed.