Jeremy McNitt, Respondent/Cross-Appellant v. Minnesota IT Services (MNIT), Appellant/Cross-Respondent

STATE OF MINNESOTA

IN SUPREME COURT

A23-1948

Court of Appeals Gaïtas, J.
Concurring in part, dissenting in part,
Hudson, C.J., Thissen, J.
Jeremy McNitt, Concurring in part, dissenting in part, Thissen, J.
Took no part, Procaccini, J.
Respondent/Cross-Appellant,

vs. Filed: September 2, 2026
Office of Appellate Courts
Minnesota IT Services (MNIT),

Appellant/Cross-Respondent.

________________________

Cassandra C. Wolfgram, Matthew J. Schaap, Dougherty, Molenda, Solfest, Hills &
Bauer P.A., Apple Valley, Minnesota, for respondent/cross-appellant.

Keith Ellison, Attorney General, Peter Farrell, Acting Solicitor General, Saint Paul,
Minnesota, for appellant/cross-respondent.

Keith Ellison, Attorney General, Madeleine DeMeules, Assistant Attorney General, Saint
Paul, Minnesota, for amici curiae Minnesota Departments of Management and Budget,
Public Safety, Natural Resources, Human Services, Administration, Education,
Employment and Economic Development, and Office of Higher Education.

Paul A. Merwin, Patricia Y. Beety, Saint Paul, Minnesota, for amicus curiae League of
Minnesota Cities.

Ann K. Bloodhart, George N. Henry, Saint Paul, Minnesota, for amicus curiae
Metropolitan Council.

Luke Grundman, Minneapolis, Minnesota, for amicus curiae Mid-Minnesota Legal Aid.

Brianna H. Boone, Catherine Boruff, Saint Paul, Minnesota, for amicus curiae Southern
Minnesota Regional Legal Services.

1

Shauna Faye Kieffer, Minneapolis, Minnesota, for amicus curiae Minnesota Association
of Criminal Defense Lawyers.

________________________

SYLLABUS

1. An administrative law judge’s report and recommendation does not become

the final decision in the case if the agency commissioner timely accepts, modifies, or

rejects the recommendation under Minnesota Statutes section 14.62, subdivision 2a

(2022).

2. Under Minnesota Statutes section 364.03, subdivision 3 (2024), a public

employer has discretion to determine whether an applicant for public employment has

demonstrated sufficient rehabilitation and present fitness to perform the duties of the

public employment sought once the applicant produces competent evidence of

rehabilitation under subdivision 3(a).

Affirmed in part, reversed in part, and remanded.

OPINION

GAÏTAS, Justice.

In this case, we interpret a provision of the Criminal Offenders Rehabilitation Act

to determine if a public employer may disqualify a job applicant with a prior criminal

conviction from public employment, even after the applicant has produced competent

documentary evidence of rehabilitation under Minnesota Statutes section 364.03,

subdivision 3(a) (2024). In 2022, respondent/cross-appellant Jeremy McNitt applied for a

job with appellant/cross-respondent Minnesota IT Services (MNIT). MNIT offered

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McNitt the position, subject to a background check. That background check revealed

McNitt’s prior conviction for possession of child pornography.

Following the process outlined in the Criminal Offenders Rehabilitation Act,

MNIT determined that McNitt’s conviction related to the position sought and asked

McNitt for evidence of rehabilitation and present fitness for employment. Minn. Stat.

§ 364.03. McNitt provided MNIT with an order showing that he had been discharged

from probation early and evidence that he had remained law-abiding for at least one year

since his release from probation. Additionally, McNitt offered, among other things, a

description of the circumstances surrounding his offense and several references. After

receiving this information, MNIT determined that McNitt’s criminal conviction

disqualified him from the position and informed McNitt that he could not apply for public

employment for ten years.

McNitt administratively appealed his disqualification under the Minnesota

Administrative Procedure Act. After the parties cross-motioned for summary disposition,

an administrative law judge found that McNitt had provided sufficient evidence of

rehabilitation and present fitness, and he rejected MNIT’s argument that under the

Criminal Offenders Rehabilitation Act, the agency retained sole discretion to decide

whether McNitt demonstrated sufficient rehabilitation once McNitt produced competent

evidence of rehabilitation. The administrative law judge recommended that the

Commissioner of MNIT rescind McNitt’s disqualification and hire him.

The Commissioner rejected the recommendation. The Commissioner remanded for

a contested case hearing and a new recommendation as to whether the agency had abused

3

its discretion in disqualifying McNitt and informing McNitt that he could not apply for

public employment for ten years.

Based on an intervening case from this court, however, the administrative law

judge determined that he no longer had jurisdiction to hold a contested case hearing, and

he returned the matter to the Commissioner. The Commissioner issued an order

dismissing McNitt’s grievance, affirming the decision to disqualify McNitt from public

employment based on the conviction, and directing McNitt that he could reapply for

public employment in January 2027.

McNitt appealed the Commissioner’s decision to the court of appeals. The court of

appeals concluded that MNIT did not have discretion to disqualify McNitt because

McNitt had provided competent evidence of rehabilitation under the Criminal Offenders

Rehabilitation Act. Accordingly, the court of appeals reversed the Commissioner’s

decision and remanded for further proceedings.

MNIT petitioned for review, and McNitt petitioned for conditional cross-review.

We accepted review of two issues: first, whether the administrative law judge’s initial

recommendation became the final decision because the Commissioner had no authority to

remand the matter for an evidentiary hearing; and second, whether the agency had

discretion to disqualify McNitt from the position after McNitt produced competent

evidence of rehabilitation under section 364.03, subdivision 3(a).

We affirm in part as to the first issue and conclude that the administrative law

judge’s recommendation was not the agency’s final decision. As to the second issue, we

reverse and hold that a public employer retains discretion to disqualify an applicant after

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the applicant produces competent evidence of rehabilitation under subdivision 3(a).

Finally, because the court of appeals did not address McNitt’s remaining arguments after

determining that the disqualification was improper—a determination we now reverse—

we remand to the court of appeals to consider those remaining issues.

FACTS

Minnesota IT Services (MNIT) is a state agency that provides information

technology services to state government agencies. In November 2021, MNIT posted a

web-developer job opening with the Minnesota Department of Education. Jeremy McNitt

applied for the position in January 2022. McNitt was offered the job, subject to a

background check. That background check revealed McNitt’s 2017 conviction for

possession of child pornography.

The Criminal Offenders Rehabilitation Act (CORA) establishes standards and

procedures that public employers must follow when considering a job applicant with a

criminal history.1 Minn. Stat. §§ 364.01–.10. CORA seeks to “encourage and contribute

to the rehabilitation of criminal offenders,” acknowledging that “[t]he opportunity to

secure employment … is essential to rehabilitation and the resumption of the

responsibilities of citizenship.” Minn. Stat. § 364.01.

At issue here is the CORA provision in Minnesota Statutes section 364.03, which

addresses disqualification from public employment due to a prior conviction.

1
CORA defines “public employment” as including “all employment with the state
of Minnesota, its agencies, or political subdivisions.” Minn. Stat. § 364.02, subd. 4. As a
state agency, MNIT is a public employer.

5

Subdivision 1 states that “no person shall be disqualified from public employment”

unless the conviction “directly relate[s] to the position of employment sought.”

Subdivision 2 outlines factors that a public employer “shall consider” when determining

whether the conviction “directly relates to the position of public employment sought.”

Finally, subdivision 3 states that even if the prior conviction does directly relate to the

position sought, an applicant “shall not be disqualified from the employment or

occupation if the person can show competent evidence of sufficient rehabilitation and

present fitness to perform the duties of the public employment sought.” Minn. Stat.

§ 364.03, subd. 3(a) (2024).2 Subdivision 3(a) states that “[c]ompetent evidence of

sufficient rehabilitation may be established by the production of” enumerated documents.

Id. Subdivision 3(b) also lists evidence that, “[i]n addition to the documentary evidence

presented,” an employer “shall consider,” including “the nature and seriousness of the

crime,” “all circumstances relative to the crime,” “the age of the person at the time the

crime was committed,” “the length of time elapsed since the crime,” and “all other

competent evidence of rehabilitation and present fitness presented.” Id., subd. 3(b)

(2024).

After receiving the results of McNitt’s background check, MNIT first followed the

process outlined in subdivision 2 and determined that McNitt’s conviction “directly

2
We accepted review of the 2024 version of Minnesota Statutes section 364.03,
subdivision 3. After the court of appeals issued its decision in this case, the Legislature
amended subdivision 3. See Act of May 18, 2026, ch. 97, art. 9, § 2. To the extent that the
parties submitted supplemental filings requesting that we consider the amended statute,
these requests are not properly before us, and we do not consider them.

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relates to the position of public employment sought.” Id., subd. 2. Next, pursuant to

subdivision 3, MNIT requested that McNitt provide proof of “any and all competent

evidence of sufficient rehabilitation and present fitness to perform the duties of the

position.” MNIT also identified for McNitt the documentary evidence listed in

subdivisions 3(a) and 3(b) that “may be used as competent evidence of sufficient

rehabilitation.”

McNitt provided MNIT with documents listed in subdivision 3(a), including his

release order showing his early discharge from probation and a document stating that his

background check verified that he had remained law-abiding for at least one year since

his release from a correctional institution. He also provided MNIT with documents listed

under subdivision 3(b), including a description of the circumstances surrounding his

offense and several reference letters.

In March 2022, MNIT informed McNitt that the agency would not be hiring him

for the position “based upon [his] background check results and [his] prior conviction.” It

advised McNitt that he would be disqualified from public employment for ten years.

MNIT explained that “the nature and seriousness of the crime is very high.”

McNitt administratively appealed his disqualification, and MNIT initiated a

contested case hearing pursuant to the Minnesota Administrative Procedure Act. Minn.

Stat. §§ 14.001–.69. In December 2022, both parties cross-moved for summary

disposition, which is the “administrative equivalent of summary judgment.” Pietsch v.

Minn. Bd. of Chiropractic Exam’rs, 683 N.W.2d 303, 306 (Minn. 2004). Following a

hearing on the motions, the administrative law judge (ALJ) issued a report and

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recommendation on February 10, 2023. The ALJ found that McNitt provided sufficient

evidence of rehabilitation and present fitness and rejected MNIT’s argument that it

retained sole discretion in determining whether McNitt demonstrated sufficient

rehabilitation. Thus, the ALJ recommended that McNitt’s motion for summary

disposition be granted. The ALJ recommended that MNIT rescind McNitt’s

disqualification from public employment and provide McNitt with the applied-for

position or a comparable one. The record in the matter closed on March 31, 2023.

Under the version of the Minnesota Administrative Procedure Act then in effect,

the Commissioner of MNIT had 90 days to accept, modify, or reject the ALJ’s

recommendation. Minn. Stat. § 14.62, subd. 2a (2022) (stating that the report or order of

the ALJ becomes the final decision unless the agency “modifies or rejects it” within

90 days of the record closing).3 Before issuing his order, the Commissioner asked the

parties how they wished to proceed if genuine issues of fact precluded the Commissioner

from granting either of the motions for summary disposition. McNitt requested that the

matter be remanded for a contested case hearing in such a situation.

Within the 90-day window, on June 21, 2023, the Commissioner issued Findings

of Fact, Conclusions of Law, and Order determining that CORA afforded MNIT with

3
Under this previous version of the Minnesota Administrative Procedure Act, an
agency did not have express authority to remand to an ALJ following an ALJ’s report and
recommendation. In re Surveillance & Integrity Rev. (SIRS) Appeals by Trinity Home
Health Care Servs. & Etyane Ayana, 996 N.W.2d 178, 187 (Minn. 2023). The Legislature
has since amended the Minnesota Administrative Procedure Act to give agencies the
express authority to remand to an ALJ if certain conditions are met. See Act of
May 23, 2025, ch. 39, art. 2, §§ 19–21, 2025 Minn. Laws 1195, 1219–21 (codified at
Minn. Stat. § 14.62 (Supp. 2025)).

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discretion to disqualify McNitt. The Commissioner adopted some of the ALJ’s findings

of fact and modified others. The Commissioner also adopted some of the ALJ’s legal

conclusions. However, the Commissioner rejected the ALJ’s legal conclusion that CORA

does not afford MNIT with discretion to determine whether an applicant has been

disqualified from public employment, and the Commissioner similarly rejected the ALJ’s

conclusion that the subdivision 3(a) evidence submitted by McNitt conclusively

established sufficient rehabilitation. Finally, the Commissioner rejected the ALJ’s

conclusion that there were no genuine issues of material fact and thus rejected the

recommendation to grant McNitt’s summary disposition motion. The Commissioner then

remanded for an evidentiary hearing to address, in part, whether MNIT abused its

discretion when it concluded that McNitt was disqualified from public employment for

ten years.

Before an evidentiary hearing was held, we issued our decision in In re

Surveillance & Integrity Rev. (SIRS) Appeals by Trinity Home Health Care Servs. &

Etyane Ayana, 996 N.W.2d 178 (Minn. 2023). There, we held that under the then-current

version of the Minnesota Administrative Procedure Act, a state agency does not have the

authority to remand an ALJ’s report or order. Id. at 179. Given this decision, the ALJ

determined that he lacked jurisdiction to conduct a contested case hearing on remand.

The ALJ returned the file to MNIT on October 30, 2023. One month later, in

November 2023, the Commissioner issued his second Findings of Fact, Conclusions of

Law, and Order, affirming the earlier determination of disqualification and dismissing

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McNitt’s administrative appeal. This time, the Commissioner’s order stated that McNitt

could reapply for public employment as of January 28, 2027.

McNitt then appealed to the court of appeals by writ of certiorari. McNitt v. Minn.

IT Servs., 14 N.W.3d 284 (Minn. App. 2024). In a precedential opinion, the court of

appeals held that, once an applicant provides the documents required under Minnesota

Statutes section 364.03, subdivision 3(a), public employers lack discretion to disqualify

the applicant based on a previous conviction. Id. at 285. The court of appeals further held

that because McNitt provided all required documentation under subdivision 3(a), MNIT

could not disqualify McNitt from the position. Id. at 292–93. The court of appeals

reversed the Commissioner’s final November 2023 order and remanded for further

proceedings. Id. at 294.

In doing so, the court of appeals rejected McNitt’s argument that SIRS

independently required reversal. Id. at 288–90. McNitt contended that under this court’s

decision in SIRS, the Commissioner did not have authority to remand the matter to the

ALJ for an evidentiary hearing, and thus, the Commissioner exceeded the 90-day window

for action under the Minnesota Administrative Procedure Act. Id. He argued that this, in

turn, made the ALJ’s original report—recommending that summary disposition be

granted in McNitt’s favor—the final decision in the case. Id. The court of appeals

disagreed, concluding that SIRS was distinguishable and that the Commissioner “timely

modified and rejected the ALJ’s report and recommendation in its order remanding the

matter to the ALJ.” Id. at 290.

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MNIT filed a petition for review challenging the court of appeals’ decision that a

public employer lacks discretion to disqualify applicants once the documents in

subdivision 3(a) are produced. McNitt petitioned for conditional cross-review,

challenging whether the ALJ’s report and recommendation granting summary disposition

was instead the final decision. We granted both petitions.

ANALYSIS

I.

We first must determine what is the final decision that we are reviewing. Thus, we

begin by addressing the issue raised in McNitt’s cross-petition as to whether the ALJ’s

report and recommendation granting summary disposition became the final decision in

this case. This is a question of statutory interpretation, which we review de novo. SIRS,

996 N.W.2d at 184. “We consider our prior interpretations of a statute in reviewing

subsequent disputes over the meaning of the statute.” Keystone Township v. Red Lake

Watershed Dist., 20 N.W.3d 612, 620 (Minn. 2025) (citation omitted) (internal quotation

marks omitted).

The Minnesota Administrative Procedure Act establishes a procedure for state

agencies to follow in reviewing an ALJ’s report and recommendations in a contested

case. At the time of McNitt’s administrative appeal, Minnesota Statutes section 14.62,

subdivision 2a, gave an agency 90 days to “modif[y] or reject[]” an ALJ’s report. Under

this provision, if the agency failed to timely modify or reject the report, the ALJ’s report

“constitute[d] the final decision in the case.” Minn. Stat. § 14.62, subd. 2a.

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We recently addressed this provision in SIRS. There, the ALJ issued a report and

recommendation following a contested case hearing where the agency presented evidence

that a company had failed to comply with the requirements of a government program.

SIRS, 996 N.W.2d at 182. The agency determined that the ALJ had failed to give proper

weight to certain evidence. Id. at 183. Rather than rejecting the ALJ’s report and

recommendation, however, the agency issued an order remanding the case to the ALJ for

further proceedings. Id.

On review, we concluded that the agency in SIRS did not have the authority to

remand the case to the ALJ. Id. at 187. Interpreting section 14.62, we stated that the

statute “provides the agency with three options after receiving the ALJ’s report with

recommendation: to accept the ALJ’s report as the agency’s final decision; to ‘modif[y]’

the ALJ’s report; or to ‘reject’ the ALJ’s report.” Id. Because we determined that a

remand was not an implied rejection, and because the agency failed to timely accept,

modify, or reject the ALJ’s recommendations, we concluded that the ALJ’s report and

recommendation was the binding decision in that case. Id. at 180.4

McNitt argues that here, as in SIRS, the ALJ’s report and recommendation became

the final decision in his case because MNIT had no authority to remand to the ALJ for an

evidentiary hearing. According to McNitt, the only options available to the agency were

accepting, modifying, or rejecting the ALJ’s report. And he asserts that MNIT failed to

4
As noted above, after our decision in SIRS, the Legislature amended the Minnesota
Administrative Procedure Act to allow agencies to remand to an ALJ when a limited set
of conditions exist. See Act of May 23, 2025, ch. 39, art. 2, §§ 19–21, 2025 Minn. Laws
1195, 1219–21 (codified at Minn. Stat. § 14.62 (Supp. 2025)).

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accept, modify, or reject the ALJ’s report before the 90-day period under the Minnesota

Administrative Procedure Act expired. McNitt contends that the ALJ’s report and

recommendation—that McNitt’s motion for summary disposition be granted and that

MNIT rescind McNitt’s disqualification from public employment—thus became the

agency’s final decision.

MNIT responds that the court of appeals properly rejected McNitt’s analysis. The

court of appeals distinguished the circumstances in McNitt’s case from those presented in

SIRS in two ways. First, the court of appeals noted that in SIRS the ALJ’s report and

recommendation followed an evidentiary hearing, whereas here, there was no evidentiary

hearing. McNitt, 14 N.W.3d at 289–90. Rather, the ALJ’s report and recommendation was

made in connection with the grant of summary disposition to McNitt. Id. Second, the

court of appeals observed that, unlike SIRS, here the agency expressly rejected the ALJ’s

report and recommendation within the statutory 90-day period. Id. at 290.

We disagree with the court of appeals that our holding in SIRS does not apply to an

ALJ’s report and recommendation at the summary disposition stage. Our reasoning in

SIRS did not depend on the procedural posture of the contested case, but on the fact that

the contested-case requirement of Minnesota Statutes section 14.62, subdivision 2a,

applied. We determined that the plain language of the statute “does not provide an option

to ‘remand.’ ” SIRS, 996 N.W.2d at 191. Noting that, in some instances, agency authority

may be implied from express powers granted by the Legislature, we further concluded

that agencies did not have an implied power to remand. Id. at 188, 191. Thus, under the

then-existing version of the statute, the Commissioner did not have the authority to

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remand the case back to the ALJ. See id. at 194–97 (Chutich, J., dissenting) (discussing

the court’s conclusion “that a commissioner may never remand a case to an ALJ”). To the

extent that the court of appeals’ decision holds that under the then-existing version of

section 14.62, an agency had authority to remand a contested case at the summary

disposition stage, we reverse the decision.

However, we are persuaded by the court of appeals’ reasoning that our decision in

SIRS does not dictate the outcome here because the cases are distinguishable in one

critical respect. As the court of appeals observed, unlike in SIRS, where the agency took

no action beyond remanding to the ALJ, the Commissioner’s initial order here expressly

rejected a number of the ALJ’s conclusions within the 90-day statutory deadline. The

Commissioner’s initial order rejected the ALJ’s legal conclusions that under CORA, an

applicant who presents competent evidence of rehabilitation is per se rehabilitated and an

agency lacks discretion to determine whether the applicant has been sufficiently

rehabilitated. And the Commissioner rejected the ALJ’s ultimate recommendation that

summary disposition be granted to McNitt. In SIRS, we held that a remand is not an

implicit rejection of an ALJ’s report and recommendation. But here, the Commissioner

explicitly rejected the ALJ’s conclusions. Thus, the ALJ’s report and recommendation

does not “constitute[] the final decision in the case” because “the agency modifie[d] or

reject[ed] it … within 90 days after the record of the proceeding close[d].” Minn. Stat.

§ 14.62, subd. 2a. Instead, the Commissioner’s order—and not the ALJ’s report and

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recommendation, which was timely rejected and modified by MNIT—is the final

decision in the case.5

II.

Having determined that the Commissioner’s order was the final decision in the

case under the Minnesota Administrative Procedure Act, we now turn to the merits of the

issue presented here—whether Minnesota Statutes section 364.03 provides a public

employer with discretion to decide whether a job applicant has demonstrated sufficient

rehabilitation and present fitness once the applicant has presented competent evidence of

rehabilitation under subdivision 3(a) of the statute. To address this issue, we must

interpret section 364.03.

We review questions of statutory interpretation de novo. State v. Holl, 966 N.W.2d

803, 808 (Minn. 2021). First, we determine whether the statute’s language, on its face, is

ambiguous. State v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018). In doing so, we give

the text of the statute its plain and ordinary meaning. Emerson v. Sch. Bd. of Indep. Sch.

Dist. 199, 809 N.W.2d 679, 682 (Minn. 2012). We examine the language of a statute as a

whole to give effect to all its provisions, Minn. Stat. § 645.16, and “no word, phrase, or

5
We, like the court of appeals, treat the Commissioner’s November 2023 Findings
of Fact, Conclusions of Law, and Order as the final decision in this case. Critically, the
cross-petition issue for which we granted review only asked whether “the administrative
law judge’s report and recommendation granting summary disposition bec[a]me the final
decision, in accordance with Minn. Stat. § 14.62, subd. 2(a) and In re Surveillance and
Integrity Review (SIRS), 996 N.W.2d 178 (Minn. 2023) ….” We have rejected that
argument, and we were not otherwise asked to review whether the Commissioner’s June
2023 order or November 2023 order should be treated as the final decision in this case.

15

sentence should be deemed superfluous, void, or insignificant,” In re Reichmann Land &

Cattle, LLP, 867 N.W.2d 502, 509 (Minn. 2015) (citation omitted) (internal quotation

marks omitted). A statute is ambiguous only if its language is susceptible to more than

one reasonable interpretation. Am. Fam. Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277

(Minn. 2000). If the statute is ambiguous, we seek to resolve the ambiguity using

applicable canons of construction. Holl, 966 N.W.2d at 808. If the statute is

unambiguous, however, our inquiry ends there—we must “abide by the plain language of

the statute.” Id.

Before turning to the specific statutory interpretation questions presented here, we

briefly provide an overview of CORA and section 364.03. In CORA, the Legislature

“declare[d] that it is the policy of the state of Minnesota to encourage and contribute to

the rehabilitation of criminal offenders and to assist them in the resumption of the

responsibilities of citizenship.” Minn. Stat. § 364.01. To that end, CORA establishes

when employers may consider a job applicant’s criminal record and the procedures they

must follow when doing so. Under section 364.03, subdivision 1, an employer may

disqualify an applicant for a prior conviction only when that conviction “directly relate[s]

to the position of employment sought.” Minn. Stat. § 364.03, subd. 1. Section 364.03,

subdivision 3(a) further provides the following:

A person who has been convicted of a crime or crimes which directly relate
to the public employment sought or to the occupation for which a license is
sought shall not be disqualified from the employment or occupation if the
person can show competent evidence of sufficient rehabilitation and present
fitness to perform the duties of the public employment sought or the
occupation for which the license is sought.

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Id. Subdivision 3(a) goes on to state that “competent evidence of sufficient rehabilitation

may be established by the production of” documentation listed in that subdivision. These

documents are the person’s United States Department of Defense form DD-214 showing

their honorable discharge from military service, or:

(1) a copy of the local, state, or federal release order; and

(2) evidence showing that at least one year has elapsed since release from
any local, state, or federal correctional institution without subsequent
conviction of a crime; and evidence showing compliance with all terms and
conditions of probation or parole; or

(3) a copy of the relevant Department of Corrections discharge order or other
documents showing completion of probation or parole supervision.

Minn. Stat. § 364.03, subd. 3(a).

Subdivision 3(b) states that “in addition” to the documentary evidence listed in

subdivision 3(a), “the licensing or hiring authority shall consider any evidence presented

by the applicant regarding” the crime committed, including its nature and seriousness;

“all circumstances relative to the crime,” including mitigating circumstances; the age of

the person at the time of the crime; the length of time elapsed since the crime; and “all

other competent evidence of rehabilitation and present fitness presented, including, but

not limited to, letters of reference by persons who have been in contact with the applicant

since the applicant’s release from any local, state, or federal correctional institution.” Id.,

subd. 3(b).

Both McNitt and MNIT contend that the statutory text is unambiguous. But they

offer competing interpretations of the text.

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McNitt focuses on the words “shall not be disqualified” in the first sentence of

subdivision 3(a). Minn. Stat. § 364.03, subd. 3(a). He argues that this phrase—and the

use of the word “shall” in particular—guarantees that an applicant who produces

competent evidence of sufficient rehabilitation and present fitness is not disqualified from

public employment. McNitt then directs us to the second sentence in subdivision 3(a),

which identifies types of “[c]ompetent evidence of sufficient rehabilitation,” including “a

copy of the local, state, or federal release order” and “evidence showing that at least one

year has elapsed since release … without subsequent conviction of a crime.” Id.

According to McNitt, because he presented an order showing that he had been released

from probation and evidence that he had been law-abiding for at least one year following

his discharge from probation, he “shall not be disqualified” from public employment.

MNIT, on the other hand, focuses on the latter half of the first sentence of

subdivision 3(a), which states that the applicant shall not be disqualified “if the person

can show competent evidence of sufficient rehabilitation and present fitness.” Id. Under

MNIT’s interpretation of this phrase, an applicant “shall not be disqualified” only if the

applicant “can show competent evidence of sufficient rehabilitation and present fitness.”

In other words, according to MNIT, the statute provides a process for demonstrating

sufficient rehabilitation and present fitness for a job but does not guarantee a result.

MNIT also directs our attention to the second sentence of subdivision 3(a), which

states that “[c]ompetent evidence of sufficient rehabilitation may be established by the

production of” certain documents. Id. (emphasis added). Noting that the word “may” is

generally interpreted as permissive, MNIT contends that the listed documents may or may

18

not establish sufficient rehabilitation. See Minn. Stat. § 645.44, subd. 15 (“ ‘May’ is

permissive.”). And, MNIT argues, if the documents listed in subdivision 3(a) were

conclusive evidence of sufficient rehabilitation, then subdivision 3(b)—which states that

a public employer “shall consider any evidence presented by the applicant” regarding the

circumstances underlying the conviction and “all other competent evidence of

rehabilitation and present fitness presented,” such as “letters of reference”—would be

superfluous. Minn. Stat. § 364.03, subd. 3(b).

McNitt interprets the second sentence of subdivision 3(a) differently. He contends

that the word “may” simply means that the listed documents are not the exclusive means

of proving sufficient rehabilitation. According to McNitt, subdivision 3(a) provides

“multiple avenues” that an applicant may use to show sufficient rehabilitation: either by

presenting the documents that constitute “competent evidence of sufficient rehabilitation”

or the other evidence that a public employer must consider.

The court of appeals was persuaded by McNitt’s interpretation of section 364.03.

It concluded that, under the unambiguous language of the statute, “once an applicant

provides the documentation listed in subdivision 3(a), the applicant has satisfied the

statutorily defined means of demonstrating rehabilitation and shall not be disqualified

from employment.” McNitt, 14 N.W.3d at 292–93.

We disagree. For the reasons stated below, we conclude that McNitt’s reading of

the statute is unreasonable and that the language and structure of section 364.03 plainly

confer discretion on a public employer to decide whether an applicant has established

19

sufficient rehabilitation even after the applicant has produced the documents identified in

subdivision 3(a).

Our analysis starts with the language of subdivision 3. The first sentence of

subdivision 3(a) states that an applicant “shall not be disqualified … if [the applicant] can

show competent evidence of sufficient rehabilitation and present fitness to perform the

duties of the public employment sought.” Minn. Stat. § 364.03, subd. 3(a) (emphasis

added). To state the obvious, the ordinary meaning of the word “if” makes the first part of

the sentence conditional upon the latter. See The American Heritage Dictionary of the

English Language 874 (5th ed. 2011) (defining “if” as “[i]n the event that,” “[g]ranting

that,” or “[o]n the condition that”); State v. Thonesavanh, 904 N.W.2d 432, 436

(Minn. 2017) (noting that this court may “look to dictionary definitions to determine the

common and ordinary meanings” of terms). Thus, the statute directs that if an applicant

“can show competent evidence of sufficient rehabilitation and present fitness to perform

the duties of the public employment sought” the applicant “shall not be disqualified.”

Minn. Stat. § 364.03, subd. 3(a).

The critical question, then, is what constitutes “competent evidence of sufficient

rehabilitation and present fitness to perform the duties of the public employment sought.”

This takes us to the second sentence of section 364.03, subdivision 3(a), which lists

“documentary evidence” that “may” establish sufficient rehabilitation, and

subdivision 3(b), which lists other evidence that the hiring authority “shall consider.”

Subdivision 3(a) provides that “[c]ompetent evidence of sufficient rehabilitation may be

established by the production of” several listed documents, including the United States

20

Department of Defense form DD-214, a release order, or a Department of Corrections

discharge order. Minn. Stat. § 364.03, subd. 3(a). Subdivision 3(b) then instructs the

following: “In addition to the documentary evidence presented, the licensing or hiring

authority shall consider any evidence presented by the applicant regarding” several

enumerated factors, such as the nature and seriousness of the crime, the length of time

elapsed since the crime, and “all other competent evidence of rehabilitation and present

fitness presented.” Id., subd. 3(b). For three reasons we conclude that under this

language, a public employer is not stripped of its discretion by the production of

documentation under subdivision 3(a).

First, we are persuaded by the Legislature’s decision to use words that convey

discretion throughout subdivision 3 of the statute. The use of the permissive word “may”

in the second sentence of subdivision 3(a)—“[c]ompetent evidence of sufficient

rehabilitation may be established by [certain documents]”—indicates the Legislature’s

intent to give a public employer discretion to decide whether the documents identified in

subdivision 3(a) constitute “competent evidence of sufficient rehabilitation.” Id.,

subd. 3(a) (emphasis added). The words “competent” and “sufficient” further enforce our

conclusion that the Legislature intended to give public employers discretion in decision-

making. See The American Heritage Dictionary of the English Language 376, 1742 (5th

ed. 2011) (defining “competent” as “[a]dequate for the purpose” and “sufficient” as

“[b]eing as much as is needed; adequate; enough”). We decline to read these words out of

the statute. As written, it is not enough for the applicant to merely produce “evidence of

21

rehabilitation”—that evidence must be competent and demonstrate sufficient

rehabilitation.

Indeed, by requiring evidence of “sufficient” rehabilitation in CORA, the

Legislature recognized that the rehabilitation of individuals with criminal convictions is a

process, not a black-and-white result. See Rehabilitation, Black’s Law Dictionary (12th

ed. 2024) (defining “rehabilitation” as “[t]he process of seeking to improve a criminal’s

character and outlook so that he or she can function in society without committing other

crimes” (emphasis added)); Minn. Stat. § 364.01 (declaring it the policy of the state of

Minnesota to “encourage and contribute to the rehabilitation of criminal offenders and to

assist them in the resumption of the responsibilities of citizenship”). And this necessarily

means that some entity must be empowered to decide when an applicant has been

sufficiently rehabilitated. The surrounding language makes it evident that this entity is the

public employer. See Minn. Stat. § 364.03, subd. 2 (stating that it is the “hiring or

licensing authority” that considers the enumerated factors to determine if the conviction

“directly relates to the position of public employment sought”); Id., subd. 3(b) (“In

addition to the documentary evidence presented, the licensing or hiring authority shall

consider any evidence presented by the applicant regarding .…”). Thus, by requiring that

a person show “sufficient” rehabilitation, and that the evidence of rehabilitation be

“competent,” the Legislature empowered the public employer to evaluate the evidence

presented and make that determination.

Second, if producing the documents in subdivision 3(a) is interpreted to constitute

per se evidence of sufficient rehabilitation, an employer then cannot comply with the

22

Legislature’s mandate in subdivision 3(b)—that the hiring authority consider the other

evidence “in addition to the documentary evidence” itemized in subdivision 3(a). Id.,

subd. 3(b). By providing that the employer “shall consider” the additional evidence listed

in subdivision 3(b), the Legislature requires the employer to consider additional evidence

provided—such as evidence of the seriousness of the crime and the circumstances

surrounding the crime. See Minn. Stat. § 645.44, subd. 16 (stating that unless “another

intention clearly appears,” the term “shall” must be interpreted as “mandatory”). But if

the documents listed in subdivision 3(a) alone are per se evidence of sufficient

rehabilitation, a public employer then cannot comply with the statutory mandate

contained in subdivision 3(b).

Third, and relatedly, only MNIT’s interpretation gives effect to all provisions in

the statute. The canon against surplusage mandates that “[e]very law shall be construed, if

possible, to give effect to all its provisions.” Minn. Stat. § 645.16; see also Hagen v.

Steven Scott Mgmt., Inc., 963 N.W.2d 164, 170 (Minn. 2021) (stating that the canon of

surplusage is a “pre-ambiguity” canon of interpretation). This canon is often applied in

tandem with the whole-statute canon, which provides that statutory language should not

be read in isolation; rather, “all provisions in the statute must be read and interpreted as

whole.” State v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019); Hagen, 963 N.W.2d at

170–71. If an applicant is per se sufficiently rehabilitated when the applicant produces the

documents listed in subdivision 3(a), the language in subdivision 3(b), which requires the

public employer to consider other evidence “in addition to the documentary evidence

presented,” is superfluous. Minn. Stat. § 364.03, subd. 3(b) (emphasis added). The

23

evidence identified in subdivision 3(b) would never factor into a public employer’s

decision as to whether an applicant is “sufficiently rehabilitated” once the applicant

presented the documentary evidence identified in subdivision 3(a). Put another way, an

employer can never meaningfully “consider” the additional factors “in addition to” the

documents in subdivision 3(a)—under McNitt’s interpretation, once an applicant

produces a document under subdivision 3(a), the employer is stripped of discretion. Thus,

for the language of subdivision 3(b) to have meaningful effect, subdivision 3(a) cannot

mean that an applicant automatically establishes sufficient rehabilitation by producing the

documentary evidence listed in that provision.

The primary dissent does not dispute that “may” is permissive. But it disagrees

that the use of the word “may” in subdivision 3 means that the public employer has

discretion to determine whether the documents provided demonstrate sufficient

rehabilitation. It argues that, because the subject of the phrase “may be established by the

production of” is the applicant, not the employer, the word “may” “is best understood to

enumerate what an applicant is allowed—but not required—to provide to an employer.”

To support this interpretation, the primary dissent asks us to consider a phrase that, it

maintains, is equivalent to the language of subdivision 3: “A person’s age may be

established by the production of a certified birth certificate or a valid driver’s license.”

The primary dissent states that “[t]he common understanding of this sentence is that

production of either a certified birth certificate or a valid driver’s license is sufficient to

establish a person’s age.” Accordingly, it argues that the production of the documents in

subdivision 3(a) is sufficient to demonstrate a person’s rehabilitation.

24

But the primary dissent’s example overlooks the unique context of CORA.

Establishing a person’s age—an objective, known fact—differs from establishing

“sufficient rehabilitation”—a question of the degree of an individual’s reintegration into

society. Further, while the primary dissent insists that the first two sentences of the

subdivision must be read together, it disregards the language of the third sentence—that

“[i]n addition to the documentary evidence presented, the licensing or hiring authority

shall consider any evidence presented by the applicant regarding” the enumerated factors.

Minn. Stat. § 364.03, subd. 3(b) (emphasis added); see also Pakhnyuk, 926 N.W.2d at

920 (“The statutory language in dispute is not examined in isolation; rather, all provisions

in the statute must be read and interpreted as whole.”). Reading the statute in context, it is

the hiring authority who “may” consider the documentary evidence produced by the

applicant.

The structure of the statute is thus more akin to the following: Sufficient

qualifications for the job may be established by the production of a diploma or an

academic transcript. In addition to the documentary evidence presented, the hiring

department must also consider any evidence presented by the applicant regarding their

past work experience, the strength of their coursework, and all other evidence of

sufficient qualifications, including, but not limited to, letters of reference. The common-

sense understanding of these sentences is that, even after the applicant produces a

diploma, the hiring authority still retains its discretion to consider other evidence to

determine if an applicant is sufficiently qualified for the position. Similarly, even once an

applicant produces documentation listed under subdivision 3(a), the hiring or licensing

25

authority retains discretion to determine whether the applicant has demonstrated

sufficient rehabilitation.

The primary dissent also faults our decision today for “ignor[ing] the declared

policy of the state of Minnesota” and “turn[ing] a blind eye to the very injustice CORA

was designed to rectify.” It points us to CORA’s policy statement, which “declares that it

is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of

criminal offenders.” Minn. Stat. § 364.01. But the Legislature also detailed precisely how

Minnesota would “encourage and contribute to the rehabilitation of criminal offenders” in

the very provisions of CORA at issue here. CORA does not establish a sweeping

prohibition on the disqualification of applicants based on a prior criminal conviction. As

the primary dissent correctly observes, the Legislature carved out specific licensed

occupations and offenses that are not subject to the statute. See Minn. Stat. § 364.09. The

provision at issue here, section 364.03, subdivision 3, falls under yet another exception:

when “the crime or crimes for which convicted directly relate to the position of

employment sought.” Minn. Stat. § 364.03, subd. 1. It is thus evident that, in crafting

CORA, the Legislature weighed the goal of encouraging rehabilitation against competing

public interests and set limits on its application. It is not our job to decide where the

Legislature should have drawn the line—our only inquiry here is to interpret the plain

language of the statute. “[I]n doing this work of statutory interpretation, we do not make

public policy; we attempt to interpret the policy that the Legislature has already

determined in the statutory language at issue.” In re Guardianship of Tschumy,

853 N.W.2d 728, 741 n.10 (Minn. 2014).

26

Here, the plain language of Minnesota Statutes section 364.03, subdivision 3,

compels us to conclude that there is just one reasonable interpretation of section 364.03,

subdivision 3—that a public employer has discretion to determine if the evidence

presented by an applicant constitutes competent evidence of sufficient rehabilitation. If

the public employer determines that an applicant has shown “competent evidence of

sufficient rehabilitation,” then that applicant “shall not be disqualified.”

* * *

We therefore conclude that the court of appeals erred in determining that, under

section 364.03, a public employer has no discretion to decide whether an applicant has

been rehabilitated after the applicant presents the documentary evidence identified in

subdivision 3(a) of the statute. Because the court of appeals did not reach the other issues

before it, including whether the Commissioner applied an incorrect burden of proof,

whether the Commissioner relied on factors not intended by the Legislature, whether the

Commissioner’s decision was arbitrary and capricious, and whether McNitt’s substantial

rights were prejudiced, we remand to the court of appeals to consider the remaining

issues.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the decision of the

court of appeals, and we remand this case to that court for further proceedings consistent

with this opinion.

Affirmed in part, reversed in part, and remanded.

PROCACCINI, J., took no part in the consideration or decision of this case.

27

CONCURRENCE & DISSENT

HUDSON, Chief Justice (concurring in part, dissenting in part).

When the Legislature enacted the Criminal Offenders Rehabilitation Act (CORA),

Minn. Stat. §§ 364.01–.10, it acknowledged the reality that individuals with a criminal

record struggle to find employment, no matter how much time has passed since the

conviction or the person’s rehabilitation efforts. And as amici Southern Minnesota

Regional Legal Services and Mid-Minnesota Legal Aid note, absent gainful employment,

it is difficult for those with a criminal record to reenter society and reintegrate themselves

into the fabric of our communities. Thus, a specific goal of CORA was to guarantee that

if an individual meets the requirements to show rehabilitation and present fitness as set

forth in Minnesota Statutes section 364.03, subdivision 3(a) (2024), public employers

cannot disqualify that individual from employment based on a directly related prior

conviction.

But the court today ignores the declared policy of the state of Minnesota to

“encourage and contribute to the rehabilitation of criminal offenders and to assist them in

the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01. Because the

court turns a blind eye to the very injustice CORA was designed to rectify, I respectfully

dissent from Part II of the court’s opinion. Instead, I would affirm the court of appeals

and hold that public employers do not have discretion to determine whether an applicant

C/D-1

has sufficient rehabilitation and present fitness for a position if the applicant has provided

the documents listed in Minnesota Statutes section 364.03, subdivision 3(a).1

Thus, appellant/cross-respondent Minnesota IT Services (MNIT) did not retain

discretion to determine whether respondent/cross-appellant Jeremy McNitt demonstrated

sufficient rehabilitation and present fitness for a position with the Department of

Education after he satisfied the documentary requirement in Minnesota Statutes

section 364.03, subdivision 3(a).

A.

As part of the state’s recognition that “[t]he opportunity to secure employment …

is essential to rehabilitation,” Minn. Stat. § 364.01, CORA provides that a job applicant

with a prior criminal conviction that directly relates to the position of public employment

sought “shall not be disqualified” if that individual can show “competent evidence of

sufficient rehabilitation and present fitness” to perform the role, Minn. Stat. § 364.03,

subd. 3(a). CORA specifies that “[c]ompetent evidence of sufficient rehabilitation may be

established by the production of” evidence of honorable military discharge, or:

(1) a copy of the local, state, or federal release order; and

(2) evidence showing that at least one year has elapsed since release from
any local, state, or federal correctional institution without subsequent
conviction of a crime; and evidence showing compliance with all terms and
conditions of probation or parole; or

(3) a copy of the relevant Department of Corrections discharge order or other
documents showing completion of probation or parole supervision.

1
I join Part I of the court’s opinion.

C/D-2

Minn. Stat. § 364.03, subd. 3(a). CORA also requires that a public employer “shall

consider” additional evidence presented by the applicant, including “the nature and

seriousness of the crime,” mitigating circumstances surrounding the commission of the

crime, the applicant’s age at the time of the crime, the time since the crime occurred, and

“all other competent evidence of rehabilitation and present fitness presented.” Id.,

subd. 3(b) (2024).

There is no dispute that McNitt fulfilled the conditions detailed in subdivision 3(a)

when he provided MNIT an order showing that he had been discharged from probation

early and evidence that he had remained law-abiding since his release from probation.

See id., subd. 3(a). McNitt also provided reference letters and an explanation of the nature

and seriousness of his crime. Even so, MNIT argues that it retained the discretion to

determine whether McNitt demonstrated sufficient rehabilitation for a position with the

Department of Education.

This dispute asks the court to address who gets to determine whether an applicant

has demonstrated “sufficient rehabilitation and present fitness.” Answering that question

requires understanding what the Legislature meant when it used the phrase “[c]ompetent

evidence of sufficient rehabilitation may be established by the production of [specified

documents]” in subdivision 3(a).2 (Emphasis added.)

2
Subdivision 3(a) also requires that an applicant must establish “present fitness to
perform the duties of the public employment sought.” The court of appeals reasoned that
“sufficient rehabilitation” and “present fitness” could reasonably be read as two separate
inquiries, but recognized that this interpretive question was not properly before it. McNitt
v. Minn. IT Servs., 14 N.W.3d 284, 290–91 (Minn. App. 2024). I agree that MNIT failed
to argue that “present fitness” imposes a separate requirement before either the

C/D-3

To help think about the meaning of the phrase “may be established by the

production of” and its role in subdivision 3(a), consider a similarly constructed sentence:

“A person’s age may be established by the production of a certified birth certificate or a

valid driver’s license.” The common understanding of this sentence is that production of

either a certified birth certificate or a valid driver’s license is sufficient to establish a

person’s age. As this example highlights, when a rule states that a result “may be

established” by a specified method, the sentence ordinarily describes a list of allowable

means where each option, alone, can achieve the result. A similarly natural understanding

of the sentence in section 364.03, subdivision 3(a)—“[c]ompetent evidence of sufficient

rehabilitation may be established by the production of [specified documents]”—is that

the production of one of the specified documents is enough to establish competent

evidence of sufficient rehabilitation.3

This intuitive understanding is supported by principles of usage and grammar.

Snell v. Walz, 6 N.W.3d 458, 467 (Minn. 2024). Regarding usage, the phrase at issue

gains context from the rest of section 364.03, subdivision 3(a). The first sentence of the

subdivision provides that even if an applicant’s prior conviction directly relates to the

public employment sought, the applicant “shall not be disqualified from the

administrative law judge or the MNIT Commissioner and thus forfeited the argument. See
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting a reviewing court must
generally consider only those issues presented and considered below).
3
I recognize that the production of some of the specified documents, alone, is
insufficient to satisfy subdivision 3(a). See Minn. Stat. § 364.03, subd. 3(a)(1)–(2). Here,
because there is no dispute that McNitt satisfied the other conditions, I focus on the
production of a document that satisfies subdivision 3(a).

C/D-4

employment … if the [applicant] can show competent evidence of sufficient

rehabilitation.” Minn. Stat. § 364.03, subd. 3(a). This sentence makes clear that the public

employer cannot disqualify the applicant if the individual produces competent evidence

of sufficient rehabilitation. In the next sentence—the sentence at issue here—the

Legislature identifies three specific documents that demonstrate “competent evidence of

sufficient rehabilitation.” Id. Reading the first two sentences of subdivision 3(a) together

demonstrates that a public employer cannot refuse to hire an applicant if the person

produces one of the three identified documents.

Grammatical principles also bolster this interpretation. The sentence “[c]ompetent

evidence of sufficient rehabilitation may be established by the production of [specified

documents]” is written in the passive voice. The subject of the sentence is “competent

evidence of sufficient rehabilitation.” That is what the sentence is about: what constitutes

competent evidence of sufficient rehabilitation. Thus, in the sentence at issue in

subdivision 3(a), “competent evidence of sufficient rehabilitation” is the legal condition

that receives the action of being established.

The next clause in the sentence, “may be established by the production of

[specified documents],” includes a verb phrase, “may be established,” and a prepositional

phrase, “by the production of.” Because the sentence is passive with an abstract subject—

“competent evidence of sufficient rehabilitation” as opposed to an entity that can actually

receive permission—“may” conveys a permissible way for the applicant to accomplish

something: here, demonstrating rehabilitation. “May” modifies the verb phrase “be

established,” not the public employer’s decision whether to accept the evidence. The

C/D-5

clause governs the method by which the evidentiary condition can be satisfied, not the

public employer’s freedom to disregard the method once it has occurred.

In passive voice constructions, phrases introduced by the word “by” identify the

method or instrument through which the action occurs. As it is used in subdivision 3(a),

the phrase “by the production of” specifies how the subject of the sentence—“competent

evidence of sufficient rehabilitation”—is established. Read naturally, the phrase

communicates that producing one of the three specified documents is a recognized way

of establishing the evidentiary condition. Put differently, the sentence “[c]ompetent

evidence of sufficient rehabilitation may be established by the production of [specified

documents]” conveys that the production of one of the listed documents is enough for the

applicant to establish competent evidence of sufficient rehabilitation.

The court comes to the opposite conclusion by reading “may” in the phrase

“competent evidence of sufficient rehabilitation may be established [by the specified

documents]” as empowering the public employer to determine whether the provided

documents are sufficient to prove rehabilitation. Minn. Stat. § 364.03, subd. 3(a)

(emphasis added). The court relies on the idea that the word “may” is permissive, which

the court reads to mean that the Legislature provided public employers the power to

determine whether the documents that the applicant produced constitute “competent

evidence of sufficient rehabilitation.”

While it is true that the word “may” is often “permissive,” see Minn. Stat.

§ 645.44, subd. 15 (“ ‘May’ is permissive.”), that does not end the analysis. The mere use

of the word “may” does not automatically mean that the public employer has broad

C/D-6

discretion to determine whether the provided documents demonstrate sufficient

rehabilitation.4 The surrounding context again proves helpful. Nowhere in that phrase,

nor anywhere in subdivision 3(a), does it specify that it is the employer who has

discretion to make the rehabilitation judgment. See Minn. Stat. § 364.03, subd. 3(a).

Reading subdivision 3 as a whole is instructive. Subdivision 3(a) begins by specifying its

subject: “[a] person who has been convicted of a crime or crimes ….” Id. The rest of

subdivision 3(a) identifies what that person may submit to show rehabilitation. It is only

in subdivision 3(b) that the public employer is named and is the subject of a statutory

directive.

4
For instance, in McDeid v. Johnson, we held that state officials did not have
discretion to ignore a transfer order from the Minnesota Commitment Appeals Panel
(CAP). 984 N.W.2d 864, 876–77 (Minn. 2023). The statutory provision at issue noted
that “[a] civilly committed sex offender may be placed in community preparation services
only upon an order of the [CAP] under section 253B.19.” Minn. Stat. § 246B.01, subd. 2a
(emphasis added). State officials argued that a CAP transfer order was not binding
because “ ‘may’ makes the statutory language permissive and that accordingly, CAP
transfer orders merely provide authorization for them to transfer patients at their
discretion.” McDeid, 984 N.W.2d at 875. We rejected the argument:

The State Officials misread the provision. Read in context, the statutory
language that they rely upon places a limit on the State Officials’ power to
transfer patients to CPS; it does not expand their discretion. The word “may”
in the sentence is used in the sense of “having permission to.” May, Merriam
Webster’s Collegiate Dictionary 719 (10th ed. 1996); see State v. Stirens,
506 N.W.2d 302, 305 (Minn. 1993) (interpreting “may” as “ha[ving]
authority to”).

Id. at 876. In other words, we concluded that a statute—which, like section 364.03,
subdivision 3(a), uses the passive voice—did not grant the CAP broad discretion to
ignore the condition for action identified in the statute.

C/D-7

This contrast must mean something. And it does: subdivision 3(a) is plainly

directed to applicants, not employers. To hold otherwise would require us to read words

into CORA that do not exist. See Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn. 2012)

(“We cannot add words or meaning to a statute that were intentionally or inadvertently

omitted.”). The word “may” is best understood to enumerate what an applicant is

allowed—but not required—to provide to an employer. This interpretation fits the subject

of subdivision 3(a), the applicant, and recognizes that not every applicant will possess

every piece of evidence listed in subdivision 3(a) but can still demonstrate sufficient

rehabilitation.

This interpretation of subdivision 3(a) also comports with the express policy

statement enacted by the Legislature in section 364.01 and the overall structure of

CORA. See Am. Fam. Ins. Grp. v. Schroedl, 616 N.W.2d 273, 278–79 (Minn. 2000)

(considering express statements of a statute’s purpose when conducting statutory

interpretation). The policy statement in CORA provides:

The legislature declares that it is the policy of the state of Minnesota to
encourage and contribute to the rehabilitation of criminal offenders and to
assist them in the resumption of the responsibilities of citizenship. The
opportunity to secure employment … is essential to rehabilitation and the
resumption of the responsibilities of citizenship.

Minn. Stat. § 364.01. Consistent with this declared policy, section 364.03 prohibits a

public employer from disqualifying an applicant “because of a prior conviction of a crime

or crimes.” Minn. Stat. § 364.03, subd. 1. Thus, a primary purpose of CORA is allowing

people with a prior conviction to be employed by the state, as consistent with the policy

purpose articulated by the Legislature. The statute then creates an exception to this

C/D-8

general prohibition for an applicant with a prior conviction for crimes that “directly relate

to the position of employment sought.” Id.; see also id., subd. 2 (defining the scope of the

exception to the general prohibition). Next, section 364.03, subdivision 3, creates an

exception to the exception: even if the crime directly relates to the position of

employment sought, public employers must not disqualify persons with a criminal

conviction if they show competent evidence of rehabilitation and fitness for the job. Id.,

subd. 3(a)–(b). This interpretation of CORA supports the State’s policy by interpreting

the statute in a way that will most likely achieve the Legislature’s stated policy goals.

B.

The court disagrees, positing that the prohibition that an applicant who fulfills the

requirement in subdivision 3(a) “shall not be disqualified” is not mandatory in all

circumstances, because the phrase “shall not be disqualified” is followed by the phrase “if

[the applicant] can show competent evidence of sufficient rehabilitation and present

fitness.” Id., subd. 3(a) (emphasis added); contra Minn. Stat. § 645.44, subd. 16 (“ ‘Shall’

is mandatory.”). I agree that “if” makes “shall not” conditional. Accordingly, absent

sufficient documentation to fulfill the requirement in subdivision 3(a), the employer

prohibition is not implicated. But this inquiry misses the point. The question is not

whether the documentary condition has been fulfilled, but who gets to make the

rehabilitation determination. In my view, the Legislature emphatically answered that

question by enacting CORA and thereby divesting public employers of the discretion to

disqualify an applicant upon provision of sufficient documentary evidence as identified in

Minnesota Statutes section 364.03, subdivision 3(a).

C/D-9

The court also contends that reading subdivision 3(a) as eliminating public

employer discretion would render subdivision 3(b) superfluous. Subdivision 3(b)

provides that the public employer “shall consider any evidence presented by the

applicant” related to “the nature and seriousness of the crime,” mitigating circumstances,

the applicant’s age at the time of the crime, the time since the crime occurred, and “all

other competent evidence of rehabilitation and present fitness” presented. The court

claims that my reading of subdivision 3(a) makes it impossible for the public employer to

fulfill the mandate in subdivision 3(b) to consider additional circumstances provided by

an applicant. This is incorrect for three reasons.

First, turning to the question of the meaning and role of subdivision 3(b) in

section 364.03, I observe that the first clause of subdivision 3(b) is stated as a directive to

the public employer that it must consider “any evidence presented by the applicant”

regarding the five specified topics. Id., subd. 3(b) (emphasis added). In other words, the

Legislature is instructing the public employer that it cannot ignore evidence that is

(1) presented by the applicant, and (2) falls within one of the five categories of evidence

in subdivision 3(b). Subdivision 3(b) provides a limiting principle for agencies in line

with CORA’s stated policy of promoting rehabilitation. It ensures that a public employer

cannot independently identify and consider other evidence of the type listed in

subdivision 3(b)—evidence not presented by the applicant—as a basis for rejecting an

applicant who satisfies the requirement for showing “competent evidence of sufficient

rehabilitation” in subdivision 3(a).

C/D-10

Second, the court overlooks that subdivision 3(b) remains critical for applicants

who cannot satisfy subdivision 3(a) but who can show rehabilitation and present fitness

through additional contextual information. McNitt did not need to rely on this avenue

because he fulfilled the conditions of subdivision 3(a). But the pathway provided in

subdivision 3(b) remains extant and becomes operative when an employer retains

discretion because of an insufficient showing of documentary evidence under 3(a). This

interpretation of subdivisions 3(a) and (b) working together to provide multiple

opportunities for an applicant to demonstrate rehabilitation is more aligned with the

stated purpose of CORA. See Minn. Stat. § 364.01 (declaring the policy of the state to

“encourage and contribute to the rehabilitation of criminal offenders” through preserving

the opportunity to secure employment). Indeed, if an applicant does not provide

additional circumstances to the employer, subdivision 3(b) never comes into effect.

Stated otherwise, an applicant can establish sufficient rehabilitation under

subdivision 3(a), subdivision 3(b), or both.

Third, the court places significant emphasis on the words that start section 364.03,

subdivision 3(b): “In addition to the documentary evidence presented ….” (Emphasis

added.) The court suggests that this language supports a conclusion that the types of

evidence identified in subdivision 3(b) shall be considered “in addition to” the production

of one of the three documents identified in subdivision 3(a), meaning a public employer

is required to review any evidence produced under subdivision 3(b). But this reads a lot

into the isolated phrase “in addition to,” especially in light of the above context. More

important is that the words “in addition to” are also consistent with the interpretation that

C/D-11

understands subdivision 3(b) as creating an alternative path to show “competent evidence

of sufficient rehabilitation” for individuals who cannot produce a document identified in

subdivision 3(a). Accordingly, the words “in addition to” do nothing to distinguish the

competing interpretations. Wocelka v. State, 9 N.W.3d 390, 398 (Minn. 2024) (explaining

language that is consistent with each of two competing interpretations cannot be used to

resolve which meaning is reasonable).

The court also suggests that because “sufficient” and “competent” appear

throughout subdivision 3, the public employer has discretion to determine whether the

provided documents indicate sufficient rehabilitation. But again, the court never explains

why those words necessarily apply to the employer, and there is no indication in

subdivision 3(a) that the employer is authorized to make the ultimate sufficiency

decision. That the Legislature uses words that may, in some contexts, convey discretion

does not mean that the public employer has discretion under the sentences that make up

section 364.03, subdivision 3.

Rather than supporting the court’s position, the fact that subdivision 3(b)—unlike

3(a)—explicitly identifies the hiring employer as the entity considering additional

evidence is a strong indication that the Legislature knew how to confer authority when it

wished. Gen. Mills, Inc. v. Comm’r of Revenue, 931 N.W.2d 791, 800 (Minn. 2019)

(“When the Legislature uses limiting or modifying language in one part of a statute, but

omits it in another, we regard that omission as intentional and will not add those same

words … to parts of the statute where they were not used.”). The more obvious

interpretation from the use of “sufficient” and “competent” is that the Legislature made

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its own determination of what evidence constituted “competent evidence of sufficient

rehabilitation” in subdivision 3(a) and removed from the employer’s discretion the ability

to discount those documents once provided.

That the Legislature selected what documents establish rehabilitation is bolstered

by another provision of CORA, which the court contends is inapplicable to the provision

at issue here. In Minnesota Statutes section 364.09, the Legislature exempted specific

occupations and offenses from CORA, including, for example, “juvenile corrections

employment, where the offense involved child physical or sexual abuse or criminal

sexual conduct,” and—more broadly—law enforcement and fire protection agencies.

Minn. Stat. § 364.09(a). In designating what public positions and offenses were not

subject to CORA, the Legislature made its own assessment of what occupations,

positions, criminal offenses, and agencies needed greater insulation; neither McNitt’s past

offense nor the position to which McNitt applied at MNIT is excepted from CORA’s

protection.5 Amicus League of Minnesota Cities argues that other occupations should also

be excluded from CORA’s protection. That may well be. But those are policy arguments

that are more properly directed to the Legislature, where all stakeholders have an

5
The court contends that section 364.03, subdivision 3, falls under “another
exception” to CORA and thus the excepted occupations and offenses in section 364.09 do
not inform the court’s statutory interpretation. But when an applicant with a prior
conviction applies for public employment is when CORA’s policy of encouraging and
facilitating opportunities for employment is arguably most needed. I agree with the
majority that the Legislature already balanced competing policy goals—the result is
section 364.03, subdivision 3, and the language indicating what documentary evidence
constitutes competent evidence of sufficient rehabilitation. Allowing the public employer
to make a second assessment undermines CORA and the goal of promoting employment
for those that have demonstrated sufficient rehabilitation.

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opportunity to participate. In re Est. of Karger, 93 N.W.2d 137, 142 (Minn. 1958) (“What

the law ought to be is for the legislature; what the law is, rests with the courts.”). Our

role, in contrast, is to interpret the law as it is; not as others believe it should be. Id.

* * *

In sum, in Minnesota Statutes section 364.03, subdivision 3(a), the Legislature

directs what documents an applicant for public employment is allowed to provide to

show sufficient rehabilitation and present fitness for the role. If an applicant is unable to

submit the documentation, subdivision 3(b) provides another pathway by which an

applicant can make the same demonstration. Upon submission of the documentary

evidence, subdivision 3(a) goes into effect and a public employer “shall not” further

evaluate whether a candidate is sufficiently rehabilitated. An employer can ensure the

submitted documents are complete and accurate, but after that review CORA provides no

additional discretion for a public employer to deem an applicant insufficiently

rehabilitated for the role.

For the foregoing reasons, I would affirm the court of appeals’ holding that public

employers do not have discretion to determine whether an applicant has sufficient

rehabilitation and present fitness for a position if the applicant has provided the

documents listed under Minnesota Statutes section 364.03, subdivision 3(a).

THISSEN, Justice (concurring in part, dissenting in part).

I join in the opinion of Chief Justice Hudson concurring in part and dissenting in

part.

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CONCURRENCE & DISSENT

THISSEN, Justice (concurring in part, dissenting in part).

I agree with and join Chief Justice Hudson’s concurrence and dissent. I understand

that some may consider it distasteful or poor public policy to allow respondent/cross-

appellant Jeremy McNitt, or any person who was once convicted of possessing child

pornography, to ever work as a state employee. But it is not our job in this case to make

such judgments. We are interpreting a statute. Our job is to apply the statute as written

and enacted by the Legislature.

I write for two reasons. First, in addition to Chief Justice Hudson’s cogent

interpretive arguments on why McNitt’s presentation of his more-than-a-year-old release

order and evidence of a clean probation record since his release established competent

evidence of sufficient rehabilitation, it is worth noting that the court’s emphasis on the

“obvious” meaning of “if” in the phrase “a person … shall not be disqualified … if [the

applicant] can show competent evidence of sufficient rehabilitation and present fitness to

perform the duties of the public employment sought,” Minn. Stat. § 364.03, subd. 3(a)

(emphasis added), is beside the point. The court asserts that the word “if” makes the first

part of the sentence (“shall not be disqualified”) conditional upon the latter part of the

sentence (showing “competent evidence of sufficient rehabilitation and present fitness to

perform the duties of the public employment sought”). True as far as it goes. But the

court ignores that the text goes on to define how one of the conditions—showing

competent evidence of sufficient rehabilitation—may be fulfilled: by producing certain

statutorily identified documents, including “a copy of the local, state, or federal release

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order” and “evidence showing that at least one year has elapsed since release from any

local, state, or federal correctional institution without subsequent conviction of a crime;

and evidence showing compliance with all terms and conditions of probation or parole.”

Minn. Stat. § 364.03, subd. 3(a)(1)–(2). In other words, the fact that “if” makes the “shall

not be disqualified” conditional on “competent evidence of sufficient rehabilitation” tells

us nothing meaningful to resolve this case, which turns on the central question of whether

McNitt satisfied the condition. Even if the court is correct about how the rest of the

sentence operates, its focus on “if” is merely a nice decoration for the result the opinion

reaches.

That, of course, leaves open the question of how to address the other condition:

present fitness to perform the duties of the public employment sought. My second reason

for writing is that under the plain language of the statute, producing the documents set

forth in section 364.03, subdivision 3(a), does not definitively show a person’s present

fitness. I would remand the case to the administrative law judge (ALJ) to consider

whether McNitt is presently fit to perform the duties of the public employment sought

under Minnesota Statutes section 364.03, subdivision 3(a).

Under section 364.03, a state agency generally cannot refuse to hire a person

because the applicant has a prior criminal conviction. Minn. Stat. § 364.03, subd. 1. The

statute, however, creates an exception to the general rule. When the crime of conviction

“directly relate[s] to the position of employment,” the agency may refuse to hire the

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person because of the conviction. Id. In assessing whether the crime is “directly relate[d]

to the position of employment sought,” the agency must consider:

(1) the nature and seriousness of the crime or crimes for which the individual
was convicted;

(2) the relationship of the crime or crimes to the purposes of regulating the
position of public employment sought or the occupation for which the license
is sought;

(3) the relationship of the crime or crimes to the ability, capacity, and fitness
required to perform the duties and discharge the responsibilities of the
position of employment or occupation.

Minn. Stat. § 364.03, subd. 2.

Even if, however, the crime is directly related to the position sought based on the

criteria set forth in section 364.03, subdivision 2, the agency may not disqualify a person

from employment based on a prior criminal conviction “if the person can show

competent evidence of sufficient rehabilitation and present fitness to perform the duties

of the public employment sought or the occupation for which the license is sought.”

Minn. Stat. § 364.03, subd. 3(a) (emphasis added) (stating that the person “shall not be

disqualified” even if the crime relates to the position of employment if those conditions

are met).

As explained in Chief Justice Hudson’s well-reasoned concurrence and dissent,

McNitt “show[ed] competent evidence of sufficient rehabilitation” when he produced “a

copy of the local, state, or federal release order” and “evidence showing that at least one

year has elapsed since release from any local, state, or federal correctional institution

without subsequent conviction of a crime; and evidence showing compliance with all

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terms and conditions of probation or parole.” Minn. Stat. § 364.03, subd. 3(a) (identifying

several documents by which an applicant may establish sufficient rehabilitation). The

plain language of section 364.03, subdivision 3(a), tells us that producing the release

order shows that McNitt is sufficiently rehabilitated. But according to that same text,

producing a release order in conjunction with other listed requirements does not

definitively show that McNitt is presently fit to perform the duties of the public

employment he seeks. Minn. Stat. § 364.03, subd. 3(a).

The words “present fitness” are nowhere used in the second sentence of

subdivision 3(a). Instead, section 364.03, subdivision 3(b), provides the standard to

analyze whether an applicant meets the present fitness condition. This statute’s language

does not support McNitt’s argument on appeal that “competent evidence of sufficient

rehabilitation and present fitness to perform the duties of the public employment sought”

are a single inquiry—at least insofar as the production of one of the three documents in

subdivision 3(a) establishes without further inquiry that the applicant is sufficiently

rehabilitated.

This plain language reading of subdivision 3(b) also undermines another

supporting pillar of the court’s opinion—its heavy reliance on subdivision 3(b).

Subdivision 3(b) is best understood as an alternate pathway for a person to establish

sufficient rehabilitation, as Chief Justice Hudson forcefully points out. It also is the only

pathway for proving present fitness. Indeed, unlike the second sentence of

subdivision 3(a), which refers only to “competent evidence of sufficient rehabilitation,”

subdivision 3(b) expressly refers to “all other competent evidence of rehabilitation and

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present fitness.” Minn. Stat. § 364.03, subd. 3(b)(5) (emphasis added). I leave for another

case the precise contours of the present fitness requirement in subdivision 3.

My review of the record, including the decisions of the ALJ and the MNIT

Commissioner, suggests that neither the ALJ nor McNitt nor the Commissioner made a

distinction between the analysis to assess sufficient rehabilitation and the analysis to

assess present fitness. Moreover, the additional facts the MNIT Commissioner used to

support rejecting the ALJ’s recommendation seem more relevant to the question of

McNitt’s sufficient rehabilitation and less (if at all) relevant to his present fitness to

perform the duties of the job for which he applied. Accordingly, I conclude that we

should remand to the ALJ to specifically address whether McNitt is presently fit to

perform the duties of the public employment he seeks.

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