Jeremy McNitt, Relator v. Minnesota IT Services (MNIT)
Opinion text
STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1948
Jeremy McNitt,
Relator,
vs.
Minnesota IT Services (MNIT),
Respondent.
Filed October 28, 2024
Reversed and remanded
Slieter, Judge
Minnesota Department of Information Technology Services
Cassandra C. Wolfgram, Matthew J. Schaap, Dougherty, Molenda, Solfest, Hills & Bauer
P.A., Apple Valley, Minnesota (for relator)
Keith Ellison, Attorney General, Peter J. Farrell, Deputy Solicitor General, Amanda
Prutzman, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Slieter, Presiding Judge; Wheelock, Judge; and Kirk,
Judge. ∗
SYLLABUS
1. When an administrative-law judge recommends granting summary
disposition in a contested case, the administrative-law judge’s report and recommendation
does not constitute the final decision of the agency under Minn. Stat. § 14.62 (2022) if the
agency timely orders a remand and expressly accepts, modifies, or rejects each of the
administrative-law judge’s findings, conclusions, and recommendations in the same order.
∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2. When an applicant for public employment who has a prior conviction directly
relating to the position for which they have applied provides “competent evidence of
sufficient rehabilitation and present fitness,” as identified in Minn. Stat. § 364.03,
subd. 3(a) (2022), the hiring authority does not have discretion to disqualify the applicant
from employment in the position sought based on the conviction.
OPINION
SLIETER, Judge
In this certiorari appeal, relator Jeremy McNitt challenges respondent Minnesota IT
Services’ (MNIT) order that disqualified McNitt from employment based on a criminal
conviction. McNitt asserts that the administrative-law judge’s (ALJ) report and
recommendation to rescind the disqualification determination became the final decision
because, prior to issuing its final order, the commissioner ordered a remand to the ALJ for
a contested-case hearing. Alternatively, McNitt asserts that MNIT legally erred when it
issued its final order by determining that he is disqualified from public employment
because he is not sufficiently rehabilitated pursuant to Minn. Stat. § 364.03, subd. 3(a). We
reject McNitt’s argument that the ALJ’s report and recommendation became the final
decision. But because MNIT misapplied Minn. Stat. § 364.03, subd. 3(a), when it issued
the final order, we reverse and remand.
2
FACTS
The following facts are not in dispute. In late 2021, MNIT posted a web-developer
job opening with the Minnesota Department of Education. 1 McNitt applied for the job in
January 2022, and MNIT subsequently offered him the position subject to a background
check. McNitt’s background check revealed a 2017 conviction for possessing child
pornography in 2011. Before determining whether this prior conviction disqualified
McNitt from the position, MNIT was required by Minnesota Statutes section 364.03 (2022)
to first determine whether the conviction was directly related to the position McNitt sought.
MNIT determined that McNitt’s prior conviction directly related to the position sought and
asked McNitt for evidence of rehabilitation and present fitness for employment. Later that
month, McNitt provided documentation that he had completed the terms of his sentence,
been discharged from probation, and remained law abiding. In March 2022, MNIT issued
a notice of disqualification, informing McNitt that he had not shown that he had been
sufficiently rehabilitated to preclude the disqualification.
McNitt administratively appealed MNIT’s disqualification determination pursuant
to the Minnesota Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001-.69
(2022), and the parties filed cross-motions for summary disposition. An ALJ conducted a
hearing on the motions. On February 10, 2023, the ALJ issued a report and
recommendation determining that McNitt’s conviction of possessing child pornography
directly related to the position for which he applied and, therefore, disqualified him from
1
MNIT is responsible for hiring information-technology employees for certain state
agencies, including the Minnesota Department of Education.
3
employment unless he provided competent evidence of sufficient rehabilitation and present
fitness. The ALJ found that McNitt had provided sufficient evidence of rehabilitation and
recommended that MNIT (1) determine that McNitt made the required statutory showing
of rehabilitation, (2) remove any record disqualifying McNitt from employment, and
(3) provide McNitt with a position of identical responsibility and pay to the position that
he had been contingently offered.
On June 21, 2023, the commissioner of MNIT issued findings of fact, conclusions
of law, and an order that rejected the ALJ’s recommendation to grant McNitt’s motion for
summary disposition. The commissioner, therefore, remanded for an evidentiary hearing. 2
The commissioner adopted some of the ALJ’s fact findings and modified others and
rejected the ALJ’s determination that there were no genuine issues of material fact. The
commissioner remanded to the ALJ for a contested-case hearing as to whether McNitt
proved that “MNIT abused its discretion when it disqualified him from employment” and
determined that he was disqualified from public employment for ten years.
At the end of October, following the release of In re Surveillance & Integrity Review
(SIRS), 996 N.W.2d 178, 187 (Minn. 2023) by the Minnesota Supreme Court, the ALJ
determined that he no longer had jurisdiction to conduct a contested-case hearing on
remand, and returned the file to MNIT. In November, the commissioner issued MNIT’s
final order affirming its earlier determination, that McNitt “failed to establish sufficient
2
We refer to the commissioner when discussing the agency’s order disqualifying McNitt
from employment. We refer to MNIT when discussing the events prior to McNitt’s
administrative appeal and the agency’s arguments on appeal before this court.
4
rehabilitation and present fitness to perform the duties he seeks to perform at the
[d]epartment of [e]ducation,” and its decision to disqualify McNitt from public
employment based upon his prior conviction. The order also prohibits McNitt from
reapplying for public employment until January 2027. 3 The commissioner, therefore,
dismissed McNitt’s administrative appeal.
McNitt appeals by writ of certiorari.
ISSUES
I. Did the ALJ’s report and recommendation become the final decision?
II. When an applicant makes the showing required by Minnesota Statutes
section 364.03, subdivision 3(a), does a public employer have discretion to determine
whether an applicant has demonstrated rehabilitation?
ANALYSIS
“Decisions by administrative agencies enjoy a presumption of correctness,” and the
party challenging an agency decision “has the burden of proof when appealing an agency
decision.” In re Excelsior Energy, Inc., 782 N.W.2d 282, 289 (Minn. App. 2010); see also
City of Moorhead v. Minn. Pub. Utils. Comm’n, 343 N.W.2d 843, 849 (Minn. 1984). On
appeal
th[is] court may affirm the decision of the agency or remand
the case for further proceedings; or it may reverse or modify
the decision if the substantial rights of the petitioners may have
3
The commissioner cited no authority for such a blanket prohibition, and we have found
none. Minn. Stat. § 364.01-.10 (2022). Instead, an applicant with a prior conviction may
be disqualified from a particular position only once the public employer determines the
crime of conviction is directly related to the job sought.
5
been prejudiced because the administrative finding, inferences,
conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the
entire record as submitted; or
(f) arbitrary or capricious.
Minn. Stat. § 14.69. McNitt makes two alternative arguments on appeal. First, he claims
that, under the supreme court’s decision in SIRS and Minnesota Statutes section 14.62, the
ALJ’s report and recommendation became the final decision because the commissioner’s
June order involved a remand to the ALJ. Second, McNitt argues that the commissioner
erred by determining that he failed to prove that he had been sufficiently rehabilitated
despite his submission of the documents identified in Minnesota Statutes section 364.03,
subdivision 3(a). We address each argument in turn.
I. The ALJ’s report and recommendation did not become the final decision.
McNitt argues that the ALJ’s recommendation is the final decision in this case
because MNIT’s remand of the matter to the ALJ was not a proper rejection of the ALJ’s
recommendation. We are not persuaded.
Minnesota Statutes section 14.62, subdivision 2(a), provides that “the report or order
of the administrative law judge constitutes the final decision in the case unless the agency
modifies or rejects it . . . within 90 days after the record of the proceeding closes.” Thus,
the agency has “three options after receiving the ALJ’s report with recommendation: to
6
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.” SIRS, 996 N.W.2d at 187.
As we explained, each party argued for summary disposition before the ALJ. It is
well established under Minnesota administrative law and practice that “summary
disposition is the administrative equivalent of summary judgment.” Pietsch v. Minn. Bd.
of Chiropractic Exam’rs, 683 N.W.2d 303, 306 (Minn. 2004). An ALJ is tasked with
making a recommendation on a motion for summary disposition. Minn. R. 1400.5500
(2023).
Here, the agency, via the commissioner’s first order, rejected the ALJ’s
recommendation for summary disposition and remanded for further proceedings, much as
an appellate court would do if it reversed a grant of summary judgment and remanded to
the district court for further proceedings. In arguing that the ALJ’s recommendation
following summary disposition became the final decision in this matter, McNitt relies on
SIRS.
In SIRS, the Minnesota Supreme Court addressed whether the Minnesota
Department of Human Services (DHS) exceeded its authority under section 14.62 by
remanding a case to an ALJ. 996 N.W.2d at 180. In 2019, DHS terminated a provider of
nursing services, personal-care-assistant services, and homemaking services for
noncompliance with program requirements. Id. at 181. The contested case proceeded to a
three-day evidentiary hearing before an ALJ pursuant to MAPA. Id. at 182. The ALJ
issued a report and recommendation, determining that termination from the program was
an inappropriate sanction. Id. On the deadline to accept, reject, or modify the ALJ’s
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recommendation, DHS remanded the matter to the ALJ to reweigh and reconsider
evidence. Id. at 183-84. DHS did not modify or reject the ALJ’s recommendation in its
order remanding the matter to the ALJ. Id. The provider appealed, claiming that the ALJ’s
report and recommendation became the final decision when DHS issued a remand, which
is not authorized by statute. The supreme court agreed, holding that “[t]he Department of
Human Services does not have the authority to remand a case to an administrative law
judge under Minn. Stat. § 14.62 (2022), or under any other source of implied authority,
after the administrative law judge issues a final recommendation.” Id. at 179.
MNIT claims that this matter is distinguishable from SIRS. We agree.
In SIRS, the commissioner remanded the matter back to the ALJ for reconsideration
following a contested-case hearing. Id. at 183-84. Here, the matter proceeded based upon
the parties’ motions for summary disposition. See Pietsch, 683 N.W.2d at 306 (equating
summary disposition to summary judgment and noting that review is limited to determining
whether there are genuine issues of material fact and whether there was an error in applying
the law). Furthermore, the June order addresses all the ALJ’s findings and conclusions by
either accepting, modifying, or rejecting each of the findings. The order also accepts or
rejects each of the ALJ’s conclusions of law. Critically, the June order adopts the ALJ’s
recommendation to deny MNIT’s summary-disposition motion, and it rejects the ALJ’s
recommendation to grant McNitt’s summary-disposition motion.
The commissioner also produced a six-page memorandum, which is attached to its
June order, explaining that MNIT rejected the ALJ’s recommendation to grant McNitt
summary disposition based upon MNIT’s determination that it retains sole discretion to
8
determine whether an applicant has been rehabilitated. See Minn. Stat. § 14.62, subd. 1
(“A decision or order that rejects or modifies a finding of fact, conclusion, or
recommendation . . . must include the reasons for each rejection or modification.”);
Bloomquist v. Comm’r of Nat. Res., 704 N.W.2d 184, 190 (Minn. App. 2005) (concluding
that a five-page memorandum explaining the reasons for deviating from an ALJ’s
recommendation satisfied the justification requirement of Minn. Stat. § 14.62, subd. 1).
The remand orders at issue in SIRS and this matter also differ. In SIRS, the
commissioner remanded to the ALJ to reconsider and reweigh evidence following a
three-day evidentiary hearing. 996 N.W.2d at 183. Here, the commissioner determined
that there are contested-fact issues such that summary disposition was not appropriate and,
therefore, remanded the matter for an evidentiary hearing.
The record closed on March 31, 2023. The commissioner issued its decision
rejecting the ALJ’s recommendation on June 21, within the 90-day timeframe. Thus,
unlike in SIRS, the commissioner here timely modified and rejected the ALJ’s report and
recommendation in its order remanding the matter to the ALJ.
In summary, when an administrative-law judge recommends granting summary
disposition in a contested case, an ALJ’s report and recommendation does not constitute
the final decision of the agency under section 14.62 if the agency timely accepts, modifies,
or rejects each of the ALJ’s findings, conclusions, and recommendations and orders a
remand in the same order.
9
We, therefore, reject McNitt’s argument that the ALJ’s recommendation is the final
decision, and we next review the November 2023 order—MNIT’s final order. 4
II. When an applicant makes the showing required by Minnesota Statutes section
364.03, subdivision 3(a), public employers may not disqualify the applicant
from the public employment sought.
The Minnesota criminal offender rehabilitation act (CORA), Minn. Stat.
§§ 364.01-.10, provides 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. Recognizing that “[t]he
opportunity to secure employment . . . is essential to rehabilitation and the resumption of
the responsibilities of citizenship,” CORA sets forth standards and procedures to be
followed when criminal offenders seek public employment. Id.
An applicant may be disqualified from public employment if they have a prior
“convict[ion] directly relate[d] to the position of employment sought.” 5 Minn. Stat.
§ 364.03, subd. 1. However, “[a] person who has been convicted of a crime or crimes
which directly relate to the public employment 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.” Id., subd. 3(a).
4
We need not reach the issue of whether the ALJ appropriately returned the file to MNIT
following the SIRS decision because MNIT subsequently issued its final decision.
5
Although McNitt states that he disagrees with the determination that his criminal
conviction directly relates to the position he sought, he does not challenge that
determination on appeal.
10
It is important to note at the outset the phrase “sufficient rehabilitation and present
fitness to perform the duties.” Id. (emphasis added). This phrase could be reasonably read
in two ways. It could be read to require the person seeking public employment to
demonstrate separately the presence of each—“sufficient rehabilitation” and “present
fitness”—such that, even if an applicant satisfied the first requirement, the public employer
would retain discretion to determine whether the applicant is presently fit for the duties of
the job. Alternatively, it could be read, relying on the conjunctive phrase “and,” to be a
single requirement to present evidence that shows that the applicant has demonstrated
“sufficient rehabilitation” which necessarily also means the applicant has shown “present
fitness to perform the duties.”
There is support for the second interpretation in other phrases used within
subdivision 3. In the sentence following the quoted language above, the statute reads that
competent “evidence of sufficient rehabilitation may be established by . . . .” No reference
here is made to “present fitness.” And, subdivision 3(c) contains a statement about when
a department of defense form ceases to be evidence of “sufficient rehabilitation,” again
without referencing “present fitness.”
But we need not resolve whether present fitness is an independent requirement of
CORA because both parties, in their arguments to this court, implicitly adopted the second
interpretation. Importantly, MNIT’s main argument is that “[s]ubdivisions 3(a) and (b) set
forth items for the public employer to consider in determining whether an applicant has
shown sufficient rehabilitation . . . .” MNIT does not argue that the “present fitness”
language imposes a requirement separate from the “rehabilitation requirement.” Nor does
11
it argue that McNitt is not presently fit for the position to which he applied. We therefore
assume without deciding that the statute imposes a single requirement, of sufficient
rehabilitation, and we turn to addressing the scope of that requirement.
CORA identifies how an applicant shows that they have been “sufficient[ly]
rehabilitat[ed].” Minn. Stat. § 364.03, subd. 3(a).
(a) . . . Competent evidence of sufficient rehabilitation may be
established by the production of . . .
(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.
(b) In addition to the documentary evidence presented, the
licensing or hiring authority shall consider any evidence
presented by the applicant regarding:
(1) the nature and seriousness of the crime or crimes for
which convicted;
(2) all circumstances relative to the crime or crimes,
including mitigating circumstances or social conditions
surrounding the commission of the crime or crimes;
(3) the age of the person at the time the crime or crimes
were committed;
(4) the length of time elapsed since the crime or crimes
were committed; and
(5) 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.
(c) The certified copy of a person’s United States Department
of Defense form DD-214 showing the person’s honorable
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discharge or separation under honorable conditions from the
United States armed forces ceases to qualify as competent
evidence of sufficient rehabilitation for purposes of this section
upon the person’s conviction for any gross misdemeanor or
felony committed by the person subsequent to the effective
date of that honorable discharge or separation from military
service.
Id., subd. 3(a)-(c).
Statutory interpretation is a question of law that appellate courts review de novo. In
re NorthMet Project Permit to Mine Application, 959 N.W.2d 731, 744 (Minn. 2021).
When interpreting statutes, we seek “to ascertain and effectuate the intention of the
legislature.” A.A.A. v. Minn. Dep’t of Hum. Servs., 832 N.W.2d 816, 819 (Minn. 2013).
We begin by determining whether the language is clear and unambiguous. Id. If the statute
is clear and unambiguous, we apply the statute’s plain meaning. If the statute is ambiguous
and susceptible to more than one interpretation, we may look beyond the language to
determine the legislative intent. Id. We refer to the “plain and ordinary meaning” of words
and phrases in statute. Emerson v. Sch. Bd. of Indep. Sch. Dist. 199, 809 N.W.2d 679, 682
(Minn. 2012). But “we are not bound by dictionary definitions when context directs us
otherwise.” State v. Gibson, 945 N.W.2d 855, 858 (Minn. 2020). And we consider the
“statute as a whole so as to harmonize and give effect to all its parts.” In re Restorff, 932
N.W.2d 12, 19 (Minn. 2019).
McNitt challenges MNIT’s interpretation of CORA. He maintains that the statute
is unambiguous and argues that, when an applicant makes the statutory showing in
subdivision 3(a), public employers do not have discretion to determine whether a criminal
offender has been rehabilitated such that they qualify for public employment. MNIT
13
argues that the statute “unambiguously” grants discretion to the public employer to
consider an applicant as disqualified even after the applicant has submitted the documents
identified by CORA. We agree with the parties that the statute is unambiguous.
Applicants with prior convictions “shall not” be disqualified from public
employment if they can show that they have been rehabilitated. Minn. Stat. § 364.03,
subd. 3(a). “Shall not” means that the prohibition against disqualifying applicants from
public employment once the applicant has shown competent evidence of sufficient
rehabilitation is mandatory, not permissive. See Minn. Stat. § 645.44, subd. 16 (2022)
(“‘Shall’ is mandatory.”). Thus, when an applicant for public employment makes the
required showing, the public hiring authority cannot disqualify an applicant from
employment because of the prior conviction.
CORA states that a criminal offender “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) (emphasis added). “Competent evidence of sufficient
rehabilitation may be established by” providing certain military documents, 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.
14
Id., subd. 3(a)(1)-(3). The applicant may show sufficient rehabilitation by providing a set
of the documents identified in subdivision 3(a)(1)-(2) or by a discharge order as provided
by subdivision 3(a)(3). We agree with MNIT that the hiring authority must ensure that the
required materials are actually provided and credible. 6 But 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.
MNIT argues that CORA unambiguously grants it discretion to determine whether
an applicant with a prior conviction has been rehabilitated such that they are not
disqualified from employment even once they have provided the documents identified in
subdivision 3(a). Our plain reading of the statute, as we have already explained, instructs
us otherwise.
There is no language in subdivision 3(a) that confers upon the public employer
discretion to determine that an applicant, who has presented the documents of rehabilitation
listed in subdivision 3(a), is not rehabilitated. MNIT’s interpretation of the statute would
require us to add words, which we cannot do. See Christiansen v. Bd. of Regents, 733
N.W.2d 156, 159 (Minn. App. 2007) (noting that “this court cannot add to a statute what
the legislature has either purposefully omitted or inadvertently overlooked”), rev. denied
(Minn. Aug. 21, 2007).
6
We note that the documents outlined in subdivision 3(a) are government-issued
documents which demonstrate that an offender has completed the terms of their criminal
sentence.
15
And to the extent that discretion is authorized, it pertains only to subdivision 3(b).
First, it provides that “[i]n addition to the documentary evidence presented, the . . . hiring
authority shall consider” additional information identified in the statute if provided by the
applicant. However, as we have explained, when an applicant provides the subdivision
3(a) documents, he has established sufficient rehabilitation. If an applicant cannot provide
the documentation identified in subdivision 3(a), they may provide the documents
identified in subdivision 3(b) and the agency can determine whether the applicant has
demonstrated sufficient rehabilitation. Here, McNitt provided the documents identified in
subdivision 3(a), demonstrating sufficient rehabilitation. And although he also provided
documents identified in subdivision 3(b), the additional documents were unnecessary
because he had already established sufficient rehabilitation by providing the subdivision
3(a) documents.
Additionally, the legislature knew the words to use when it wished to grant such
authority based upon the language it used in Minnesota Statutes section 364.03,
subdivision 2. Subdivision 2 states that public employers “shall consider” several factors
in determining whether a conviction directly relates to the position sought. This language
clearly grants the hiring authority discretion to weigh the factors and decide whether the
prior conviction is directly related to the position sought. Subdivision 3(a) does not include
this or similar language. And we assume, as we must, that the omission of similar language
from subdivision 3(a) was intentional. Id.; see also Wallace v. Comm’n of Tax’n, 184
N.W.2d 588, 594 (Minn. 1971) (noting that the legislature grants discretion, but
commissioners do not have “authority to determine what the law shall be or to supply a
16
substantive provision of the law which he thinks the legislature should have included in the
first place”).
Still, MNIT identifies specific terms used in the statute that, it purports,
“unambiguously” demonstrate that the legislature provided public employers with
discretion to determine whether an applicant has shown rehabilitation. We are not
persuaded.
MNIT claims that the use of the phrase “sufficient rehabilitation . . . to perform the
duties of the public employment sought” necessarily means that the employer has
discretion to determine, even after the documents listed in subdivision 3(a) have been
provided, whether “sufficient” rehabilitation has occurred. However, as we have
explained, subdivision 3(a) tells public employers what evidence shows that an applicant
has been sufficiently rehabilitated, which is the evidence McNitt provided here. Once that
evidence has been provided, CORA provides no further discretion to the employer to
determine the applicant is not qualified.
Finally, MNIT suggests that “[c]ommon sense dictates that each person’s conviction
will be different” and that these “myriad of facts . . . indicate that a public employer must
have discretion to determine sufficient rehabilitation.” First, as we have already explained,
the legislature specifically provided in subdivision 3(a) the items that an applicant must
submit to show rehabilitation. Additionally, certain occupations and criminal offenses are
excepted from CORA. See Minn. Stat. § 364.09 (excepting, for example, “juvenile
corrections employment, where the offense involved child physical or sexual abuse or
criminal sexual conduct”). In other words, applicants for such positions or with the
17
excepted criminal convictions, are not afforded the benefits of CORA.
Information-technology positions, like the web-developer position McNitt sought, are not
among the excepted occupations. Id. And possession of child pornography is not identified
as a disqualifying offense regardless of rehabilitation. Id.; see also Martinco v. Hastings,
122 N.W.2d 631, 638 (Minn. 1963) (“If there is to be a change in the statute, it must come
from the legislature, for the courts cannot supply that which the legislature purposefully
omits or inadvertently overlooks.”). Allowing public employers to determine whether an
applicant has been rehabilitated after the applicant made the statutory showing is contrary
to the unambiguous language and policy of CORA.
Because there was no evidentiary hearing before the ALJ, it is not clear what
additional issues remain unaddressed as part of McNitt’s administrative appeal. We are
aware that the ALJ did not address McNitt’s claim for damages and attorney fees. Further,
though our decision means that McNitt is no longer disqualified from public employment
due to his conviction, we are not aware of whether the job he was contingently offered, or
a similar job, is currently available. Therefore, a remand for further proceedings is
appropriate.
DECISION
When an applicant for public employment with a prior conviction directly relating
to the position for which they have applied provides “competent evidence of rehabilitation
and present fitness,” as identified in Minnesota Statutes section 364.03, subdivision 3(a),
the hiring authority does not have discretion to disqualify the applicant from the position
sought based on the conviction. Because it is undisputed that McNitt provided the
18
documents outlined under subdivision 3(a), we reverse the November order dismissing
McNitt’s claim and remand for further proceedings.
Reversed and remanded.
19