OAH 16-1100-20483-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF CORRECTIONS
|
In the Matter of Brandon
Cloud |
FINDINGS OF FACT, CONCLUSIONS AND ORDER |
This matter came before Administrative
Law Judge Manuel J. Cervantes (ALJ) on June 10, 2009, at 9:30 a.m. for a
contested case hearing held by telephone pursuant to a Notice of and Order for
Hearing issued on April 22, 2009. Krista
Guinn Fink, Associate Legal Counsel, 1450 Energy Park Drive, Suite 200, St.
Paul, Minnesota 55108, appeared by telephone on behalf of the Department of
Corrections (Department). Brandon Cloud (Respondent)
did not appear in person or by telephone.
STATEMENT OF ISSUE
Is the Department authorized to collect a
supervision fee of $300.00 from Respondent pursuant to Minn. Stat. § 241.272
through the Minnesota Revenue Recapture System?
Based on the evidence in the record, the
ALJ makes the following:
FINDINGS OF FACT
1.
On April
22, 2009, the Notice of and Order for Hearing in this matter was served by
first class mail upon Brandon Cloud while in custody, c/o Minnesota Correctional Facility-Rush City, 7600 525
Street, Rush City , MN 55069, at his last known address on file with the
Department of Corrections.[1] It notified the Respondent of the hearing scheduled
for June 10, 2009. The mailing was not
returned to the Department as undeliverable.
2.
On June 10, 2009, the
Respondent failed to appear at the Hearing or to notify the Administrative Law
Judge that he was unable to appear nor
did he request a continuance. Respondent
has not provided a forwarding address or phone number to the ALJ or to the
Department’s Legal Counsel as requested.[2]
3.
The Notice of and
Order Hearing informed Respondent that if he failed to appear at the hearing
without the prior consent of the judge, he would be deemed in default, the
allegations against him would be deemed proved, and the Respondent would be
required to pay the correctional fees imposed upon him pursuant to Minn. Stat.
§ 241.272.
4.
The Department
moved the ALJ to grant the relief requested by default.
Because the Respondent failed to appear, he is in default.
5.
Pursuant to Minn. R.
1400.6000,[3]
the allegations contained in the Notice of and Order for Hearing are taken as
true and incorporated into these Findings of Fact.
6.
On March 8,
2008, Respondent was sentenced for the conviction of a felony level offense, Assault
in the Fifth Degree.[4] On January 6, 2009, Respondent was placed on probation.[5] On February 5, 2009, Respondent’s probation
was revoked.[6]
7.
The Department
imposes an annual supervision fee upon all offenders under the supervision of a
correctional agent.[7] A supervision fee in the amount of $300.00
was imposed upon Respondent. Respondent
has not paid the fee.
8.
On March 2,
2009, the Department notified Respondent of its intent to collect the
supervision fee through the Minnesota Revenue Recapture Program and of his
right to request a hearing.[8] On March 22, 2009, Respondent requested a
contested case hearing.[9] Respondent’s letter indicated that he had
documentation that the fee had been waived.[10]
9.
Between the time
of receipt of the Notice of and Order for Hearing and the hearing date of June
10, 2009, Respondent was released from correctional custody.[11]
Based
upon the foregoing Findings of Fact, the ALJ makes the following:
CONCLUSIONS
1.
The ALJ has
jurisdiction in this matter pursuant to Minn. Stat. §§ 241.272, 270A.08, and
270A.09.
2.
The Department
has given proper notice of the hearing in this matter and has fulfilled all relevant
procedural requirements of law and rule.
3.
The Department
has authority to impose a correctional fee, as set forth in Minn. Stat. § 241.272. The Respondent received services for which a
fee may be imposed.
4.
Minn. R.
1400.8560, states, in relevant part, that
A default
occurs when a party fails to appear without the prior consent of the judge at a
prehearing conference, settlement conference, or a hearing. If the agency appears at a hearing but the
party against whom the agency intends to take action does not, the allegations
in the notice of hearing shall be taken as true and deemed proved without
further evidence.
5.
The Notice of and
Order for Hearing contains similar language.
It states,
The
Respondent’s failure to appear at the hearing or any prehearing conference may
result in a finding that the Respondent is in default, that the Department of Corrections
allegations contained in this Notice and Order may be accepted as true, and its
proposed action may be upheld.[12]
6.
By failing to
appear, the Respondent is in default.
7.
The $300.00 fee
is a “correctional fee” within the meaning of Minn. Stat. § 241.272. Under Minn. Stat. § 241.272, subd. 3(a), the Department
may impose and collect fees from individuals on probation at any time while the
offender is under sentence or after the sentence has been discharged. Under subdivision 3(b) of that statute, the Department
may use any available civil means of debt collection to collect a correctional
fee.
8.
DOC Policy
201.013 (effective 7/1/08) was applicable on January 6, 2009 when Respondent
was placed on probation. The Department
properly imposed a $300 supervision fee upon Respondent.[13]
9.
The Minnesota
Revenue Recapture Act authorizes State agencies, including the Department of
Corrections, to collect debts owed to it by filing a claim with the Minnesota Department
of Revenue. The Department of Revenue
may collect amounts due to the Department of Corrections by setting off the
amount of such debt from refunds due to debtors. Refunds include individual income tax
refunds, political contribution refunds, property tax credits or refunds, and
lottery prizes of $600 or more.
10.
The Department
of Revenue may collect the supervision fee of $300.00 from Respondent through
the revenue recapture provisions of Minn. Stat. ch. 270A.
Based on the foregoing Conclusions, the ALJ
makes the following:
ORDER
IT
IS ORDERED: that the Department of
Corrections may collect $300.00 due from Respondent through the setoff
collection under Minn. Stat. § 270A.07.
Pursuant to
Dated: June 15, 2009
s/Manuel
J. Cervantes
|
MANUEL J. CERVANTES Administrative Law Judge |
Pursuant to Minn. Stat. § 270A.09, subd. 3, this
Order constitutes a final decision. Any
person aggrieved by this decision may seek judicial review pursuant to Minn.
Stat. §§ 14.63 to 14.69.
MEMORANDUM
Respondent was given due notice of the hearing of
June 10, 2009. He did not appear or make
other arrangements with the ALJ and, therefore, the Department is entitled to the
relief requested by default.
M. J. C.
[1] Certificate of Service, dated April 22, 2009.
[2] Letter of Krista Fink, Associate Legal Counsel,
dated April 22, 2009.
[3] Minnesota Rules are cited to the 2007 edition.
[4] Recording of hearing, no transcript has been
prepared. (Tr.).
[5] Department Letter to Respondent, dated March 2,
2009.
[6]
[7]
[8]
[9] Letter of Brandon Cloud, dated March 22, 2009.
[10]
[11] Tr., the record is silent as to the exact date Respondent
was released.
[12] Notice and Order for Hearing, p. 2, para. 1.
[13] DOC Policy 201.013 (effective 7/1/08).