OAH 3-1100-20514-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF CORRECTIONS

In the Matter of Christopher Jennings

FINDINGS OF FACT,

CONCLUSIONS, AND

ORDER

This matter was heard by telephone conference call before Administrative Law Judge (ALJ) Kathleen D. Sheehy on June 24, 2008. The OAH record closed at the conclusion of the hearing on that date.

Krista Guinn Fink, Associate Legal Counsel, Minnesota Department of Corrections, and Community Correction Officer Kate Frykman appeared on behalf of the Department of Corrections (DOC). Christopher Jennings, Offender Identification No. 225898, Minnesota Correctional Facility-Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014, appeared for himself without counsel.

STATEMENT OF THE ISSUE

May the Department collect a supervision fee of $300 from Christopher Jennings through the Minnesota Revenue Recapture Program?

Based on the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On March 28, 2008, Christopher Jennings was ordered to serve a 58-month sentence for first-degree possession of a controlled substance (crack cocaine). He applied for and was accepted into the Challenge Incarceration Program (CIP) for early release to supervision.[1] The CIP is a phased program of intensively supervised release, starting out with strict house arrest and moving through phases allowing increasing amounts of free time per week.[2]

2. On January 6, 2009, Jennings was released to community supervision through the CIP. He met with Kate Frykman, his corrections agent, that day. The corrections agent notified him that a supervision fee of $300 was imposed at that time. She provided Jennings with documentation regarding the fee.[3] The documentation advises that:

All offenders are required to pay $300 in supervision fees (per felony case). The payment will be made out to the Minnesota Department of Corrections in a money order or cashier’s check. You will be required to be current on the supervision fee payments prior to being advanced to another level/phase of the [CIP] program.[4]

3. The DOC has a policy with respect to waiver of supervision fees. The policy sets the amount of the fee ($300 per felony court file, and lesser amounts for other offenses).[5] It further provides that when an offender fails to pay the fee in full within one year and the offender has not received a waiver, corrections staff are to submit the unpaid balance for revenue recapture to the Minnesota Department of Revenue. In the event an offender’s probation is revoked and sentence is executed, unpaid supervision fees are to be submitted immediately for revenue recapture.[6] In order to request a waiver, staff must complete a waiver form and submit it for review and approval by a district supervisor. Waivers will only be granted when an offender is financially unable to meet the obligation but will perform Sentencing to Service (STS) or community work service in lieu of the fee.[7]

4. DOC protocol is that corrections agents are not to provide information about the waiver policy unless an offender asks for it. In compliance with this protocol, the corrections agent informed Jennings about the $300 fee but gave him no information about the waiver policy. In the three and one-half years that Frykman has been a corrections agent, no offender has requested waiver of the supervision fee.[8]

5. Because Jennings was not aware of the waiver policy, he did not ask for information about it when he met with his agent.[9] Jennings maintains that he had no assets or source of income at the time and would have requested a waiver had he known about the policy.[10]

6. On February 19, 2009, Jennings’ release was restructured for failing to inform his agent about his activities. On March 26, 2009, Jennings’ CIP status was revoked for failing to comply with the terms of his conditional release (possession of a cell phone and failing to follow instructions regarding approved visitors in the home). Jennings was returned to prison to serve the original term of imprisonment.[11]

7. On March 26, 2009, the Department notified Jennings by letter that the $300 balance of supervision fees owed had been submitted to the Minnesota Revenue Recapture Program. The letter also advised Jennings of his right to request a hearing within 45 days.[12]

8. On April 9, 2009, Jennings requested a hearing and sought a waiver of the fee on the basis that he was unable to pay it.[13] This hearing process followed.

Based on the Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The ALJ has jurisdiction in this matter pursuant to Minn. Stat. §§ 241.272, 270A.08 and 270A.09.

2. Under Minn. Stat. § 241.272, subd. 2, the commissioner of corrections may establish a schedule of correctional fees to charge persons convicted of a crime and supervised by the commissioner. The correctional fees on the schedule must be reasonably related to the offenders’ abilities to pay and the actual cost of correctional services.

3. Under Minn. Stat. § 241.272, subd. 4, the commissioner of corrections may waive payment of the supervision fee if the commissioner determines that the offender does not have the ability to pay the fee, the prospects for payment are poor, or there are extenuating circumstances justifying waiver of the fee. In such circumstances, the commissioner may require the offender to perform community service work as a means of paying the fee.

4. Part B of the Procedures specified in the DOC’s Policy 201.013 (Supervision Fees – Field Services), effective July 1, 2008, provides that when an offender has failed to pay the supervision fee within one year and the offender has not received a waiver, staff will submit the unpaid balance for revenue recapture. Unpaid fees are to be immediately submitted for revenue recapture upon revocation of probation and execution of sentence.

5. Part D of the Procedures specified in the DOC’s Policy 201.013 provides that a waiver of supervision fees can be requested by completion of a Field Services Supervision Fees Waiver form, which will be reviewed and approved by a district supervisor. Waivers are to be granted only when the offender is financially unable to meet the obligation, but is willing to perform Sentencing to Serve (STS) or community service work in lieu of the fee.[14]

6. Jennings has requested a waiver of the supervision fee on the basis that he is financially unable to pay it. The Department must process the waiver request pursuant to its policy before seeking to collect the unpaid balance through Revenue Recapture or other means.

Based on the Conclusions, the Administrative Law Judge makes the following:

ORDER

1. IT IS ORDERED that the request of the Department of Corrections to collect the $300 supervision fee owed by Christopher Jennings is DENIED WITHOUT PREJUDICE.

2. The Department of Corrections make seek to collect this fee again in the future after demonstrating that Jennings has been provided an opportunity to seek a waiver pursuant to the Department’s policy and that no waiver has been granted.

Dated: July 1, 2009.

s/Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

Reported: Digitally recorded;

No Transcript Prepared

NOTICE

This Order is the final Decision in this matter pursuant to Minn. Stat. § 270A.09, subd. 3. Any person aggrieved by this Decision may seek judicial review pursuant to Minn. Stat. §§ 14.63 to 14.68.

MEMORANDUM

The legislature granted the Commissioner of Corrections authority to impose and collect supervision fees in Minn. Stat. § 241.272. It explicitly provided that the fees must be reasonably related to offenders’ abilities to pay and the actual cost of correctional services.[15] It granted the Commissioner discretion to waive payment of the fee if the Commissioner determines that the offender does not have the ability to pay the fee, the prospects for payment are poor, or there are extenuating circumstances justifying waiver of the fee. Instead of waiving the fee, the Commissioner may require the offender to perform community work service as a means of paying the fee.[16]

The Department has elected to exercise its discretion to waive fees in a narrow manner. Its written policy is that waivers will be granted only when the offender is financially unable to meet the obligation but will perform STS or community work service in lieu of the fee.[17] Its unwritten protocol, however, is that staff are not to advise offenders about the waiver policy or to process waiver requests unless an offender affirmatively asks for a waiver. As noted above, the corrections agent in this matter testified that no offender has ever asked her for a waiver. Moreover, because no offender has ever asked her for a waiver, she was unsure how the waiver process would be implemented. The agent knew only that her supervisor would be responsible for deciding whether to waive a supervision fee. In the affidavit submitted in this matter, the agent stated that “Respondent did not pay any portion of [the supervision] fee, and the fee was not waived based on indigence and completion of community work service.”[18] While this language suggests that the commissioner had already made a decision not to waive the fee, the agent’s testimony made clear that no waiver request has been processed and no such determination has been made.

The Commissioner cannot ensure that the correctional fees are “reasonably related to offenders’ abilities to pay,” or that, in particular cases, there are not “extenuating circumstances justifying waiver of the fee,” without disclosure of the fee waiver process to affected offenders or an investigation of the financial circumstances of offenders by corrections agents. Ensuring compliance with Minn. Stat. § 241.272, subds. 2 & 4, however, is not the sole concern. More problematic is that, to the extent that progress within the CIP is conditioned upon an offender remaining current with the payment of supervision fees, the failure to disclose alternate methods of satisfying this obligation implicates the offender’s right to due process of law.[19]

In seeking a hearing in this matter, the Respondent requested that the supervision fee be waived on the basis that he is financially unable to pay it. The Department must process the waiver request pursuant to its policy before seeking to collect the unpaid balance through Revenue Recapture or other means.

K.D.S.

[4] Ex. 3 at 2 (DOC Policy 201.013, effective July 1, 2008).

[8] Testimony of Kate Frykman. See also In the Matter of Daniel Conn, OAH No. 7-1100-20010-2, Findings of Fact, Conclusions, and Orders at 2 (Jan. 9, 2009) (DOC protocol is not to process a waiver application unless the probationer takes the initiative to ask for one).

[17] Ex. 2. Although Ex. 2 states that the Field Services Supervision Fees Waiver form is attached, the waiver form is not part of the exhibit. Nor is the waiver form accessible to the public on the Department’s web site, as a DOC password is required to access this link.

[19] Cf. Carrillo v. Fabian, 701 N.W.2d 763, 773 (Minn. 2005) (inmates have a protected liberty interest in a supervised release date that triggers a right to procedural due process before that date can be extended).