|
|
OAH 11-1100-20833-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF CORRECTIONS
|
In the Matter of Jeffrey Walz |
FINDINGS OF FACT, CONCLUSIONS, AND ORDER |
This matter was heard by telephone conference call before Administrative Law Judge Barbara L. Neilson on October 21, 2009. The OAH record closed at the conclusion of the hearing on that date.
Krista Guinn Fink, Associate Legal Counsel, Minnesota Department of Corrections, appeared on behalf of the Department of Corrections (Department or DOC). Respondent Jeffrey Walz appeared on his own behalf, without counsel.
May the Department collect a supervision fee of $180 from Jeffrey Walz through the Minnesota Revenue Recapture Program?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Offenders released from custody to supervised release are required to pay supervision fees under Minn. Stat. § 241.272 and DOC Policy 201.013. The DOC Policy has undergone some changes in recent years.[1]
2. On or about August 5, 2005, Respondent was committed to the custody of the Commissioner of Corrections for 18 months for Third-Degree Criminal Sexual Conduct. Following a period of incarceration, the Respondent was initially released to supervision on November 15, 2005, at which time a supervision fee of $120 was imposed under the policy of the Department of Corrections which was then in place. It is not clear from the record whether or not the Department in fact collected the $120 fee. However, that fee is not at issue in this matter.[2]
3. In March 2006, the Respondent’s release was revoked for violation of conditions of release, and he was again incarcerated. Subsequently, Respondent was released to supervision in August 2006, returned to custody in October 2006, released to supervision in February 2008, and returned to custody in August 2008.[3]
4. On May 26, 2009, Respondent was once again released from custody to supervision.[4] At that time, the Department imposed a supervision fee of $180. Under current DOC policy, supervision fees are now assessed in the amount of $300 per felony case file. Respondent’s fee of $300 was reduced to $180 because the previously-imposed $120 fee was deducted.[5]
5. By letter dated May 26, 2009, Joe Cummings, Corrections Agent for the Department, notified Respondent that he was required to pay supervision fees. The letter did not mention the possibility of obtaining a waiver of the fee under certain circumstances. To the contrary, the letter advised Respondent that “payment of these fees is mandatory for all persons.”[6] Respondent was not otherwise aware that he could seek a waiver. Respondent met with his Corrections Agent on May 26, 2009, but the Agent did not mention the fee or how to apply for a waiver.[7]
6. Respondent violated the terms of his Intensive Supervised Release (ISR), and his release was revoked on August 6, 2009. His expected release date is April 22, 2010.[8]
7. Pursuant to DOC Policy 201.013, 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, unpaid supervision fees are to be submitted immediately for revenue recapture. To request a waiver, staff must complete a waiver form and submit it for review and approval by a district supervisor. The policy indicates that 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.[9]
8. On August 11, 2009, the DOC notified Respondent by letter that the $180 balance of supervision fees owed had been submitted to the Minnesota Revenue Recapture Program. The letter also advised Respondent of his right to request a hearing within 45 days if he wished to contest this claim.[10]
9. By letter dated August 17, 2009, Respondent requested a hearing regarding the supervision fee. He stated: “I’m contesting this claim of $180.00 for supervision fee. Due to the fact I was not on ISR for the whole year. I was with you for only two months. Therefor[e] I don’t see any reason to pay the full $180.00. I do see I should pay for the 2 months I was on.”[11]
10. Respondent has no assets or source of income. He owes approximately $60,000 in child support. He is willing to perform community service in lieu of paying the $180 supervision fee.[12]
11. On September 1, 2009, the Department filed the Notice of and Order for Hearing initiating the hearing in this matter, and also filed a Motion for Summary Disposition.
12. By letter dated October 7, 2009, the Administrative Law Judge provided the parties with information relating to the telephone conference call and the issues that would be discussed during the call.
13. The conference call was held as scheduled on October 21, 2009.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge has jurisdiction in this matter pursuant to Minn. Stat. §§ 241.272, 270A.08 and 270A.09.
2. Minn. Stat. § 241.272, subd. 2, authorizes the Commissioner of Corrections to defray costs associated with correctional services by establishing a schedule of correctional fees to charge persons convicted of a crime and supervised by the commissioner. The statute requires that the correctional fees on the schedule “must be reasonably related to offenders’ abilities to pay and the actual cost of correctional services.”
3.
Under
4. Part B of the Procedures specified in the DOC’s Policy 201.013 (Supervision Fees – Field Services), effective August 4, 2009, provides that when an offender has failed to pay the supervision fee within one year and the offender has not received a waiver, DOC staff will submit the unpaid balance for revenue recapture. However, the policy indicates that unpaid fees are to be immediately submitted for revenue recapture upon revocation of probation and execution of sentence or revocation of supervised release.
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.
6. Under Department policy, a fee per court file is imposed at the beginning of the supervision period. The fee is based on the conviction–not the duration of the supervision period. Accordingly, the $180 fee assessed to the Respondent should not be reduced because Respondent was on supervised release for only two months.
7. Respondent was notified by the Department that “payment of these fees is mandatory for all persons” and was not informed that he could seek a waiver of the fee. Respondent testified that he owes a substantial amount of child support, is unable to pay the fee, and is willing to perform community service to satisfy the fee. Under these circumstances, the Department’s motion for summary disposition and its request that it be permitted to collect the fee through revenue recapture must be denied. The Department must allow Respondent to apply for a waiver pursuant to its policy and/or seek to perform community work service to satisfy payment of the fee, and process those requests before seeking to collect the unpaid balance through revenue recapture or other means.
8. These Conclusions are reached for the reasons discussed in the attached Memorandum, which is hereby incorporated in these Conclusions.
Based on the foregoing Conclusions, and for the reasons discussed in the Memorandum below, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED as follows:
1. The request of the Department of Corrections to collect the $180 supervision fee owed by Jeffrey Walz through revenue recapture is DENIED WITHOUT PREJUDICE.
2. The Department shall SUSPEND its request to collect the $180 supervision fee owed by Mr. Walz.
3. The Department shall ALLOW Mr. Walz to apply for a waiver of the $180 supervision fee and/or seek to pay the fee through community work service.
4. The Department of Corrections may REINSTATE its request to collect this fee again in the future after demonstrating that Respondent has been provided an opportunity to seek a waiver and/or pay the fee through community work service pursuant to the Department’s policy and that the Department has denied these requests.
Dated: November 20, 2009.
s/Barbara L. Neilson
__________________________
BARBARA L. NEILSON
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.[13] 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.[14]
Respondent has challenged the imposition of the supervision fee on two grounds. First, he argued that the entire amount of the $180 fee should not be imposed because he was on supervised release for only two months before he was re-incarcerated. It is the Department’s policy, however, that the entirety of the unpaid balance is due immediately upon the revocation of supervised release, regardless of the duration of the term of supervision. Here, after two months, Respondent violated the conditions of his release and his release was revoked. It is appropriate for the Department to impose the entirety of the fee pursuant to its policy.[15]
Second, Respondent challenged the imposition of the fee because he has no means of payment. The Administrative Law Judge is persuaded that Respondent should be allowed to apply for a waiver from the supervision fee imposed by the Department. Respondent testified that his Corrections Agent never mentioned the fee to him when it was imposed upon his release in May 2009. Respondent never learned about the possibility of a waiver or how to apply for one. The letter he received from the Department not only failed to explain that there was a waiver process, but advised him that “payment of these fees is mandatory for all persons.” During the hearing in this matter, Respondent stated that he has no assets or source of income and that he owes approximately $60,000 in child support. Because Respondent was told that payment was mandatory and was not informed of the waiver process, and it appears he does not have the ability to pay the fee and the prospects for payment are poor, Respondent should be allowed to file an application for a waiver and/or seek to perform community work service to satisfy payment of the fee.[16] The Department must process these requests before seeking to collect the unpaid balance through Revenue Recapture or other means.
B. L. N.
[1] Prior to July 1, 2008, supervision fees in the amount of $120 annually were imposed on each offender under probation or supervised release supervision. Effective July 1, 2008, the Department revised its policy to impose a one-time fee on each file calculated using the most serious offense in the file ($300 for a felony, $200 for a gross misdemeanor, and $100 for a misdemeanor).
[2] See May 26, 2009, letter to J. Walz from J. Cummings and Status History Report (attached to Notice of and Order for Hearing), and Notice of Motion and Motion for Summary Disposition at 2. Counsel asserted in argument that the prior $120 fee had been “waived,” without explaining the circumstances or providing evidentiary support. The May 26, 2009, letter to Respondent simply indicated that, “[t]o date, a total of $120.00 in supervision fees have been imposed. This amount will be applied to the one-time fee leaving you a balance of $180.00.”
[3] See Status History Report attached to Notice of and Order for Hearing.
[4] See Status History Report attached to Notice of and Order for Hearing.
[5] See May 26, 2009, and August 11, 2009, Letters to J. Walz from J. Cummings attached to Notice of and Order for Hearing.
[6] See May 26, 2009, Letter to J. Walz from J. Cummings attached to Notice of and Order for Hearing.
[7] Testimony of J. Walz.
[8] See Status History Report and August 6, 2009, Report of Hearings and Release Officer Deb Schadegg, attached to Notice of and Order for Hearing.
[9] DOC Policy 201.013 at 2, 4, attached to Notice of and Order for Hearing.
[10] See August 11, 2009, Letter to J. Walz from J. Cummings attached to Notice of and Order for Hearing.
[11] See August 17, 2009, Letter from J. Walz to J. Cummings, attached to Notice of and Order for Hearing.
[12] Testimony of J. Walz.
[13]
[14]
[15] See In the Matter of the Revenue Recapture Appeal Hearing of Dustin Nass, OAH No. 2-1100-20648-2 (Order Aug. 20, 2009) (finding the Department acted appropriately when it submitted unpaid balance of supervision fee for revenue recapture when respondent violated his release conditions after one month).
[16]
See