OAH No. 46-1800-19853-2

	Link to Final Agency Decision
	OAH No. 46-1800-19853-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

In the Matter of the Denial of the Family Child Care License of

Brenda Lee Meyer

FINDINGS OF FACT,

CONCLUSIONS OF LAW,

AND RECOMMENDATION

The above-entitled matter came on for hearing before Administrative Law Judge Barbara J. Runchey on October 14, 2008 in Gaylord, Minnesota. The record closed on October 14, 2008 with the close of the hearing.

Donald E. Lannoye, Assistant Sibley County Attorney, 307 N. Pleasant Avenue, P.O. Box H, Winthrop, Minnesota, appeared on behalf of the Minnesota Department of Human Services (Department) and Sibley County Human Services (County).

Brenda Lee Meyer (Applicant) appeared on her own behalf and without counsel.

STATEMENT OF THE ISSUES

1. Is the Applicant disqualified from holding any position allowing access to persons receiving services from a program licensed by the Department? The Administrative Law Judge concludes that the Department has demonstrated that Applicant should be disqualified.

2. Should Applicant’s disqualification be set aside pursuant to Minn. Stat. § 245C.22? The Administrative Law Judge concludes that the disqualification cannot be set aside.

3. Should the Applicant be denied a family child care license? The Administrative Law Judge concludes that Applicant’s application for a license should be denied.

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

FINDINGS OF FACT

1. Applicant submitted an Application for Family Child Care on or about November 19, 2007.[1]

2. Shortly thereafter, Ms. Gail Berle, the Sibley County social worker in charge daycare licensure, conducted a background study regarding the Applicant.

3. In addition to other information, Ms. Gail Berle reviewed the following specific information concerning Applicant:

a. A Complaint dated July 11, 2005, contained in Sibley County Court File CR-05-142, charging Applicant with endangering a child in violation of Minn. Stat. § 609.378, subd. 1(b)(1) which occurred on July 4, 2005.[2] The complaint alleged that Applicant operated an ATV with her five children riding on the same without helmets. Apparently, Applicant lost control or the brakes malfunctioned and the ATV rolled over.[3] Two of the children were transported to the hospital[4] and were later released without injuries.[5]

b. An accident report dated July 7, 2005, submitted by Chief C. Aldrich.[6] The accident report stated that Applicant was “coming down Fort Rd on ATV with 5 children on ATV. Could not stop and drove into ditch. No helmets on anyone.”[7]

c. A Henderson Police Department letter dated July 6, 2005, from Aldrich to Assistant County Attorney Lannoye setting forth a narrative of the events surrounding the July 4, 2005, incident involving Applicant which was essentially similar to that described in the Complaint.[8]

d. Adult Gross Misdemeanor Pre-Sentence Investigation Report regarding Applicant dated October 5, 2005, completed by Mary Karl.[9] Applicant’s version of the July 4, 2005, events are similar to those described in the Complaint.[10]

e. Order of Sentencing wherein Applicant received a stay of adjudication for her conviction of “Endanger Child-Situation could cause harm or death” and was ordered to complete 20 hours of community work service.[11]

f. Order of Discharge and Dismissal contained in Sibley County Court File No. 72-CR-05-142.[12] In the Order, Applicant was discharged from probation due to satisfactory adjustment and the charge of Gross Misdemeanor Endanger Child-Situation Could Cause Harm or Death was dismissed.[13]

4. Based on this information, Ms. Gail Berle concluded that Applicant was disqualified from direct contact with persons receiving services from the license holder or entity described in Minn. Stat. § 245C.03 in that Applicant had admitted to an offense involving neglect or endangerment of a child in violation of Minn. Stat. § 609.378 which occurred on July 4, 2005.

5. By letter dated February 2, 2008, Applicant was notified that she was disqualified from direct contact with, or access to, persons served by the program due to an admission of a gross misdemeanor-level of neglect or endangerment of a child in violation of Minn. Stat. § 609.378.[14]

6. The February 2, 2008, letter also notified Applicant that the department may not set aside this disqualification for ten years, and that the disqualification may result, among other action, in a denial of license under Minn. Stat. § 245A.05.[15]

7. The February 2, 2008, letter to Applicant further notified her of her right to request reconsideration of the disqualification and that in her written request she must submit information showing the following: a) the information the commissioner relied upon is incorrect; and/or b) she did not pose a risk of harm to any person served by the program.[16]

8. Applicant apparently requested reconsideration of her disqualification which was forwarded to the Department and received by it on or about March 11, 2008 (although no direct evidence of this fact was introduced by the parties).[17]

9. The Department, after reviewing Applicant’s request for reconsideration and accompanying information, as well as the information used by the County to disqualify her, determined that Applicant had committed an act which met the definition of a disqualifying characteristic under Minn. Stat. § 245C.15.

10. The Department sent to Applicant by certified letter dated June 27, 2008, a Notice of Disqualification – Not set Aside and Order of Denial. By this letter the Department further notified Applicant that she had committed the following act which met the definition of a disqualifying characteristic under Minn. Stat. § 245C.15, “on September 22, 2005, you pled guilty to a gross misdemeanor charge of endangerment of a child under Minn. Stat 609.378”.[18]

12. The Department further determined Applicant’s request for reconsideration did not indicate that she believed the information relied upon to disqualify her was incorrect. Therefore, the Department concluded that “the correctness of your disqualification is now conclusive pursuant to Minnesota Statutes 245C.29, subdivision. 2.”[19]

13. The Department further notified Applicant in the letter that

Pursuant to Minnesota Statutes, Section 245C.15, subd. 3, you are disqualified, for 10 years from the date of your guilty plea, from having direct contact with, or access to, children or vulnerable adults served in programs licensed by the Department of Human Services. Furthermore, under Minnesota Statues, Section 245C.24, subd. 3, the Commissioner may not set aside this disqualification for 10 years. Therefore, the risk of harm factors listed in Minnesota Statues, Section 245C.22 are not applicable. Therefore, your disqualification has been affirmed. A variance has not been granted.[20]

14. On or about July 8, 2008, Applicant appealed the decision to the Department alleging the following:

a. Applicant was never convicted.[21]

b. Applicant admitted to child endangerment only so Applicant could receive a stay of adjudication; which meant she would not be charged and it would stay off her record.[22]

c. Letters from Officer Aldrich and Assistant Attorney Lannoye stating that she is not a threat and that her license should be reconsidered.[23]

d. There was an error in Applicant’s case and some things were overlooked.[24]

e. Applicant’s case was dismissed from Court and she should have never been charged and the child endangerment should have never showed up on her background check because there is no record.[25]

f. Applicant had a background check done in July 2007 for a nursing home assistant and it came back clear.[26]

g. When Applicant’s paperwork was filed for reconsideration, it was filed incorrectly.[27]

h. Applicant is the mother of seven children.[28]

15. At the hearing, Applicant admitted that she had pleaded guilty to the offense of Minn. Stat. § 609.378, subd. 1(b)(1).[29]

16. Applicant and her two witnesses testified that on July 4, 2005, while they were riding with Applicant on the ATV, its brakes had “gone out” and no one was injured in the July 4, 2005 incident.[30]

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

CONCLUSIONS OF LAW

1. The Administrative Law Judge and Commissioner of Human Services have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08.

2. The County and Department gave due and proper notice of hearing.

3. The County and Department complied with all substantive and procedural requirements of law and rule.

4. In a hearing on an appeal of a decision by the Department to deny reconsideration of a disqualification, the burden of proof is on the Department to establish a factual basis for the disqualification by a preponderance of evidence.

5. Pursuant to Minn. Stat. § 245C.08, subd. 3 the Commissioner may review, among other information, arrest and investigative information from (1) the Bureau of Criminal Apprehension; (2) the commissioner of health; (3) a county attorney; (4) a county sheriff; (5) a county agency; (6) a local chief of police; (7) other states; (8) the courts; or (9) the Federal Bureau of Investigation.

6. The Department appropriately reviewed county attorney information contained in Hearing Exhibits 1-6.

7. Applicant pleaded guilty to the offense of child endangerment in violation of Minn. Stat. 609.378 Subd 1(b). Even though the court stayed adjudication of sentence and eventually dismissed the charges, Applicant nonetheless admitted to an offense identified in Minn. Stat. § 245C.15.

8. Pursuant to Minn. Stat. § 245C.14, subd. 1(a), the Commissioner shall disqualify an individual who is the subject of a background study from any position allowing direct contact with persons receiving services from the license holder or entity indentified in section 245C.03 upon receipt of information showing, or when a background study completed shows any of the following: (1) a conviction of, admission to, or Alford plea to one or more crimes listed in section 245C.15 regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor level crime; (2) a preponderance of the evidence indicates the individual has committed an act or acts that meet the definition of any of the crimes listed in section 245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor level crime; or (3) an investigation results in an administrative determination listed under section 245C.15, subdivision 4, paragraph (b).

9. Pursuant to Minn. Stat. § 245C.15, subd. 3, “Ten-year disqualification. (a) An individual is disqualified under section 245C.14 if: (1) less than ten years have passed since the discharge of the sentence imposed, if any, for the offense; and (2) the individual has committed a gross misdemeanor-level violation of any of the following offenses . . . . Minn. Stat. 609.378 (neglect or endangerment of a child) . . . .”

10. Pursuant to Minn. Stat. § 609.378, subd. 1(b)(1), a person commits endangerment of a child if that person “intentionally or recklessly caused or permitted a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.”

11. Applicant admitted that she endangered her children by admitting to the allegations contained in the criminal complaint.

12. Pursuant to Minn. Stat. 245C.14(b), no individual who is disqualified following a background study under section 245C.03, subdivisions 1 and 2, may be retained in a position involving direct contact with persons served by a program or entity identified in section 245C.03, unless the commissioner has provided written notice under section 245C.17 stating that: (1) the individual may remain in direct contact during the period in which the individual may request reconsideration as provided in section 245C.21, subdivision 2; (2) the commissioner has set aside the individual’s disqualification for that program or entity identified in section 245C.03, as provided in section 245C.22, subdivision 4; or (3) the license holder has been granted a variance of the disqualified individual under section 245DC.30.

13. Pursuant to Minn. Stat. § 245C.14, subd. 2 (a) If an individual who is studied under section 245C.03, subdivision 1, clauses (2), (5) and (6), is disqualified from direct contact under subdivision 1, the commissioner shall also disqualify the individual from access to a person receiving services from the license holder.

14. Pursuant to Minn. Stat. § 245C.14, subd 2(b), no individual who is disqualified following a background study under section 245C.03, subdivision 1, clauses (2), (5), and (6), or as provided elsewhere in statute who is disqualified as a result of this section, may be allowed access to persons served by the program unless the commissioner has provided written notice under section 245C.17 stating that: (1) the individual may remain in direct contact during the period in which the individual may request reconsideration as provided in section 245C.21, subdivision 2; (2) the commissioner has set aside the individual’s disqualification for that licensed program or entity identified in section 245C. 03 as provided in section 245C.22, subdivision 4; or (3) the license holder has been granted a variance for the disqualified individual under section 245C.30.

15. Applicant did not request to set aside of the disqualification.

16. Even if requested, the Department cannot set aside the disqualification pursuant to Minn. Stat. § 245C.22.

17. The Department did not grant a variance to Applicant. The Agency’s decision regarding a variance is the final agency action and is not subject to appeal under Minn. Stat. § 256.045 of Chapter 14. See also Minn. Stat. § 245C.30.

18. The conclusions are reached for the reasons set forth in the attached memorandum, which is incorporated by reference herein.

19. Based upon the foregoing conclusions, the Administrative Law Judge makes the following:

RECOMMENDATIONS

The Administrative Law Judge respectfully recommends that the Commissioner:

1. AFFIRM the disqualification of Brenda Lee Meyer.

2. AFFIRM the refusal to set aside the disqualification; and

3. AFFIRM the denial of the application of Brenda Lee Meyer for a license to provide family child care.

Dated: October 23, 2008

s/Barbara J. Runchey

BARBARA J. RUNCHEY

Administrative Law Judge

Reported: Digitally Recorded

NOTICE

This report makes recommendations, and is not a final decision. The Commissioner of Human Services will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact Cal Ludeman, Commissioner of Human Services, Box 64998, St. Paul MN 55155, (651) 431-2907, to learn the procedure for filing exceptions or presenting argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

MEMORANDUM

In Hearing Exhibit 9, as well in testimony, Applicant admitted to Child Endangerment. She does not deny or contest her involvement in the incident that took place on July 4, 2005. Thus, based upon her own admission, there is a sufficient basis to disqualify Applicant as she admitted to a crime listed in Minn. Stat. 245.15.

The denial of Applicant’s request for day care licensure was an unintended and unforeseen result of her admission to an act which meets a 10 year disqualifying characteristic under Minn. Stat. § 245C.15. Although the alleged misconduct is not on her criminal record (the offense was formally dismissed by the court after successful completion of probation requirements), the records reviewed by Sibley County and the Department were authorized by Minn. Stat. § 245C.08, subd 3. The fact that the incident is not on her “record” is irrelevant as the background study can consider information in addition to criminal records.

The statute makes it clear that Applicant’s disqualification is one that cannot be set aside. The legislature has enacted a blanket policy that prohibits the commissioner from granting a set-aside for any person who admits to a disqualifying act.

Finally, Applicant did not request nor was any variance granted by the Department. The Department has the discretion to grant a variance and attach conditions to Applicant’s license. It has chosen not to do so and that decision is not subject to appeal.

B. J. R.