OAH 16-1800-21871-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN
SERVICES
|
In the Matter of
the Petition of Wayne Nicolaison for a Declaration that the Department of
Human Services Policies Regarding Vocational Training and Recreation
Opportunities at the |
ORDER |
By Petition filed February 11, 2011, Wayne
Nicolaison (Petitioner) seeks an order directing the Department of Human
Services (Department) to cease enforcement of unadopted rules. Petitioner also moved that the matter be set
for hearing. The Department filed a
written response on February 22, 2011. On
March 14, 2011, Petitioner filed a reply.
The record closed on March 14, 2011.
Petitioner
Wayne Nicolaison appeared on his own behalf. Barbara Berg Windels, Assistant Attorney
General, appeared on behalf of the Department.
Based
upon all of the filings by the parties, and for the reasons set out in the
Memorandum which follows,
IT IS HEREBY ORDERED THAT:
1. The Department’s policy allocating therapeutic
recreational programming and its policy[1]
regarding vocational programming (dated September 7, 2010) applicable to its
Minnesota Sex Offender Program are not unadopted rules.
2. Wayne Nicolaison’s Motion to have this
matter set for hearing is DENIED.
2. Wayne Nicolaison’s Petition is DISMISSED.
Dated: March 16, 2011
s/Manuel J. Cervantes
|
MANUEL
J. CERVANTES Administrative
Law Judge |
NOTICE
This decision is a final administrative
decision under Minn. Stat. § 14.381. It
may be appealed to the Minnesota Court of Appeals under Minn. Stat. §§ 14.44
and 14.45.
MEMORANDUM
Factual
Background
Petitioner brings
this challenge pursuant to Minn. Stat. § 14.381, which permits a person to
“petition the Office of Administrative Hearings seeking an order of an
administrative law judge determining that an agency is enforcing or attempting
to enforce a policy, guideline, bulletin, criterion, manual standard, or
similar pronouncement as though it were a duly adopted rule.”
Petitioner has been
civilly committed as a psychopathic personality for placement at the Minnesota
Sex Offender Program (MSOP) since January 21, 1992 and currently resides on
Unit 1-d at the
In his Petition for
Determination of Validity of Institution Rules (Petition), Petitioner alleges
that two recently-enacted MSOP policies are unadopted rules.[4] Petitioner challenges MSOP’s posted statement
of permitted hours for therapeutic recreational programming, implemented on
January 3, 2011.[5] The net effect of this policy is to increase recreational
programming to about 21 hours per week for clients who participate in sex
offender treatment. Clients who choose
not to participate in treatment get less than 6 hours of recreational
programming per week.[6]
Petitioner also challenges MSOP Policy
104.600 regarding vocational programming.
Clients who participate in sex offender treatment may participate in 14-30
hours per week of vocational programming, depending on how far they have
progressed in treatment. Clients who refuse
to participate in treatment receive up to 8 hours per bi-weekly pay period of
vocational programming. This policy became
effective October 5, 2010.[7]
Petitioner alleges that both of these
policies are unauthorized rules under the Minnesota Administrative Procedure
Act (MAPA), “directed solely at residents who are confined on Unit 1-d and are
those who refuse to participate in alleged treatment at MSOP.”[8]
Legal
Background
establish vocational activities for sex
offender treatment for civilly committed sex offenders as the commissioner
deems necessary and suitable to the meaningful work skills training,
educational training, and development of proper work habits and extended
treatment services for civilly committed sex offenders . . . .
The Commissioner has authority to adopt
rules to govern the operation, maintenance and licensure of the MSOP program.[9] Pursuant to that authority, the Commissioner
has adopted Minn. R. 9515.3000-9515.3110.
Minn. R. 9515.3080, subp.1, requires MSOP to establish policies and
procedures for “maintaining a secure and orderly environment that is safe for
persons in treatment and staff and supportive of the treatment program.”
The rules also require that MSOP provide “vocational
rehabilitation services; and leisure and recreational activities.”[12] MSOP must also “offer treatment in a form and
structure consistent with a person's capacity to participate productively.”[13]
Discussion
The Minnesota Administrative Procedure Act (MAPA) defines a rule as:
every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.[14]
Certain agency statements are expressly excluded from the statutory definition of a rule, including rules concerning only the internal management of the agency or other agencies that do not directly affect the rights of or procedures available to the public.[15] Unless an agency statement is excluded from the definition of a rule, it is subject to the rulemaking requirements set forth in Chapter 14 of Minnesota statutes. However, an agency may adopt rules “only pursuant to authority delegated by law.”[16]
In
general, an agency is not deemed to have engaged in rulemaking if its
interpretation of a statute or rule coincides with the plain meaning of that
statute or rule.[17] In other words, if an interpretation is
consistent with the plain meaning of the statute or rule that is being
interpreted, the agency action is authorized by the statute or rule itself, and
the fact that no rule was adopted does not render the interpretation invalid. In
contrast, if an agency’s announced policy is inconsistent with the statute or
rule, the courts have often invalidated that policy.[18] Moreover, if the policy makes new law without
the public input required by the APA, the policy will be invalidated.
MSOP argues that the
challenged policies are internal management decisions that do not affect the
rights of the public. Alternatively, it
argues that the policies are consistent with the plain meaning of state law and
thus, not subject to rulemaking requirements.
This memorandum addresses each of the arguments in turn.
The
Challenged Policies As Internal Management Decisions
A policy that concerns
the internal management of an agency and does not affect the rights of, nor the
procedures available to, the public is exempt from rulemaking requirements.[19] MSOP contends that this case is like the Leisure Hills case, where the Minnesota
Court of Appeals found that the inspection procedures by which the Department
of Health enforced substantive standards for nursing home care were not subject
to rulemaking, even though the substantive standards themselves were contained
in formal rules.[20]
The substantive standards
in this case, MSOP argues, are set forth in the statutes and rules requiring
vocational and recreational opportunities at MSOP and the specific policies
complained of by Petitioner are merely internal enforcement procedures, much
like the challenged procedures in Leisure
Hills.
The Administrative Law
Judge agrees with this reasoning. The
substantive standards in this case are the requirements that vocational and
recreational opportunities be provided.
The internal management
decision of how those opportunities will be provided to best utilize the
limited resources of space, supervision, and training to maximize treatment
effectiveness and insure the safety of staff and clients falls squarely on MSOP.
MSOP’s policies to
“purposefully recognize clients who are showing a meaningful commitment to
bettering both the therapeutic community within MSOP and making personal
changes toward accomplishing the long term goal of returning to their families,
friends, and communities”[21]
and vocational programming favoring resident’s who participate in sex offender
treatment are not policies of general applicability to the public. The decision to provide more vocational and
recreational activity time to individuals who are participating in treatment is
reasonable.
The Challenged Policies As Interpretations
of Existing Law
Even if the challenged
policies were found not to be internal management decisions, they would be
authorized as interpretations of statute and rule that coincide with the plain
meaning of the statute and rules, in other words, are consistent with the
substantive standards.
Recreational activities are offered pursuant
to the rule requirement that MSOP offer “leisure and recreational activities.”[22] Facing limitations of both staff and space,
MSOP must also “offer treatment in a form and structure consistent with a
person's capacity to participate productively.”[23] MSOP’s policy of providing fewer recreational
hours to individuals who refuse to participate in treatment is also consistent
with the rule requiring recreation and leisure to be included in the assessment
of each person “entering the treatment program.”[24]
The vocational training
opportunity policy is also consistent, both with the rule that MSOP assess the
needs of individuals entering the treatment program for vocational treatment,[25] and
with the broad statutory authority giving the Commissioner discretion to
“establish vocational activities for sex offender treatment for civilly
committed sex offenders as the
commissioner deems necessary.”[26] The legislature explicitly left to the
Commissioner the specific decisions about implementation of vocational training
activities. In view of the emphasis on
the treatment component of vocational activities, it is consistent with both
the statute and the applicable rules for MSOP to provide more hours of
vocational activities for individuals as they progress through treatment, and
to provide fewer hours to those who refuse to participate in treatment.
Petitioner’s
Additional Claims
In addition to his
primary claim that the policies are unauthorized rules, Petitioner claims that
the policies violate the Equal Protection Clause of the Minnesota Constitution
because they unfairly discriminate against MSOP residents not participating in
the therapeutic treatment program; that the treatment program is a “sham” and
ineffective because no one has ever been released from the treatment program;
that his antisocial personality disorder is the cause of his refusal to
participate in treatment; and that the policies punish him based on his
“medical disabilities” in violation of Equal Protection.
The Administrative Law
Judge’s jurisdiction in this matter extends only to a determination of whether
the MSOP policies included in this Petition are unadopted rules. Therefore, the Administrative Law Judge cannot
address the additional issues raised by the Petitioner and petitioner is left
to seek redress for those issues elsewhere.
Motion
for Hearing
Conclusion
MSOP’s policies allocating
hours of vocational and recreational opportunities for residents at its
M. J. C.
[1] MSOP Policy 104.600
[2] Petition of Wayne Nicolaison for Determination of Validity of Institution Rule (Petition) at 1-2.
[3] Affidavit of Wayne Nicolaison in Support of Petition for Determination of Validity of Institution Rules (Nicolaison Aff.), ¶ 5.
[4] Petition at pp. 3-4.
[5] Petition, Ex. 6.
[6] Petition at 3, Ex. 6; Commissioner of Human Services Response to Petition (Response) at 7.
[7] Petition, Ex. 4.
[8] Petition at 2.
[9]
[10]
[11]
[12]
[13]
[14]
[15] Minn. Stat. § 14.03, subd. 3 (1).
[16]
[17] Cable Communications Board v. Nor-west Cable Communications Partnership, 356 N.W.2d 658, 667 (Minn. 1984); In the Matter of the Petition for Review of the Minnesota Department of Commerce Policy Pronouncement and Guidance Document Regarding Insurance/Credit Scoring Filings, OAH Docket No. 1-1004-15233-2 (2003) at 3.
[18] Sellner
Manufacturing Co. v. Commissioner of Taxation, 202 N.W.2d 886, 888-89 (
[19] Minn. Stat. § 14.03, subd. 3 (1).
[20] Matter of Assessment Issued to
[21] Petition, Ex. 6.
[22]
[23]
[24]
[25]
[26] Minn. Stat. § 246B.06, subd. 1 (2010) (emphasis
added).
[27]