Minnesota Supreme Court Rules Public Employers Keep CORA Discretion

Minnesota Supreme Court: Public Employers Keep Discretion Over Rehabilitation Evidence

The Minnesota Supreme Court held on September 2, 2026 that a Minnesota public employer still decides whether an applicant with a directly related conviction has shown sufficient rehabilitation and present fitness, even after the applicant produces the documents listed in Minn. Stat. § 364.03, subd. 3(a). McNitt v. Minnesota IT Services (MNIT), No. A23-1948 (Minn. Sept. 2, 2026).

Information last verified on September 5, 2026.

Status: Decided. The opinion was filed September 2, 2026 and the disposition is "Affirmed in part, reversed in part, and remanded." The case now returns to the Minnesota Court of Appeals, which has not yet addressed the arguments it left unreached. The court construed the 2024 version of Minn. Stat. § 364.03, subd. 3, and expressly declined to consider the 2026 amendment to that subdivision.

Jurisdiction scope: This decision applies to Minnesota public employment, which Minn. Stat. § 364.02, subd. 4 defines as all employment with the state of Minnesota, its agencies, or political subdivisions, and to occupational licensing governed by chapter 364, which covers licenses required to engage in an occupation and issued by the state, its agencies, or political subdivisions (Minn. Stat. § 364.02, subds. 2, 3). It decides nothing about private-sector hiring, which chapter 364 reaches only through the separate inquiry-timing rule in Minn. Stat. § 364.021, nothing about federal employment, and nothing about the criminal-record hiring rules of any other state. Chapter 364 also does not reach the positions, agencies and licensing processes excepted by Minn. Stat. § 364.09.

What Happened

In November 2021, Minnesota IT Services (MNIT), the state agency that supplies information technology services to state government, posted a web-developer opening with the Minnesota Department of Education. Jeremy McNitt applied in January 2022 and was offered the job subject to a background check. The check surfaced a 2017 conviction for possession of child pornography (slip op. at 5). The offense is relevant to the legal question only because the nature and seriousness of a conviction is one of the items Minn. Stat. § 364.03, subd. 3(b) directs a hiring authority to weigh.

MNIT first applied subdivision 2 and determined that the conviction directly related to the position sought. It then asked, under subdivision 3, for "any and all competent evidence of sufficient rehabilitation and present fitness to perform the duties of the position" and pointed the applicant to the categories of evidence listed in subdivisions 3(a) and 3(b) (slip op. at 7).

McNitt produced documents from subdivision 3(a), including a release order showing early discharge from probation and a document confirming that he had remained law-abiding for at least one year since release. He also produced material falling under subdivision 3(b), including a description of the circumstances of the offense and several reference letters (slip op. at 7). In March 2022, MNIT declined to hire him "based upon [his] background check results and [his] prior conviction," stating that "the nature and seriousness of the crime is very high," and advised him that he would be disqualified from public employment for ten years (slip op. at 7). That ten-year period was the agency's own determination in this matter, not a figure drawn from the text of section 364.03. The commissioner's later order set the earliest reapplication date at January 28, 2027 (slip op. at 10).

The administrative and appellate path

McNitt appealed under the Minnesota Administrative Procedure Act. The parties cross-moved for summary disposition, and on February 10, 2023 an administrative law judge found that McNitt had provided sufficient evidence of rehabilitation and present fitness, rejected MNIT's claim of sole discretion, and recommended that the commissioner rescind the disqualification and provide the position or a comparable one. The record closed March 31, 2023 (slip op. at 7 to 8).

Under the then-current Minn. Stat. § 14.62, subd. 2a (2022), the commissioner had 90 days to accept, modify or reject that report. On June 21, 2023, inside the window, the commissioner rejected several of the administrative law judge's legal conclusions and the recommendation itself, then remanded for an evidentiary hearing (slip op. at 8 to 9). Before that hearing occurred, the Minnesota Supreme Court decided In re Surveillance and Integrity Review (SIRS) Appeals by Trinity Home Health Care Services and Etyane Ayana, 996 N.W.2d 178 (Minn. 2023), holding that a state agency then had no authority to remand to an administrative law judge. The judge concluded he lacked jurisdiction and returned the file on October 30, 2023. In November 2023 the commissioner issued a second order affirming the disqualification and dismissing the appeal (slip op. at 9 to 10).

The Court of Appeals reversed in a precedential opinion, holding that once an applicant provides the subdivision 3(a) documents, a public employer lacks discretion to disqualify. McNitt v. Minn. IT Servs., 14 N.W.3d 284, 285, 292 to 293 (Minn. App. 2024). MNIT petitioned for review and McNitt petitioned for conditional cross-review; the Supreme Court granted both.

The holding

Justice Gaïtas wrote for the court. The second point of the syllabus states the rule:

"Under Minnesota Statutes section 364.03, subdivision 3 (2024), a public employer has discretion to determine whether an applicant for public employment has demonstrated sufficient rehabilitation and present fitness to perform the duties of the public employment sought once the applicant produces competent evidence of rehabilitation under subdivision 3(a)." Source: McNitt v. Minnesota IT Services (MNIT), No. A23-1948, slip op. at 2 (Minn. Sept. 2, 2026)

The court reached that reading through the statutory text rather than through any judgment about the offense, concluding that "the language and structure of section 364.03 plainly confer discretion on a public employer to decide whether an applicant has established sufficient rehabilitation even after the applicant has produced the documents identified in subdivision 3(a)" (slip op. at 19 to 20). It gave three reasons: the Legislature used permissive and evaluative words ("may", "competent", "sufficient"); a conclusive reading of 3(a) would leave the employer unable to perform the mandatory duty in 3(b) to consider additional evidence "in addition to the documentary evidence presented"; and only that reading gives effect to every provision (slip op. at 20 to 24).

Exactly what was affirmed, reversed and remanded

The disposition is more layered than a win or a loss, so the parts are worth separating.

Affirmed in part. On the cross-petition, the court held that the administrative law judge's report and recommendation did not become the agency's final decision, because the commissioner expressly rejected the judge's conclusions inside the statutory 90-day window. The commissioner's order, not the report, is the final decision under review (slip op. at 14 to 15).

Reversed in part, twice, in opposite directions. First, the court disagreed with the Court of Appeals that SIRS does not reach a report issued at the summary-disposition stage, and reversed that court "[t]o the extent that the court of appeals' decision holds that under the then-existing version of section 14.62, an agency had authority to remand a contested case at the summary disposition stage" (slip op. at 14). Second, and decisively for the outcome, it reversed the Court of Appeals' holding that a public employer has no discretion after the subdivision 3(a) documents are produced (slip op. at 27).

Remanded. Because the Court of Appeals never reached McNitt's remaining arguments, the Supreme Court sent the case back to that court to consider "whether the Commissioner applied an incorrect burden of proof, whether the Commissioner relied on factors not intended by the Legislature, whether the Commissioner's decision was arbitrary and capricious, and whether McNitt's substantial rights were prejudiced" (slip op. at 27). Those questions remain open.

The separate writings

Chief Justice Hudson joined Part I but dissented from Part II, and would have affirmed the Court of Appeals, reasoning that subdivision 3(a) is addressed to the applicant while only subdivision 3(b) names the employer, and that subdivision 3(b) is best read as an alternative route for applicants who cannot produce the listed documents. Justice Thissen joined that opinion and wrote separately to argue that producing the subdivision 3(a) documents does not by itself establish "present fitness," a question he would have remanded to the administrative law judge. Justice Procaccini took no part in the case.

What the Law Actually Says

The Criminal Offenders Rehabilitation Act runs from Minn. Stat. §§ 364.01 to 364.10. Its policy section declares it the policy of Minnesota "to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship," and states that the opportunity to secure employment is essential to that goal (Minn. Stat. § 364.01).

The chapter is narrower than its name suggests, and the scope terms do most of the work. "Public employment" means all employment with the state, its agencies, or political subdivisions (Minn. Stat. § 364.02, subd. 4). "Conviction of crime or crimes" is limited to felonies, gross misdemeanors, and misdemeanors for which a jail sentence may be imposed; no other conviction may be considered under the chapter (Minn. Stat. § 364.02, subd. 5). The "hiring or licensing authority" is the body responsible by law for hiring or licensing (Minn. Stat. § 364.02, subd. 6).

Section 364.03 then runs in three steps.

Step one, subdivision 1: no person may be disqualified from public employment, or from a licensed occupation, solely or in part because of a prior conviction, "unless the crime or crimes for which convicted directly relate to the position of employment sought or the occupation for which the license is sought."

Step two, subdivision 2: in deciding whether a conviction directly relates, the hiring or licensing authority "shall consider" the nature and seriousness of the crime, its relationship to the purposes of regulating the position or occupation, and its relationship to the ability, capacity and fitness required to perform the duties.

Step three, subdivision 3: even where the conviction does directly relate, the applicant "shall not be disqualified" if the applicant "can show competent evidence of sufficient rehabilitation and present fitness to perform the duties." Subdivision 3(a) says such evidence "may be established by the production of" a certified DD-214 showing honorable discharge or separation under honorable conditions for service rendered after the conviction, or a release order together with evidence that at least one year has elapsed since release without a subsequent conviction and evidence of compliance with all probation or parole terms, or a Department of Corrections discharge order or other documents showing completion of supervision. Subdivision 3(b) adds that "[i]n addition to the documentary evidence presented," the authority "shall consider" applicant-presented evidence on the nature and seriousness of the crime, all circumstances relative to it including mitigating circumstances, the applicant's age at the time, the time elapsed, and all other competent evidence of rehabilitation and present fitness, including reference letters. Subdivision 3(c) provides that a DD-214 stops qualifying as competent evidence if the person is later convicted of a gross misdemeanor or felony.

McNitt now supplies the interpretation of that structure: the applicant carries a production route, and the employer carries the evaluation. Our page on how Minnesota handles employment background checks sets out the surrounding screening rules, and the state-by-state background check overview shows how differently other states approach criminal-record screening.

Private employers, and the ban-the-box rule

Section 364.03 does not govern private hiring. The provision that reaches private employers is Minn. Stat. § 364.021, which bars a public or private employer from inquiring into, considering, or requiring disclosure of an applicant's criminal record "until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made." That is a timing rule, not a rehabilitation standard. It does not apply to the Department of Corrections or to employers with a statutory duty to run a criminal history check, and it does not stop an employer from telling applicants that law or policy disqualifies particular histories from particular positions. Minnesota also leaves the underlying employment relationship largely governed by at-will principles, which is a separate question from what a public employer may consider at the hiring stage.

Chapter 364 also carves out entire categories. Minn. Stat. § 364.09 removes peace officer licensing, law enforcement and fire protection agencies, school districts, several licensing and background-study regimes, and other listed positions from the chapter, and provides that the chapter does not supersede a statutory duty to run a background investigation. Neither the applicant's offense nor the position at issue in McNitt fell within those exceptions, as the concurrence and dissent noted (slip op., concurrence and dissent, at C/D-13).

The statute has already changed

The version the court construed is the 2024 text. In 2026, the Legislature rewrote subdivision 3 as part of a public safety omnibus, Laws 2026, ch. 97 (S.F. No. 4760), art. 9, § 2, in the article titled "Criminal History." The amended subdivision provides that a person with a directly related conviction "may be disqualified" from the employment or occupation "unless the person can show both: (1) competent evidence of sufficient rehabilitation; and (2) present fitness to perform the duties of the public employment sought or the occupation for which the license is sought." It then folds the old 3(a) document list and the old 3(b) factor list into a single list of eight items that "the hiring or licensing authority may consider" in deciding whether the person has demonstrated both, and adds proof of completing a treatment program to the final catch-all item. That section is effective the day following final enactment.

The court noted the amendment and declined to apply it, writing that the parties' supplemental requests to consider the amended statute "are not properly before us, and we do not consider them" (slip op. at 6 n.2). A separate section of the same article also revises the notice a hiring or licensing authority must give under Minn. Stat. § 364.05 when it denies employment or a license because of a prior conviction, including the grounds for the denial, the grievance procedure, the earliest date on which the person may reapply, and that competent evidence of rehabilitation will be considered on reapplication.

For readers whose real question is the record itself rather than a single hiring decision, Minnesota's expungement and record-sealing rules address the separate path of changing what a background check returns in the first place.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The fight in McNitt was never about whether the applicant produced the paperwork. The administrative law judge, the Court of Appeals, and both dissenting justices all treated the subdivision 3(a) documents as produced. The contested question was who evaluates them, and the court answered that the hiring authority does.

That answer changes the practical character of the rehabilitation provision in Minnesota. Read as the Court of Appeals read it, subdivision 3(a) operated as a safe harbor with a defined price of admission: produce the documents the subdivision lists and the disqualification could not stand. Read as the Supreme Court now reads it, subdivision 3(a) is a production route into a discretionary judgment. The applicant's protection shifts from the face of the statute to the back end of administrative review, which is precisely where this case is headed next. The unreached questions on remand, whether the commissioner applied the wrong burden of proof, leaned on factors the Legislature did not intend, or acted arbitrarily and capriciously, are now the operative constraints on that discretion. How much protection they supply is a question this opinion does not answer.

The two readings of subdivision 3(b) are worth understanding on their own terms, because the same textual argument will recur. The majority treats 3(b) as a mandatory add-on that would have nothing to attach to if 3(a) were conclusive. The dissent treats 3(b) as an independent pathway for applicants who cannot produce a release order or a discharge order at all, and reads the majority's approach as letting an employer perform a second assessment the Legislature had already made. Both readings take the statute seriously, and the split turns on where the decision-maker comes from. The majority locates the hiring authority in the surrounding provisions, subdivision 2 and subdivision 3(b), and carries it into subdivision 3(a); the dissent treats the absence of any named decision-maker in 3(a) as deliberate.

There is a timing wrinkle that anyone citing this case should not miss. The holding construes the 2024 text, and that text no longer stands. The amended subdivision 3 names the hiring or licensing authority as the entity that "may consider" the evidence, which is the very allocation the majority had to infer from context and the dissent said was absent. A court applying the amended statute would therefore be working from different words than the ones the Supreme Court parsed, and this opinion does not tell us how the amended version operates. We would treat McNitt as controlling for conduct governed by the earlier text and as persuasive background, not settled construction, for anything arising under the new one.

Finally, the geographic limit is real. Minnesota's chapter 364 is one specific statutory design, and criminal-record hiring rules vary widely by state in whether they cover private employers, whether they define a directly related conviction, and whether they create any rehabilitation route at all. Nothing in this opinion transfers to another state's statute, and nothing in it addresses federal employment.

How This Affects You

For Minnesota public employers and state licensing authorities within chapter 364's scope, the decision confirms that producing subdivision 3(a) documents starts the evaluation rather than ending it, and that subdivision 3(b) evidence must still be considered. It does not license disqualification for any conviction: the subdivision 1 direct-relationship threshold and the subdivision 2 factors still have to be satisfied first, and the notice requirements in Minn. Stat. § 364.05 still apply to a denial.

For applicants to Minnesota public jobs, the statutory route to challenge a disqualification remains the administrative grievance process and certiorari review, and the standards being litigated on remand in McNitt are the standards that govern such challenges. Anyone dealing with a specific disqualification should get advice from a Minnesota employment lawyer about their own situation; this article describes what the court held, not what any individual should do.

What Happens Next

The case returns to the Minnesota Court of Appeals for the four questions the Supreme Court identified as unreached. The opinion sets no schedule, and as of September 5, 2026 that court has not issued a decision on remand. That court will be working from the Supreme Court's construction of the 2024 text, which is the version the Supreme Court took review of and the only one it construed; the court expressly declined to consider the 2026 amendment as not properly before it (slip op. at 6 n.2).

Separately, the first cases arising under the 2026 amendment will present a question no Minnesota appellate court has yet answered: how the rewritten subdivision 3, with its consolidated eight-item list and its express reference to the hiring or licensing authority, operates in practice. Legislative revision is also always available; the majority pointedly noted that "[i]t is not our job to decide where the Legislature should have drawn the line" (slip op. at 26), and both the majority and the dissent framed the competing policy arguments as matters for the Legislature.

This is general legal information, not legal advice. It describes a Minnesota Supreme Court decision and Minnesota statutes as verified on September 5, 2026, and covers Minnesota public employment and state occupational licensing only. Criminal-record hiring law differs in every other state and under federal law. Anyone facing a specific hiring disqualification or licensing denial should consult a licensed Minnesota attorney.

Related articles

• How Minnesota handles employment background checks
• Minnesota's expungement and record-sealing rules
• Minnesota at-will employment rules
• State-by-state background check overview

Last updated: 2026-09-05. Details verified as of 2026-09-05.