This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-2133

In the Matter of the Appeals of Kevin D. Moser, et al., 

for MSRS Correctional Plan Service

Filed August 17, 2015

Affirmed

Johnson, Judge

Minnesota State Retirement System

Philip G. Villaume, Jeffrey D. Schiek, Thomas H. Priebe, Villaume & Schiek, P.A., 

Bloomington, Minnesota (for relators)

Lori Swanson, Attorney General, Kevin Finnerty, Assistant Attorney General, St. Paul, 

Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Larkin, 

Judge.

U N P U B L I S H E D O P I N I O N

JOHNSON, Judge

The board of directors of the Minnesota State Retirement System determined that 

five employees of the department of corrections are ineligible for early-retirement 

benefits under the rule-of-90 formula because they became employees of the state after 

July 1, 1989. On appeal, the employees argue that they are eligible because they started a 

training program before July 1, 1989. We conclude that the board’s decision is supported 

by substantial evidence that, while in the training program, the employees were not 
2

performing the duties of the position for which they were being trained and, thus, were 

not state employees during that period of time for purposes of pension eligibility. 

Therefore, we affirm.

FACTS

The five relators in this appeal joined the department of corrections (DOC) on 

June 7, 1989, as trainees for the position of corrections counselor (now called corrections 

officer). The DOC intended the training program to be a means of teaching trainees to be 

corrections counselors and a means of selecting the trainees most suitable for the 

position. The training program lasted at least four weeks and as long as nine weeks, 

depending on the facility to which a trainee was assigned. According to the DOC, a 

significant number of trainees were not selected to be corrections counselors. 

The legislature amended the statute governing the Minnesota State Retirement 

System (MSRS) in 1989 to provide that “a person who first became a covered employee 

before July 1, 1989” is entitled to early-retirement benefits pursuant to the so-called “rule 

of 90.” 1989 Minn. Laws ch. 319, art. 13, § 10, at 2078 (codified at Minn. Stat. 

§ 352.116, subd. 1 (2014)). Under the rule of 90, a person attains eligibility when his or 

her “attained age plus credited allowable service totals 90 years.” Minn. Stat. § 352.116, 

subd. 1(c) (2014).

Relators remain employed by the DOC and now are members of the MSRS 

general plan. Relators assert that they long have understood that they would be eligible 

for early-retirement benefits pursuant to the rule of 90 because, among other things, they 

started their training program before July 1, 1989. In addition, they contend that they 
3

were so informed during the training program. When some of them contacted MSRS to 

inquire about or to confirm their eligibility for early-retirement benefits, they were told 

that they do not qualify for the rule of 90 because their benefit contributions did not begin 

until after July 1, 1989. Relators requested additional service credit from the MSRS. 

Their request was denied by the executive director of the MSRS in April 2013. The 

executive director explained that, according to the DOC, relators “were not performing 

their future duties” in July 1989 and, thus, were “not employees eligible for MSRS until 

. . . after completing [their] classroom training.” 

Relators pursued an administrative appeal of the executive director’s decision to 

the MSRS board of directors in October 2014. See Minn. Stat. § 356.96 (2014). The 

board considered relator’s appeal at a regular meeting. The board heard from the 

executive director and MSRS staff, relators’ attorney, an assistant commissioner of DOC, 

and four of the relators. The board voted at the meeting to uphold the executive 

director’s determination, and the board issued a written order in December 2014. The 

board’s order concludes that, in their training program, relators “were learning how to 

perform the duties of a corrections counselor, not actually performing those duties,” and, 

thus, were not within the statutory definition of “state employee” during their training 

program. Relators appeal the MSRS board’s decision by way of a writ of certiorari. 

D E C I S I O N

Relators argue that the MSRS board erred by concluding that they were not 

performing the duties of a corrections counselor during their training program in June 
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1989 and, thus, are ineligible for early-retirement benefits because the rule-of-90 formula 

does not apply. 

This court reviews decisions of the MSRS board in the same manner that we 

review any other administrative agency decision. Axelson v. Minneapolis Teachers’

Retirement Fund Ass’n, 544 N.W.2d 297, 299 (Minn. 1996); In re Retirement Benefits of 

Yetka, 554 N.W.2d 85, 88 (Minn. App. 1996). It is undisputed that the board’s decision 

in this case is a quasi-judicial decision. Our review of quasi-judicial agency decisions

is limited to an inspection of the record of the inferior tribunal 

in which the court is necessarily confined to questions 

affecting the jurisdiction of the board, the regularity of its 

proceedings, and, as to merits of the controversy, whether the 

order or determination in a particular case was arbitrary, 

oppressive, unreasonable, fraudulent, under an erroneous 

theory of law, or without any evidence to support it.

Dietz v. Dodge Cnty., 487 N.W.2d 237, 239 (Minn. 1992). We defer to an agency’s 

factual findings so long as they pass the substantial-evidence test, i.e., so long as there is 

“adequate support in the record” to justify the decision. In re Denial of Eller Media Co.’s

Applications for Outdoor Adver. Device Permits in City of Mounds View, 664 N.W.2d 1, 

7 (Minn. 2003); see also Moorhead v. Minnesota Pub. Utils. Comm’n, 343 N.W.2d 843, 

846 (Minn. 1984). “The substantial evidence test is satisfied when there is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Eller 

Media, 664 N.W.2d at 7 (quotation omitted).

An employee of the state who was a “covered employee or a member of a 

[specified] pension fund” before July 1, 1989, may be eligible for early-retirement 

benefits pursuant to the rule of 90. Minn. Stat. § 352.116, subd. 1. The term “state 
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employee” is defined by statute to include “trainees who are employed on a full-time 

established training program performing the duties of the classified position for which 

they will be eligible to receive immediate appointment at the completion of the training 

period.” Minn. Stat. § 352.01, subd. 2a(a)(8) (2014). But the statutory definition of 

“state employee” excludes “persons who are . . . employed as trainee employees unless 

included under subdivision 2a, paragraph (a), clause (8).” Id., subd. 2b(1)(iii). It is 

undisputed that relators were engaged in “a full-time established training program” 

before July 1, 1989. See Minn. Stat. § 352.01, subd. 2a(a)(8). The key question is 

whether they were “performing the duties of the classified position for which they will be 

eligible to receive immediate appointment at the completion of the training period,” i.e., 

the position of corrections counselor. See id.

The MSRS board concluded that, based on the evidence presented, relators were 

“not actually performing the duties” of corrections counselors during their training

program but, rather, were “learning how to perform the duties of a corrections 

counselor.” The board based this conclusion on its findings that relators “spent 

considerable time in the classroom and touring facilities,” “performed tasks under the 

direct supervision of experienced officers,” and were paid less than half the hourly wage 

of a probationary corrections counselor. 

The board’s finding that relators often were in a classroom or on tours of 

correctional facilities is supported by documentary evidence in the form of daily and 

weekly agendas for the training program. These exhibits span the period of June 7, 1989, 

to August 15, 1989. There appears to be no dispute that the trainees were not 
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“performing the duties of the [corrections counselor] position” while they were in a 

classroom or on tours of correctional facilities. See id.

In addition, the board’s finding that relators performed tasks under the direct 

supervision of experienced officers also is supported by the evidence in the agency 

record. A portion of the training program consisted of on-the-job training. But the 

evidence indicates that the trainees did not perform all the duties or fulfill all the 

expectations of a corrections counselor during the on-the-job portion of the training 

program. Rather, the evidence indicates that trainees were paired with corrections 

counselors. Relators contend that they performed many or all of the tasks that corrections 

counselors were required to perform. They put particular emphasis on letters submitted 

by persons who had responsibility for training at various DOC facilities. But those letters 

essentially confirm that, as trainees in the on-the-job component of the training program, 

relators were not fully responsible or accountable in the same way as corrections 

counselors. For example, the letters indicate that trainees were merely “shadowing and 

working side by side” with corrections counselors and were performing the tasks of 

corrections counselors “under the supervision and coaching of supervisors and 

experienced officers.” 

Furthermore, the board’s finding that relators were paid less than half the hourly 

wage of probationary corrections counselors also is supported by evidence in the agency 

record. Trainees were paid only $4.31 per hour, and their payroll status was described 

with the code “trainee, intern, work study student appointment.” Relators’ hourly pay 

was increased to $10.25 after they were placed into probationary corrections counselor
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positions, and their transitions were described with the code, “conversion from trainee to 

probationary status.” Not until relators were appointed to the position of corrections 

counselor did the DOC begin making the employer’s contributions to a MSRS pension 

plan. This evidence further bolsters the conclusion that relators were not performing the 

duties of their future employment during the training program.

“With respect to factual findings made by the agency in its judicial capacity, if the 

record contains substantial evidence supporting a factual finding, the agency’s decision 

must be affirmed.” Moorhead, 343 N.W.2d at 846. We conclude that the evidence 

described above, as well as other evidence in the evidentiary record, provides substantial 

support for the board’s findings. We further conclude that those findings justify the 

board’s conclusion that each of the relators did not become a “state employee” until after 

completing the training program, which occurred after July 1, 1989.

Relators also contend that the MSRS should be estopped from denying their 

eligibility for early-retirement benefits pursuant to the rule of 90 because the training 

instructors allegedly told them during the training program that they would qualify for the 

rule of 90. Assuming that a DOC trainer said so, the statement would be a mistake in 

light of the statute and the evidence discussed above. See Minn. Stat. § 352.01, subd. 

2a(a)(8). Relators do not cite any caselaw to support their contention that a misstatement 

by a state government employee may bind the state government more than two decades 

later. A governmental entity is subject to estoppel only if (1) a government agent 

commits wrongful conduct, (2) the claimant reasonably relied on that conduct, (3) the 

claimant incurred unique expenditures, and (4) the “balance of the equities” favors 
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estoppel. City of North Oaks v. Sarpal, 797 N.W.2d 18, 25 (Minn. 2011). A 

governmental entity is not subject to estoppel if a government employee makes “a simple 

mistake” or if a government employee takes an unauthorized action. Id. at 25-26 & n.8. 

In this case, relators cannot show that a DOC training instructor was authorized to confer 

on relators a retirement benefit that is contrary to state statute or otherwise engaged in 

wrongful conduct. Thus, the MSRS is not estopped from denying that relators are 

ineligible for early-retirement benefits pursuant to the rule of 90.

In sum, the MSRS board did not err when it decided that relators are ineligible for 

early-retirement benefits pursuant to the rule of 90.

Affirmed.