This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Shirley Torkelson,



City of Crystal,


The City Council of Crystal, et al.,


Filed October 7, 1997


Kalitowski, Judge

Hennepin County District Court

File No. 9510554

Gary A. Weissman, Gary A. Weissman Law Offices, 701 Fourth Avenue South, #500, Minneapolis, MN 55415 (for respondent)

Clifford M. Greene, Jodeen A. Kozlak, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Thoreen, Judge.[*]



Appellant City of Crystal challenges the district court's judgment in favor of respondent Shirley Torkelson. Appellant contends the district court erred in denying its motion for summary judgment because as a matter of law respondent is not a whistleblower. Respondent requests attorney fees and costs associated with this appeal. We affirm.


Respondent was suspended for three days in 1992 because she placed an unsolicited article in another employee's pay envelope. Respondent appealed the suspension to the assistant city administrator. After the assistant city administrator upheld the suspension, respondent appealed to the city administrator. During the pendency of the disciplinary matter, the assistant city administrator disclosed respondent's suspension to another employee in violation of the Minnesota Government Data Practices Act (MGDPA). Minn. Stat. §§ 13.01-13.99 (1996).

Because of the improper disclosure by the assistant city administrator, respondent commenced a lawsuit against appellant. In her complaint, respondent also alleged numerous additional violations of the MGDPA by appellant.

In May of 1993, the parties reached a settlement of the lawsuit whereby appellant agreed to: (1) reduce respondent's three-day suspension to an oral reprimand, evidence of which would be completely removed from respondent's personnel file; (2) pay attorney fees and costs; (3) pay compensatory damages; (4) revise existing policies and prepare additional ones as necessary to comply with the MGDPA; and (5) not retaliate against respondent.

Respondent subsequently received four written reprimands, and appellant terminated her employment in May of 1994. Respondent commenced this lawsuit against appellant in July of 1995. In her complaint, respondent alleged nine causes of action including retaliation against her for acting as a whistleblower. On appellant's motion, the district court dismissed six of respondent's claims but denied summary judgment on respondent's Human Rights Act age discrimination claim, her aiding and abetting claim, and her whistleblower claim.

A jury trial commenced on October 14, 1996, and the jury returned a special verdict in favor of respondent finding that she was wrongfully terminated in retaliation for filing her previous lawsuit. The district court denied appellant's motion for JNOV, or, in the alternative, a new trial.

"Summary judgment is appropriate when a party `fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Iacona v. Schrupp, 521 N.W.2d 70, 72 (Minn. App. 1994) (citation omitted). No deference need be given to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).


The Whistleblower Act prohibits an employer from discharging an employee who

in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Minn. Stat. § 181.932, subd. 1(a) (1996). Whether a plaintiff made a report in "good faith" is a question of fact, but whether certain conduct constitutes a "report" is a question of law. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 593 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). In addition, the plaintiff's good faith report must pertain to a matter in which the public interest is "clearly mandated." Vonch v. Carlson Companies, Inc., 439 N.W.2d 406, 408 (Minn. App. 1989), review denied (Minn. July 12, 1989). If the general public's interest is only "marginally affected," the plaintiff does not have a claim under the Whistleblower Act. Id.

The district court denied appellant's motion for summary judgment on the whistleblower claim stating:

[T]he City's alleged violation of the MGDPA * * * falls within the sort of conduct contemplated by Minn. Stat. § 181.932. There is evidence from which a jury could conclude that the alleged violation was not "marginal," particularly in light of the fact that a condition of the settlement agreement included the City's compliance with the MGDPA.

Appellant contends that as a matter of law respondent is not a whistleblower. We disagree.

Respondent's 1992 complaint included 13 alleged violations of the MGDPA by appellant and a special request for relief based on that noncompliance. The settlement agreement reached by the parties also specifically mandated that appellant achieve full compliance with the Act:

4. Settlement: Compliance Claim. Defendants agree to revise existing policies and prepare additional policies as necessary to comply with the requirements of the Minnesota Government Data Practices Act, Minn. Stat. § 13.01, et seq. Defendants agree to submit, within six months of the date of this agreement, the revised and additional policies to the Minnesota Department of Administration for compliance review. Defendants further agree to promptly make any revisions to the policies that the Minnesota Department of Administration may require.

These settlement conditions do not provide respondent with a solely personal benefit. Among the alleged violations cited by respondent in her complaint were the lack of "[p]rocedures for ensuring the accuracy of data," and "[p]rocedures for access by parents to private data maintained on their minor children," both unquestionably matters of public interest. Indeed, the MGDPA has far-reaching public benefits.

Together, the officials' duty to assure the accuracy and completeness of data and the individual's right to contest the accuracy and completeness of data demonstrate a legislative purpose of preventing confusion, mistake, embarrassment, ridicule, or other harm that the subject of government data could suffer if the data are not accurate and complete.

Hennepin County Community Servs. Dep't v. Hale, 470 N.W.2d 159, 164 (Minn. App. 1991), review denied (Minn. July 24, 1991). By insisting that appellant follow the mandates of the legislature, respondent conferred a substantial public good.

Finally, we recognize that the supreme court has noted the importance of the reported violation being related to a law that is designed to protect the general public's interests. In a footnote in Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483 (Minn. 1996), the supreme court stated:

In view of earlier decisions of the court of appeals and the federal courts, we regard as rather surprising the lower courts' tacit assumption that Williams' complaint stated a cause of action pursuant to the Whistleblower Act. The popular title of the Act connotes an action by a neutral--one who is not personally and uniquely affronted by the employer's unlawful conduct but rather one who "blows the whistle" for the protection of the general public or, at the least, some third person or persons in addition to the whistleblower. Were it otherwise, every allegedly wrongful termination of employment could, with a bit of ingenuity, be cast as a claim pursuant to Minn. Stat. § 181.932 (1994).

Id. at 484 n.1 (citations omitted). While we are mindful of the supreme court's concern, we conclude that, although respondent received a personal benefit arising out of the settlement agreement, she also independently demanded compliance with the MGDPA and thereby acted in the public interest. Therefore, on this record, we cannot say the district court erred in refusing to rule that as a matter of law respondent is not a whistleblower under the statute.


Consistent with Minn. Stat. § 181.935(a) (1996), respondent made a motion for attorney fees and costs from this court. It is consistent with legislative intent to compensate attorneys for time spent defending a judgment. Hughes v. Sinclair Marketing, Inc., 375 N.W.2d 875, 879 (Minn. App. 1985), aff'd in part, rev'd in part on other grounds, 389 N.W.2d 194, 200 (Minn. 1986). When attorney fees and costs are awarded by the district court, those fees should not be "dilluted" by a failure to award reasonable fees for appellate work. Id. We will therefore by separate order award to respondent attorney fees and costs.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.