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Advisory Opinion 96-020

April 30, 1996; City of Northfield

4/30/1996 10:14:43 AM

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

For purposes of simplification, the information presented by the government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On April 10, 1996, PIPA received a letter from Maren L. Swanson, City Attorney for the City of Northfield, Minnesota, in which she asked the Commissioner to issue this opinion.

A summary of the detailed facts of the matter at issue follows. In late 1995, an allegation was made against a City employee. According to Ms. Swanson, [a]n investigation revealed evidence which tends to substantiate the allegation against him, and also evidence which refutes the allegation.

According to Ms. Swanson, the Northfield City Council considered the allegations, but did not determine that disciplinary action should be taken. Ms. Swanson stated: . . . there was a consensus that it would be desirable to have the employee voluntarily resign from his employment. The employee agreed to resign, and entered into a resignation agreement with the City.

The terms of the resignation agreement included a payment characterized as reimbursement of expenses incurred by the employee related to the resignation agreement. The resignation agreement also contained a confidentiality provision, which stated that the employee and the City would treat the terms of the agreement as confidential. The confidentiality provision also included the following statement: [a]nything to the contrary herein notwithstanding, Employer may, upon proper request, disclose any data which is public data under the Minnesota Government Data Practices Act or other law, or pursuant to court order. (The Commissioner was not provided information as to the meaning of proper request as that term is used in the agreement.)

The resignation was approved by the City Council on April 1, 1996. Ms. Swanson stated that a request for a copy of the agreement was made after the City Council meeting at which the agreement was approved. Ms. Swanson stated that the request was denied, and stated the following as the basis of the City's denial:

The City's position was that since no finding was made by the Council that the recent allegation against the employee was substantiated and since the Council did not conclude that discipline may have been warranted as a result of that allegation, the subject resignation agreement was not an agreement 'settling a dispute.' It resolved an uneasiness which the Council had with this particular employee, which they preferred to resolve by mutually severing the employment relationship rather than by pursuing the recent allegation to any conclusion.

There wasa dispute which preceded the resignation agreement, namely, whether or not the employee improperly ordered a piece of equipment. But that dispute was between a witness against the employee, on the one hand, and the employee and a witness on his behalf, on the other. It did not evolve into a dispute between the employee and the Council in which the employee said the allegation was false and the Council said it was true or that it warranted disciplinary action. [Emphasis hers.]

Issue:

In her request for an opinion, Ms. Swanson asked the Commissioner to address the following issue:

Is the resignation agreement between the City and a former City employee public or private data under Minnesota Statutes Section 13.43, subdivision 2(a)(6), or any other law?

Discussion:

Pursuant to Minnesota Statutes Section 13.43, subdivision 1, personnel data are . . . data on individuals collected because the individual is or was an employee of . . . [a] political subdivision . . . . An allegation was made about a City employee. The City investigated the allegation and, subsequently, entered into an agreement with the employee. The data in the resignation agreement were collected by the City because the person who is the other party to the agreement was a City employee. Therefore, the data in the resignation agreement are personnel data, and are classified as provided in Section 13.43.

Section 13.43, subdivision 2(a), provides that certain personnel data are public, including the following:

(4) the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action;

(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body;

(6) the terms of any agreement settling any dispute arising out of an employment relationship or of a buyout agreement, as defined in section 123.34, subdivision 9a, paragraph (a). [Section 123.34, subdivision 9a (a), refers to buyout agreements between school superintendents and school districts.]

Clearly, the fact that an allegation or charge had been made against the employee is public, pursuant to Section 13.43, subdivision 2(a), clause (4). According to Ms. Swanson, the investigation into the allegation did not result in disciplinary action; therefore, clause (5) does not apply.

Ms. Swanson asserted that the City did not have a dispute with the employee; rather, the dispute was between . . . a witness against the employee, on the one hand, and the employee and a witness on his behalf, on the other. It did not evolve into a dispute between the employee and the Council in which the employee said the allegation was false and the Council said it was true or that it warranted disciplinary action. According to Ms. Swanson, the resignation agreement the City entered into with the employee resolved an uneasiness the Council had with the employee.

Accepting, for the sake of argument, Ms. Swanson's position that there was not a dispute between the City and the employee, the Commissioner does not agree with Ms. Swanson's conclusion regarding the applicability of Section 13.43, subdivision 2(a)(6). The scope of the language in that statutory provision is not limited to a dispute between an employee and a government entity. The language of that provision encompasses settlements of any dispute arising out of an employment relationship. (Emphasis added.) Therefore, regardless whether the City acknowledges being a party to the dispute, the City investigated an allegation about the employee. The City determined that the employee's resignation was desirable, and to that end, entered into an agreement with the employee. The agreement involved the payment of public monies to the employee. Based on the information provided, the Commissioner cannot accept the City's position that the data in the resignation agreement are not governed by Section 13.43, subdivision 2(a)(6).

The resignation agreement is an agreement settling a dispute arising out of the employee's employment relationship with the City. Therefore, the data are public personnel data, pursuant to Section 13.43, subdivision 2(a)(6).

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Ms. Swanson is as follows:

The terms of the resignation agreement between the City and the City employee are public, pursuant to Minnesota Statutes Section 13.43, subdivision 2(a)(6).

Signed:

Elaine S. Hansen
Commissioner

Dated: April 30, 1996

Personnel data

Settlement agreements