Facts and Procedural History:

On November 26, 2007, IPAD received a letter from Kristi A. Hastings, an attorney, on behalf of her client, Todd County. In her letter, Ms. Hastings asked the Commissioner to issue an advisory opinion regarding the classification of certain data Todd County maintains. IPAD requested clarification and additional information, which Ms. Hastings provided in an e-mail dated November 29, 2007.

In response to Ms. Hastings' request, IPAD, on behalf of the Commissioner, wrote to Jennifer Petersen, an attorney, on behalf of her client, Michael Petersen, former County Administrator. The purposes of this letter, dated December 6, 2007, were to inform her of Ms. Hastings' request and to ask her to submit comments, which she did in a letter dated December 14, 2007. A summary of the facts as Ms. Hastings presented them follows.

Mr. Petersen was hired in the fall of 2007 as County Administrator. The terms of his employment agreement contained a six-month probationary period. While still in the probationary period, the County terminated his employment after several employee complaints regarding Mr. Petersen were investigated by an independent investigator . . .

The County Board passed a resolution and motion to terminate Mr. Petersen's employment which states, in part: [i]nformation has been brought to the attention of this Board concerning County Administrator Michael Petersen relative to the potential need for disciplinary action . . .

According to Ms. Hastings, Mr. Petersen is not a union member and is not subject to any Collective Bargaining Agreement with the County. She raised the issue of the possibility that Mr. Petersen could seek a remedy other than arbitration.

On November 16, 2007, the County received a request from Tim King of the Browerville Blade, for copies of the following data:

1. The nature of the complaint or charges against Mr. Petersen by the Todd County Commissioners.

2. The final disposition of the disciplinary action against Mr. Petersen together with the specific reasons for the action and the data, investigative reports, and other written material that document the basis for the action.

3. Any investigative reports or memos regarding the firing of Mr. Petersen that document the basis for that action.

4. The terms of any agreement settling any dispute arising from the disciplinary action and firing of Mr. Petersen.

On November 20, 2007, Ms. Hastings replied to Mr. King, stating that she intended to request this opinion. She also told him that the County and Mr. Petersen did not enter into a settlement agreement. The County paid him a 30-day severance, per the County's employment agreement with him.

In her comments to the Commissioner, Ms. Petersen wrote that because Mr. Petersen was not a public official within the meaning of Minnesota Statutes, section 13.43, subdivision 2(e), the data at issue are not public.

Issue:

Based on Ms. Hasting's opinion request, the Commissioner agreed to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data Todd County maintains?

---

Discussion:

Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.

When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.

(Ms. Petersen noted that section 13.43, subdivision 2(e), which classifies data about public officials (who are certain employees of the State under the definition) does not apply to Mr. Petersen. Ms. Petersen is correct, because local government employees are not included in the definition of public official. However, subdivision 2(a)(5) applies to Mr. Petersen, as it does to other public employees who are not public officials.)

In situations like this one, in which an employee is not subject to a collective bargaining agreement a final disposition occurs when the government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. (See section 13.43, subdivision 2(b).)

The classification of the data in question, i.e., the items numbered 1-3 in Mr. King's request (see above), is thus dependent upon whether there has been a final disposition of disciplinary action. In this situation, Mr. Petersen does not have grievance rights under a collective bargaining agreement, and the County has made its final decision about the disciplinary action, i.e., Mr. Petersen's termination.

Ms. Hastings raised the issue of the possibility that Mr. Petersen could seek a remedy other than arbitration. The Commissioner addressed similar issues in Advisory Opinions 96-050 and 00-035. In 96-050, the Commissioner opined:

The Minnesota Supreme Court case . . . referred to is Annandale Advocate v. City of Annandale, 435 N.W. 2d 24, (Minn. 1989). The Legislature amended Section 13.43 in 1990, following Annandale. That case, in relevant part, dealt with the meaning of the terms final decision and final disposition of disciplinary actions as these terms were used in Chapter 13.

In Annandale, the Court found that a final decision of the City was not the final disposition of the disciplinary action, because the employee had exercised his right under the Veterans Preference Act to have a further hearing on the matter. The Court acknowledged that its interpretation would result in delay of months and even years before disciplinary records could be released to the public. (See Annandale at 29.) Subsequently, in 1990, the Legislature amended Section 13.43, subdivision 2, by adding clause (b), which provides the definition of final disposition of disciplinary action, and includes the language regardless of the possibility of any later proceedings or court proceedings. (See Laws of Minnesota, 1990, Chapter 550, Section 1.)

Thus, according to the requirements of Section 13.43, subdivision 2, the specific reasons for and data documenting disciplinary action taken against a public employee become public when there has been a final disposition of the disciplinary action, regardless of the possibility of any later proceeding or court proceedings. The City has made its final decision; therefore there has been a final disposition of disciplinary action, and, regardless of any later proceeding, including a hearing under the Veterans Preference Act, the data sought by The Forum about J are public. [Emphasis provided.]

Accordingly, data that the County maintains that document the basis of, including the specific reasons for, the disciplinary action the County took against Mr. Petersen are public, regardless of the possibility of any later proceedings or court proceedings.

---

Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Hastings raised is as follows:

The County has made its final decision, which is the final disposition of the disciplinary action taken, regardless of the possibility of any later proceedings or court proceedings. Accordingly, data that constitute the specific reasons for and document the basis of the disciplinary action are public data.

Signed:

Dana B. Badgerow
Commissioner

Dated: December 20, 2007

---