January 21, 2004; City of Duluth
1/21/2004 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:On December 12, 2003, IPAD received a letter dated December 9, 2003, from Bryan Brown, City Attorney of the City of Duluth. In his letter, Mr. Brown asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the City maintains. Upon request from IPAD staff, Mr. Brown provided clarification in a letter dated December 15, 2003. In a letter dated December 17, 2003, IPAD invited the subject of the data in question, X, to submit comments. On December 24, 2003, IPAD received comments from X's attorney. Further, on December 26, 2003, IPAD received a letter dated December 24, 2003, from James Barnum, Deputy General Counsel for Hubbard Broadcasting, Inc. Mr. Barnum requested an opportunity to provide comments. IPAD received Mr. Barnum's comments on December 31, 2003, in a letter dated same. A summary of the facts is as follows. In his opinion request, Mr. Brown wrote: We have an employee who we charged with misconduct and served with a notice of termination from employment. It is a civil service, unionized job in the Police department. Pursuant to the applicable union contract, the employee filed a grievance. It proceeded to arbitration. The arbitrator issued a decision that sustained the grievance and reinstated the employee with full back pay and benefits. The employee received no disciplinary penalty that was imposed through the employer's efforts. Local media have requested all data related to the disciplinary proceeding, including the arbitration decision. My question relates to [Minnesota Statutes, section 13.43]. What, if any, data relating to the attempted termination of the employee is public? If any data is public, when did it become public? Issue:In his request for an opinion, Mr. Brown asked the Commissioner to address the following issue:
Discussion:Government data about employees are classified at Minnesota Statutes, section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, 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. 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 courts proceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement.... (See section 13.43, subdivision 2(b).) In his comments to the Commissioner, X's attorney wrote: ...since the final disposition of the disciplinary action against [X] was that no disciplinary action was taken against [X], only the limited data regarding the existence of the complaint and its now concluded status that no action has been taken against [X], is public. All other data relating to the disciplinary proceeding, including the arbitration decision, should remain private and no further data regarding the incident should be disclosed. Our position is based on the fact that pursuant to Minn. Stat. section 13.43, subd. 2(5), personnel data becomes public data when disciplinary action is imposed. Since the arbitrator has found that [X shall be reinstated], no disciplinary action was imposed. Mr. Barnum, in his comments to the Commissioner, asserted that the data in question are public because a final disposition has occurred. As the Commissioner has discussed in previous advisory opinions, a final disposition cannot have occurred unless the government entity takes disciplinary action against an employee (see Advisory Opinions 96-001 and 96-010.) In the situation at hand, the City took disciplinary action against X. X, whose employment is covered under a collective bargaining agreement, grieved the discipline and an arbitrator heard the case. The arbitrator sustained the grievance and reinstated the employee with full back pay and benefits. Because the outcome of the grievance process is that the discipline was reversed, the employee, in essence, has not been disciplined. In situations such as this, where the final disposition of a matter is no disciplinary action, section 13.43, subdivision 2(a)(4), dictates that an entity can release only data regarding the existence and status of the complaint or charge. Obviously, in responding to questions about status, an entity's answer depends upon where it is in the process of responding to the complaint or charge. Here, the matter is now closed. Thus, the following data are public: the employee's name, the fact that a complaint or charge exists, and that the matter is closed (the city investigated and there was no disciplinary action). Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Brown raised is as follows:
Signed:
Brian J. Lamb
Dated: January 21, 2004 |
Personnel data
Grievance sustained
