Issue:

In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:

Discussion:

In regard to the issue raised by Mr. Anfinson, the data in dispute were collected by Dr. Davis and presented in written form to Chancellor Eaton in her role as Chancellor of MnSCU. The data were collected following a no confidence vote by 93% of the St. Cloud Technical College Faculty Senate regarding the decision making and leadership of Dr. Barnhardt. After a meeting with some of the senate members, Chancellor Eaton, in a letter dated August 15, 1996, wrote to Dr. Davis and stated, As a result of this meeting, I agreed to undertake an examination of the institution to determine which, if any, of the faculty senate concerns could be documented and which, if any, of the concerns were the result of some misunderstandings or misperceptions that needed to be addressed. The data gathered by Dr. Davis about Dr. Barnhardt were collected because Dr. Barnhardt was an employee of St. Cloud Technical College. Therefore, the data are classified pursuant to Minnesota Statutes Section 13.43.

The dispute that is the subject of this opinion arose because it is the Times' assertion that the inquiries made by Dr. Davis about Dr. Barnhardt were in response to complaints made against Dr. Barnhardt. If that is correct, then pursuant to Minnesota Statutes Section 13.43, subdivision 2 (e), most of the data relating to the complaint or charge, e.g., most of the data contained in Dr. Davis' report, are public.

Minnesota Statutes Section 13.43, subdivision 2 (e), states:

...upon completion of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources. For purposes of this paragraph, public official means:

(1) the head of a state agency and deputy and assistant state agency heads;

(2) members of boards or commissions required by law to be appointed by the governor or other elective officers; and

(3) executive or administrative heads of departments, bureaus, divisions, or institutions.

This statutory language could be applied to the case at hand because Dr. Barnhardt resigned from his post as president (executive head of an institution) of St. Cloud Technical College.

On behalf of MnSCU, Mr. Liss described the faculty senate's objections of Dr. Barnhardt as generalized concerns. He wrote, A reasonable and appropriate definition of complaint' would require a level of specificity about the conduct that is being complained of. Presumably, a complaint would result from a triggering event that could be articulated in the complaint. He further wrote:

While MnSCU does not assert that a complaint under the Act requires the same formality as a complaint in civil court, it makes no sense to consider a complaint to include any concern expressed by faculty, students, staff, or member of the public. There must be a way for the administration to respond to criticism without opening an investigation every time there is an issue of miscommunication on a campus.

Mr. Liss added that the MnSCU Board of Trustees has several established mechanisms for bringing complaints against a president or other employee. He then stated, It is reasonable to look to these established mechanisms to determine if someone has filed a complaint' against a president. Attached to Mr. Liss' response was a copy of what appears to be Board Policy 1B.1, relating to nondiscrimination in employment and education opportunity. In part it reads, The system office, colleges and universities shall develop and implement a complaint process to review complaints of discrimination/harassment or sexual violence.

Mr. Liss further wrote:

Under MnSCU guidelines, once a complaint is filed, an investigation is conducted according to established procedure, the investigator issues a report, a decision is reached, and an appeal is provided. The process protects the rights of all parties. In the case of a President, the Associate Vice Chancellor for Equal Opportunity conducts an investigation on behalf of the Chancellor.

A copy of these policies/procedures was not attached to Mr. Liss' response. In addition, given that the concerns about Dr. Barnhardt specifically addressed by the Faculty Senate did not appear to be primarily related to discrimination/harassment issues, the relevancy of Board Policy 1B.1 is unclear. Further, based on the following statement in the June 25, 1996, Faculty Senate letter, it appears there is no procedure for evaluating complaints such as those made by the faculty members: ...MnSCU has no evaluation process in place for administrators that allows faculty and staff input. However, the fact that MnSCU has no such evaluation process in place is not relevant in determining whether complaints and/or charges were made against Dr. Barnhardt.

On behalf of the Times, Mr. Anfinson argued, in contrast, that the June 25, 1996, letter from the college faculty to the chair of the MnSCU Board of Trustees described the numerous, specific complaints involving Dr. Barnhardt.

Given that Chapter 13 does not include a definition of either complaint or charge, it is appropriate to seek guidance from a dictionary. In Webster's Ninth New Collegiate Dictionary, Merriam-Webster, 1986, complaint is defined, in relevant part, as an expression of grief, pain, or dissatisfaction, something that is the cause of or subject of protest or outcry, or a formal allegation against a party. Charge is defined, in relevant part, as an accusation, indictment and as a statement of complaint or hostile criticism.

Based on those definitions, it appears to the Commissioner that the Faculty Senate's June 25, 1996, letter to the chair of the MnSCU Board of Trustees does contain complaints and/or charges (protests, outcries, formal allegations, and hostile criticisms). The following statements taken from the letter are examples of the nature of the complaints and/or charges:

His handling of the terminations of [two St. Cloud Technical College staff] resulted in two lawsuits that cost the college over $500,000 dollars. Statements attributed to him in the news articles at those times embarrassed the college.

...Dr. Barnhardt's repeated missing or canceling of meetings has become a joke around the college.

Dr. Barnhardt has had continued difficulty communicating in positive ways with female staff members to a degree that is unacceptable for a college administrator in the 1990's. Dr. Barnhardt repeatedly criticizes team decisions and endorses TQM [Total Quality Management] only when the outcome is the one he wanted before the process began.

Dr. Barnhardt clearly has favorites in both programs and personnel. He has promoted personnel without posting the positions...

Dr. Barnhardt clearly does not listen to faculty, staff, and students.

It is the Commissioner's conclusion that many of the statements made in the June 25, 1996, letter by the Faculty Senate are complaints and/or charges made against Dr. Barnhardt. Therefore, pursuant to Section 13.43, subdivision 2 (e), upon completion of an investigation of those complaints and/or charges, all data relating to the complaints and/or charges are public, except those data that would reveal confidential sources.

There is, however, an additional argument made by Mr. Liss that must be addressed. In his response, he asserted that because the inquiry made by Dr. Davis was not an investigation, there can be no public classification of the data relating to Dr. Barnhardt. Mr. Liss wrote:

The Davis visits are clearly different from such an investigation. There was a generalized concern on campus and the Chancellor sought to address that concern. Dr. Davis was invited to the campus by the President, as well as the faculty. He spoke with those who sought him out. The process was followed because there was no complaint and, therefore, no investigation.

Mr. Liss also provided a copy of a letter dated September 25, 1996, from MnSCU's Vice Chancellor for Personnel written to a former St. Cloud Technical College administrator. In this letter the Vice Chancellor stated that Dr. Davis' review was not an investigation.' The Vice Chancellor further stated, Since this is not an investigation to review your discrimination allegations, it would be inappropriate to reinstate you pending the conclusion of the review. It is unclear what relevance this letter has to the situation-at-hand. This Opinion is concerned with data collected as a result of complaints and/or charges made by the Faculty Senate, not by the former administrator.

Was the action undertaken by Dr. Davis an investigation for the purposes of Chapter 13? Again, because investigation is not defined, guidance may be sought from a dictionary. In Webster's Ninth New Collegiate Dictionary, Merriam-Webster, 1986, investigate is defined as, to observe or study by close examination and systematic inquiry, and to conduct an official inquiry.

Dr. Davis was hired as a direct result of the Faculty Senate's issues with Dr. Barnhardt. In her August 15, 1996, letter to Dr. Davis, Chancellor Eaton wrote:

As a result of this meeting [with members of the Senate Faculty], I agreed to undertake an examination of the institution to determine which, if any, of the faculty senate concerns could be documented and which, if any, of the concerns were the result of some misunderstanding or misperceptions that needed to be addressed....As we have also discussed, this examination will call for your spending some time with any staff members at St. Cloud Technical College who wish to speak to you.

It is the Commissioner's opinion that Dr. Davis' act of gathering data relating to the complaints and/or charges made by the Faculty Senate in their June 25, 1996, letter constitutes an investigation (studying by close examination or conducting a systematic and official inquiry) for the purposes of Section 13.43. Dr. Davis, an outsider, was hired by MnSCU to conduct an official inquiry into complaints that were made against the former president of St. Cloud Technical College. Therefore, data in Dr. Davis' report relating to the complaints and/or charges are public. However, if the data reveal confidential sources, the data are not public.

Opinion:

My opinion on the issue raised by Mr. Anfinson is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: January 17, 1997