Discussion:

Government data about current and former 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 addition, section 13.43, subdivision 2(a)(8), provides that payroll time sheets, or other comparable data used only to account for an employee's work time for payroll purposes, are public except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data.

In her comments to the Commissioner, Ms. Peterson wrote, ...the fact that [X] was suspended or placed on leave pending an investigation is public data. She also stated:

Once [X] was charged with these felonies, the Park Board suspended [X] both with and without pay and began its investigation into complaints against [X]. At no time, however, did the Park Board ever release any information that was not already public regarding [X] and [X's] employment with the Park Board.

Ms. Peterson further stated, Chief Johnson's statement does nothing more than release public data that is used to account for an employee's absence from work.

The Commissioner has the following comments. At the point in time Chief Johnson stated that X had been suspended, a final disposition had not occurred. Thus, pursuant to section 13.43, subdivision 2(a)(4), data relating to the existence and status of the complaint/charge were public, but data relating to any disciplinary action taken against X were not public.

Although the word status is not defined in section 13.43, or elsewhere in Chapter 13, the Minnesota Supreme Court used the following definition in a recent case: [a] stage of progress or development. (See Navarre v. South Washington County Schools, 652 N.W.2d, 9, 22 (Minn . 2002) (footnote 4).) In Navarre, the Court cited The American Heritage Dictionary College Edition, 1309 (2d ed. 1982). Thus, the status of a complaint against an employee means whether the complaint has been filed, is under investigation, is closed, no discipline was imposed, or similar descriptions of the stages in an entity's investigatory process. By releasing only data explaining the status of a complaint/charge in response to a data request, the government entity is able to inform the public what it is doing or has done in response to a complaint while simultaneously protecting the rights of employees who are the subjects of the complaint.

The Commissioner's perspective is that it is problematic to use the word suspend in response to a data practices request for information about the existence and status of a complaint/charge against an employee. In common usage, the word suspend means to debar temporarily from a privilege, office, or function (See Merriam Webster's Collegiate Dictionary, Tenth Edition, Merriam-Webster, Incorporated, 1993). Further, in a progressive form of discipline used by many government employers, suspension is the third of four steps: (1) oral reprimand; (2) written reprimand; (3) suspension; and (4) termination. If an entity has disciplined an employee and has suspended him/her, the entity cannot disclose that information to the public until there has been a final disposition.

The Commissioner also wishes to comment on the use of the terms on leave with pay and on leave without pay in connection with a response to a data request about the status of a complaint/charge made against an employee. Because leave with or without pay may be a form of discipline, it should not be released by the entity when the entity is responding to data requests relating to the status of a complaint/charge against an employee.

The Commissioner acknowledges that a data requestor will be able to determine whether a government entity is or is not paying an employee. Section 13.43, subdivision 2(a)(8), states that ...payroll time sheets or other comparable data that are only used to account for an employee's work time for payroll purposes are public. In responding to requests for payroll time sheet data, however, the entity would not be disclosing that any paid or unpaid leave an employee takes is related to a complaint or charge. Further, the entity would be disclosing only data relating to an employee's past or current pay standing, not data about the employee's future pay standing.

In the present situation, in response to a data practices request for information relating to the existence and status of the complaint against X, it would have been appropriate for the Park Board to state that a complaint against X had been made and that the Park Board was in the process of conducting an investigation, or words to that effect. However, the Park Board released more data than Chapter 13 allows by stating that it had suspended [X] with pay and that X later had been suspended without pay.

Opinion:

Based on the facts and information provided, my opinion on the issue that X raised is as follows:

Signed:

Brian J. Lamb
Commissioner

Dated: July 22, 2004