| Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in Exhibits A, B, C, and D, relating to the resignation of two former District employees? |
Discussion:
Mr. Rupp and Ms. Mace asked the Commissioner to comment on the classification of four documents. Upon examination, it appears that while the documents contain data about District employees and District students, most of the data are about either X or Y. Thus, before proceeding, it is important to resolve the issue of the classification of the data about X and Y.
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.
Section 13.43 classifies data about former and current employees. Of relevance to this opinion, subdivision 2(a)(4) states that the following data are public: the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in disciplinary action.
Subdivision 2(b) provides a definition of final disposition :
For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator.
In his comments to the Commissioner, X's attorney wrote:
With respect to [X], the Commissioner need not reach the question posed in your May 13, 2005 letter because [X] was not asked to resign.
... [X] spoke with [a District employee - Z] and verbally tendered [X's] resignation. At that time, [Z] encouraged [X] not to resign, but [X] submitted a formal resignation letter on. To [X's] knowledge, neither investigation described in [the District's letter confirming X's resignation] had begun as of the date [X] verbally tendered [X's] resignation.
Whether or not [X's] belief about the timing is correct, at no time did [Z] or anyone else at School District 709 ask [X] to resign. [Emphasis provided.] [X] spoke recently with [Z], who confirmed that [Z] did not ask [X] to resign. Indeed, the [District's letter confirming X's resignation] was written more than a month after [X] resigned, further demonstrating that [X] did not resign because the [District], having investigated certain allegations asked [X] to step aside. [Emphasis provided.] Because the [District] did not ask [X] to resign, [X's] resignation cannot be viewed as disciplinary action...
While it is clear from the above that [X] was not asked to resign, even on a theoretical level, a governmental agency that asks an employee to resign, prior to final disposition of an investigation, is not carrying out discipline that may be publicly disclosed...
Under [Chapter 13], a governmental agency may publicly disclose that an employee has been disciplined, and the reasons for the discipline, only upon the final disposition of the matter... Final disposition does not occur until the political subdivision makes its final decision about the disciplinary action. The statute specifically states that [f]inal disposition includes a resignation by an individual when the resignation occurs after the final decision of the [government entity or arbitrator]. ... (Emphasis added.) Thus, by implication, [Chapter 13] contemplates that an individual's resignation before the final decision would not be a final disposition. [Emphasis provided.] Had the legislature intended that a resignation prior to a final decision would transform private disciplinary data into public data, it would have said so in Minn. Stat. section 13.43, subd. 2(b).
Moreover, a request that an individual resign cannot be a final disposition of discipline unless the governmental body has made a final decision that it will issue discipline in the absence of the resignation.
X's attorney then referenced several Commissioner of Administration advisory opinions relating to final decisions of disciplinary action: 02-053, 00-072, and 96-010.
He further wrote:
... If an employer requests an employee to resign before making a final decision on discipline, and the employee declines to resign, only then would the employer be required to make a final decision on the potential discipline. [Emphasis provided.] Conversely, under the same scenario, if the employee resigns upon his or her employer's request, prior to a final decision on discipline, the resignation makes a final decision on discipline unnecessary.
... In sum, not only was [X] not asked to resign, but even had the school district asked [X] to resign, such a request would not have constituted discipline that permits the school district to disclose data regarding the matter.
Here, with regard to X, there is a factual dispute the Commissioner cannot resolve. Mr. Rupp and Ms. Mace state that the District asked X to resign. X's attorney, conversely, states that the District did not ask X to resign. With regard to Y, however, no one submitted information contrary to the District's position.
That said, as to whether the District's apparent request for X and Y to resign represents a final disposition, the Commissioner agrees with the position asserted by X's attorney. As previous opinions have discussed, if no final disposition has occurred, only the existence and status of a complaint are public. A final disposition cannot occur until the agency has made a final decision about disciplinary action. Further, a resignation occurring prior to a final decision about disciplinary action is not a final disposition. As X's attorney argues, and according to documents provided to the Commissioner, X (and Y) submitted their resignations almost a month prior to the District completing its investigation of the original complaint. This indicates the District had not reached a final decision about disciplinary action at the time X and Y submitted their resignations.
It should be noted that neither the District nor X's attorney provided information as to the District's policies regarding what type of action constitutes disciplinary action. The Commissioner assumes, therefore, that nothing in the policies is definitive on the matter.
Thus, of the data in Exhibits A - D relating to the complaints about X and Y, only the existence and status of the complaints are public. Other data in the exhibits, relating to the complaints, are private.
Exhibits A - D also contain data about students and other employees. Both Minnesota and federal law govern data about students. Section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Regulations, 34 C.F.R. Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.
One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, directory information means information contained in an education record of a student... (See 34 C.F.R. section 99.3.)
Mr. Rupp and Ms. Mace did not provide information indicating that the District has designated, as public directory information, any of the data of which the students are the subject. Therefore, the Commissioner assumes data in the exhibits about the students are private.
The exhibits also contain data about employees other than X and Y. Most, if not all, of the data about the employees do not appear to be the type of data classified as public pursuant to section 13.43, subdivision 2. Those data, therefore, are private pursuant to subdivision 4 of section 13.43.
Opinion:
Based on the facts and information provided, my opinion on the issue that Mr. Rupp and Ms. Mace raised is as follows:
| Pursuant to Minnesota Statutes, Chapter 13, of the data in Exhibits A, B, C, and D that relate to the complaints about X and Y, only the existence and status of the complaints are public. Data in the exhibits relating to students appear to be private. Data in the exhibits relating to other employees appear to be private. |
Signed:
Dana B. Badgerow
Commissioner
Dated: June 29, 2005
