Issue:

In her request for an opinion, Ms. Olsen asked the Commissioner to address the following issue:

Discussion:

Data about current and former employees maintained by government entities such as District 271 are classified pursuant to Minnesota Statutes, section 13.43, which provides that certain data about employees are public, and that all other personnel data are private. Section 13.43, subdivision 2(a)(5), provides that the following data are public: the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body.

Section 13.43, subdivision 2(b), provides:

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.

The key to answering Ms. Olsen's question, therefore, is whether or not the Notice of Deficiency constitutes disciplinary action, and whether or not a final disposition has occurred. The Legislature did not define disciplinary action for purposes of Chapter 13.

In this case, the Notice is approximately 11 pages long and consists of a list of various deficiencies; each deficiency includes a series of specific examples. Following the deficiencies are a list of directives. But the first and second-to-last paragraph of the Notice contain the most relevant language. The first paragraph states, This Notice of Deficiency constitutes disciplinary action against you. The second-to-last paragraph states: You must correct the deficiencies and follow the directives noted above. If you fail to do so, you will be subject to additional disciplinary action, including the possibility of termination of your continuing contract. (Emphasis added.) Based on this language, the Commissioner concludes, as he similarly did in Advisory Opinion 00-005, that the Notice of Deficiency constitutes disciplinary action. Further, because Ms. Olsen stated in her opinion request that the time period for the employee to grieve the letter has expired, it appears that a final disposition has occurred.

Thus, because there apparently has been a final disposition, the following data are public: the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body. Whether all of the data contained in the letter represent the specific reasons for the disciplinary action and data documenting the basis of the action is for the District to determine.

In his comments to the Commissioner, Mr. Swanson argued that the Notice of Deficiency is not discipline. He discussed Advisory Opinion 00-005:

The Commissioner appears to have previously taken the position that even in a context of inconsistent statement, a singe declaration by the employer that a document is disciplinary action is sufficient to reclassify data as public when finality is achieved.... We believe those opinions were incompletely and ill considered.

The Commissioner has the following comments. As discussed above, the Legislature did not define discipline for purposes of Chapter 13. Thus, in cases where the government entity has not made a clear statement that it has disciplined an employee, the Commissioner must look at the data provided and make a reasonable determination as to whether discipline has occurred. In some cases, the determination may hinge on policies and/or procedures relating to discipline contained in either the employee's contract or the entity's general policies. Here, neither party provided the Commissioner with relevant portions of the employee's contract or any other related documents. Furthermore, in this case, the District made a specific statement that the data constitute discipline. In such instances, the Commissioner has tended to agree with the entity.

In its treatment of disciplinary data about public employees, it is clearly the Legislature's intent to open up data about final disciplinary action to maximum public scrutiny. In this instance, the District says it has disciplined a public employee, and indicates that the disciplinary action is final. The Commissioner is not in a position to disagree with that determination, particularly when the document at issue clearly specifies performance problems about the employee, details corrective actions that must be taken, and characterizes the overall discussion about performance deficiencies and corrective directives as a disciplinary action.

Finally, Advisory Opinion 00-005 was issued on February 29, 2000. From that point on, entities, employees, and the Legislature have been on notice of the Commissioner's position. There is no basis in the context of this case for reconsideration of that Advisory Opinion.

One final note is in order. In his comments, Mr. Swanson revealed that he, on behalf of his client, has challenged the accuracy and/or completeness of certain data contained in the Notice. He has made this challenge pursuant to Minnesota Statutes, section 13.04. He wrote, That matter will be submitted to the Commissioner within the next several weeks pursuant to the administrative appeal provisions of Minnesota Rules, Part 1205.1600. Upon learning this fact, IPA staff wrote to Ms. Olsen and urged her to withdraw her request for this Advisory Opinion, on the grounds that the data may at some point be altered because they are incorrect or incomplete. Ms. Olsen did not withdraw her request prior to the opinion being submitted to the Commissioner for review.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: August 16, 2001