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Advisory Opinion 96-001

January 9, 1996; School District 191 (Burnsville)

1/9/1996 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:

For purposes of simplification, the information presented by the government entity requesting this opinion is presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On November 20, 1995, PIPA received a letter dated November 17, 1995, from Anne Krisnik, an attorney representing Independent School District Number 191, Burnsville, hereinafter Burnsville. In her letter, Ms. Krisnik requested an opinion regarding the classification of certain data maintained by Burnsville.

A summary of the detailed facts surrounding this matter is as follows. Ms. Krisnik wrote:

Last year, the School District investigated concerns into employee conduct and issued written documentation to both employees setting forth the behaviors of concern and specific directives for corrective action. The District has received a request for copies of the documentation given to these employees. The District understands that if the documents are considered to be disciplinary as that term is used in Section 13.43 of the Data Practices Act, they are available for release. However, if the documents are not considered to be disciplinary but rather are considered to be directives, the District may not release them.

Ms. Krisnik then requested that the Commissioner review the documents on both employees and determine whether they are disciplinary and, therefore, whether they may be released by the District.

Upon receiving Ms. Krisnik's request, the Commissioner, as authorized in Section 13.072, contacted, in letters dated December 13, 1995, the two Burnsville employees to invite them to offer any comments. In addition, the Commissioner requested from Ms. Krisnik any information regarding policies and/or procedures relating to discipline contained in either the employees' contract or Burnsville's general policies. (In subsequent correspondence, Ms. Krisnik was informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

In response, David Moracco of the Minnesota Education Association, hereinafter MEA, submitted written comments, in a FAX dated January 3, 1996, on behalf of the two employees and made several arguments as to why it is the opinion of the MEA that the two documents do not document disciplinary action. In addition, in a FAX dated December 11, 1996, Ms. Krisnik provided a copy of the portion of the employees' contract which relates to discipline. Ms. Krisnik stated, There is no separate Board policy dealing with progressive discipline.

Issue:

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

Independent School District 191, Burnsville, provided the Commissioner with two documents, each of which relates to a specific District 191 employee. The District asked the following question: do either or both of the documents contain data which document disciplinary action taken against the two employees?

Discussion:

The question raised by Ms. Krisnik is whether the data at issue, which apparently were created as a result of complaints made by students and staff, are public or private data.

There appears to be no question that the data contained in the two documents were created and are maintained because the subjects of the data are employees of a government entity, i.e., Burnsville. Therefore, for the purposes of Chapter 13, those data are classified under Section 13.43, personnel data.

Section 13.43 provides that certain data about public employees are public, and that all other personnel data are private. Of relevance to this opinion, Subdivision 2 (a) clauses 4 and 5, provide that the following data are public: the existence and status of any complaints or charges against the employee; and 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.

In addition, Section 13.43, subdivision 2 (b), defines, for the purposes of Chapter 13, the term final disposition as:

...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.

Thus, if no final disposition, as defined in subdivision 2 (b), regarding a disciplinary action has occurred, only those data relating to the existence and status of a complaint or charge are public. Further, if no disciplinary action has been taken, there cannot be a final disposition.

The answer to Ms. Krisnik's question depends, therefore, on whether disciplinary action was taken by Burnsville and if so, whether a final disposition occurred regarding the disciplinary action.

Accordingly, the first issue to be addressed is whether any of the data about the two employees document disciplinary action taken by Burnsville against the two employees. (Again, if the data are not disciplinary in nature, a final disposition could not have occurred and, therefore, only very limited data regarding the complaints or charges are public.)

Upon first glance of the two documents (which are memos directed to the individual employees), it appeared, given the differences in the reference headings, that they were dissimilar in content. One of the memos states, Re: Concerns about Conduct, Record of Oral Reprimand while the other memo states, Re: Concerns about Conduct, Conference Summary. However, upon a more thorough examination, it appears to the Commissioner and to PIPA staff that the contents of the two documents are actually quite similar.

Each document is three paragraphs long. The first paragraph in each memo, in essence, states that Burnsville received reports from either, or both, students and staff regarding inappropriate behavior on behalf of each of the employees.

The second paragraph in memo number one states it is Burnsville's expectation that employees refrain from engaging in the inappropriate behavior attributed to that employee. The second paragraph in memo number two states that the employee should refrain from engaging in the inappropriate behavior attributed to that employee.

The third paragraph in memo number one states it is Burnsville's expectation that the employee will refrain from engaging in inappropriate behavior and also states, After our discussions, it is clear that you understand the School District's expectations for professional staff and feel comfortable with the District's expectations for.... The third paragraph in memo number two states it is Burnsville's expectation that the employee will refrain from the inappropriate behavior and also states we discussed strategies to use to avoid [the inappropriate behavior].

In determining whether either, or both, of the memos are disciplinary in nature, the Commissioner has relied upon the language, which relates to discipline, contained in the employees' contract. As provided by Ms. Krisnik, Section 12 of this contract states:

Subd. 2. The School District shall draw [an employee's] attention to the lack of professional conduct in the following ways:

a. oral reprimand

b. written reprimand

c. suspension without pay

d. notice of deficiency

e. loss of salary increase for substandard performance

f. discharge per M.S. section125.12.

Use of items a to f above need not be in progressive order; dependent on the frequency and severity of the lack of professional conduct any or all of the above may be used.

Subd. 3. The following information will be provided with notice of disciplinary action:

a. a review of the rule, regulation, code, policy, etc., that defines the expected behavior;

b. a description of the inaction or failure of the employee to comply with the expectation, including an outline of previous oral or written reprimands;

c. a reference to the grievance process as defined in the Master Agreement; and

d. notice that the Association President will be copied [on] any suspension without pay, notices of deficiency, loss of salary increases, or notice of discharge unless the [employee] objects in writing within ten (10) calendar days; any grievance in this category would begin at Level lll.

Based on the above contract language, it appears that while there are many ways in which Burnsville may draw an employee's attention to a lack of professional conduct, any such actions taken by Burnsville are not considered disciplinary unless certain information accompanies the notice of inappropriate behavior.

In the situation-at-hand, based on the information provided by Ms. Krisnik, it is clear that none of the information required to be provided with a notice of disciplinary action, was, in fact, provided to either employee, in either memo number one or memo number two. Therefore, it is reasonable to conclude that neither of the memos contains data documenting disciplinary action by Burnsville against the two employees.

(The Commissioner does wish to note that while she appreciates having received comments from the MEA, she found it unnecessary to rely upon those comments.)

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Ms. Krisnik is as follows:

When considered in light of the employees' contract (which requires that certain information be provided with a notice of discipline), the data in question do not constitute data which document disciplinary action taken against the two employees, and are, therefore, not public data.

Signed:

Elaine S. Hansen
Commissioner

Dated: January 9, 1996

Personnel data

Policy or contract determines

Reprimand