- Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the City of Kimball typically would include in the minutes of an open meeting: two resolutions regarding the discipline of two City of Kimball employees who have collective bargaining rights?
- Pursuant to Minnesota Statutes, Chapter 13, would the classification of the data be the same if the employees did not have collective bargaining rights?
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Discussion:
Issue 1:
Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the City of Kimball typically would include in the minutes of an open meeting: two resolutions regarding the discipline of two City of Kimball employees who have collective bargaining rights?
Government data about current and former employees are classified at Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public and subdivision 4 classifies most other personnel data as private. 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 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.
(See section 13.43, subdivision 2(b).)
According to Ms. Pagel, the involved employees have collective bargaining rights. Ms. Pagel noted that a final disposition has not occurred as both employees have the ability to request arbitration. Therefore, based on section 13.43, any data in the resolutions of which the employees are the subjects are private. Other data in the resolutions are subject to the general presumption that all government data are public unless otherwise classified. (See section 13.03, subdivision 1.)
However, because the Kimball City Council apparently has authority to discipline the employees in question, provisions in Minnesota Statutes, Chapter 13D, the Open Meeting Law, also must be considered. Section 13D.05, subdivision 1(b), states:
Data that are not public may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body.
Section 13D.05, subdivision 2(b) states:
A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.
Given the content of the resolutions, the City apparently has concluded that disciplinary action against the employees is warranted. Thus, the Kimball City Council must conduct related discussions in an open meeting. According to Ms. Pagel, the City Council's past practice is to create a resolution documenting the basis for the discipline and include the text of the resolution in the minutes of the meeting. Section 13D.05, subdivision 1(c), states, Data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public. Thus, in the Commissioner's opinion, if the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.
That said, however, additional comments are in order. The Legislature did not define record of a meeting. One interpretation certainly supports the conclusion that if the data in the resolutions are incorporated into the minutes of an open meeting, the data are public. Technically, the City appears not to be in violation of Chapters 13 and 13D if it incorporates the resolutions into the meeting record.
Ms. Pagel stated in her opinion request that the League of Minnesota Cities does not encourage the inclusion of not public data in meeting minutes. In terms of maintaining a record of an open meeting, Chapter 13D requires only that public bodies keep a journal of the votes of the members. (See section 13D.01, subdivision 4.) Therefore, the City Council has discretion as to what it will include in the record of the meeting when employees are to be disciplined.
In the matter at hand, the employees have rights under a collective bargaining agreement to grieve discipline imposed by the City Council. When that process is complete or the employees choose not to exercise their rights, a final disposition will have occurred and any data that support the City Council's decision to discipline are public. Until there is final disposition, the data that are the basis for the discipline are private.
The Legislature granted to public bodies immunity from liability for discussing not public data at open meetings; however, the Commissioner questions what the Legislature intended in terms of the extent of such releases. Here, the City can document the decision of the council members by referring to the private data and record the votes of the Council's members as is required by section 13D.01, subdivision 4, without disclosing private personnel data. This practice would preserve the protections for employees provided in section 13.43. Data that support the discipline eventually would become public as provided in section 13.43, subdivision 2(a)(5).
Although the legislative intent behind record of a meeting is unclear, based on the plain words, it appears that if the City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.
Issue 2:
Pursuant to Minnesota Statutes, Chapter 13, would the classification of the data be the same if the employees did not have collective bargaining rights?
As provided in section 13.43, subdivision 2(b), when an employee is not covered under a collective bargaining agreement, a final disposition occurs when the entity makes its final decision about disciplinary action. Thus, when a government entity has made its final decision about disciplinary action, the final disposition of the disciplinary action together with the specific reasons for the action and data documenting the basis for the action all become public. Here, based on the contents of the resolutions, the Commissioner assumes most of the data in the resolutions would be public.
As discussed in the analysis of Issue 1, because the matter of disciplining the employees has come before the Kimball City Council, the provisions of Chapter 13D also must be considered. Pursuant to section 13D.05, subdivision 1(c), if the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public. Thus, if the employees do not have collective bargaining rights, both provisions of law provide that the data are public, so there is no need to take steps to protect the privacy rights of those employees.
Opinion:
Based on the facts and information provided, my opinion on the issues that Ms. Pagel raised is as follows:
- Pursuant to Minnesota Statutes, Chapters 13 and 13D, if the two employees have collective bargaining rights, and the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.
- Pursuant to Minnesota Statutes, Chapters 13 and 13D, if the two employees do not have collective bargaining rights, and the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting records, are public.
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Signed:
Dana B. Badgerow
Commissioner
Dated: September 28, 2005
