Discussion:

Issue 1. Pursuant to Minnesota Statutes, Chapter 13, if the employee has not given his/her written consent to release data under 49 C.F.R. section382.405(h) and 49 C.F.R. section40.321, what is the classification of the data relating to the Federal DOT drug test that the City is required to maintain pursuant to 49 C.F.R. section 382.401?

At first glance, the data in question appear to be private pursuant to Minnesota Statutes, section 13.43, subdivision 4, and Minnesota Statutes, section 181.954, subdivision 2. In relevant part, section 181.954, subdivision 2, provides:

Test result reports and other information acquired in the drug or alcohol testing process are...with respect to public sector employees...private data on individuals as that phrase is defined in chapter 13, and may not be disclosed by an employer or laboratory to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee...

However, in the case of this opinion, the City terminated the employee who is the subject of the data. When a government entity takes disciplinary action against an employee and a final disposition has occurred, data previously treated as private become public. Section 13.43, subdivision 2(a)(5), provides that the following data are public: the final disposition of a disciplinary action together with the specific reasons for the action and data documenting the basis of the action. A final disposition occurs when the entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. If the employee has collective bargaining rights, 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 unit. (See section 13.43, subdivision 2(b).) Here, the Commissioner assumes a final disposition has occurred, which suggests that the data are public.

But, an examination of federal law and rules leads to a different result. 49 C.F.R. section 382.405(a) states, Except as required by law or expressly authorized or required in this section, no employer shall release driver information that is contained in records required to be maintained under Sec. 382.401. 49 C.F.R. section 382.401describes the types of records each employer must maintain relating to the employer's alcohol misuse and controlled substance use prevention programs, including data relating to an employee's test results.

The United States Department of Transportation, in documentation on its website, has interpreted 49 C.F.R. section 382.405(a):

The term as required by law ...means Federal statutes or an order of a competent Federal jurisdiction, such as an administrative subpoena....In addition, the Act preempts inconsistent State or local government laws, rules, regulations, ordinances, standards, or orders that are inconsistent with the regulations issued under the Act [see 49 C.F.R. section382.109].

Although an analysis of Minnesota law suggests that the data are public, the federal rules clearly state that (1) the data are not public regardless of any conflict with Minnesota's laws and (2) the federal law preempts inconsistent state or local laws. Thus, the data the City is required to maintain pursuant to 49 C.F.R. section 382.401 are not public. The Commissioner notes that the data may be released with the employee's consent. (See 49 C.F.R. section 40.321 and 49 C.F.R. section 382.405(h).)

Issue 2. Pursuant to Minnesota Statutes, section 13D.05, is a post-discharge hearing that must be held under Loudermill required to be part of an open meeting?

Before proceeding, the Commissioner notes the following. Loudermill refers to the United States Supreme Court's decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed 2d 494, 105 S. Ct. 1487 (1985). In its decision, the Supreme Court stated that after a classified civil servant is discharged from employment, the employee is entitled to a full administrative hearing about the termination. Issue 2 of this opinion relates to the administrative hearing that is conducted by a public body subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.

Section 13D.05, subdivision 2, lists the specific situations in which a public body either may or must close an open meeting. Upon review of section 13D.05, subdivision 2, it appears that the City does not have authority to close the post-discharge hearing. Therefore, it must be open. (See section 13D.05, subdivision 1.)

Issue 3.Assuming the answer to Issue 2 is yes, may the City disclose to the public, during the post-discharge hearing, the data relating to the Federal DOT drug test that the City is required to maintain pursuant to 49 C.F.R. section 382.401 without the employee's written consent required by 49 C.F.R. section 382.405(h) and 49 C.F.R. section 40.321?

Section 13D.05, subdivision 1(b), states:

Data that are not public...may be disclosed 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.

As discussed above in Issue 1, it appears the data the City is required to maintain pursuant to 49 C.F.R. section 382.401 are not public. Thus, the City may disclose those data without liability if the conditions of section 13D.05, subdivision 1, are met. However, even if those conditions are not met, based on the federal rules, it appears such a disclosure is allowable.

49 C.F.R. section 382.405(g) states:

An employer may disclose information required to be maintained under this part pertaining to a driver to the decision maker in a lawsuit, grievance, or administrative proceeding initiated by or on behalf of the individual, and arising from a positive DOT drug or alcohol test or a refusal to test (including, but not limited to, adulterated or substituted test results) of this part (including, but not limited to, a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought by the driver). Additionally, an employer may disclose information in criminal or civil actions in accordance with Sec. 40.323 (a)(2) of this title.

Therefore, based on federal law, it appears that during the post-discharge hearing, the City may release data relating to the federal DOT drug test to the decision maker, which, in this case, is the City Council.

The Commissioner notes, however, that because the data discussed in the hearing are not public pursuant to federal law (see Issue 1), any of the related printed materials are not available for public inspection or distribution. (See section 13D.01, subdivision 6(b).)

Opinion:

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

Signed:

Brian J. Lamb
Commissioner

Dated: June 3, 2004