August 18, 2003; City of Minneapolis
8/18/2003 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:On June 2, 2003, IPAD received a letter dated May 27, 2003, from Jay Heffern, Minneapolis City Attorney. In his letter, Mr. Heffern asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD staff contacted Carol Lansing, Assistant City Attorney, for clarification. On July 14, 2003, IPAD received Ms. Lansing's revised request, dated same. IPAD requested further clarification and the two issues the Commissioner would address were agreed upon. On July 18, 2003, IPAD received a letter, dated July 16, 2003, containing the City's revision of the issue statements. A summary of the facts is as follows. In his May 27, 2003, letter, Mr. Heffern wrote: The questions for which an advisory opinion is requested relate to personal financial data that certain officials and employees must submit to the City pursuant to its recently enacted Ethics Code. The City's Ethics Code, codified as Chapter 15 of the Minneapolis Code of Ordinances ( MCO ), requires that the City's elected officials and persons appointed or employed in certain other City positions file statements of economic interest [SEI]. See MCO section15.80... MCO section15.80 is modeled after, and intended to incorporate, the requirements found in Minn. Stat. section10A.09 of the State's campaign finance and public disclosure provisions. Minnesota Statutes section10A.09 requires that local officials in metropolitan governmental units file statements of economic interest.... We believe that it is clear that, to the extent that the City's Ethics Code requires its officials and employees to file statements of economic interest containing the information delineated in Minn. Stat. section10A.09, the information is public data. However, the City's Ethics Code requires the following additional disclosures: (1) local officials and employees subject to the filing requirement must also disclose any loansthey have received unless the loan is from a financial lending institution, negotiated by unrelated parties each acting in his or her own self interest, with an interest rate of at least a market rate; and (2) the City's Ethics Code requires that the statement shall include the economic interests of the person filing the statement and his or her spouse or domestic partner, if any....[Emphasis provided.] In her July 14, 2003, letter, Ms. Lansing discussed the loan information. She stated, Although the form for collecting this information has not yet been developed, I anticipate that the only information about loans that the City will request...is the name of the source of the loan. In addition, she wrote: One of the purposes of the City's Ethics Code provision regarding SEI's is to identify which City officials and employees are local officials for purposes of the SEI filing requirement in Minn. Stat. section10A.09. For purposes of that statute, a local official is defined as a person who holds elective office in a political subdivision in which the person has authority to make, to recommend, or to vote on as a member of the governing body, major decisions regarding the expenditure or investment of public money. Ms. Lansing further wrote, Section 15.80 of the City's Ethics Code lists the positions for which statements of economic interest must be filed. Issues:In their request for an opinion, Ms. Lansing and Mr. Heffern asked the Commissioner to address the following issues:
Discussion:Ms. Lansing stated in her July 14, 2003, letter, that one of the purposes of the City's Ethics Code, Minneapolis Code of Ordinances (MCO) section 15.80, is to identify which individuals are required by Minnesota Statutes, section 10A, to file statements of economic interest. Minnesota Statutes, Chapter 10A, relates to Campaign Finance and Public Disclosure. Subdivision 6a of section 10A.09 states, A local official required to file a statement under this section must file it with the governing body of the official's political subdivision. The governing body must maintain statements filed with it under this subdivision as public data. Although the Commissioner does not know the precise number of individuals affected, it includes candidates for mayor or city council, elected officials, certain appointed officials, approximately ten civil service employees, and certain individuals appointed or designated to serve on six different commissions. The City requested this opinion because under MCO section 15.80, the City must collect additional information beyond that which Chapter 10A, the campaign finance and public disclosure law, requires. The additional data include (1) the loan source name and (2) an economic interest statement from spouses or domestic partners. Because of the nature of the data and the purposes for which they will be used, the Commissioner has some concerns about the City's decision to collect the additional data. He is concerned that it may provide a disincentive for individuals to work in the public sector, or be married to or the domestic partner of individuals who work in the public sector. He also emphasizes the need for the City to consider the time sensitive nature of these data. Despite these concerns, the Commissioner acknowledges that local governments may collect and store data on individuals when it is necessary for the administration of programs specifically authorized by, among others, the local governing body. (See section 13.05, subdivision 3.) Finally, the Commissioner reminds the City of its obligations under section 13.05, subdivision 5, to establish procedures ensuring that all data on individuals are accurate, complete, and current for the purposes for which they were collected. The Commissioner is encouraged to see that the City incorporated into MCO section 15.80, three provisions from Chapter 10A and its accompanying rules related to supplemental filings. MCO section 15.80(b), further requires each individual filing an economic interest statement to file a supplemental statement on April 15 of each year that s/he remains a local official if information on the most recently filed statement has changed. (See section 10A.09, subdivision 6.) MCO section 15.80(b), requires the individual to file a supplemental statement within ten days after becoming aware of an inaccuracy in any previously filed statement. (See section 10A.025, subdivision 4.) MCO section 15.80(c), provides that within 30 days after leaving office, the individual must file a statement of economic interest covering the period from the end date of the most recent statement through the last day of service if information on the most recently filed statement has changed. (See Minnesota Rules, Part 4505.0900, subpart 4.) Issue 1:The City of Minneapolis requires certain individuals to provide the name of the source of a loan as part of a statement of economic interest. Pursuant to Minnesota Statutes, Chapter 13, how are the data classified for the following: (a) a candidate for the office of mayor or city council;
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.43, personnel data, classifies data collected because an individual is or was an employee. Section 13.601 classifies data about elected and appointed officials. Subdivision 1 of section 13.601 states, Financial disclosure statements of elected or appointed officials which, by requirement of the political subdivision, are filed with the political subdivision, are public data on individuals. In her July 14, 2003, letter, Ms. Lansing described the individuals from whom the City will be collecting the loan and spouse/domestic partner economic interest statement data: 1. A candidate for the office of mayor or city council. MCO section15.80(a)(1) and section 15.280(b). 2. The following elected officials : city council members; the mayor; and elected members of the board of estimate and taxation. MCO section15.80(a)(2) and section15.280(m)(1). 3. Appointed local officials who have the requisite authority for decisions relating to the investment or expenditure of public money. MCO section15.80(a)(3). Appointed local officials are further defined for purposes of the City's Ethics Code as persons employed by the City in appointed positions, or holding the title of an appointed position. MCO section15.280(m)(2). Persons employed in appointed positions are non-civil service employees of the City. Persons holding the title of an appointed position are typically people who are appointed to fill a position on an interim basis and who are employed in another City position to which they will return after the interim appointment is completed. Please note that some of the City's appointed positions do not have authority for major decisions related to the use of public money and will not be required to file SEI's. 4. Employees who have the requisite authority for decisions relating to the investment or expenditure of public money. MCO section15.80(a)(3). An employee is further defined as a person who holds a civil service title or position in the city. MCO section15.280(g). It is anticipated that approximately ten civil service employee positions will be identified as have [sic] the authority related to the use of public money that will require filing of an SEI. 5. Individuals appointed or designated by the mayor or city council to six commissions that have been determined to have the requisite authority related to the use of public money to trigger the SEI filing requirement. MCO section15.80(a)(4) and section15.280(m)(3). These individuals are not employees of the City, although they may receive some small amount of compensation for attending commission meetings to defray expenses (e.g., $50 per meeting). Some of these commissions, such as the Planning Commission, are instrumentalities of the City and all commissioners [sic] those commissions are appointed by the City. Others, such as the watershed commissions, are not instrumentalities of the City, but the City is entitled to appoint one or more of the commissioners. The first category consists of individuals who are candidates for the office of mayor or city council. The Commissioner is unaware of any statutory provision that classifies as anything other than public the source name of loans provided to the City by individuals who are candidates. The second category consists of individuals who are elected officials. Section 13.601 classifies financial disclosure statements of both elected and appointed officials as public. Thus, the source names of loans provided to the City by individuals who are elected officials are public. The third category consists of individuals who are appointed local officials. Ms. Lansing stated that MCO section15.280(m)(2) defines these individuals as persons employed by the City in appointed positions, or holding the title of an appointed position. She also noted that persons employed in appointed positions are non-civil service employees of the City. Ms. Lansing further stated that such individuals typically are people appointed to fill a position on an interim basis and who are employed in another City position to which they will return after the interim appointment is completed. Section 13.601 classifies financial disclosure statements of elected or appointed officials. Therefore, the source names of loans provided to the City by individuals who are appointed local officials are public. The fourth category consists of individuals who are employees having the requisite authority for decisions relating to the investment or expenditure of public money. Ms. Lansing stated that MCO section15.280(g) defines an employee as someone who holds a civil service title or position in the City. At first glance, it appears the source name of a loan collected from these individuals is the type of data classified pursuant to section 13.43. Because the loan source data are not listed as public per subdivision 2 of section 13.43, the data are private. However, the Commissioner is of the opinion that the loan data also could be classified by section 13.601. Although section 13.601 does not specifically state that it classifies financial disclosure statements about employees, the Commissioner believes the Legislature intended such a result. As Mr. Heffern wrote: The City's Ethics Code codified as Chapter 15 of the Minneapolis Code of Ordinances ( MCO ), requires that the City's elected officials and persons appointed or employed in certain other City positions file statements of economic interest. See MCO section15.80... MCO section15.80 is modeled after, and intended to incorporate, the requirements found in Minn. Stat. section10A.09 of the State's campaign finance and public disclosure provisions. Minnesota Statutes section10A.09 requires that local officials in metropolitan governmental units file statements of economic interest.... Mr. Heffern also noted that pursuant to Minnesota Statutes, section 10A.09, subdivision 6a, the economic interest statements are public data. The Legislature clearly wanted financial statements about certain individuals to be available to the public. The City has determined that the type of individuals listed in category 4 are required to file economic interest statements for purposes of section 10A. Because these individuals, as civil service employees, technically are appointed to their positions by the City, the Commissioner believes they are appointed officials for the purposes of section 13.601. Thus, there appears to be a conflict (or overlap) regarding the classification of financial disclosure statements; pursuant to section 13.43 the data are private and pursuant to section 13.601 the data are public. Minnesota Statutes, Chapter 645, provides guidance on statutory interpretation. Section 645.26 discusses irreconcilable provisions. Section 645.26, subdivision 1, provides that if two provisions are irreconcilable, ...the special provision shall prevail and shall be construed as an exception to the general provision... Here, section 13.601 is the more specific provision. In addition, section 645.26, subdivision 4, states, When the provisions of two or more laws passed at different sessions of the legislature are irreconcilable, the law latest in date of final enactment shall prevail. The Legislature enacted section 13.601 after 13.43. Therefore, the Commissioner opines that the loan source data about category 4 individuals are classified as public pursuant to section 13.601. The fifth category consists of individuals who are appointed or designated by the mayor or city council to six commissions that have been determined to have the requisite authority related to the use of public money to trigger the SEI filing requirement. Ms. Lansing noted that these people are not employees of the City, although they may receive some small amount of compensation for attending commission meetings. Because these individuals are appointed, the Commissioner believes the loan source names they provide to the City are public pursuant to section 13.601. Issue 2:The City of Minneapolis requires the spouses or domestic partners of certain individuals to provide a statement of economic interest. Pursuant to Minnesota Statutes, Chapter 13, how are the data classified for the spouses or domestic partners of the following: (a) a candidate for the office of mayor or city council;
Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. The Commissioner is not aware of any provision classifying as anything other than public the economic interest statements provided to the City by the spouses or domestic partners of the individuals listed in categories (a) - (e). A possible exception is a situation where a spouse or domestic partner is an employee of the City. However, section 13.43 classifies data on individuals collected because the individual is or was an employee of a government entity. In the case at hand, the City is not collecting the economic interest statements because the spouse or domestic partner is an employee. The City is collecting the data because these individuals are the spouses or domestic partners of the types of individuals listed above. There is another provision of section 13.43 that could classify as not public the economic interest statements of the spouses or domestic partners. Subdivision 4 of section 13.43 states, Data pertaining to an employee's dependents are private data on individuals. Thus, if any of the spouses or domestic partners are dependents of employees, data in the economic interest statements would not be public. However, as the Commissioner discussed in his analysis of Issue 1, he does not believe that any of the individuals listed in categories (a) - (e) are employees for purposes of submitting economic interest statements pursuant to the City's ordinance. Thus, it would be an absurd result if the City were to protect the economic interest statements of the spouses or domestic partners of the individuals listed in categories (a) - (e) if the City is not protecting the economic interest statements of the individuals listed in categories (a) - (e). Section 645.17 discusses presumptions in ascertaining legislative intent. Clause (1) of section 645.17 states the Legislature does not intend a result that is absurd. Therefore, the Commissioner is of the opinion that the economic interest statements of the spouses or domestic partners of the individuals listed in categories (a) - (e) are public pursuant to section 13.03, subdivision 1. As a final note, the Commissioner reminds readers that any Social Security numbers appearing in the economic interest statements are private pursuant to section 13.49. Opinion:Based on the facts and information provided, my opinion on the issues raised by Ms. Lansing and Mr. Heffern is as follows:
Signed:
Brian J. Lamb
Dated: August 18, 2003 |
Elected and appointed officials
Legislative authority and intent
Statutory construction (Ch. 645)
Statutory construction (Ch. 645)
Statutory construction (Ch. 645)
Campaign finance and public disclosure (Chapter 10A)
Financial disclosure
Financial disclosure statements
Absurd or unreasonable result (645.17)
Conflicting or irreconcilable provisions (645.26)
Later enacted statute
