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Advisory Opinion 96-004

January 25, 1996; City of Victoria

1/25/1996 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.

Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation

Facts and Procedural History:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On December 21, 1995, PIPA received a letter from Mark Anfinson, an attorney representing the Chaska Herald newspaper. In his letter, Mr. Anfinson requested that the Commissioner issue an advisory opinion regarding access to certain data maintained by the City of Victoria. Mr. Anfinson enclosed a copy of an article published in the Chaska Herald, dated December 14, 1995, which provides additional background information.

In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to Miriam Porter, City administrator for Victoria. The purposes of this letter, dated December 22, 1995, were to inform Ms. Porter of Mr. Anfinson's request, to ask her or the City's attorney to provide information or support for the City's position, and to inform her of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Anfinson and Ms. Porter were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On January 9, 1996, PIPA received a response from Christopher J. Harristhal, attorney for the City. Subsequently, the Commissioner asked Mr. Harristhal to provide a copy of the City's personnel policies. A summary of the detailed facts of this matter follows.

The City recently fired a longtime employee. According to Mr. Anfinson:

When the newspaper learned of this, it requested the specific reasons for the disciplinary action and all the data documenting the basis for the action, pursuant to Minn. Stat. section13.43, subd. 2(a). The newspaper understands that among other documents, a report was submitted to the council by the city administrator, criticizing the performance of the [city employee]. It seems clear that the council relied in significant part on this report in deciding to terminate his employment; the motion to fire the [city employee] expressly includes language accepting the findings contained in the report.

According to Mr. Anfinson, the City responded to the newspaper's request by providing . . . only three citations to portions of the Victoria city code. These simply describe in general terms behavior that the city believes to be unacceptable.

In his response to the Commissioner, Mr. Harristhal stated that, pursuant to the City's personnel policy, the employee has exercised his right to a review proceeding before the City Council, which has not yet taken place. According to Mr. Harristhal,

The 'specific reasons' requirement of [Section 13.43, subdivision 2(a)] does not come into play until there has been final disciplinary action. To date, there has been no final disciplinary action and therefore no obligation to provide the specific reasons for the . . . termination.

The same statutory provision which triggers the obligation to provide the specific reasons for a disciplinary action also embodies the obligation to provide supporting documentation for a disciplinary decision. Again, since no final disposition has yet occurred, the [report] has not yet become public.

Mr. Harristhal did not dispute Mr. Anfinson's assertion that the City Council relied upon the administrator's report in reaching its decision to dismiss the city employee.

Issues:

In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issues:

With respect to the termination of the employment of the city employee, does simply citing the three sections of the City's code of ordinances satisfy the specific reasons requirement of section13.43, subd. 2(a)?
Since it appears clear that the City Council relied on the City administrator's report in deciding to terminate the city employee, must the City provide a copy of that report, as well as any other documentation relating to the decision?

Discussion:

Minnesota Statutes Section 13.43 governs personnel data, which are data on individuals collected because the individual is or was an employee of . . . [a] political subdivision . . . .

Subdivision 2(a), in relevant part, provides that the following personnel data are public:

[T]he existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action; [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. [Emphasis added.]

Pursuant to Section 13.43, subdivision 2(b):

[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. [Emphasis added.]

Therefore, whether the City has met its statutory obligation to provide the public with appropriate access to the data in question is dependent upon whether there has been a final disposition of a disciplinary action, within the meaning of Section 13.43. In his response to the Commissioner, Mr. Harristhal stated that there has not yet been a final disposition, because the employee has exercised his right, under the City's personnel policies, to have a hearing before the City Council. Mr. Harristhal acknowledged that the specific reasons for the city employee's termination, and data which document the decision, including such data contained in the administrator's report, would become public when the disciplinary action was final.

Apparently, according to the City's personnel policies governing the city employee's termination, he is not covered by a collective bargaining agreement. The classification of the data at issue is therefore dependent upon whether the City has made its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. (See Section 13.43, subdivision 2(b), above.)

According to the City's personnel policy, in the case of a dismissal, if the employee submits a written request within the time frame provided, the employee shall be granted a hearing before the [City] council. (See Section 255.11, subdivision 4, Victoria City Code.) It appears that the decision the City Council makes about the employee's termination, after the employee's hearing before the Council, will be the City's final decision. The Commissioner discussed a similar disciplinary process in Advisory Opinion Number 94-019:

By its adoption of the Charter and Code provisions dealing with the employee review board, [the City of] Crystal has made the operation of the employee review board and appeals to it by employees an integral part of the process Crystal uses to deal with employee disciplinary matters. Although from a temporal standpoint, a decision by the employee review board may be a later proceeding, decisions by the board are actually the last step in an integrated process used by Crystal to process employee disciplinary matters. Crystal has established and supports the employee review board. The board is not making decisions for itself. It is making decisions on behalf of the City of Crystal. Decisions by the employee review board, to either not review a decision of the city manager or to review a city manager's decision in a hearing and either uphold the decision or to modify it, are the final decisions of the City of Crystal for purposes of Minnesota Statutes Section 13.43, subdivision 2 (b).

Similarly, the decision the Victoria City Council makes about the dismissal, after the dismissed employee's hearing before it, is the final decision of the City for purposes of Section 13.43, subdivision 2 (b). Therefore, the specific reasons for the employee's termination, and data which document that decision, including such data in the City administrator's report, will become public government data after the employee's hearing before the City Council, if the Council decides to uphold the disciplinary action.

The City's position is that because it has not yet made its final decision regarding the employee's disciplinary action, neither the specific reasons for disciplinary action nor data documenting the basis of the action are public data at this time. However, according to the Chaska Herald article, when the City publicly announced the employee's termination, it cited three specific provisions of Section 255:12 of the City Code as its reasons for dismissing the employee. Those numbered provisions, listed in the Code among various grounds for dismissal, are: (1) Incompetency in the performance of duties; (7) Discourteous, insulting, abusive or inflammatory conduct toward the public or fellow employees; and (13) Evidence of failure to observe safety rules, regulations, ordinances or statutes.

Mr. Anfinson asked whether the citation of those specific provisions of the City Code satisfied the specific reasons requirements of Section 13.43, subdivision 2(a), i.e., the specific reasons for final disciplinary action. It may well be the case that the employee's violation of a specific provision of Section 255:12 of the City Code constitutes the specific reason for any disciplinary action. If that is the case, then the City could meet its obligation to provide public access to the specific reasons for the disciplinary action, once the action is final, simply by citing the relevant provisions of the Code. (It would not, however, satisfy the City's obligation to provide public access to data which document the basis for the action.) Given the City's position that the disciplinary action is not yet final, it is puzzling that it chose to provide to the public what might be the specific reasons for the action, before the action is final.

Opinion:

Based on the correspondence in this matter, my opinion on the issues raised by Mr. Anfinson is as follows:

The Victoria City Code may contain sufficient detail such that it may be sufficient for the City simply to cite three sections of the Code as the specific reasons for disciplinary action, once the disciplinary action is final.
Since it appears clear that the City Council relied on data in the City administrator's report in deciding to terminate the city employee, the City must provide copies of those data, as well as any other documentation relating to the decision, after the City has made its final decision to impose disciplinary action, in conformance with the requirements of Minnesota Statutes Section 13.43, subdivision 2(a).

Signed:

Elaine S. Hansen
Commissioner

Dated: January 25, 1996

Personnel data

Specific reasons and data documenting basis for action

Final decision regarding disciplinary action