January 10, 2018; Minnesota Management and Budget
1/10/2018 7:39:23 AM
This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.
On December 15, 2017, the Data Practices Office received an advisory opinion request from Eric Hallstrom, Deputy Commissioner for Minnesota Management and Budget (MMB). In his letter, Mr. Hallstrom asked the Commissioner to issue an advisory opinion regarding classification of certain data that MMB maintains.
MMB provided the following summary of the facts:
A state agency has received a request for data related to the disciplinary discharge of an individual who was a public official under Minn. Stat. [sec.] 13.43, subd. 2(e). In this situation, the public official had rights to a just cause discharge proceeding – an appeal to the Bureau of Mediation Services (BMS) under Minn. Stat. [sec.] 43A.33. Under that statute, the hearing of the appeal to BMS is conducted by an arbitrator. The arbitrator in this matter found that the discharge was not supported by just cause, and reversed all aspects of the disciplinary action. The requester has requested a copy of the arbitrator’s order in this matter.
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Based on the opinion request, the Commissioner agreed to address the following issue: What is the classification of the data in an arbitrator’s order reversing all discipline of a state-level public official, pursuant to Minnesota Statutes, section 13.43? |
The Data Practices Act classifies all government data as public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.
Section 13.43, subdivision 2(e), provides:
Notwithstanding paragraph (a), clause (5), and subject to paragraph (f), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.
Subdivision 2(e) also lists the types of employees that are state- and local-level public officials. This opinion only pertains to state-level public officials.
Section 13.43, subdivision 2(a)(5) provides, “the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action,” are classified as public.
A final disposition occurs when:
[T]he government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. 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. A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action. (See section 13.43, subdivision 2(b).)
In Advisory Opinion 14-002, the Commissioner opined on the classification of arbitration decisions maintained by the Bureau of Mediation Services (BMS) that arose out of collective bargaining grievance processes. In that opinion, the Commissioner concluded:
Pursuant to Minnesota Statutes, Chapter 13, data in an arbitration decision that sustains a grievance and reverses all aspects of any disciplinary action against a public employee are private personnel data, pursuant to Minnesota Statutes, section 13.43, subdivision 4.
In its request for an opinion, MMB wrote:
In Advisory Opinion 14-002, in the context of the grievance arbitration under Chapter 179A, (“PELRA”), the Commissioner determined that an arbitration decision sustaining a grievance and reversing all aspects of disciplinary action is private personnel data under Minn. Stat. [sec.] 13.43, subd. 4. The Opinion notes that section 13.43, subd. 2(b) provides, “[a] disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.”
The Opinion, however, did not address the question of whether an arbitrator’s decision under Minn. Stat. [sec.] 43A.33 reversing discipline would be public where the employee is a public official.
MMB believes that the arbitrator’s decision reversing discipline of a public official is classified as public data… Once an investigation into a complaint against a public official is complete, “all data relating to the complaint or charge are public.” Id. (emphasis added). This is the case “notwithstanding” – regardless – of whether there is final disposition of any disciplinary action. Id. (stating complaint data on public officials is public, “[n]otwithstanding paragraph (a), clause (5),” the clause addressing final disposition of disciplinary action). In other words, this notwithstanding clause means that for public officials, even if no discipline was ever instituted, or a hearing officer reverses discipline, all data related to the complaint against the public official are and remain public upon completion of an investigation. [Emphasis provided.]
The Commissioner agrees with MMB’s analysis. MMB rightly notes that the data at issue in Advisory Opinion 14-002 relate to arbitration decisions regarding employees who are not public officials and that the Data Practices Act treats complaint data on public officials differently.
Section 13.43, subd. 2(b), clarifies which data become public pursuant to subd. 2(a)(5), due to a “final disposition of disciplinary action.” Because the language of section 13.43, subd. 2(e), specifically excludes the requirement for a final disposition of disciplinary action related to complaints against state-level public officials, whether an entity has disciplined a public official – or an arbitrator has reversed discipline – is not relevant to the ultimate classification of the complaint data at issue here. All data related to a complaint against a state-level public official (except private personnel data on other employees or other not public data) become public once the investigation is complete, or the individual resigns or is terminated while the investigation is pending.
Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:
Data in an arbitrator’s order reversing all discipline of a state-level public official are public, pursuant to Minnesota Statutes, section 13.43, subdivision 2(e), except for private personnel data on other employees and other not public data.
Signed:
Matthew Massman
Commissioner
Dated: January 10, 2018
Personnel data
Public official
Disciplinary action
