October 26, 2018; Professional Educator Licensing and Standards Board
10/26/2018 11:52:58 AM
This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.
On September 17, 2018, the Data Practices Office received an advisory opinion request from Representative Jenifer Loon. In her letter, Representative Loon asked the Commissioner to issue an opinion regarding the Professional Educator Licensing and Standards Board’s (PELSB) response to a data practices request.
Representative Loon provided a summary of the facts. She asked PELSB for “all stipulation and consent agreements” entered into by the Board since January 1, 2018. PELSB provided all of the agreements Representative Loon requested.
Representative Loon wrote to the Commissioner:
Upon further review of one of the stipulation and consent agreements, I noticed a teacher’s license was suspended and stayed due to maltreatment of minors. The agreement did not specify what the maltreatment was that led to the stayed suspension of the license. … I requested additional details from PELSB, and they responded they could not provide the details of maltreatment because it was considered inactive investigatory data which is classified as private data under Minn. Statute 13.41 subd. 2.
I contend that under Minn. Stat. 13.41 that PELSB did take disciplinary action, and therefore the information I am requesting regarding the details of maltreatment is public data.
…. The Stipulation and Consent Agreement is the tool by which there is an agreement to avoid the contested case hearing. Therefore, the agreement - the stipulation agreement - and the “specific reasons for the agreement are public data.” The stipulation agreement does not provide specific reasons on why the disciplinary decision is limited to a stayed suspended license.
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Based on the opinion request, the Commissioner agreed to address the following issue: Pursuant to Minnesota Statutes, section 13.41, did the Professional Educator Licensing and Standards Board respond appropriately to a request for certain data related to a Stipulation and Consent Agreement? |
The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)
Pursuant to Minnesota Statutes, section 13.41, subdivision 4, when a licensing agency investigates one of its licensees, and the investigation is active, the related data are confidential. Once the investigation becomes inactive, the classification of the data depends upon whether the agency took disciplinary action against the licensee.
In general, under section 13.41, subdivision 2(a), all “inactive investigative data relating to violations of statutes or rules” are “classified as private.” Subdivision 5 articulates certain exceptions for inactive investigative data if the agency took disciplinary action. Specifically, subdivision 5, states:
Licensing agency minutes, application data on licensees except nondesignated addresses, orders for hearing, findings of fact, conclusions of law and specification of the final disciplinary action contained in the record of the disciplinary action are classified as public, pursuant to section 13.02, subdivision 15. The entire record concerning the disciplinary proceeding is public data pursuant to section 13.02, subdivision 15, in those instances where there is a public hearing concerning the disciplinary action. If the licensee and the licensing agency agree to resolve a complaint without a hearing, the agreement and the specific reasons for the agreement are public data. [Emphasis added.]
Therefore, if the agency took disciplinary action, certain related data become public, depending upon the process and outcome. If there was a public contested case hearing, the entire record concerning the disciplinary proceeding is public. If there was no public hearing, a subset of data in the entire record is public. If the licensee and licensing agency agree to resolve the matter without a hearing, the agreement and specific reasons for the agreement are public. All other data not specified as public under subdivision 5, remain classified as private inactive investigation data under subdivision 2(a).
Representative Loon is correct that PELSB did take disciplinary action. However, PELSB and the licensee agreed to resolve the complaint without a public hearing. PELSB provided Representative Loon with the Stipulation Agreement and Consent Order, the tool used to document the agreement reached between PELSB and the licensee. She then asked for additional data related to the maltreatment report.
In comments to the Commissioner, PELSB stated:
Representative Loon is requesting data contained in the record (i.e., a Maltreatment Determination Report) that would be publicly available only if a public hearing had been held regarding the matter. Specifically, Minn. Stat. § 13.41, subd. 5, makes the entire record concerning the disciplinary proceeding public only when there is a public hearing concerning the disciplinary action.
PELSB contends that the Board’s announcement of the adoption of Stipulation Agreements and Consent Orders should not be considered a “public hearing concerning the disciplinary action” for the purposes of Minn. Stat. § 13.41, subd. 5. PELSB votes to adopt or reject signed stipulations during closed session, as it is acting within its quasi-judicial capacity based on non-public data. PELSB then moves to open session and announces the adoption of stipulation agreements that adopted during closed session.
The Stipulation Agreement and Consent Order at issue confirms that the public hearing contemplated by section 13.41 in this case is a contested case hearing, and that right to a hearing is waived by entering into the Stipulation Agreement and Consent Order (see Minnesota Rules 8710.2100, subpart 3).
Without a public hearing, all inactive investigative data are private unless identified as public in subdivision 5. Here, the designated public data – the “agreement and specific reasons for the agreement” – are in the Stipulation Agreement and Consent Order. According to PELSB, the factual findings (i.e., the reasons for the agreement) are that the Minnesota Department of Education determined that the licensee committed maltreatment of three students, thus violating a subpart of the Code of Ethics for Minnesota Teachers, which states, “[a] teacher shall make reasonable effort to protect the student from conditions harmful to health and safety.” (See Minnesota Rules, part 8710.2100, subpart 2(B).)
In its comments to the Commissioner, PELSB added:
If Representative Loon’s position is correct that the Board’s announcement of a stipulation and consent order constitutes a “public hearing,” Minn. Stat. § 13.41 subd. 5’s provision for the resolution of a complaint without a hearing is superfluous, and licensing agencies would have difficulty in distinguishing the difference between “instances where there is a public hearing concerning the disciplinary action” as compared to instances when “the licensee and the licensing agency agree to resolve a complaint without a hearing.”
When a complaint is resolved without a hearing, only the agreement and specific reasons for the agreement are public data. Minn. Stat. § 13.41, subd. 5. PELSB believes that the Stipulation Agreement and Consent Order, which contains “the agreement and specific reasons for the agreement,” meets this requirement. The Stipulation Agreement and Consent Order itself is “the agreement” that must be classified as public data, and the factual findings in the stipulation constitute the “specific reasons” for the agreement.
The Commissioner concurs with PELSB that the subdivision 5 provision related to resolution of a complaint without a hearing would be superfluous if it was not intended to distinguish between public data contained in the Stipulation Agreement and Consent Order entered into without a public hearing and additional data that become public following a public hearing.
In her opinion request, Representative Loon argued that “the stipulation agreement does not provide specific reasons on why the disciplinary decision is limited to a stayed suspended license.” The Commissioner notes that the statute does not require specific reasons for the disciplinary action to be made public, but rather classifies as public “the specific reasons for the agreement” when a complaint is resolved without a hearing. [Emphasis added.] While the Commissioner appreciates that the public may find additional information of interest, in this instance, PELSB provided Representative Loon with the agreement and specific reasons for the agreement. Given that the phrase “specific reasons” is not defined in section 13.41, and without additional legislative guidance, each government entity is in the best position to determine the meaning of the phrase within the context of section 13.41.
Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:
Pursuant to Minnesota Statutes, section 13.41, the Professional Educator Licensing and Standards Board responded appropriately to a request for certain data related to a Stipulation and Consent Agreement.
Signed:
Matthew Massman
Commissioner
October 26, 2018
Licensing data
Licensing data
Licensing data (13.41)
