This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

The Metropolitan Council requested an advisory opinion from the Commissioner about whether a final disposition of a disciplinary action against an employee has occurred, pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(5).

The Council provided the following summary of facts:

The Metropolitan Council investigated an employee. As a result of that investigation, the Council disciplined the employee. The discipline did not include discharge but was a “disciplinary action” as defined in the collective bargaining agreement; the employee continued to be employed by the Council.

The collective bargaining agreement establishes a grievance process and allows the union to refer the grievance to final and binding arbitration.

Consistent with that agreement, the employee’s union submitted a request for grievance on behalf of the employee; the grievance addressed matters other than whether the employee remained in Council employment. Several weeks after the union submitted the request for grievance, the employee submitted their voluntary resignation. The employee’s union proceeded with the grievance even though the employee was no longer a Council employee and the Council held Step 1 and Step 2 grievance hearings. The former employee attended and participated in both hearings.

The Council issued its response to Step 2 grievance, maintaining the disciplinary action. The union elected not to refer the grievance to final and binding arbitration. Instead, the union formally withdrew its grievance filed on behalf of the former employee and the time to refer the grievance to arbitration expired. Under the terms of the collective bargaining agreement, any grievance not referred to arbitration within the time provided by the agreement “shall be considered waived” (emphasis in original).

Issue:

Discussion:

Government data on individuals maintained because an individual is or was an employee of a government entity are classified by Minnesota Statutes, section 13.43. Section 13.43, subdivision 2 lists types of personnel data designated as public and subdivision 4 provides that all other personnel data are private.

Specifically, section 13.43, subdivision 2(a)(5) designates “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” as public data.

Section 13.43, subdivision 2(b) states:

For the purposes of this subdivision, a final disposition occurs when the 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.

In Advisory Opinion 00-072, the Commissioner noted that section 13.43, subd. 2(b) establishes that the occurrence of a final disposition depends on whether the specific employee is subject to a collective bargaining agreement. In addressing whether a final disposition for a union employee had occurred while a grievance was still pending, the Commissioner wrote:

[I]n general, if an employee who is not covered by a collective bargaining agreement resigns after the government entity makes its final decision, then there has been a final disposition of disciplinary action. However, in this case, there is a collective bargaining agreement that provides for arbitration, which remains a possibility. The terms of the agreement allow a grievance to be filed either by the employee, or as is the case here, by the union on behalf of the employee. Thus, the statutory provision [addressing “In the case of arbitration proceedings…”] that governs discipline in the case of arbitration proceedings is directly applicable here. Accordingly, there has been no final disposition of the disciplinary action. Final disposition in this situation will occur when arbitration is either concluded, or is no longer a possibility.

In its request to the Commissioner, the Council noted that the outcome of past advisory opinions interpreting section 13.43, subds. 2(a)(5) and (b) appeared to depend on whether a collective bargaining agreement covered the employee subject to a disciplinary action. (See Advisory Opinions 94-019, 95-027, 00-072, and 02-053.) However, the Council added that “[t]he timing of the employee’s resignation—while the grievance process was ongoing and before the opportunity to refer to arbitration—also makes it unclear about how subdivision 2(b) should be applied in this case.”

In assessing the facts, the Council wrote:

Here, the employee was covered by a collective bargaining agreement. Therefore, following the guidance of past advisory opinions, one interpretation is that the Council should look to whether arbitration has concluded or remains a possibility to determine if there is a final disposition. Applying that interpretation, a final disposition of the disciplinary action occurred after the union withdrew its grievance on behalf of the employee. As a result, the employee failed to elect arbitration within the time provided by the collective bargaining agreement. There no longer was any possibility of an arbitration proceeding that could change the disposition of the disciplinary action.

The Commissioner agrees that this analysis is the correct approach for the situation at hand.

The language of section 13.43, subd. 2(b) describes separate situations when a final disposition of a disciplinary action will occur. For employees who are not subject to a collective bargaining agreement, the final disposition occurs when the government entity makes a final decision determining that discipline is necessary.

When an employee is covered by a collective bargaining agreement, the final disposition does not occur immediately when the government entity decides to issue a disciplinary action. Rather, the final disposition occurs at the conclusion of any arbitration proceedings resulting from the matter or the employee’s failure to elect arbitration to contest the discipline within the appropriate time frame provided in the collective bargaining agreement.

Section 13.43, subd. 2(b) also contemplates employee resignations in the context of disciplinary actions. Typically, when an employee resigns prior to a government entity’s decision to issue discipline as the result of a complaint, the data related to the complaint and investigation—other than the existence and status of the complaint—would remain private personnel data under section 13.43, subdivision 4. However, section 13.43, subd. 2(b) states, “Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator.” (Emphasis added.)

This language in subdivision 2(b) simply clarifies that once a government entity disciplines an employee, the individual can no longer resign from employment to keep data about the complaint and investigation private. Rather, the only way the disciplinary action and related data do not become public after discipline is imposed is when “an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.”

Here, the employee was covered by a collective bargaining agreement that permitted the employee’s union to grieve a Council decision to discipline an employee. Therefore, final disposition for any employee working under this specific agreement would occur upon the conclusion of arbitration proceedings or the union’s failure to elect arbitration within the time frame established by the collective bargaining agreement.

After the Council disciplined the employee, the union opted to initiate the grievance process through agreed-upon steps in the collective bargaining agreement. During these steps, the final disposition had not yet occurred because there was still an opportunity for the union “to elect arbitration within the time provided by the collective bargaining agreement.”

While the grievance process was ongoing, the employee resigned. However, the employee’s resignation was irrelevant to the final disposition. The Council disciplined a union employee, and, at that point, arbitration proceedings remained a possibility. Therefore, the resignation did not affect either the classification of the data nor whether final disposition had occurred under the language of 13.43, subd. 2(b).

After concluding the second step of the grievance process, the Council maintained the disciplinary action against the employee. The employee’s union then determined it would withdraw the grievance, and the time to request that the matter go to arbitration expired. Therefore, the language in section 13.43, subd. 2(b) stating “a final disposition occurs … upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement” was met.

Therefore, a final disposition of disciplinary action occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) when the time expired for the employee’s union to elect arbitration under the collective bargaining agreement. The employee’s resignation did not have an impact on when final disposition occurred.

The Commissioner recognizes that collective bargaining agreements may vary regarding the processes that entities must follow to impose disciplinary actions on employees subject to the agreement. Such variations leave open the possibility that the disciplinary processes under another agreement could result in a different outcome for whether and when a final disposition will occur under section 13.43, subd. 2(b). All government entities should closely review the specific terms of an applicable collective bargaining agreement and the language of section subdivision 2(b) when determining whether the final disposition of a disciplinary action against an employee has occurred.

Lastly, the Council asked about the appropriate classification of data documenting the fact that an employee resigned under these circumstances. Section 13.43, subd. 2(b) does not classify data. Rather, as noted above, the subdivision clarifies when final disposition of a disciplinary action has occurred for the purposes of section 13.43, subd. 2(a)(5).

Section 13.43, subd. 2(a)(3) designates that an individual’s “date of first and last employment” are public data. However, subdivision 2 does not designate data describing the fact that an employee resigned as public. Thus, the fact that an employee resigned is generally private under section 13.43, subd. 4 unless the resignation would be made public for other reasons described in subdivision 2, such as part of “the complete terms of any agreement settling any dispute arising out of an employment relationship.” (Section 13.43, subdivision 2(a)(6).)

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

A final disposition of disciplinary action has occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) because the entity decided to discipline an employee and the employee’s union did not elect arbitration within the time provided by the collective bargaining agreement. The employee’s resignation during the grievance process established under the collective bargaining agreement did not impact when the final disposition occurred.

Signed:

Alice Roberts-Davis
Commissioner

July 25, 2022