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Advisory Opinion 96-050

November 27, 1996; City of Dilworth

11/27/1996 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.

Facts and Procedural History:

For purposes of simplification, the information presented by the government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On October 8, 1996, PIPA received a letter requesting this opinion from R. B. McLarnan, attorney for the City of Dilworth. In his letter, Mr. McLarnan requested that the Commissioner issue an advisory opinion regarding the classification of data maintained by the City about J, an employee of the City. In his opinion request, Mr. McLarnan incorporated, by reference, comments he received from Ellen A. Longfellow, an attorney for the League of Minnesota Cities Insurance Trust.

The City coordinated its opinion request with Steven A. Johnson, attorney for Forum Communications Company, publisher of The Forum newspaper, which had requested access to data about J. Both Mr. McLarnan and the Commissioner notified Mr. Johnson and Jason Vendsel, J's attorney, that the Commissioner was going to issue this opinion, and asked for any comments they might wish to submit. Mr. Johnson submitted comments for the Commissioner's consideration, which are discussed below.

A summary of the detailed facts of this matter follows.

The City of Dilworth recently terminated an employee, J. Apparently J's employment with the City was not governed by a collective bargaining agreement. However, J is a veteran, and, pursuant to Minnesota Statutes Section 197.46, the Veterans Preference Act, J is entitled to a hearing. Under Section 197.46, J will continue to be paid by the City for 60 days beyond the date of the City's decision to terminate him/her, unless he/she requests a hearing. If J requests a hearing, J will continue to be paid by the City until the hearing board reaches a decision.

The City received a request from The Forum for access to data documenting its decision to terminate J, which prompted this opinion request.

Issue:

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

What is the classification of the information the City of Dilworth relied upon in reaching its decision to terminate J's employment?

Discussion:

There appears to be no question that the data to which the newspaper seeks access were created because J was employed by a government entity, i.e., the City. Therefore, for purposes of Minnesota Statutes Chapter 13, those data are personnel data and are classified under Section 13.43. Section 13.43 provides that certain data about current and former public employees are public, and that all other personnel data are private.

Section 13.43, subdivision 2 (a), in relevant part, provides that the following personnel data are public:

The 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 dispositionoccurs when the state agency, statewide system, or political subdivision makes its final decisionabout 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator. [Emphasis added.]

Thus, the issue of the classification of the data in question is dependent upon whether the City has made its final decision about the disciplinary action, i.e., J's termination.

In her letter to Mr. McLarnan, Ms. Longfellow stated . . . there is a good argument that the final disposition' of the complaint is when the veteran's preference board makes its decision. The employee is paid by the city until that time and that process is part of the city's termination process. The Annandale case at the supreme court level supports this analysis.

In his comments, Mr. Johnson wrote:

It is Forum Communication's position that there has been a final disposition. Dilworth City Council has voted unanimously to terminate [J.] This is not a case where they simply stated that they will probably fire [J] in the future. There is not [sic] collective bargaining agreement involved and thus no arbitration proceedings will occur. The fact that [J] may at some point in the future request a hearing under the Veterans Preference Act is [of] no consequence. It is Forum Communication Company's position that the chance of such a hearing occurring in the future simply raises the possibility of later proceedings' which by the express terms of the statute [Section 13.43] do not affect a final disposition.'

The Minnesota Supreme Court case Ms. Longfellow referred to is Annandale Advocate v. City of Annandale, 435 N.W. 2d 24, (Minn. 1989). The Legislature amended Section 13.43 in 1990, following Annandale. That case, in relevant part, dealt with the meaning of the terms final decision and final disposition of disciplinary actions as these terms were used in Chapter 13.

In Annandale, the Court found that a final decisionof the City was not the final dispositionof the disciplinary action, because the employee had exercised his right under the Veterans Preference Act to have a further hearing on the matter. The Court acknowledged that its interpretation would result in delay of months and even years before disciplinary records could be released to the public. (See Annandaleat 29.) Subsequently, in 1990, the Legislature amended Section 13.43, subdivision 2, by adding clause (b), which provides the definition of final disposition of disciplinary action, and includes the language regardless of the possibility of any later proceedings or court proceedings. (See Laws of Minnesota, 1990, Chapter 550, Section 1.)

Thus, according to the requirements of Section 13.43, subdivision 2, the specific reasons for and data documenting disciplinary action taken against a public employee become public when there has been a final disposition of the disciplinary action, regardless of the possibility of any later proceeding or court proceedings. The City has made its final decision; therefore there has been a final disposition of disciplinary action, and, regardless of any later proceeding, including a hearing under the Veterans Preference Act, the data sought by The Forum about J are public.

Opinion:

Based on the correspondence in this matter, my opinion on the issue by Mr. McLarnan is as follows:

The City has made its final decision, therefore, there has been final disposition of the disciplinary action taken against J, pursuant to Section 13.43, subdivision 2. The specific reasons for and data documenting the basis of the disciplinary action are public data, regardless of the possibility of any later proceedings, including a hearing under the Veterans Preference Act.

Signed:

Elaine S. Hansen
Commissioner

Dated: November 27, 1996

Personnel data

Veterans Preference Act