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December 29, 2000; Minnesota Department of Employee Relations
12/29/2000 10:16:43 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On November 3, 2000, the Commissioner received a memo dated November 1, 2000, from Julien Carter, Commissioner of the Minnesota Department of Employee Relations (DOER). In his memo, Commissioner Carter asked the Commissioner to issue an advisory opinion regarding the classification of certain data that DOER maintains. On November 15, 2000, the Commissioner received another memo from Commissioner Carter, in which he asked the Commissioner (of Administration) to consider an additional issue in the advisory opinion. A summary of the facts is as follows. Commissioner Carter wrote: I am requesting your assistance in clarifying the status of ethics opinions prepared by my office. Under the Code of Ethics for Employees in the Executive Branch (M.S. 43A.38), the Commissioner of Employee Relations may be asked to review a situation and determine whether a statutory conflict of interest exists. The Commissioner may also initiate a review and make a determination, absent a specific request. My questions concern the public or non-public nature of these ethics reviews and determinations... Commissioner Carter asserted that he believes the data about employees or data in which employees are identified are classified pursuant to Minnesota Statutes, section 13.43. He then raised his second question - if there is a complaint, charge or disciplinary action after the not public response is made but regarding the same situation, does DOER's information become public even though it was not prepared in response to the complaint or charge or as part of the disciplinary investigation? In his December 15, 2000, memo, Commissioner Carter wrote, Specifically, I would ask that your advisory opinion also address the data classification of the request for the ethics determination and other documents submitted for review that contain certain information about the subject of the ethics review. Issues:In his request for an opinion, Mr. Carter asked the Commissioner to address the following issues:
Discussion:Issue 1Pursuant to Minnesota Statutes, Chapter 13, what is the classification of ethics opinions/reviews/determinations that the Minnesota Department of Employee Relations prepares pursuant to Minnesota Statutes, section 43A.38? Minnesota Statutes, section 13.43, personnel data, classifies the following: data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a state agency, statewide system or political subdivision or is a member of or an applicant for an advisory board or commission. In his opinion request, Commissioner Carter discussed that pursuant to Minnesota Statutes, section 43A.38, he may be asked to review a situation or may initiate a review to determine whether a statutory conflict of interest exists. These inquiries involve employees of the executive branch. As discussed above, data about employees are classified at Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 provides the types of employee data that are public and subdivision 4 classifies most other types of employee data as private. Therefore, when an employee is the subject of, and is identified as such, data contained in ethics opinions/reviews/determinations, those data are classified pursuant to section 13.43. Because such data are not contained in subdivision 2's list of public data, those data are private pursuant to subdivision 4. In his opinion request, Commissioner Carter wrote that there may be cases in which some of the data would be public if no individual is named or identifiable from the facts of the situation. The Commissioner agrees. Data contained in ethics opinions/reviews/determinations which are general in nature and of which specific employees are not the subject, are classified pursuant to the general presumption in section 13.03, subdivision 1, and are public. The Commissioner would like to emphasize, however, that if the data contained in ethics opinions are about an individual who is an elected official, the classification of those data depends on whether or not the elected official is an employee. See Commissioner of Administration Opinions 99-043, 00-049, and 00-065. If the entity considers the elected official to be an employee, the data are classified at section 13.43. If the entity does not consider the elected official to be an employee, the data are public pursuant to the general presumption in section 13.03, subdivision 1. Issue 2If the ethics opinions are not public data, and a complaint or charge is made, or disciplinary action is taken regarding the same situation the Department reviewed in a previously-issued opinion, what is the classification of the previously-issued ethics opinion/review/determination? When an executive branch agency requests an ethics opinion from DOER, DOER issues an opinion and that opinion is on file in the requesting agency. The Commissioner assumes that DOER also maintains a copy of that opinion. If the agency then uses the opinion in taking disciplinary action against the employee, the opinion becomes part of the disciplinary record. If the disciplinary action has reached a final disposition (see section 13.43, subdivision 2(b)), any data in the opinion that are specific reasons for the action or data documenting the basis of the action (see subdivision 2(a)(5)), are public. Regarding the classification of those same data as maintained by DOER, the Commissioner is of the opinion that the data also are public. Minnesota Statutes, Chapter 645, interpretation of statutes, requires that legislative enactments be interpreted reasonably and not in a way that would produce an absurd result. A copy of the same data, in this case a copy of an ethics opinion, should have the same classification in the hands of the issuing agency as it has in the hands of the receiving agency. To conclude otherwise would not be reasonable and clearly would be absurd. Issue 3What is the classification of the request for the ethics determination and other documents submitted for review that contain information about the individual who is the subject of the ethics review? As the Commissioner stated in response to Issue 1, it is his opinion that data about employees contained in ethics opinions are classified pursuant to section 13.43. It is also his contention, therefore, that data about employees contained in opinion requests, as well as data contained in documentation submitted by the requestor, are classified pursuant to section 13.43. Thus, because such data are not contained in subdivision 2's list of public data, those data are private pursuant to subdivision 4. Data contained in opinion requests and accompanying documentation of which specific employees are not the subject are classified pursuant to the general presumption in section 13.03, subdivision 1, and are presumed public. Opinion:Based on the facts and information provided, my opinion on the issues that Commissioner Carter raised is as follows:
Signed: David F. Fisher
Dated: December 29, 2000 |
Personnel data
Statutory construction (Ch. 645)
Same data, different entities, different classification
Ethics opinions (DOER)
Absurd or unreasonable result (645.17)
