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Facts and Procedural History:
On March 25, 1994, the Commissioner of Administration received a request for an opinion from John M. LeFevre Jr., an attorney for the City of Crystal. In his request for an opinion, Mr. LeFevre stated the following facts.
The City of Crystal, hereinafter Crystal , is a political subdivision of the state and therefore, an entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and hereinafter MGDPA . Under the Crystal Charter, at section 6.02, the city manager appoints city employees and may discipline them. The Crystal Charter also requires that an employee review board be created to rule on grievances brought by nonunion employees. Employees of Crystal who are covered by collective bargaining agreements have grievance rights under those agreements.
Pursuant to ordinance, Crystal has adopted rules and regulations concerning the employment relationship. For the purpose of handling employee disciplinary actions, these rules and regulations establish a two-step internal procedure for nonunion employees who want to grieve proposed disciplinary actions. In Step I of the grievance process, the employee presents the grievance to his or her department head for a decision. If the employee disagrees with the department head's decision, the grieving employee, in Step II, may appeal the department head's decision to the city manager. The city manager must give a written notice of the city manager's final determination concerning the grievance. An employee may not submit a grievance to the employee review board until all steps of this grievance procedure have been completed. Any grievance submitted for review by the employee review board must be submitted within ten days of the city manger's final determination.
Under the Crystal Charter and Code, the employee review board is composed of three residents of Crystal who are appointed by the City Council. The employee review board has the discretion to refuse to review a grievance. If the board chooses to review the grievance, it may conduct a hearing and confirm, modify or reverse the decision of the city manager. A decision of the employee review board is final.
Crystal currently has a grievance proceeding pending at Step II of the process which involves a proposed disciplinary action against a nonunion employee of the city. It is anticipated that if the city manager issues a determination that is adverse to the employee that the employee will submit that grievance to the employee review board.
Issues:
The issue raised by Mr. LeFevre in his opinion request was stated by him as follows:
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| Is the decision of the city manager at Step II of the grievance process a final decision within the meaning of Minnesota Statutes Section 13.43, subd. 2 (b)? |
Discussion:
After stating this issue, Mr. LeFevre quoted the full text of Minnesota Statutes Section 13.43, subdivision 2 (b). This is the provision of the MGDPA that provides guidance on when there is a final disposition of a proposed disciplinary action. This provision is of critical importance to both the public and public employees because, when there is a final disposition of a disciplinary action, detailed information about why the employee is being disciplined becomes public data under the MGDPA.
The full text of this provision reads as follows:
| (b) For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision makes its final decision about 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. |
Mr. LeFevre then stated that it is Crystal's position that the city manager's decision is the final decision of the City within the meaning of Section 13.43, subdivision 2 (b). Although the Crystal grievance procedure does provide for the appeal of a city manager's decision to the employee review board, in the City's view that appeal procedure is a later proceeding within the meaning of subdivision 2 (b). Under this interpretation, detailed data about a disciplinary action would become public at the conclusion of Step II of the grievance process when the city manager issues a final determination upholding the proposed disciplinary action.
After the Minnesota Supreme Court's decision in the case of Annandale Advocate v. City of Annandale, 435 N.W. 2d 24 (Minn. 1989), the legislature decided that it should more clearly specify just when the final disposition of a disciplinary action against a public employee would occur. Chief impetus for this concern came from a perception that one of the holding of the Annandale decision was, that as long as a public employee had recourse to any possible forum in which to appeal a disciplinary action, no detailed information could be made available to the public about the disciplinary action. Given possible recourse by the employee to judicial and other forums, disclosure of detailed data about an employee disciplinary action could be delayed for years. (Annandale, at p. 29.) Section 13.43 subdivision 2 (b) was added to the MGDPA to deal with that issue. (See Laws of Minnesota 1990, Chapter 550, Section 1.)
Section 13.43, subdivision 2 (b) contains different specifications and possibilities as to when the final disposition of a disciplinary action may occur. For public employees, who are not covered by a collective bargaining agreement, subdivision 2 (b) states that . . . a final disposition occurs when the state agency, statewide system, or political subdivision makes its final decision about the disciplinary action, . . . . The focus in this language is on whether the government entity has made its final decision about a disciplinary action. Once its decision is made, the proposed disciplinary action of the government entity is final and detailed data about that action becomes public. It is clear from a reading of the first sentence of subdivision 2 (b) that the it referred to is either a state agency, statewide system, or political subdivision.
In the case of the Crystal discipline and appeal process for nonunion employees, the decision of the city manager may be appealed to the employee review board. The employee review board is provided for in both the Crystal City Charter and City Code. (See the Crystal City Charter, section 6.07 and Crystal City Code, Section 312.11.) The members of the employee review board are appointed by the city council. (Crystal Charter 6.07.) The qualifications and terms of members of the review board are established by the Crystal Code. (Crystal Code, 312.05.) The Crystal City Code requires that the city manager provide the employee review board with staff and legal assistance and that members of the board are reimbursed for expenses by Crystal. Most importantly, the employee review board can modify a decision of the city manager in any respect. (Crystal City Code, 312.11, subd. 5.)
By its adoption of the Charter and Code provisions dealing with the employee review board, Crystal has made the operation of the employee review board and appeals to it by employees an integral part of the process Crystal uses to deal with employee disciplinary matters. Although from a temporal standpoint, a decision by the employee review board may be a later proceeding, decisions by the board are actually the last step in an integrated process used by Crystal to process employee disciplinary matters. Crystal has established and supports the employee review board. The board is not making decisions for itself. It is making decisions on behalf of the City of Crystal. Decisions by the employee review board, to either not review a decision of the city manager or to review a city manager's decision in a hearing and either uphold the decision or to modify it, are the final decisions of the City of Crystal for purposes of Minnesota Statutes Section 13.43, subdivision 2 (b).
Opinion:
Based on the correspondence in this matter, my opinion on the issue raised by Mr. LeFevre is as follows:
| The decision of the city manager at Step II of the grievance process used in the City of Crystal is not the final decision concerning a disciplinary action. For purposes of Minnesota Statutes Section 13.43, subdivision 2 (b), a final decision occurs in the Crystal grievance process for nonunion employees when the employee elects not to grieve a proposed disciplinary action within the timeframe required by the Crystal Code, the employee review board decides not to review a decision by the city manager or the board reviews a decision and issues its written order upholding a proposed disciplinary action. |
Signed:
Debra Rae Anderson
Commissioner
Dated: April 15, 1994
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