November 29, 1999; School District 2711 (Mesabi East)
11/29/1999 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 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 October 4, 1999, IPA received a letter from John M. Roszak, an attorney, on behalf of his client, Independent School District 2711. In this letter, Mr. Roszak asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the District. A summary of the facts of this matter follows. The District's School Board is reviewing allegations relating to certain reimbursement claims submitted by a Board member. The School Board has received inquiries from the public regarding the Board member's conduct. Issues:In his request for an opinion, Mr. Rosak asked the Commissioner to address the following issues:
Discussion:Pursuant to Minnesota Statutes, Chapter 13, data created, collected, and maintained by government entities are government data, which are public unless otherwise classified by state or federal law. (See section 13.02, subdivision 7, and section 13.03, subdivision 1.) Pursuant to section 13.43, subdivision 1, personnel data are 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. Subdivision 2 of section 13.43 classifies specific types of personnel data as public and subdivision 4 classifies all remaining personnel data as private. The classification of data about a school board member is therefore dependent upon whether or not the board member is an employee of the District for purposes of Chapter 13. If so, then data about the Board member are classified under section 13.43. If the Board member is not an employee of the District, then the data in question are subject to the general presumption that all government data are public unless specifically classified otherwise under state or federal law. According to Mr. Roszak: The School Board asserts that its School Board is neither an advisory board nor a commission. It is a governing board vested with the care, management, and control of the School District. Minn. Stat section 123B.09, subd. 1. Although members of the School Board perform services for the District, they are compensated for those services and, thus, cannot be deemed to perform services on a voluntary basis. See Minn. Stat. 123B.09, subd. 12 (authority of board to fix compensation.) Moreover, School Board members are neither hired nor fired, and they do not otherwise fit the traditional profile of an independent contractor or an employee of the School District. Rather, School Board members are elected officials. See Minn. Stat. section 123B.09. Mr. Roszak further stated: School Board members cannot be treated the same as employees because School Board members are, in effect, the employer and generally cannot be held accountable to a superior other than the public. If data on School Board members were private, then no mechanism for accountability to the public would exist and one of the overall objectives of the [Minnesota Government Data Practices] Act would be frustrated. According to Mr. Roszak, the School District does not consider School Board members to be employees, but rather elected officials without employee status. The Legislature did not provide a definition of employee in section 13.43. The American Heritage Dictionary - Second College Edition, Houghten Mifflin Company, 1985, definition of employee as a person who works for another in return for compensation is inconclusive. A review of several statutes relating to public employees also appears to be inconclusive. Elected officials are considered employees for purposes of worker's compensation, but not for unemployment compensation or eligibility under the Public Employee Labor Relations Act. (See section 176.011, subdivision 9 (6), section 268.035, subdivision 20 (12), and section 179A.03, subdivision 14 (a).) Pursuant to section 471.61, subdivision 1, a school district (among other government entities) may elect to offer group life, health and/or accident insurance to its officers and employees. According to Mr. Roszak, the District has so elected. In addition, under the same statute, a school district (among others) may determine that a person is an officer or employee if the person receives income from the governmental subdivisions without regard to the manner of election or appointment . . . . However, it is the District's position that School Board members are not District employees, and ultimately it is up to the District to make that determination. The Commissioner believes it is reasonable for the District to reach the conclusion that School Board members are not employees, particularly in light of Mr. Roszak's comments concerning public accountability concerns. Accordingly, absent any statute or federal law that provides otherwise, data maintained by the District about any of the School Board members, including data relating to the School Board's deliberations about the allegations against the Board member, are public, pursuant to Section 13.03, subdivision 1. It should be noted that there are provisions in Chapter 13 which regulate data about elected officials. Section 13.33 provides that correspondence between individuals and elected officials is private, but may be made public by either the sender or the recipient. Section 13.60 provides that certain financial disclosure statements of elected or appointed officials are public data on individuals. Those sections do not appear to be applicable to the data in question here. Opinion:Based on the facts and information provided, my opinion on the issues raised by Mr. Rozak is as follows:
Signed:
David F. Fisher
Dated: November 29, 1999 |
