Facts and Procedural History:

Janet Reiter, Chisago County Attorney, asked for an advisory opinion regarding data that Chisago County (the County) maintains. Marshall Tanick, attorney for the data subject, provided comments on his behalf. 

The County provided the following summary of the facts:

Chisago County received a complaint against elected Sheriff Richard "Rick" Duncan and initiated an external investigation into the complaint. The complaint was investigated by attorney Kristi A. Hastings. On April 26, 2018, Hastings issued her investigative report to Chisago County. On April 26, 2018, Sheriff Duncan submitted his written notice of retirement to Chisago County to be effective May 4, 2018….

On April 27, 2018, Chisago County received a data request from KSTP requesting the "investigation into complaint, disciplinary action, finding of investigation" regarding Duncan.

Issue:

Discussion:

Government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. 

Generally, only the existence and status of a complaint or charge against an employee are public data, unless there is a final disposition of disciplinary action. (See Section 13.43, subdivision 2(a)(4) and (5).) For employees who are “public officials,” however, all data relating to a complaint or charge are public if certain conditions are met. (See section 13.43, subd. 2(e) and (f).)

Data relating to a complaint or charge against an employee identified under paragraph (e), clause (4), are public only if:

(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending. (Section 13.43, subd. 2(f)(1).)

Local public officials include the chief administrative officer; directors of departments, divisions, bureaus, or boards of a county with a population of more than 5,000 (or cities with more than 7,500 residents); the top three highest paid positions in a city or county with over 15,000 residents pursuant to Minnesota Statutes, section 471.701; and certain school district employees. (See section 13.43, subd. 2(e)(4)(i-iv).)

The County wrote: “Whether the data is governed by [section] 13.43, hinges upon whether the Sheriff, as an elected official, is deemed an employee, or not.”

The Commissioner has consistently opined that entities must determine whether elected officials are “employees” for purposes of the Data Practices Act. (See Advisory Opinions 95-041, 03-011, 02-013, and 01-039.) In an unpublished Minnesota Court of Appeals case, the Court agreed with the Commissioner’s previous opinions, “[a]llowing governmental units to decide whether their elected officials are employees also comports with the fundamental purpose of the MGDPA.” Krout v. City of Greenfield, No. A11-1200, WL 2012 1253090 (Minn.Ct.App. April 16, 2012). If an elected official is not an “employee” for purposes of the Data Practices Act, then data about him are presumptively public.

The County wrote that it “believes the Sheriff is an employee, and more specifically, a ‘public official.’” 

The data subject wrote that he, “believes that the County is probably correct on this point [that the data subject is an employee]. For the purposes of the analysis, he may be deemed an “employee,” and, therefore, the investigative data may be covered by section 13.43.”

The next question is whether the data subject was a “public official,” while employed at the County. The County wrote:

As an employee, the Sheriff is a "public official" under Minn. Stat. [section] 13.43, Subd. 2(e)(4)(ii) and (iii) as noted by the Sheriff’s salary and position as the head of a department. In Chisago County, the Sheriff is one of the employees whose salary is posted on the County's website to comply with Minn. Stat. §471.701 and identified by County Personnel Policy as a Department Head, responsible for overseeing the Sheriff’s Office. 

The data subject argued that he is not a public official first, because including his position as one of the three highest paid was “premature and erroneous,” as a half-year employee this year and because he is not a department head. However, the Commissioner respectfully disagrees. The County provided four years of salary postings and “Sheriff” is included on all of them (all during the tenure of the data subject). Moreover, County also stated that the position of Sheriff is considered a department head within the County. Thus, under the plain language of the law, the data subject is a local public official.  

The next question is whether the Sheriff “resigned” while the complaint or charge was pending, when he retired.

The County wrote: 

The legal distinction between a resignation and retirement for purpose of the classification of data resulting from an investigation of an employee does not appear to have been previously addressed. The practical implications of the Sheriff’s retirement is that as of May 4, 2018, the Sheriff is no longer available for service, consistent with the impact of a resignation.

The word “resign” is not defined in section 13.43. Words and phrases not defined in statute are to be interpreted according to their common and approved usage. (See Minnesota Statutes, section 645.08.) The dictionary definition of “resign” is “to give up one's office or position.” (Merriam-Webster.com. 2014. http://www.merriam-webster.com (June 2018).) While there may certainly be a distinction between resignation and retirement for human resources or personnel purposes – as the data subject argues – in a data practices context, it seems that retirement is a form of resignation. 

On April 26, 2018, the data subject stated his intention to retire on May 4, 2018, and subsequently retired. It is the Commissioner’s opinion that the Sheriff “resigned” on May 4, 2018. Therefore, if the complaint or charge was still pending on that date, when the Sheriff actually retired, all data related to the complaint or charge became public (except for private data on other employees or data that would jeopardize an active investigation). 

The Commissioner notes that at the time of the April 27, 2018, data request from KSTP, the data in the investigative report were private personnel data, as the data subject had not yet resigned. 

Opinion:

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

The data in an investigative report about a County Sheriff who is a public official employee and who resigns as a result of retirement while a complaint or charge is pending are public, except for otherwise private data on other individuals. 

Signed:

Matthew Massman 
Commissioner

Dated: June 21, 2018