Advisory Opinion 05-004

Facts and Procedural History:

On November 19, 2004, IPAD received a letter dated November 18, 2004, from X. In X's letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data that Independent School District 700, Hermantown, maintains.

IPAD, on behalf of the Commissioner, wrote to Fred Majeski, District Superintendent, in response to X's request. The purposes of this letter, dated November 29, 2004, were to inform him of X's request and to ask him to provide information or support for the District's position. On December 15, 2004, IPAD received a response, dated same, from Kevin Rupp and Jennifer Wolf, attorneys representing the District.

A summary of the facts as provided by X is as follows. X wrote:

I have been having problems with the Superintendent... sending my personnel information from my personnel file to my labor union without my permission. I've been told by my attorney that I should be the one to decide when and if I want it released to my Labor Union.

At the time the documents were released to the union I wasn't involved in any grievances. And it seems to me that they would fall under the category of private information.

With his/her opinion request, X attached copies of four memoranda from Superintendent Majeski to X - one dated in June of 2003, two dated in August of 2003, and one dated in January of 2004. Each of the documents apparently had been copied to X's labor representative.

Issue:

In X's request for an opinion, Mr. and Mrs. X asked the Commissioner to address the following issue:

Did Independent School District 700, Hermantown, comply with Minnesota Statutes, Chapter 13, when it released certain data about an employee to the employee's labor union?

---

Discussion:

Data on individuals collected because the individual is or was an employee of a government entity are classified pursuant to section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private.

Section 13.43, subdivision 6, provides, in relevant part:

Personnel data may be disseminated to labor organizations to the extent that the responsible authority determines that the dissemination is necessary to conduct elections, notify employees of fair share fee assessments, and implement the provisions of chapters 179 and 179A.

In the case of this opinion, the data in the memoranda appear to relate to X's performance of his/her job. As such, they are private pursuant to section 13.43, subdivision 4. In their comments, Mr. Rupp and Ms. Wolf wrote:

...The letters X attached to X's opinion request] outlined certain job performance expectations for [X]. [X] asks whether the District complied with Minnesota Statutes, Chapter 13, when it released certain data about [X] to [his/her] labor union.

[X] is a District employee and a member of the Hermantown Federation of Teachers, Paraprofessional and School Related Personnel Unit...[X's] terms and conditions of employment are governed by a Master Agreement, which is negotiated between the District and the bargaining unit. As a member of that bargaining unit, [X] receives the benefit of union representation in matters involving job performance...

During [X's] employment, [X] has had several performance related issues. Fred Majeski, the District's Superintendent and the responsible authority under [Minnesota Statutes, Chapter 13], has had several discussions with [X] regarding those issues. After some of those conversations, [X] would discuss those performance issues with [X's] union representative, who would then contact Mr. Majeski. Often times, [X] would misconstrue the facts when [X] related them to [the] union representative. Mr. Majeski would then need to clarify the actual situation to [X's] union representative. Furthermore, [X's] union representative was part of at least one meeting in August 2003 regarding [X's] performance expectations. Based on the union representative's prior involvement in [X's] performance issues and Mr. Majeski's previous experiences with [X], Mr. Majeski made a determination that in order to effect [X's] rights under [the Public Employees Labor Relations Act] and the collective bargaining agreement, he should send a copy to the union of the letters at issue...

The District does not have a policy regarding providing information to exclusive bargaining representatives. Rather, it makes a determination whether to disseminate the information on a case by case analysis and pursuant to the limitations of Chapter 13.

Mr. Rupp and Ms. Wolf further assert that Mr. Majeski, in implementing certain provisions of Chapter 179A, acted appropriately in releasing the data.

The Commissioner has the following comments. In reviewing the provisions of Chapter 179A cited by Mr. Rupp and Ms. Wolf, namely sections 179A.06, and 179A.07, it is not clear that to implement them, the release of X's data was necessary.

However, there appears to be a factual dispute regarding whether X may have given some type of consent for the union representative to gain access to the data. X wrote that X was not involved in any grievances at the time the District released the documents and that s/he had not given permission for the release of the data. Conversely, Mr. Rupp and Ms. Wolf stated that the union representative was part of at least one meeting in August 2003 regarding [X's] performance expectations, and that X was discussing those performance issues with [his/her] union representative, who would then contact Mr. Majeski. The Commissioner cannot resolve this dispute.

---

Opinion:

Based on the facts and information provided, my opinion on the issue that X raised is as follows:

The Commissioner cannot determine, with certainty, whether Independent School District 700, Hermantown, complied with Minnesota Statutes, Chapter 13, when it released certain data about an employee to the employee's labor union.

Signed:

Dana B. Badgerow
Commissioner

Dated: January 7, 2005

---