Advisory Opinion 06-008

Facts and Procedural History:

On December 27, 2005, IPAD received a letter dated December 21, 2005, from Maggie Wallner. In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding the classification of certain data about a former employee that Independent School District 191, Burnsville-Eagan-Savage, maintains. IPAD requested additional information, which Ms. Wallner provided on January 25, 2006.

In a letter dated January 31, 2006, IPAD, on behalf of the Commissioner, wrote to the data subject (the former employee) and invited him/her to provide comments. In a letter dated February 8, 2006, the employee's attorney, Christina Clark, replied.

A summary of the facts as provided by Ms. Wallner is as follows. In her opinion request, she wrote:

The [District] has received a request from the media for the personnel file of a former employee. The [District] hereby requests an opinion regarding the classification of the enclosed documents.

The employee did not grieve any of the foregoing documents and the time to grieve has expired.

Ms. Wallner attached a copy of the collective bargaining agreement between the District and the Burnsville Education Association, for years 2003 - 2005.

The additional information Ms. Wallner provided on January 25, 2006, is as follows:

1. [The employee] resigned pursuant to a Separation Agreement. All investigations regarding [the employee] were concluded at the time of [his/her] resignation.

2. [The employee] did not file grievances regarding any of the documents submitted to the [Department of Administration] and the time to grieve has expired.

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Issue:

Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Independent School District 191, Burnsville-Eagan-Savage: data in five memoranda relating to a former District employee?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Government data about current and former employees are classified at Minnesota Statutes, section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.

The following personnel data also are public:

The terms of any agreement settling any dispute arising out of an employment relationship except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money.

(See section 13.43, subdivision 2(a)(6).)

In her comments to the Commissioner, Ms. Clark referenced Advisory Opinion 96-001. She noted that it involved District 191 and addressed an issue similar to the one Ms. Wallner has raised. Ms. Clark further noted that the collective bargaining agreement language discussed in 96-001 is the same as what currently exists in the 2003 - 2005 agreement Ms. Wallner provided to the Commissioner.

In 96-001, the Commissioner wrote:

The answer to Ms. Krisnik's question depends on whether disciplinary action was taken by Burnsville and if so, whether a final disposition occurred regarding the disciplinary action

(Again, if the data are not disciplinary in nature, a final disposition could not have occurred, and therefore, only very limited data regarding the complaints or charges are public.)

In determining whether either, or both, of the memos are disciplinary in nature, the Commissioner has relied upon the language, which relates to discipline, contained in the employees' contract. As provided by Ms. Krisnik, Section 12 of this contract states:

Subd. 2. The School District shall draw [an employee's] attention to the lack of professional ways:

a. oral reprimand
b. written reprimand
c. suspension without pay
d. notice of deficiency
e. loss of salary increase for substandard performance
f. discharge per M.S. section 125.12.

Use of items a to f above need not be in progressive order; dependent on the frequency and severity of the lack of professional conduct any or all of the above may be used.

Subd. 3. The following information will be provided with notice of disciplinary action:

a. a review of the rule, regulation, code, policy, etc., that defines the expected behavior;
b. a description of the inaction or failure of the employee to comply with the expectation, including an outline of previous oral or written reprimands;
c. a reference to the grievance process as defined in the Master Agreement; and
d. notice that the Association President will be copied [on] any suspension without pay, notices of deficiency, loss of salary increases, or notice of discharge unless the [employee] objects in writing within ten (10) calendar days; any grievance in this category would begin at Level lll.

Based on the above contract language, it appears that while there are many ways in which Burnsville may draw an employee's attention to a lack of professional conduct, any such actions taken by Burnsville are not considered disciplinary unless certain information accompanies the notice of inappropriate behavior.

In the situation-at-hand, based on the information provided by Ms. Krisnik, it is clear that none of the information required to be provided with a notice of disciplinary action, was, in fact, provided to either employee, in either memo number one or memo number two. Therefore, it is reasonable to conclude that neither of the memos contains data documenting disciplinary action by Burnsville against the two employees.

Discussing the situation currently before the Commissioner, Ms. Clark stated:

None of the memoranda satisfy all the requirements of the [collective bargaining agreement] for disciplinary actions. It follows that the memoranda do not constitute or consist of data that document disciplinary action under [section 13.43].

The Commissioner has reviewed the five memoranda and is in agreement with Ms. Clark that none of them contains all four pieces of information that must be provided with a notice of disciplinary action, as outlined in the 2003 - 2005 collective bargaining agreement. If, therefore, none of the memoranda constitute disciplinary action, a final disposition has not occurred and the data in the memoranda are private pursuant to section 13.43, subdivision 4.

Finally, the Commissioner reminds both the District and Ms. Clark that pursuant to section 13.43, subdivision 2(a)(6), if the separation agreement between the employee and the District contains data constituting the terms of an agreement settling any dispute arising out of the employee's employment relationship with the District, those data are public. In addition, if the agreement involves the payment of more than $10,000 of public money, it must include specific reasons for the agreement.

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Opinion:

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

When considered in light of the collective bargaining agreement between Independent School District 191 and the Burnsville Education Association, the data in five memoranda about the District former employee do not constitute disciplinary action. Therefore, pursuant to Minnesota Statutes, section 13.43, there is no final disposition and the data are private.

Signed:

Dana B. Badgerow
Commissioner

Dated: March 8, 2006

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