Advisory Opinion 06-021

Facts and Procedural History:

On April 5, 2006, IPAD received a letter dated April 4, 2006, from Kevin Rupp and Kimberley Sobieck, attorneys representing Independent School District 186, Pequot Lakes. In the letter, Mr. Rupp and Ms. Sobieck asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD required clarification, which Mr. Rupp and Ms. Sobieck provided on May 11, 2006.

IPAD invited both the Pine River Journal newspaper and the data subject to submit comments. On May 25, 2006, IPAD received comments from Kelly Virden, editor of the newspaper. On May 26, 2006, IPAD received comments from the data subject's attorney.

A summary of the facts is as follows. Mr. Rupp and Ms. Sobieck wrote:

Recently, the [District's Board] received a complaint against the District's Superintendent. During a Board Meeting on March 10, 2006, the Board went into closed session to give preliminary consideration to the allegations against the Superintendent. Following the closed session, the Board passed a motion placing the Superintendent on paid administrative leave through June 30, 2006 and placing a letter in her personnel file. The Board considered the complaint matter concluded, and the Board imposed no resulting discipline.

Two local newspapers requested the final disposition of any disciplinary action taken against [the Superintendent], together with the specific reasons for the action and data documenting the basis of the action. The Lake County Echo and the Pine River Journal asserted that the leave was disciplinary and consequently the data is public.

Issue:

Based on Mr. Rupp and Ms. Sobieck's opinion request, the Commissioner agreed to address the following issue:

What is the classification of the data contained in the letter, which was referenced in the March 10, 2006, Pequot Lakes School Board minutes and subsequently placed in the Superintendent's file?

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Discussion:

Government data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. 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 a government entity has taken disciplinary action and a final disposition has occurred, the following additional 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.

Section 13.43, subdivision 2(b), prescribes the point in time at which a final disposition has occurred:

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.

In their opinion request, Mr. Rupp and Ms. Sobieck stated, Neither the leave nor the letter was intended to be a disciplinary action imposed by the District.

The Commissioner has the following comments. When someone complains about a government employee, unless and until there has been a final disposition, only the fact that a complaint exists and the status of the complaint are public. For there to have been a final disposition, the entity must have made its final decision about taking disciplinary action. Here, Mr. Rupp and Ms. Sobieck assert the District has not taken disciplinary action against the Superintendent.

Upon examination of the letter in question, it appears that a complaint was made and that some investigation has taken place. It also appears, based on statements in the letter, that the letter does not constitute disciplinary action. If the District has not taken disciplinary action against the Superintendent, there cannot have been a final disposition and the data in the letter are private.

Ms. Virden argues that based on the District's Policy 403 - Discipline, Suspension, and Dismissal of School District Employees, dated April 26, 2004, the Superintendent was disciplined. She states that according to the policy, placing an employee on a leave with pay is a disciplinary measure.

Ms. Virden also asserts that because the Board's placement of the Superintendent on paid leave coincides with placement of a letter in her personnel file, it seems unlikely the letter was merely a warning requiring improvements.

The District's Policy 403 lists some forms of discipline that may be imposed. (See Section IV.) Included in that list is disciplinary suspension, demotion or leave of absence with pay. (See Section IV (A)(4).) Mr. Rupp and Ms. Sobieck wrote:

The newspapers assert that since a leave of absence with pay is listed as a form of discipline, the Board disciplined the Superintendent when it placed her on a leave of absence with pay.

But the Board did not place the Superintendent on a disciplinary leave of absence with pay. Rather the Board placed the Superintendent on an administrative leave of absence with pay. Had the Board intended the leave to be disciplinary, the Board would not have used the term administrative; the Board would have utilized [the Policy's] terminology (i.e., a 'disciplinary leave of absence with pay. ) [Emphasis provided.]

Additionally, it does not appear the District has followed the procedures for administering discipline that are set out in Section V of the policy. Thus, based on all of the above, the Commissioner finds nothing to indicate the District took disciplinary action and that a final disposition has occurred. The data in the letter, therefore, are private.

A final note is in order. The District's action of putting the Superintendent on administrative leave with pay from March 10 to June 30, 2006, at the same time it closed a board meeting to discuss a complaint against her suggests that the leave is related to an investigation. If this is so, and the leave is not disciplinary, it would seem the investigation is still ongoing. If the District ultimately finds no basis for discipline, presumably, the reason for placing the Superintendent on administrative leave would cease to exist.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Rupp and Ms. Sobieck raised is as follows:

The data contained in the letter, which was referenced in the March 10, 2006, Pequot Lakes School Board minutes and subsequently placed in the Superintendent's file, are classified as private.

Signed:

Dana B. Badgerow
Commissioner

Dated: June 23, 2006

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