Amendments to MGDPA

On May 18, Governor Pawlenty signed into law a bill relating to data practices and data classifications. Although not imposing sweeping reforms, the law does contain some noteworthy changes. For example, the bill expanded what types of personnel data are classified as public, including classifying the “terms and conditions of employment relationship” as public data under § 13.43, subd. 2(a)(1); and also classifying “work-related continuing education” as public data in 13.43, subd. 2(a)(7).

More significantly, however, the Legislature reworked a subdivision that will undoubtedly impact public sector labor law. Minn. Stat. § 13.43, subd. 2(b) was amended so that disciplinary action will be not public data if an arbitrator sustains a grievance and reverses all aspects of the disciplinary action. Prior to the amendment, if a disciplinary grievance proceeded to arbitration under a collective bargaining agreement, the final disposition of the grievance, the specific reasons for the disciplinary action, and the data documenting the basis of the discipline were classified as “public data”—even if the grievance was ultimately sustained and the discipline reversed by the arbitrator. With the new amendment, however, if a grievance is sustained and all aspects of the discipline are reversed, then the disposition, the documentation, and the reasons for the disciplinary action are classified as “not public data.” This seems to bring the practical effect of the statute more in tune with its intent. A successful grievant need no longer be concerned that the “facts” giving rise to the disciplinary action will be disseminated to the public. It should be interesting, however, to see how parties interpret the phrase “all aspects of any disciplinary action.” For instance, if an arbitrator reverses a discharge but imposes a suspension, is that a reversal of “all aspects” of the disciplinary action? Perhaps more interesting (read, nuanced), if an arbitrator reverses a discharge and reinstates the employee but does not award backpay, is that a reversal of “all aspects” of discipline?

There were two other interesting amendments tucked into the bill. First, an amendment which classifies the “security features of building plans, building specifications, and building drawings of state-owned facilities and nonstate-owned facilities leased by the state” as “nonpublic data.” Second, parole and county probation authorities have been given access to firearms data (i.e. purchase/transfer documentation and applications for permits to purchase or carry) on individuals subject to their supervision.

Last, the procedure for a responsible government authority to seek permission to temporarily classify data as private or confidential (with respect to data on individuals), or nonpublic or protected nonpublic (with respect to data not on individuals) was amended. Most notably, an application may be withdrawn prior to the commissioner’s decision unless it affects similar government entities. The amended law also permits the responsible authority to request approval for a new or different use or dissemination of the data during the period of temporary classification.


Public Broadband, Ctd.

A good followup on the running battles between telecom companies and the cities and counties trying to spur broadband growth.

Supreme Court 05.06.10

The Court released its opinion in Halla Nursery v. Chanhassen, another in the recent line of cases ruling on local government errors.  The Court of Appeals ruled last March that Halla could not claim vested rights through a building permit that should never have issued, and the Supreme Court affirms that today in a unanimous opinion written by Justice Meyer.

Half of the opinion is interpretation of a previous settlement between the parties – Halla never pulled permits to build its facilities in the mid-90’s, leading to a consent decree that covered signage on the property.  In 2005, Halla applied for approval of a new sign, which was bigger than allowed in the consent decree and also included illumination and message boards.  The consent decree prohibited illumination and the City ordinance required a CUP for the message boards, but someone in the City planning department approved it anyway.  Only when the sign was just about done and a citizen complained about the electrical hookups being installed did the City catch the error and seek a stop-work order. 

After dispensing with Halla’s arguments about the judgment, Justice Meyer recaps the law on the vested rights doctrine – both in our state and in several other jurisdictions.  The final result is a strong statement:  “we hold that the vested rights doctrine does not apply when a landowner substantially completes a project in reliance on an erroneously issued sign permit.”  Since the analysis was not in any way limited to sign permits, I would expect that rule to also apply to other kinds of permits.

Supreme Court Rules Unallotment Improper

Earlier today, the Supreme Court released its unallotment opinion.  On a 4-3 vote, the Court affirmed Judge Kathleen Gearin’s decision that the Governor’s unallotment of funds was improper.  Chief Justice Magnuson wrote the majority opinion, joined by Justices Page, Meyer and Paul Anderson.  Justice Gildea wrote the dissent, joined by Justices Dietzen and Barry Anderson. 

The case is ostensibly decided on statutory interpretation, thus avoiding a constitutional ruling.  I say “ostensibly,” because the strongest part of the majority opinion’s “interpretation” is its examination of constitutional separation of powers.  Finding ambiguity about the time constraints that govern when unallotment can be exercised, the crucial distinction made by the majority is between budget creation and budget execution.  Finding that our state requires the production of a balanced budget, the Chief Justice reasons that the Governor and Legislature must arrive at a balanced budget before it can be executed.  In the budget-creating process, the majority reasons, the constitution gives the Governor only three true “powers”: approve bills, veto bills, or line-item veto bills.  With these actions, the acts of the Legislature either go into effect, or it has a real-time opportunity to respond through an override or new legislation.  Allowing unallotment at this stage clearly upsets the balance of power; the Governor can artifically create a “shortfall” by vetoing revenue measures, thus allowing a complete re-write of the budget.  The Chief Justice applies this reasoning to conclude that the Legislature could not have intended to simply hand its budget functions over to the Governor.  The majority interprets the statute to only confer unallotment powers to the Governor after the creation of a balanced budget and the start of the budget biennium.  In so doing, the justices conclude that Governor Pawlenty jumped the gun, and support Judge Gearin’s conclusion that the unallotments are void.

The dissent finds no ambiguity in the statute, and chides the majority for “rewriting” the statute.  Justice Gildea then proceeds to find the statute constitutional.  The flaw in the dissent is that it spends no time addressing the constitutional process for creating a budget, instead focusing its energy on responsibility for “avoiding deficit spending.”  Tellingly, in doing so, the dissent never notes that the “deficit” here is artificial – the Governor vetoed the revenue bills that would have put the budget in balance, and declined to call a special session to arrive at a balanced budget through constitutional procedure.  Far from “assisting” the Legislature in “avoiding deficit spending,” the Governor singlehandedly created a deficit and then used unallotment to rewrite the budget to his liking, while denying the Legislature its constitutionally granted opportunities to respond. 

Justice Page concurs separately to suggest that he would have found the unallotment statute unconstitutional largely because its ambiguity allows these crises to arise. 

The Court’s opinion clearly voids the Diet Program unallotments, and in theory should prevent the Governor from following through with the announced unallotments scheduled to take effect on July 1.  The Legislature and the Governor, already fighting about the current projected shortfall, now has to grapple with an additional $1 to $2 billion of projected deficit.