Annandale Advocate v. City of Annandale

POPOVICH, Justice

(dissenting).

I respectfully dissent because I am troubled where the majority opinion will lead local governments, since it threatens to undermine Minnesota’s longstanding commitment to openness in government by allowing governmental bodies to close public meetings whenever information they determine to be private data is discussed. Even the majority admits the statutes involved are open to different interpretations. Majority Op. at 33. In my opinion its interpretation directly contradicts the underlying purpose of the Minnesota Open Meeting Law, Minn.Stat. § 471.705 (1986), which is to guarantee the right of citizens to attend meetings and know how governmental decisions affecting their lives are made. Hearings on House File No. 2037 before House Committee on Governmental Operations, 1973 Minn.Legis., May 1 (audiotapes). As Justice Rogosheske said in Lindahl v. Independent School District No. 306, 270 Minn. 164, 167, 133 N.W.2d 23, 26 (1965): “The purpose of this statute is to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences.” The majority bases its decision on language contained in the Minnesota Government Data Practices Act, Minn.Stat. § 13.03 (1986). However, the legislative history of both the Open Meeting Law and the Data Practices Act reflects a serious commitment to openness in government. The majority admits that a policy of openness in government is embodied in both the Open Meeting Law and the Data Practices Act. Majority Op. at 32.

I.

The majority argues that subdivision lb of Minn.Stat. § 471.705 provides a closure exception under the Open Meeting Law when materials classified by law as other than public, as defined in chapter 13, may be discussed. By creating this exception the majority holds that materials classified by the Data Practices Act as “private data” must not be distributed at a meeting of a governmental body and in addition the meeting must be closed when such “private” materials are being discussed. The majority interpets the two statutes by relying on the intricacies of the Data Practices Act,1 without giving proper weight to the Open Meeting Law. Its decision has the effect of creating more opportunities for closing the doors of government to the public.

The legislative history behind the enactment of subdivision lb clearly indicates it was not the legislature’s intent to close a public meeting when private data was being discussed. The restrictions implemented by the legislature applied only to the distribution of the material, not the discussion of the material at an open public meeting. As sponsor of the bill, Senator Donna Peterson discussed this issue directly:

Sen. D.C. Peterson: What the bill is say- ■ ing is merely that any printed materials relating to agenda items of governing bodies, that those agenda items that are handed out to all members of that governing body would also be distributed, or made available, at the meeting, the public meeting.
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*35Sen. Willet: * * * as I read the bill, Sen. Peterson, I see that it applies to all materials either distributed at the meeting or before a meeting, and then that has to be available in the meeting room for all members. I have a concern with the exemption that you have in here that may not be broad enough. It says, “this subdivision does not apply to materials classified by law as other than public.” [Subdivision lb, later amended to add reference to Chapter 13.] As far as I can determine, this would not include a delicate personnel matter.
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Sen. D.C. Peterson: Mr. President, Sen. Willet, that’s exactly why this language is in here, so currently any materials that are classified as not open to the public would remain that way, and even though that material may be discussed at the meeting, that material could not be made available to the public.

Hearings on Senate File No. 482, Statements of Senators D.C. Peterson and Willet during Special Orders of the Senate, 1983 Minn.Legis., April 27 (audiotape) (emphasis added). Statements by the sponsor of a bill on the purpose or effect of the legislation are generally to be given some weight in determining the legislature’s intent. Handle With Care v. Dept. of Human Services, 406 N.W.2d 518, 522 (Minn.1987).

The duty of this court is to give effect to the plain meaning of a statute. Tuma v. Commissioner of Economic Security, 386 N.W.2d 702, 706 (Minn.1986). The title of the 1983 statute enacting subdivision lb limits its application only to the distribution of materials. The title reads: “An act relating to open meetings; requiring availability of certain materials; prescribing penalties; amending Minnesota Statutes 1982, section 471.705, by adding a subdivision.” 1983 Minn.Laws ch. 137. The title does not indicate the law provides authority for any governmental body to close a public meeting. Its application is limited to procedures relating only to the distribution of materials.

The majority then argues that allowing the discussion of private material that is not distributed would be an absurd result. Discussion, however, need not reveal private information. In the present matter, all Annandale City Council members were provided with a copy of the investigative report on Chief Ledwein’s performance in office. In their public discussion of Led-wein’s termination, they need not refer to specific instances of misconduct contained in the report. The public, however, should be allowed to witness the council members casting their votes and to view how they arrived at the decision to terminate. The public has a right to know the council members based their decision on the result of an independent investigation, even if the specifics of the investigation are not revealed.

Even if personal information is revealed, Ledwein and any other individual is guaranteed a public forum in which to refute or discuss the information or charges brought against him. The potential for abuse is much greater under the procedure advocated by the majority. The majority proposes that subdivision lb “creates an exception to the open meeting law any time it is necessary for a governing body to discuss nonpublic or private data.” Majority Op. at 31. This interpretation will not only allow governmental bodies to meet in executive session when considering termination decisions, but also when hiring decisions or any other decisions involving private data are made. Thus, any time an individual is considered for a job, has his or her work performance evaluated, seeks a promotion or is terminated, the decision-making body responsible can render a decision in private if private data is involved. Under the majority’s decison the public has no right to demand a public meeting where government officials would be required to account for their decision and answer public concerns. The potential for abuse is too great for this interpretation to be adopted.

The present case exemplifies in particular the need to ensure that the actions of powerful public officials are open to public scrutiny. As the chief of police for the City of Annandale, Ledwein was the primary law enforcement officer for the city and entrusted with enormous power under *36the law. With this position comes the responsibility to uphold the public trust. An individual who accepts such a public position does so with the knowledge that his actions are subject to the judgment of those he serves. The allegations of misconduct in this case are serious ones, including possible acts of sexual misconduct against certain female persons. The public has a right to know on what basis the city council has made its decision to terminate and a right to witness the proceedings. Whether allegations are made against a police chief, patrolman, teacher or elected official, the public should be alerted when misconduct may have occurred. As such, the public meeting should be open. For example, Minn.Stat. § 125.12, subd. 9 (1986), provides that a hearing on charges to terminate a teacher may be private at a teacher’s request. After the hearing is held, the board must make its decision at a meeting where it considers the results of the hearing and the findings and recommendations of the hearing examiner. Is the meeting where the school board acts now to be closed because private data may be involved? The majority’s interpretation of subdivision lb (which pertains only to the distribution of private materials) allowing a closure of a meeting under the Open Meeting Law will have severe repercussions on governmental openness in this state. It is a misinterpretation of the 1983 law and the author’s intent as evidenced by the contemporaneous legislative history.

II.

Under exceptions to the Data Practices Act, the investigative report on Chief Led-wein is public information and should be released. The Act provides that “the final disposition of any disciplinary action and supporting documentation” are public. Minn.Stat. § 13.43, subd. 2 (1986). The majority argues that the Annandale City Council’s decision to terminate Ledwein was not a “final disposition” and therefore the report does not fall under this exception to the Data Practices Act. The majority finds that since Ledwein decided to exercise his right to a Veteran’s Preference Hearing the council’s decision was not a final disposition of the matter. However, the fact that Ledwein’s resignation was submitted and accepted before the Veteran’s Preference Hearing was held should be seen as a final disposition of the entire disciplinary proceeding, since there will be no Veteran’s Preference Hearing. Under the majority’s own definition, Ledwein’s resignation would qualify as “a conclusive determination of the subject-matter” where “nothing further remains to fix the rights and obligations of the parties * * Majority Op. at 28. A settlement would not qualify as a “final decision” under the majority’s definition, which requires that such a decision be evidence by a “judgment or decree” from a court.

Under the majority’s decision the investigative report will never become public.2 Since the Veteran’s Preference Hearing was never held, the majority concludes that there is no final disposition of the matter and the report may never be released. Although it is clear that through his resignation Ledwein withdrew his request for a Veteran’s Preference Hearing and the disciplinary proceedings became final, the majority holds it continues indefinitely and that precludes any “final disposition” from being reached. This interpretation of the legislature’s intent of the words “final disposition” seems unreasonable. As the majority points out, the legislature “does not intend a result that is absurd, impossible of execution, or unreasonable * * Minn. Stat. § 645.17(1) (1986).

*37III.

The majority contends the encouragement of settlements is one reason to allow information such as the investigative report on Ledwein never to become public. This reasoning clearly places the private interest of individuals (avoiding embarrassing information) above the public interest (the right to know what is going on about public officials and why). This contradicts the legislature’s intent to favor the public interest as against any private interest. Minn.Stat. § 645.17(5) (1986). The majority also acknowledges that both the Open Meeting Law and the Data Practices Act recognize a policy of public access and openness. Majority Op. at 32. While government bodies may want to avoid litigation or expense to cover up bad hiring decisions or inadequate management, that by itself does not overcome the presumption in favor of the public’s right to be informed of the operation of its government. Not only do the citizens of Annan-dale suffer from this secrecy, but other individuals may be hurt as well. Under the majority’s interpretation, none of the information contained in the investigative report could be released to other governing bodies requesting information on Ledwein’s performance during his tenure in Annandale if he applies for a job elsewhere. Under the majority’s view, even if the report contained evidence of serious misconduct, Led-wein’s resignation protects him from ever having the information released. Victims not protected by the majority’s decision are those who may suffer from such misconduct in the future because they were not properly warned by past government employers. Encouraging settlements of this nature, which have the effect of covering up important public information, should not be a goal of this court.

The majority also argues that by not allowing government secrecy all employees risk being threatened by false accusations which could permanently damage their reputations. Majority Op. at 33. Not all employee discipline matters, however, will require discussion by a governmental body subject to the provisions of the Open Meeting Law. Most matters will be handled internally by employee supervisors. Nevertheless, if termination is necessary and the issues involved are serious enough to require consideration by a governmental body, then the public has a right to be present at the meeting where such information is discussed.

IV.

The Data Practices Act also provides that private data on individuals may be released pursuant to a court order. Minn.Stat. § 13.43, subd. 4 (1986). In this case, the trial court ordered the City of Annan-dale to release to the public copies of the investigative report on William Ledwein. The report was not released pending appeal of the order by Ledwein. However, this court should make clear that if a trial court orders material released pursuant to Minn.Stat. § 13.43, subd. 4 (1986), the material may not be protected under the Data Practices Act. Release pursuant to a court order is an exception to the Data Practices Act, and the majority does not discuss the import of this provision.

V.

The majority holds that Ledwein had standing to appeal the release of the investigative report since the investigative report would cause “injury in fact” to Led-wein’s legitimate interests of reputation and privacy. Majority op. at 27. While this effect on Ledwein may be true, it does not automatically make Ledwein a party to this action. Ledwein was not a party in the district court pleadings filed under Minn.R.Civ.P. 10.01. In addition, the trial court in its memorandum stated that “Mr. William Ledwein is not a party to these proceedings and has filed no pleadings.” Ledwein made no effort to intervene in the proceedings under Minn.R.Civ.P. 24 (1988). The United States Supreme Court recently held in Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988), that petitioners who were not parties in an underlying lawsuit and failed to intervene for purposes of appeal were barred from appealing. Id. 108 S.Ct. at 587. The Supreme Court recognized that some courts have found excep*38tions to the intervention requirement when “the nonparty has an interest that is affected by the trial court’s judgment”; however, the Court held that “the better practice is for such a nonparty to seek intervention for purposes of appeal.” Id.3

Ledwein was well aware of the proceedings taking place. His counsel attended the trial court hearings. There is no reason given why he could not have sought intervention under Minn.R.Civ.P. 24. Not having properly intervened or been named in the trial court proceedings, he was not a proper appellant before the Minnesota Court of Appeals or this court. There is no doubt that a motion for intervention would have been granted, since he had a right to be an intervenor, yet he failed to follow proper procedure in the trial court. We should not tolerate this type of sloppy procedure and we should follow the United States Supreme Court and promote the practice of intervention under the rules for those individuals who have an interest and may wish to appeal as a party.

I would affirm the result of the court of appeals based on the foregoing reasons. The majority holding and this dissent present two opposing views and interpretations. I agree that the legislature should clarify these statutes to indicate what it intended.

. The Government Data Practices Act, Minn. Stat. § 13.03 (1986), has been criticized as an "imperfect mechanism to deal with an extremely complex issue * * Gemberling & Weiss-man, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act — From “A" to “Z". 8 William Mitchell L.Rev. 573, 598 (1982). Minnesota was the first American jurisdiction to enact a data privacy statute, but as of 1982 no other state had used the Minnesota statute as a model. Id. at 574, 598. In 1981 the original author of the Government Data Practices Act introduced a bill that would have replaced this legislation. Senate File 198, 1981 Session.

. The investigative report will not be reclassified as public data after 10 years under Minn. Stat. § 13.03, subd. 8 (1986). Subdivision 8 provides that: “Except for security information, nonpublic and protected nonpublic data shall become public either ten years after the creation of the data by the government agency or ten years after the data was received or collected by any governmental agency * * Id. (emphasis added). The Government Data Practices Act, however, defines "nonpublic data” as "data not on individuals.” Minn.Stat. § 13.02, subd. 9 (1986). As such any data on Ledwein is data on an individual and would not be considered nonpublic data. Therefore, the 10-year release provision of Minn.Stat. § 13.03, subd. 8, would not apply, and the material could never be released.

. The majority attempts to distinguish the recent Marino holding by relying on a 1958 decision of this court which held that an actor who participates in a proceeding on the merits qualifies as a party. The U.S. Supreme Court’s reference in its opinion to "nonparties” was meant to encompass such individuals since the Court was attempting to encourage those participating in litigation, who are not formal parties, to do so through the intervention process. There is no evidence that counsel for Ledwein was anything more than an observer at the district court hearing. The majority assumes that Ledwein’s attorney "argued” at the hearing. Majority Op. at n. 1. The record provides no information on which to base this assertion. The trial court judge explicitly stated that Ledwein was not a party to the proceedings and filed no pleadings.