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Court: Public workers can challenge job evaluations under data law

  • Article by: Abby Simons
  • Star Tribune
  • August 6, 2014 - 11:37 PM

The Minnesota Supreme Court on Wednesday ruled that public employees can challenge a bad performance review under the state’s government records law, in a decision that could affect a 350,000-member workforce that ranges from teachers and clerks to police officers and state-employed scientists.

“I think the main message is that if you are an employee of a governmental entity, you have more opportunities than the vast ­majority of people who work for private employers,” said David Allen Larson, a professor at Hamline University School of Law. “It’s interesting that public employees have a way to challenge performance reviews in a way that just doesn’t exist in the private ­sector.”

The case began when Steele County Sheriff’s Sgt. Todd Schwanke challenged a bad job review in 2012, saying it was inaccurate and incomplete. When the Sheriff’s Office turned down his challenge, Schwanke appealed to the state Department of Administration, citing a section of the Minnesota Data Practices Act that states “an individual subject of the data may contest the accuracy or completeness of public or private data.”

The department rejected Schwanke’s appeal, saying that because performance evaluations rely on subjective judgments and opinions, they could not be challenged for accuracy or completeness under the Data Practices Act.

The high court on Wednesday disagreed, saying that opinions are based on facts that can be disputed. For example, Schwanke’s poor review contends he was asked to create a training program. Schwanke said he was never asked.

Although the law has been on the books for some time, Schwanke’s appeal was the first to put it to a legal test. Both sides agree that the impact of the ruling remains to be seen. The case has been watched closely by Education Minnesota, the state’s largest union, and statewide organizations like the League of Minnesota Cities and Association of Minnesota Counties.

“Whether Schwanke was asked by a supervisor to create a field training program is a fact that is capable of being proven true or false,” Justice David Stras wrote in the unanimous ruling. Schwanke’s attorney, Richard Wylie, lauded the decision as additional protection for government and other public workers.

“These evaluations are very important because they can result in promotions or demotions. If you’re on the wrong side of them it can feel like they’re papering a file,” Wylie said. “This provides a forum to dispute those things, which may not otherwise exist.”

Schwanke’s case now returns to an administrative law judge.

The Supreme Court did note that nothing in the ruling prevents the Minnesota Legislature from changing the Data Practices Act.

It’s something that may be considered in the future, said Tom Grundhoefer, general counsel for the League of Minnesota Cities, which backed the Department of Administration in the case. Grundhoefer said a proposal to change the act was in motion last session, but advocates were awaiting the outcome of the Supreme Court case. They now plan to pursue it during the 2015 session, Grundhoefer said.

“The ruling just creates administrative burdens of people disgruntled by a performance review taking it to the state,” he said. “It just seems like an additional unnecessary process in what is a very common performance review process for everyone.”

Meg Luger-Nikolai, staff counsel for Education Minnesota, said the ruling simply upholds current law and likely won’t have a significant impact. Challenging a performance review can be expensive.

Luger-Nikolai said that if lawmakers change the law, they’ll have to bear in mind that the state’s Data Practices Act pertains not just to employee data.

“You’d have to adjust that carefully,” she said. “With a scalpel and not a shovel.”

Abby Simons • 651-925-5043

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