Legislators debate Tubby Smith Act: Data vs. privacy

Outside earnings and freebies for public officials and employees could become secret if the so-called Tubby Smith Act becomes law.

Inspired by a college newspaper's efforts to publicize the Gophers basketball coach's side deals on things such as shoe contracts and summer camps, government agencies and public unions are pushing for changes in public information laws that would keep everything from police officers' off-duty moonlighting to U researchers' contracts with drug companies out of public view.

Public employee unions and other groups, particularly the Minneapolis Police Officers Federation, are lobbying for the change. Opponents, who have offered a competing proposal that would keep the information open, say the public has a right to know about potential conflicts of interest among workers in often sensitive positions of public trust.

The debate pits the public's right to know whom public workers might be beholden to against those workers' desire for privacy. Much of the information in question had been considered available to the average citizen and the press for almost 25 years -- until a state ruling last year.

DFL Rep. Joe Mullery of Minneapolis said public workers' privacy is important. "I don't think that everybody, because they become a public employee, has to give away everything," he said.

But attorney Mark Anfinson, who represents the Minnesota Newspaper Association, said it also is important to be able to scrutinize such things as a high-level government regulator doing contract work for a private business, or a police officer working security for a downtown hotel who must then answer a call at the location while on duty.

"The context of knowing what Tubby Smith or what [University of Minnesota men's hockey coach] Don Lucia make in added compensation, while interesting, isn't the most vital thing in the world. But if this is broadly adopted, there are implications that are more consequential," Anfinson said.

Even though the university already was collecting information on outside earnings for its own use and for the NCAA, it balked at the request, contending that the information was not public. The journalists sought an opinion from the state's Department of Administration, which rules on state laws regarding access to government information. The department agreed with the university, reversing long practice, ruling that only income from the university need be disclosed, not outside earnings.

When the Legislature began crafting data practices legislation this year, the department asked to include language reflecting its 2008 opinion. Nine pages into a bill on data practices, it inserted the word "employer-paid" before "added remuneration" to limit what was public. That language is now in a bill before the Senate.

"Maybe there's a limit to what has to be public, but certainly the employer has to know," said Sen. Don Betzold, DFL-Fridley, who supports the Senate version. "We weren't comfortable saying everything has to be public just because someone has an outside job. Whatever rule we have is going to apply to more than just one coach."

But in the House version of the bill, St. Paul DFLer Michael Paymar attached an amendment that would make public any added remuneration, whether from the public employer or someone else. It passed out of committee on a voice vote but not before Mullery, the committee chairman, expressed his concerns.

"This goes too far," Mullery said before the vote. "The employer may have a reason for getting private information about an employee's actual activity, but I don't think that every public employee should have to disclose everything because of that."

Lawn mowing income

Rice said the House version broadly requires public workers to disclose any added income, even from something as innocuous as mowing someone's lawn.

"For Tubby Smith and what he does, let's deal with Tubby Smith," Rice said. "Why are we dealing with every current and former public employee? It's bad enough in this day and age people are saying, 'What are public employees making?' But now all of a sudden, because you work for the government, you are owned by them?"

But Rich Neumeister, a public access advocate who has pushed to keep the information open, said that the current law has worked for 25 years and that the word "remuneration" in the bill wouldn't only conceal outside earnings, but could include such things as junkets taken by public employees and paid for by outside groups.

"Sunshine is the best disinfectant," he said.

St. Paul's police department limits off-duty work to a maximum number of hours a week and requires officers to call in ahead of time with information about where the officer is working, but it does not require officers to indicate how much they earn.

Rep. Mary Liz Holberg, R-Lakeville, one of the Legislature's leading advocates for opening records and a supporter of the House bill, said there will be opportunities in conference committee for compromise, such as perhaps maintaining requirements about reporting outside activities to the public but limiting information on earnings.

Ironically, the University of Minnesota, which was involved in the events that got the issue rolling and which has been stung recently by publicity over conflict-of-interest accusations at its medical school, says it is not opposed to making the information available to the public under the House version. The U's general counsel, Mark Rotenberg, said the coaches' contracts require that they disclose sources of outside income but not how much they make, so the information the Daily journalists sought isn't available.

"This isn't really about Tubby. He'll be quite surprised if we tell him this is about him," he said.