The Winona County Board was expected to close its meeting Tuesday night, just after the Winona Post goes to print, in order to evaluate the performance of its top administrator, Duane Hebert. It is one of very few exceptions to the Minnesota Open Meeting Law (OML) that allows a public body to conduct a meeting in private.
Although the board is allowed to hold the evaluation in closed session, the public will have the chance to hear a summary of the performance review during the next regular board meeting. It’s a requirement of the OML that has not always been adhered to in Winona County, however; the last time Hebert faced such an evaluation, the “summary” provided to the public was woefully lacking in details and meaningful information.
Hebert underwent a performance review in September 2011, and at the following meeting, a statement was read into the record that, according to Minnesota Newspaper Association Attorney Mark Anfinson, didn’t suffice. “The findings of the review indicate that we are on target with the goals that were established,” was the summary aired.
Anfinson explained that the sentence did not meet the requirements of the OML. “It’s not enough to just give a summarized one or two sentence statement,” he said. “They are obligated to provide [more detail on specific criteria]. There’s no doubt that what [the County Board is] trying to get by with is not enough. The law is pretty clear.”
The OML requires the summary, but does not go into great detail about how specific the summary must be. In order to determine how transparent government bodies must be with closed session performance evaluation summaries, a person must look into the history of the law, as well as state rulings on past disputes, for a clear picture.
The issue is complex, because summarizing such personnel data puts the OML -- requiring transparency, and the Data Practices Law -- which includes provisions to protect public employee data, in overlapping conflict.
A 1989 Minnesota Supreme Court Case between the city of Annandale, Minn. and the Annandale Advocate created a ruling that established the principle that governing bodies could close any and all meetings to discuss data that is considered not public -- such as employee performance data. The Supreme Court specifically invited the Legislature to take action if it didn’t like the conclusion.
The Legislature quickly acted, amending the OML in 1990. The Information Policy Analysis Division (IPAD), a division of the Minnesota Department of Administration, handles disputes regarding public information requests and OML violations by providing a commissioner ruling on questions about the laws. It summarized the changes made to the OML in 1990 in this way: “As a part of those amendments, the Legislature addressed the high public interest in the performance of certain public employees, and, in particular, employees about whom personnel decisions are made by governing bodies subject to the OML. The Legislature authorized governing bodies to close meetings to discuss personnel data about public employees, including performance evaluations, subject to certain limitations. However, the Legislature also clearly required that once a public body completed closed meeting evaluations of an employee subject to its authority, the body must, at its next public meeting, ‘summarize its conclusions regarding the evaluation.’”
IPAD commissioner rulings have supported the interpretation of the law requiring more detailed summaries of performance evaluations since. Here are some examples:
• 2002, School District 299 in Caledonia closed a meeting to evaluate its superintendent, then summarized the evaluation with, “As a result of that review, strengths were noted and areas of improvement were defined. The board developed goals regarding communication and leadership.” The IPAD commissioner ruled that the summary was insufficient, adding, “The public body should carefully review the specific points it established in reaching a conclusion about the performance evaluation. Clearly, the language of the OML indicates that the governing body ought to summarize each salient point of the evaluation so that the public is given the opportunity to get the best possible sense of the performance -- good, bad, or indifferent -- of the public employee.”
• 2002, School District 146 in Barnesville, Minn. closed a meeting to evaluate its superintendent, then summarized the evaluation as “areas of growth were defined and superintendent Cameron’s evaluation is an ongoing process.” The IPAD commissioner ruled the statement did not constitute a summary as required by law.
• 1999, School District 15 in St. Francis, Minn. closed a meeting to evaluate its superintendent, then summarized that evaluation as “the board discussed the strengths and weaknesses of the superintendent.” The IPAD commissioner ruled the statement did not constitute a summary as required by law.
Hebert’s last review
Following Hebert’s performance evaluation in September, commissioner Marcia Ward attempted to discuss the specifics of the review. She said she felt the board would be “jumping the gun” in voting that the evaluation was complete, adding she felt there were some areas that still needed specific plans for meeting the criteria for Hebert’s position, and that she hadn’t seen any “action plans.”
Assistant County Administrator and Personnel Director Maureen Holte said the purpose of the agenda item was to vote that the evaluation had been completed, adding that if the board wanted to further discuss his performance, it would have to hold another closed meeting.
Ward said she was still not satisfied that the performance review was completed. “We addressed some concerns that were ongoing,” she said.
Keep reading the Winona Post for more on Hebert’s review, as well as the summary of that evaluation expected at the next regular board meeting.