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Board's statement of review not legal (12/09/2012)
By Sarah Squires

At the last Winona County Board meeting, a portion was closed to the public so that commissioners could conduct a performance review of County Administrator Duane Hebert. Departing from past practice, the county used an outside consultant this year to assist in the evaluation, at a cost of $150 per hour plus travel expenses.

It is unclear what the final cost will be for the performance review consultant. The Winona County Board is not quite finished with its work on the evaluation: Minnesota law requires government bodies to provide the public with a summary of the performance review at the next regular meeting, in the event that the evaluation was conducted behind closed doors. On Tuesday, December 11, the county board is expected to provide that summary, although it is unclear whether the description will satisfy the requirements of Minnesota law.

"The findings of the review indicate that we are on target with the goals and expectations,” reads the board agenda on the performance evaluation item, nearly identical to the board's statement in September 2011, after Hebert's last review. It is a statement that Minnesota Newspaper Association Attorney Mark Anfinson said does not fulfill the requirements of the law.

“It is not enough to just give a summarized one or two sentence statement,” he said. “The type of summary that was apparently issued here is precisely the sort of summary that both the court and the Minnesota Department of Administration have rejected as being inadequate. It’s clearly been discredited by past legal examinations, because it doesn’t tell anyone anything.”

Anfinson said the statements were inadequate in meeting the requirements of the law. “The findings of the review indicate that we are on target with the goals that were established,” was all that was said to summarize the 2011 performance evaluation.

He also said that the disclosure of a detailed summary of such a performance review is a significant part of an elected leader’s job. “One of the most important aspects of public business a government body does is to supervise and evaluate the chief administrators of the municipality,” he said. “Thus, the members of the public ought to have some insight as to how they are doing this important work, and by failing to provide a detailed summary, that short circuits the public’s ability to evaluate their elected officials.”

The Minnesota Open Meeting Law (OML) requires that a summary be given following a performance evaluation that is conducted in a closed session. Exactly how detailed that summary must be has been answered by the state commissioner of the Minnesota Information Policy Analysis Division (IPAD) in recent years. IPAD is a division of the Minnesota Department of Administration, and handles disputes regarding public information requests and the OML.

The Minnesota Data Practices Act includes provisions to protect data about public employees, and the summary requirements of the OML have been challenged in the past by government bodies that are unwilling to provide detailed evaluation summaries. When IPAD has reviewed disputes of this nature in the past, the commissioner has ruled that government entities must provide details when summarizing performance reviews of top officials. (See information box, page 5a.)

In 1989, a Minnesota Supreme Court case between the city of Annandale, Minn., and the Annandale Advocate newspaper resulted in a ruling that established the principle that governing bodies may close meetings to discuss data that is considered not public—such as employee performance data.

The Supreme Court invited the Legislature to take action if it didn’t like the conclusion. The Legislature was quick to respond, and amended the OML in 1990. IPAD summarized the 1990 changes to the OML 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 its closed meeting evaluation 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 that requires a more detailed summary of a performance evaluation since. (See chart page 5a.)

In 2002, Caledonia School District 299 closed a meeting to evaluate its superintendent, and its summary of the evaluation stated, “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 did not satisfy the requirements of the law, 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 best possible opportunity to get the best possible sense of the performance—good, bad, or indifferent—of the public employee.”

Keep reading the Winona Post for more on this story.



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