Date: October 2015
MCIT often assists members with risk management advice for Minnesota Open Meeting Law and Minnesota Government Data Practices Act compliance. This is the first of an occasional series highlighting some of the questions posed to MCIT. As always, MCIT recommends that members contact their legal counsel regarding specific situations.
Q: Who can attend a closed meeting of the governing board?
A: There is nothing in the Open Meeting Law that specifically addresses who may remain in the board room for a closed meeting. MCIT recommends that once the vote to close the meeting has been taken and the meeting is closed, the public and any employees whose job duties do not reasonably require their presence at the closed meeting should leave the meeting room. This is consistent with the Minnesota Government Data Practices Act, which provides that private data is only accessible to those public officials and employees whose work assignments reasonably require access to the data (Minn. R. 1205.400, subp. 2).
For example, when closing for a performance evaluation or for preliminary consideration of allegations or charges of misconduct against an individual subject to the board’s authority, staff whose job duties otherwise do not give them access to the personnel data being discussed arguably should not be present for the closed meeting. (More information on closing meetings under these exceptions can be found in the resource “Minnesota Open Meeting Law” at MCIT.org)
The decision of whether an employee’s job duties reasonably require him or her to access private data is made by the county’s responsible authority, frequently in consultation with legal counsel. These decisions are often made on a case-by-case basis.
Q: Can the board close a meeting to interview job applicants for employment?
A: Under the Open Meeting Law, all meetings of the public body and, in general, meetings of its committees and subcommittees are open to the public when a quorum (a majority of the members of the public body) are present. The OML sets forth specific circumstances under which a meeting may or must be closed. (Minn. Stat. §§ 13D.04, 13D.05) Interviewing candidates for a position is not one of the enumerated reasons to close a meeting.
Under the Minnesota Government Data Practices Act, however, much of the information that would come up in an interview situation would likely be classified as public data. Under the MGDPA, data such as veteran status, relevant test scores, rank on eligible list, job history, education and training, and work availability are public for all applicants (Minn. Stat. § 13.43, subd. 3).The names of applicants (except for undercover law enforcement) become public data when the applicant is selected to be interviewed.
Notwithstanding this, a public entity may discuss otherwise not public data at an open meeting without liability or penalty as long as the disclosure of data is related to a matter within the scope of the governing body’s authority and the disclosure is reasonably necessary to conduct business.
Q: If the board cannot close the meeting to interview, can each of the board members individually interview the candidates or in groups of less than a quorum?
A: This would likely constitute a serial meeting. Serial one-on-one interviews may violate the Open Meeting Law if done to avoid public hearings or to reach an agreement about whom to hire outside of the public’s view. See Mankato Free Press v. City of Mankato, 563 NW 2d 291 (Minn. App. 1997).
Q: Can the board close a meeting to discuss and choose which candidate will be offered employment?
A: This is not one of the permitted reasons for closing a meeting under the OML.
Q: Are there any data privacy considerations to address if a noncounty employee participates in the hiring process for a county position? The purpose is to get this individual’s opinion, as he or she would work closely with the newly hired employee.
A: MCIT recommends that members discuss with their legal counsel what information about applicants can be legally provided to noncounty employees or individuals involved in the hiring process. Noncounty employees or individuals may be limited in what data they are entitled to view without the applicant’s permission.
The Minnesota Government Data Practices Act (MGDPA) defines personnel data as “government data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.” (Minn. Stat. § 13.43) Generally speaking, personnel data is private, unless specifically designated as public under Minnesota Statutes Section 13.43 or another statute.
With respect to applicants, the MGDPA provides that the following data on current and former applicants (except undercover law enforcement) is public:
- veteran status
- relevant test scores
- rank on eligible list
- job history
- education and training
- work availability
Names of applicants are private except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists. “Finalist” means an individual who is selected to be interviewed by the appointing authority prior to selection.
All other data on an applicant is classified as private. Private personnel data is generally only accessible to the data subject; individuals within the entity whose work assignments reasonably require access; entities and agencies who are authorized by Minnesota statute or federal law to gain access to that specific data; and entities or individuals who have the express written permission of the data subject to receive the data.
Whether an individual outside the entity who is on the interview team or otherwise participating in the hiring process can have access to any of an applicant’s private data depends on several elements, including whether there is statutory authority to share private personnel data with the individual, a review of the Tennessen (data privacy) notice that was provided to the applicant when the data was collected, and any written releases that may have been signed by the applicant. This determination may require a case-by-case analysis and an opinion from legal counsel as to specific issues.