Take That for Data: What Happens When Employee Misconduct Leads to a Criminal Investigation?

Those who have worked in employee investigation and discipline matters in Minnesota understand that the data from the investigation only becomes public following the final disposition of any disciplinary action that arises from that investigation.  If there is no disciplinary action, the investigation does not become public data, unless that employee is a public official who resigns before discipline is imposed.  If there is discipline, the employer needs to wait to release the data until either an arbitration sustaining the discipline is complete, or the employee ceases to pursue a grievance over the discipline. 

But what if the discipline is issued and in final disposition, but the conduct leads to a criminal investigation of the matter?  According to Minnesota Statutes, section 13.82, subdivision 7, “investigative data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility are confidential or protected nonpublic while the investigation is active”. 

This was the quandary considered by the Commissioner of Administration in Advisory Opinion 18-017 on behalf of the City of Eden Prairie.  An employee police officer was investigated for potential misconduct, and as a result of the investigation, was disciplined.  However, the employee’s misconduct became the subject matter of a criminal investigation being conducted by the McLeod County Attorney’s Office.  The question of the City was whether the discipline and the data leading to the discipline was public or if it reverted to be private data due to the ongoing criminal investigation. 

The Minnesota Supreme Court has considered a similar issue in the recent past.  In Harlow v. State Dept. of Human Services, 883 N.W.2d 561 (Minn. 2016), an employee was disciplined but remained subject to a maltreatment investigation..  The Court ruled that it did not matter if similar data was being used in the maltreatment investigation; as the disciplinary matter was completed, the data became public once the matter was in final disposition. 

Following the decision of the Supreme Court, the Commissioner determined that the data from the internal investigation could remain public while the data from the criminal investigation was protected nonpublic data. As labor relations professionals, our job is not to fight what we think are inconsistencies in the law, but to abide by them even if they may seem difficult to reconcile.. 

Data practices questions can be tricky.  If you or your organization need help in dealing with data practices questions, or any issues involving your employees, contact the Wiley Law Office, for advice that works.