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Home My WebLink About2011-09-07 PACKET 09.A.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 9/7/2011 PREPARED BY Administration Ryan Schroeder ORIGINATING DEPARTMENT DEPARTMENT HEAD COUNCIL ACTION REQUEST Receive response to previously raised Council comments and requests regarding commission applicants and data practices. STAFF RECOMMENDATION Receive response. SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from Corrine Heine, City Attorney. ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ❑ OTHER: ADMINISTRATORS COMMENTS '� Administrator Date COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER Document2 Corrine A. Heine. 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis MN 55402 M CHARTERED (612) 337 -9217 telephone (612)337- 9310tax littpJhwvw.kennedy- graven.com cheine(r�kennedy- grevenxom TO: Mayor Myron Bailey and City Council Members FROM: Conine A. Heine, City Attorney DATE: September 2, 2011 RE: Commission applicants and data practices Council Member Olsen has requested information regarding the classification of data on applicants for city commissions. The statute that governs applicants for appointments to commissions is Minn. Star. § 13.601, copy attached. Under subdivision 3 of that statute, the name of an applicant is public, as is most of the information that an applicant would supply, such as employment history, volunteer work, etc. After the applicant's appointment, the applicant's residential street address and a telephone number or email address for contacting the commissioner also becomes public. All other information about an applicant is private data. Private data might include: street address (before appointment), phone numbers and email addresses, marital status and number of children (data not requested by the city, but sometimes volunteered). Evaluative notes about the candidate taken during an interview would also be considered private data, except for notes that repeat information classified as public, such as the employment history, etc. Data that is classified as private is accessible only to the subject of the data (the applicant) and to persons within the city whose work assignments require access. As the appointing authority, the city council is authorized to access that data. It should be noted that the policy adopted by the council does not require that notes be provided to council members; but under the law council members are authorized to have access. Council members must maintain the data as private and may not release it to the public, except as allowed by law. (See discussion below regarding the Minnesota Open Meeting Law.) The question was asked whether the City could identify the names of applicants who were interviewed. The names of all applicants are public; however, it could be argued that the fact that an applicant was interviewed (or was not interviewed) is private data about that applicant. Even if that 390783v 1 CAH CTI55 -1 information is private, however, a policy allowing City Council members to have access to that information does not violate the data practices law, because the Council is the appointing authority. Council Member Olsen also raised a question about potential liability to the City if the reasons for selecting an applicant were disclosed. Specifically, the question was whether the City might face liability if it were disclosed that an applicant was appointed based in part on the applicant's gender, race, age, ethnicity, or other characteristic that, in an employment context, would violate anti- discrimination laws. This issue needs to be put in appropriate context, and the council should keep the following in mind: • The federal and state constitutions prohibit discrimination based on specified "suspect classes," such as race and gender. Some statutes expand the protections to other groups by prohibiting discrimination based on other factors, such as marital status or sexual orientation. The law does not prohibit favorable or unfavorable treatment based on other factors. For example, selection of commissioners to achieve diversity in residential location, education, or work backgrounds is not prohibited. The policy as adopted by the council does not require the council liaison to identify reasons for selecting one candidate over another, and the issue of disclosure is secondary in any case. Disclosure of the reasons for selecting a candidate only increases the City's potential liability if the selection was based on prohibited reasons. The real issue is not the disclosure but the legality of the conduct itself. • The legality of affirmative action policies has been the subject of much litigation, and the courts have upheld affirmative action policies in some cases and, in other cases, have found the policies to be discriminatory against the non - majority class. The City has no formal affirmative action policy, and I cannot advise the Council on the circumstances when race or gender might be considered in the appointment process without a significant amount of research. Where the Supreme Court has upheld affirmative action policies, however, the Court has emphasized that any affirmative action policy must be narrowly tailored to further a compelling interest in aclveving diversity, and the affirmative action plan must be flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application. The City could establish a compelling need for diversity, and if the City were to adopt an affirmative action plan, it would need to craft the plan so that each application received an individualized review that gives serious consideration to all the ways in which an applicant might contribute to a diverse environment. Race or ethnicity may be one diversity factor, but all diversity factors must receive meaningful consideration. 3907830 CAH CT155 -1 MINNESOTA STATUTES 2610 13,601 13.601 ELECTED AND APPOn OFFICIALS. Subdivision I. Financial disclosure statements. Financial disclosure statements of elected or appointed officials rvhich by requirement of the political subdivision, are filed with the political subdivision. are public data on individuals. Subd. 2. Correspondence. Correspondence between individuals and elected officials is private data on individuals. but may be made public by either the sender or the recipient. Subd. 3. Applicants for appointment. (a) Data about applicants for appointment to a public body collected by.- government entity as a result of the applicant's application for appointment to the public body are private data on individuals except that the folio-wing are public: (1) name: (5) city of residence, except when the appointment has a residencytequirement that requires the entire address to be public; (5) education and training: (4) employment history: (5) volunteer worL (6) awards and honons; (17) prior Lovernnrent service; and (8) any darn required to be provided or that is voluntarily provided in an application for appointment to a multimernber 112-ency pursuant to section 15.0597, (b) Once an individual is appointed to a public body. the fbllm inz additional items of data are public: (1) residential address„ and (2) either a telephone number or electronic mail address where the appointee can be reached. or both at the request of the appointee. (c) - Notwithstanding paragra ph (b), electronic mail address or telephone nutuber provided I any by a public body for use by an appointee shall be public. An appointee may use an electronic mail address or telephone number provided by the public body as the designated electronic mail address or telephone number at which the appointee can be reached. History: 19, c 323 s 22, 1981 c 311 s 39; 1982 a 545 s '4,- 1984 r 436 s 2 1999 c 2' %s?? -005 c 163 s 43: ?006'c 315,7 10 390783,1 CAA CTI 55-1