A12-2062 Precedential Affirmed Processed

Todd Schwanke v. Minnesota Department of Administration

Minnesota Supreme Court · Filed August 6, 2014

Opinion text

STATE OF MINNESOTA

IN SUPREME COURT

A12-2062

Court of Appeals Stras, J.

Todd Schwanke,

Respondent,

vs. Filed: August 6, 2014
Office of Appellate Courts
Minnesota Department of Administration,

Appellant.

________________________

Richard T. Wylie, Minneapolis, Minnesota, for respondent.

Lori Swanson, Attorney General, Jacob Campion, Assistant Attorney General, Saint Paul,
Minnesota, for appellant.

Margaret A. Luger-Nikolai, Nicole M. Blissenbach, David M. Aron, Saint Paul,
Minnesota, for amicus curiae Education Minnesota.

Susan L. Naughton, Saint Paul, Minnesota, for amici curiae League of Minnesota Cities,
Association of Minnesota Counties, Minnesota Inter-County Association, Minnesota
Sheriffs’ Association, and Minnesota School Boards Association.
________________________

SYLLABUS

1. Because the respondent’s performance evaluation contains “government

data,” as defined by the Minnesota Government Data Practices Act, Minn. Stat. ch. 13

(2012), he could challenge his performance evaluation for “accuracy or completeness”

under Minn. Stat. § 13.04, subd. 4(a).

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2. Although the respondent could not raise new challenges to his performance

evaluation in an administrative appeal to the Department of Administration, he could

introduce new evidence that he had not previously presented to his government employer.

3. The Department of Administration lacked authority to dismiss the

respondent’s challenges without first having resolved them informally or conducted a

contested-case proceeding.

Affirmed.

OPINION

STRAS, Justice.

Respondent Todd Schwanke, a sergeant in the Steele County Sheriff’s Office,

challenges his 2011 performance evaluation for accuracy and completeness under the

Minnesota Government Data Practices Act, Minn. Stat. ch. 13 (2012). We conclude that

Schwanke can challenge the “accuracy or completeness” of his performance evaluation

under Minn. Stat. § 13.04, subd. 4(a). We further conclude that the Minnesota

Department of Administration erred when it summarily dismissed Schwanke’s

administrative appeal in its entirety. We therefore affirm and remand for further

proceedings consistent with this opinion.

In 2012, the Chief Deputy of the Steele County Sheriff’s Office evaluated

Schwanke’s performance during 2011 and gave him a generally negative review. The

Chief Deputy used a written form listing standardized criteria on which to evaluate

officers like Schwanke. The form asked the reviewer to rate the officer’s performance on

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23 different criteria. If the reviewer could not rate the employee with respect to a

particular criterion—either because the criterion did not apply, or because the reviewer

lacked sufficient information to give a rating—the reviewer could indicate that he or she

would not provide a rating. The form also contained a space for explanatory comments

by the reviewer on each of the 23 criteria. The Chief Deputy evaluated Schwanke on

most of the criteria and commented on all but one of the ratings.

Schwanke disagreed with parts of the evaluation and wrote a letter to Steele

County describing the grounds for his disagreement. In the letter, Schwanke specifically

disputed the Chief Deputy’s comments and ratings on several criteria and the Chief

Deputy’s refusal to provide ratings on other criteria. He requested that the County

correct those items and that it notify any past recipients of the evaluation about the

corrections. Schwanke sent the letter to the Steele County Human Resources Office, and

the letter was then forwarded to the Steele County Sheriff, who declined to make any

changes to Schwanke’s evaluation after concluding that the evaluation was accurate and

complete.

Schwanke filed an appeal of the Sheriff’s decision with the Minnesota Department

of Administration (“Department”) by submitting a statement explaining why he disagreed

with portions of the performance evaluation. The statement addressed some criteria that

his initial letter to the County had not. Schwanke also submitted additional documentary

evidence with his statement. The Department “d[id] not accept” Schwanke’s appeal,

explaining that a challenge under the Minnesota Government Data Practices Act (“Data

Practices Act”) is not the proper vehicle for a public employee to dispute a performance

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evaluation. The court of appeals reversed the Department’s decision and remanded the

case for informal resolution or a contested-case proceeding under the Data Practices Act.

Schwanke v. Minn. Dep’t of Admin., 834 N.W.2d 588, 593, 596 (Minn. App. 2013). We

granted the Department’s petition for review.

II.

The legal issues in this case arise out of the Department’s decision to summarily

dismiss Schwanke’s appeal. The Department defends its decision on three grounds.

First, the Department asserts that Schwanke’s performance evaluation contained only

subjective judgments and opinions that are not subject to challenge under the Data

Practices Act. Second, the Department argues that it properly dismissed Schwanke’s

appeal, at least in part, because the appeal raised new challenges and relied on new

evidence that did not appear in Schwanke’s letter to the County. Third, the Department

claims that it has broad statutory authority to dismiss an administrative appeal brought

under the Data Practices Act. Each of these legal arguments presents a question of

statutory interpretation that we review de novo. See, e.g., Larson v. State, 790 N.W.2d

700, 703 (Minn. 2010).

The Department’s first argument is that the subjective judgments and opinions in

Schwanke’s performance evaluation cannot be challenged under the Data Practices Act.

Under the Data Practices Act, “[a]n individual subject of the data may contest the

accuracy or completeness of public or private data.” Minn. Stat. § 13.04, subd. 4(a). The

“individual subject of the data” is Schwanke, who is the “subject of stored private or

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public data.” Id., subd. 3. The type of data at issue here is “[d]ata on individuals,”

which, with certain exceptions that are not relevant here, are “all government data in

which any individual is or can be identified as the subject of that data.” Minn. Stat.

§ 13.02, subd. 5.

The Department does not dispute that the information contained within

Schwanke’s performance evaluation is “data.” “Data” are “[f]acts that can be analyzed or

used in an effort to gain knowledge or make decisions” or, more broadly, are

“information.” The American Heritage Dictionary of the English Language 462 (5th ed.

2011); see also Webster’s Third New International Dictionary 576-77 (1976) (defining

“data” as “material serving as a basis for discussion, inference, or determination of

policy” or “detailed information of any kind”). Schwanke’s performance evaluation,

which describes his work activities and behavior for use in personnel decisions, fits

within the plain and ordinary meaning of “data.”

The Department also does not dispute that the County, as a political subdivision of

the State of Minnesota, qualifies as a “government entity,” which is defined by the Data

Practices Act as “a state agency, statewide system, or political subdivision.” Minn. Stat.

§ 13.02, subd. 7a. Because the County is a government entity, its data on Schwanke

qualify as “government data”—that is, “data collected, created, received, maintained or

disseminated by any government entity regardless of [the data’s] physical form, storage

media or conditions of use,” id., subd. 7—subject to regulation under the Data Practices

Act. See Minn. Stat. § 13.01 (stating that the Data Practices Act applies to “[a]ll

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government entities” and “regulates the collection, creation, storage, maintenance,

dissemination, and access to government data in government entities”).

Accordingly, the Department does not claim that the data in this case is exempt

from regulation under the Data Practices Act. Rather, the Department argues that

Schwanke’s performance evaluation contains only subjective judgments and opinions

that are not subject to challenge for “accuracy or completeness” because it is impossible

to show that subjective judgments or opinions are inaccurate or incomplete. We disagree

with the Department’s categorical approach.1

The Department’s position treats all subjective opinions and judgments the same

way, even if those opinions and judgments rest on statements of fact that are objectively

verifiable, and thus falsifiable—that is, “capable of being proved false,” Webster’s Third

New International Dictionary 820 (1976). A straightforward example will reveal the

flaw in the Department’s approach. Suppose that a supervisor completes a performance

evaluation of a city employee that reads, “the employee’s refusal to participate in a team-

building exercise at a staff retreat shows that he is not a team player.” Suppose further

that the employee actually did participate in the team-building exercise. It was a different

employee who refused to participate, and the supervisor simply confused the two

employees. The statement that the employee “is not a team player” is a subjective

1
The Department urges us to defer to its interpretation of subdivision 4(a), despite
its failure to argue that the statute is ambiguous. We have been clear, however, that we
owe no deference to an agency’s interpretation of an unambiguous statute. See St. Otto’s
Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989). In this case,
the statute at issue is unambiguous, so the case raises only “legal question[s]” of statutory
interpretation that are subject to de novo review by this court. Id. at 39.

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assessment that, standing alone, is not objectively verifiable. But the stated basis for the

subjective assessment—that the employee refused to participate in the team-building

exercise—is a verifiable, falsifiable statement of fact. Accordingly, the employee can

challenge the accuracy of the statement that his “refusal to participate in a team-building

exercise at a staff retreat shows that he is not a team player” because the subjective

statement about not being a team player rests on a factual assertion that does not

“[c]onform[] to fact.”2 The American Heritage Dictionary of the English Language 12

(5th ed. 2011) (defining “accuracy”); accord Webster’s Third New International

Dictionary 13-14 (1976) (defining “accuracy” as “freedom from mistake or error” or

“conformity to truth or to some standard or model”); see also Minn. Stat. § 13.04, subd.

4(a).

The same is true for Schwanke’s performance evaluation. Schwanke alleges in his

appeal that some of the data in his performance evaluation rest on facts that he can show

to be false. For example, Schwanke’s performance evaluation states that Schwanke was

“asked” to create a sergeants’ FTO program, a type of field training program, but

Schwanke claims that he “was never asked to put together a sergeants’ FTO program.”

Whether Schwanke was asked by a supervisor to create a field training program is a fact

that is capable of being proven true or false. Thus, some of Schwanke’s challenges to his

2
Similarly, subjective opinions and judgments can lack “completeness” under
Minn. Stat. § 13.04, subd. 4(a), if they are missing essential facts. See The American
Heritage Dictionary of the English Language 377 (5th ed. 2011) (defining “complete” as
“[h]aving all necessary or normal parts, components, or steps”); accord Webster’s Third
New International Dictionary 465 (1976).

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performance evaluation contest the accuracy or completeness of falsifiable statements.

Those challenges, which contest the “accuracy or completeness of public or private data,”

are within the purview of Minn. Stat. § 13.04, subd. 4(a). Cf. Mueller v. Winter, 485 F.3d

1191, 1197 (D.C. Cir. 2007) (positing that “the Privacy Act compels the agency to correct

or remove”—as inaccurate—“a subjective judgment [that] is ‘based on a demonstrably

false’ factual premise” (quoting White v. Office of Pers. Mgmt., 787 F.2d 660, 662 (D.C.

Cir. 1986))).

Yet mere dissatisfaction with a subjective judgment or opinion cannot support a

challenge under the Data Practices Act. To the extent that some of Schwanke’s

challenges to his performance evaluation reflect his dissatisfaction with the evaluation,

rather than specifically contest facts that are incomplete or inaccurate, those challenges

would be subject to dismissal in a contested-case proceeding. At this stage of the

proceeding, however, because Schwanke’s appeal contests statements that could be

proven false, we disagree with the Department’s position that Schwanke’s appeal

categorically falls outside the scope of Minn. Stat. § 13.04, subd. 4(a).

The Department’s second argument is that dismissal was appropriate because

Schwanke’s appeal raised new challenges and relied on new evidence that he did not first

present to the County for its consideration. The Department essentially seeks a rule that

would procedurally bar an individual from raising new issues or presenting new evidence

in an appeal brought under the Data Practices Act. The Department’s argument raises

two distinct questions: what issues a party may bring in an appeal and what evidence a

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party may use to support its argument on those issues. We consider each question

separately.

In his appeal, Schwanke challenges three items on his performance evaluation—

specifically, the Chief Deputy’s responses to questions 6, 21, and 23—that he did not

contest in his letter to the County. The Department is correct that the Data Practices Act

does not permit Schwanke to challenge those items for the first time on appeal.

The scope of appellate review is defined by Minn. Stat. § 13.04, subd. 4(a), which

states that “[t]he determination of the responsible authority may be appealed.” The

statute’s language specifies what “may be appealed”: a “determination of the responsible

authority.” In this case, the “responsible authority” was the Sheriff, see Minn. Stat.

§ 13.02, subd. 16(b), so Schwanke’s right to appeal was limited to any “determination[s]”

made by the Sheriff.

The Data Practices Act does not define the term “determination,” but it does

identify what a “determination” includes. Upon receiving a challenge, the responsible

authority must take one of two actions: “correct the data” or “notify the individual that

the authority believes the data to be correct.” Minn. Stat. § 13.04, subd. 4(a). Whichever

action the responsible authority takes constitutes its “determination.” Id. Both

possibilities link the responsible authority’s determination to “the data” contested by an

individual. Accordingly, a “determination” must relate to specific data—that is,

information—rather than to the government record in which the data appear. See The

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American Heritage Dictionary of the English Language 462 (5th ed. 2011) (defining

“data” broadly as “information”).

As relevant here, the Sheriff’s determination was limited to the data in the

performance evaluation that Schwanke had contested in his letter to the County. Those

data did not include items 6, 21, and 23, because Schwanke did not contest those items in

the letter. Thus, because the “responsible authority” did not make a “determination” on

items 6, 21, and 23, Schwanke had no “determination” from which to appeal on those

items. Minn. Stat. § 13.04, subd. 4(a). Even so, Schwanke’s failure to previously

challenge these three items in his letter to the County did not provide a basis for the

Department to dismiss Schwanke’s entire appeal.

In contrast to the Data Practices Act’s treatment of new issues, neither the Data

Practices Act nor the Administrative Procedure Act (“APA”) confines Schwanke’s appeal

to only the evidence that he previously presented to the County. The Data Practices Act

itself is silent on what evidence is admissible in an appeal from the determination of a

responsible authority. See Minn. Stat. § 13.04, subd. 4(a). It does, however, refer to “the

provisions of the Administrative Procedure Act relating to contested cases,” id., several

of which demonstrate that the record in a contested-case proceeding is not limited to the

evidence disclosed prior to the appeal. In fact, the APA affirmatively states that “[a]ll

evidence . . . of which [the agency] desires to avail itself or which is offered into evidence

by a party . . . shall be made a part of the hearing record of the case.” Minn. Stat.

§ 14.60, subd. 2 (2012) (emphasis added); see also Minn. Stat. § 14.58 (2012) (providing

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that the record in a contested-case proceeding “shall include subsequent filings, testimony

and exhibits”). The APA also lists reasons for an administrative law judge (“ALJ”) to

exclude evidence from a contested-case proceeding, but a failure to disclose the evidence

before filing an appeal is not among them. Minn. Stat. § 14.60, subd. 1 (2012) (listing

incompetence, irrelevance, immateriality, and repetition). Accordingly, contrary to the

Department’s argument, the fact that Schwanke relied on new evidence in his appeal

provides no support for the Department’s decision to dismiss the appeal.

The Department’s third argument is that the APA and the Data Practices Act

separately vest the Department with the authority to dismiss any appeals that fall outside

the scope of the Data Practices Act. Once again, we disagree with the Department’s

position.

First, the Department argues that the APA assigns it the role of ultimate “decision-

maker” in contested-case proceedings, and that the power to decide the appeal must

necessarily include the power to dismiss the appeal. The Department is correct that the

APA vests it with the ultimate authority to decide Schwanke’s appeal. See Minn. Stat.

§§ 14.61, subd. 1, .62, subd. 1 (2012). But that is not all that the APA does. It also sets

forth a detailed procedure that governs contested-case proceedings, including the

assignment of an ALJ, who presides over the contested-case hearing, prepares a report,

and gives the parties an opportunity to respond. See Minn. Stat. §§ 14.50, .57(a), .58, .61,

subd. 1, .62, subd. 1 (2012).

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The procedural requirements of the APA are mandatory: the APA states that a

decision “shall not be made” by an agency until the ALJ has made its recommendation.

Minn. Stat. § 14.61, subd. 1. The use of the word “shall” in a statute denotes a duty that

is mandatory, see Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014),

and nothing in the APA allows the Department to simply disregard the detailed

procedures in the APA to decide the case on its own.3 See Minn. Stat. § 14.57(a)

(“Unless otherwise provided by law, an agency shall decide a contested case only in

accordance with the contested case procedures of the Administrative Procedure Act.”

(emphasis added)).

Second, the Department argues that the Data Practices Act vests it with the

authority to dismiss an appeal. Specifically, the Department relies on the following

language from Minn. Stat. § 13.04, subd. 4(a):

The determination of the responsible authority may be appealed
pursuant to the provisions of the Administrative Procedure Act relating to
contested cases. Upon receipt of an appeal by an individual, the
commissioner shall, before issuing the order and notice of a contested case
hearing required by [the APA], try to resolve the dispute through education,
conference, conciliation, or persuasion. If the parties consent, the
commissioner may refer the matter to mediation. Following these efforts,
the commissioner shall dismiss the appeal or issue the order and notice of
hearing.

3
Even the Department’s own rule implementing Minn. Stat. §13.04, subd. 4(a),
recognizes that only “[t]he administrative law judge”—not the Department—“may
recommend dismissal of any sham, capricious, or frivolous case, or any case not within
the jurisdiction of the Department of Administration.” Minn. R. 1205.1600, subp. 4
(2013).

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According to the Department, the final sentence in the provision “expressly allows [it] to

dismiss appeals without a contested case hearing.”

Read in isolation, the final sentence in subdivision 4(a) appears to support the

Department’s interpretation. However, we do not read a single sentence of a statutory

provision in isolation. Rather, we have long recognized that “[w]ords and sentences are

to be understood . . . in light of their context” and are “not to be viewed in isolation.”

Christensen v. Hennepin Transp. Co., 215 Minn. 394, 409, 10 N.W.2d 406, 415 (1943).

In this case, the sentence relied upon by the Department appears in a paragraph

that simultaneously grants a right to a contested-case proceeding and requires the

Department (acting through the Commissioner of Administration) to temporarily delay

the proceeding in an attempt to resolve the dispute informally. See Minn. Stat. § 13.04,

subd. 4(a). The attempt to obtain an informal resolution of the dispute will result in one

of two outcomes: either the attempt will succeed and there will be no need for a

contested-case proceeding, or the attempt will fail and there will be no reason to delay the

proceeding further. The final sentence then simply accounts for the two possibilities by

directing the Department to take the appropriate next step in each situation: if it resolves

the dispute informally, the Department “shall dismiss the appeal,” and if it does not, the

Department shall “issue the order and notice of hearing” to initiate a contested-case

proceeding. Id. Read in light of the rest of the paragraph, the only reasonable reading of

the final sentence is that it authorizes the Department to dismiss the appeal, but only if the

Department first succeeds in resolving the dispute informally. It is unreasonable to read

the provision more broadly as giving the Department an unqualified and unreviewable

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power to dismiss any appeal brought under the Data Practices Act, especially in light of

the directive to conduct the appeal “pursuant to” the APA’s detailed and mandatory

contested-case provisions. Id.

III.

For the foregoing reasons, we affirm the decision of the court of appeals and

remand to the Department for further proceedings consistent with this opinion.4