Minnesota Employees Have Right To Hearings On Performance Evaluations

In a most unusual case, a unanimous Minnesota Supreme Court decided that a portion of Minnesota’s public records laws allows employees the right to a hearing to challenge some aspects of performance evaluations. The case involved Sergeant Todd Schwanke, who works for the Steele County Sheriff’s Office. Schwanke was dissatisfied with his 2011 performance evaluation, and wrote a letter to the County disputing several comments in the evaluation and the County’s refusal to provide ratings on some of the criteria used in the evaluation. Schwanke requested that the County correct those items and that it notify any past recipients of the evaluation about the corrections.

When the County refused all of Schwanke’s requests, he filed an appeal with the Minnesota Department of Administration, which administers the Data Practices Act, which has elements of a public records law. The Department rejected Schwanke’s appeal, stating that the Act was “not the proper vehicle for a public employee to dispute a performance evaluation.” The dispute eventually wound up before the Minnesota Supreme Court.

While the Department acknowledged that Schwanke’s evaluation generally fit the definition of “data” covered by the Act, and it conceded that citizens whose information is contained in public “data” have the right to challenge the “accuracy or completeness” of data, it contended that the evaluation contained only subjective judgments and opinions that were not subject to challenge. The Court rejected the Department’s argument, describing it as a “categorical approach.”

The difficulty, the Court found, was that “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. 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 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 conform to fact.

“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 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 the Data Practices Act.”

The Court was careful to hold that not everything found in a performance evaluation could be challenged under the Act: “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 the Act.”

The impact of the decision could be huge. The Act contains a detailed procedure that governs contested-case proceedings, including the assignment of an administrative law judge, who presides over the contested-case hearing, prepares a report, and gives the parties an opportunity to respond. The vision of ALJs facing dozens (if not hundreds or thousands) of appeals of performance evaluations may well result in the Minnesota Legislature tweaking the provisions of the Act.

Schwanke v. Minnesota Department of Administration, 851 N.W.2d 591 (Minn. 2014).