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Data Practices Office to Move to OAH

Tuesday, May 15, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

The House version of the mega-omnibus budget bill going through conference committee proposes shifting the Data Practices Office out of the Administration Department and into the Office of Administrative Hearings.

It’s a move the Dayton administration finds mystifying. “It is a mystery to me why they are doing it,” said Myron Frans, the Minnesota Management and Budget commissioner, in a May 7 interview.

“I was surprised to see it, because things are working just fine,” Frans said. “There has been no explanation to me as to why they want to move it over there.”

It’s one of several executive branch transformations passed out the State Government Finance Committee and stirred into the House’s omnibus budget bill. That committee is chaired by Rep. Sarah Anderson, R-Plymouth.

The House’s omnibus bill also transfers the state’s Results First Initiative from Minnesota Management and Budget to the Legislative Budget Office. And it abolishes Minnesota IT Services (MNIT), moving state agencies’ information technology services to a newly created IT division within the Administration Department.

None of those changes is reflected in the Senate’s omnibus budget package—so it is possible none will actually happen. The differences between those two budget bills were being worked out in conference committee last week.

Frans wrote a May 3 letter to Rep. Jim Knoblach, R-St. Cloud, the Ways and Means Committee chair and author of the House omnibus bill, expressing a variety of concerns. In it, the commissioner spotlighted the plan to move the Data Practices Office, characterizing it as an apparently pointless move.

There are no service deficiencies that merit the transfer of duties, he said, and the change would not result in any service improvements.

Anderson disagrees. In an interview Tuesday, she said the change would lead to process improvements for those seeking government data. If a complaint filed with the Data Practices is found to have standing, she noted, the Office of the Administrative Hearings already is the office that takes it up.

“This streamlines things,” she said. “It gives us a one-stop-shop instead of making citizens go from one place to the next place.”

But Frans maintains that current law intentionally separates the forum Minnesotans use to pursue government-data requests fulfilled from the one they use to purse “advanced legal remedies” when those requests are denied.

“This transfer would likely result in additional costs and disrupt the work of the agencies,” Frans said. Both offices opposed the move, Frans’ letter adds, and no public support for the transfer was expressed.

“All testimony heard in committee was in opposition to this transfer,” he wrote.

About the money

Anderson said there is a reason that the Administration Department—which currently hosts the Data Practices Office—objects to the move: money.

The House legislation would transfer $525,000 from Administration to the OAH to fund its new responsibilities. “Obviously, Admin doesn’t want to lose the money that is tied to it,” she said. “So that is their concern.”

Anderson said the Data Practices Office’s recent output demonstrates that the move would be justified.

“It has gone from having 90 opinions issued a few years back to where now they have only done seven,” Anderson said. “And they are still operating with the same budget. So that kinds of puts that in perspective.”

Not really, according to Matt Massman, commissioner at Admin.

He said that the 90 advisory opinions to which Anderson refers date back to 2001. The gradual reduction in advisory opinions actually demonstrates that things are running smoothly, he said.

What tends to happen now, Massman said, is that a requester will call up and inform that office that a government agency has not complied with a data request. One of the office’s four staffers will then call that government agency and inform it of its statutory responsibilities. Then agency will comply, eliminating any need to issue an advisory opinion.

“That is how the bulk of the work gets done to make sure that people have access to government,” Massman said. “The response from stakeholders is really overwhelmingly positive.”

He has other worries about the move. As things work now, he said, the Data Practices Office offers free service to citizens and the media. But the OAH is fee-based, and could charge for data practices requests going forward. He also worries that the combination could lead to perceived conflicts of interests.

Asked for his opinion on the matter, Gov. Mark Dayton said at a May 4 press conference that the thinks the move, should it be enacted, would work the way most agency mergers work. It would disrupt data practices operations for “a good two years,” he said.

HR expansion

Another piece of legislation that the Dayton camp finds irksome stems from the governor’s proposal to launch an office to investigate reports of sexual harassment by state employees.

The House omnibus appropriates $4 million for that purpose, transferred from the state’s stadium reserve fund. That itself is vexing to the Dayton administration, which wants to leave the reserve alone.

But in his letter to Knoblach, Frans pointed to something else—a dramatic and unexpected expansion of the new office’s duties as outlined in the legislation.

“The bill expands the duties of the office by requiring it to handle all complaints of misconduct—in addition to harassment,” Frans’ letter states.

“Under this language,” it continues, “the office would provide intake and investigation of nearly all forms of employee conduct that can result in discipline.” The new office would not be sufficiently funded by the legislation to handle such a dramatically expanded mission.

Should that measure go through, Frans said, it would place under the purview of the new sexual-harassment office virtually all duties of the individual agencies’ HR departments. “And they only gave us a few million dollars,” Frans said. “If you are going to actually do that, you’ve got to completely reorganize HR.”

The administration’s request was simple, Frans said. “But they made it complicated, they over-micro-manage,” he said. “And we don’t want to do what it is they want to do. So it’s frustrating.”

To Anderson, however, the idea makes good sense. It also reflects feedback she said she hears from state employees who want a safe place to work. Many feel unsafe reporting coworkers’ misconduct to their own agencies’ internal HR staff, she said.

What’s more, Anderson said, there are discrepancies the ways agencies handle misconduct allegations. Centralizing reporting and investigations role under one roof would improve consistency, she said. “We need to treat everybody fairly.”

Though he spoke before Anderson was interviewed, Dayton seemed somewhat congenial to that point of view.

“I am sure there are other offenses that are deserving of that kind of independent review,” he said. “But let’s take the first step. Let’s do it right and do it well—and that’s dealing [only] with sexual harassment complaints and abuses. We’ll see where it goes from there.”

Still Dayton, who leaves office after the next election, has an unalloyed annoyance for what he considers the legislative branch’s steady encroachment on executive authority at the Capitol.

“I’ll let somebody else take that on,” Dayton said. “But the fact is that they should appropriate money, they should make policy and they should let the executive branch function—unless there is clear indication that it is not doing so.”

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