Tuesday, January 31, 2012

Will Brodkorb and Minnesota Senate settlement agreement be public?

In the Star Tribune it was reported that Michael Brodkorb "will seek damages for wrongful dismissal." from the Minnesota Senate.  Both sides made their opinions known in the article.  Many media reports have hinted to avoid public embarrassment of the Minnesota Senate as an institution there could be a settlement before it may end up in Court.

To keep details of what led to Mr. Brodkorb's firing out of the public view they may agree to a settlement.  This happens all the time with other public employees with payments of thousands of dollars of public money.  But here with Mr Brodkorb it is quite a different situation.

Lets say the Minnesota Senate pays out more than $10,000 to settle and to have it quietly go away.  Will the public ever know the terms of the agreement that settled the dispute and will there be specific reasons for the agreement?  The answer more than likely will be no.

As I have stated before in previous posts the Minnesota Legislature is not under the Minnesota Government Data Practices Act. Therefore information that would be public with our state and local government in this kind of situation would not be public with the Minnesota Senate.

The following is the law that that applies to the executive branch and local government employees:


subdivision 2 (6)

 (6) the terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money;

There is no obligation by law for the Minnesota Senate to share any information with the public if there is a settlement with payment of public monies before a Court suit.  But the Minnesota Senate can and should follow the law as a standard in this case if the situation arises.

Monday, January 30, 2012

A legislative trick at the Minnesota Legislature

Whether it's the usual process how laws are made, or other ways such as the bait-and-switch or sleight of hand, the public has a right to know what legislators are up to in how they make law.  "Magic is successful because it is nine-tenths simple distraction", it could also be said it is truer with the legislative process. 

The public got a taste of "magical tricks" at the end of the 2011 legislative session with bills appearing and reappearing in different legislation.  There was also the "miracle" appearance of proposals that the public and even many legislators did not even know about as reported in the media.

Switch the eye of the public with one hand and roguery can happen with the other.  Did this happen 4 years ago when an amendment was adopted in a tax conference bill that gave less sunshine and accountability to the Iron Range Resources & Rehabilitation Board.

This has been a subject of a lot coverage by the Duluth Tribune with the most recent article last week.

Bottom line is that for at least 22 years plus the IRRRB had accountability and transparency when it gave loans or grants to various business or parties to further the mission of the Board.  The IRRRB had their own data classification in the Data Practices Act.

In 2001, the IRRRB section of law along with others which were similar were combined into one section in the Minnesota Government Data Practices, Chapter 13.591. The accountability and transparency remained as the same public data available for the public to review.

Now, here we are in 2012 with Rep Anzelc trying to change the law back to undo the "trick" that was done in the 2008 Tax Conference bill.  That "trick" was done with the public not knowing and the amendment not even going to the appropriate committee for review.  The trick was the following:

    Sec. 4. Minnesota Statutes 2006, section 298.22, is amended by adding a subdivision
to read:
    Subd. 12. Data classification. Data collected by the commissioner on any
application to determine the eligibility of an applicant for any loan or equity investment
made from funds that are available to the commissioner under this section or otherwise
by law, and to assess or monitor the applicant's or recipient's default risk or to collect
payments owed are: (1) private data on individuals as defined in section 13.02, subdivision
12; and (2) nonpublic data as defined in section 13.02, subdivision 9. The names of the
recipients of the financial assistance and the amounts of financial assistance are public data.

What the amendment did is block the general provision of law that allows data such as financial information about the company including credit reports, financial fee statements, and balance sheets and other data to be public when a person or business receives money in a loan with the IRRRB.  It could also may be interpreted to apply to grants if the IRRRB does this.

This is not unusual for these kind of tricks to happen at the Legislature.  Many GOP and DFL lawmakers do it. I have seen it many times in the decades I have been at the Legislature.

Thanks to legislators who call it out when these kinds of "trick" is being done at the time or even now four years later to correct the "trick".  But this 'episode" also emphasizes the need for the public to continue to keep an eye as to what's happening at the Legislature to expose what the magicians (legislators} are up to.

Monday, January 23, 2012

Three bills that impacts our rights and liberties at 2012 Minnesota Legislature

Each session I anticipate proposals that can and will have an impact on our civil liberties, privacy, and open government rights.  One has been introduced as a bill already, DNA Familial.  The others on police intelligence gathering per the Minnesota Police Chiefs Association will be introduced as two bills, one as the same or similar to this bill, and another which the director of the Association did not have much detail on.  The bill which would deal with operational detail.
 1. Domestic Intelligence Gathering and Surveillance.
This bill would allow law enforcement to keep secret information on individuals who police think may commit a crime.  In proposals I have seen the data would be called criminal intelligence.  The threshold used to get into the intelligence file is reasonable suspicion.  There has been and will be sharp and direct discussion on this proposal.  Should government be collecting information on people who are law-biding in their secret files?  How are First Amendment activities protected from surveillance?  What information that has been public for decades in Minnesota no longer will be?  Who will the information be shared with?  What information that is now public will no longer be public and secret?  Many policy questions that need to be asked and answered with devil being in the details.

There had been a bill introduced 3 years ago in the Legislature.  It did not go anywhere.  Two years ago because of the GangNet database issue the Legislature created a work group to come up with recommendations.  Their report is here which was sent to the Legislature last year.  Information about the work group and detail information is on the BCA website.

As the headline states in a "Politics in Minnesota" news report on the intelligence proposal three years ago read:

"Criminal intelligence data or control files? New BCA proposal offers glimpse of major expansion in snooping"

With my years of lobbying and advocating on privacy and open government this piece of legislation in whatever form is introduced in my judgement if not done right could have the most serious ramifications for our states culture on privacy and open government and the civil liberties of Minnesotans.

2. Familial DNA
In the Star Tribune it was reported that Sheriff Stanek was interested to have a law to allow the use of familial DNA.  A KARE 11 piece also talked about it.

What it basically is as follows:  At a crime scene a DNA sample is collected.  The sample then is run through the DNA database to see if a match can be made to an individual.  Sometimes the match can be close to an individuals DNA in the data bank, but not enough as per DNA protocols for certainty. Suspicion could then be on the close relatives because another biological family member such as a son or non identical twin brother would very much nearly have the same DNA makeup.

There are civil liberty and privacy concerns with the proposal.  Very few states have done such DNA searches.  California being one of those few have rigorous guidelines and focus on specific situations.

The proposal poses Fourth Amendment questions.  Will an attitude be developed that there is guilt by your genes?  Will family members that are not in the states or local law enforcement DNA databases be confronted to give a sample posing due process questions.  Would a partial DNA match from a father be enough for a probable cause search warrant to ask for DNA samples from brothers, sons, and other close relatives.

There are two articles I would like to suggest. http://www.slate.com/id/2213958/ and http://www.dnaforensics.com/FamilialSearches.aspx#symposium 

Wednesday, January 18, 2012

We're "all sinners" so government needs our data?

I observed and testified today at the meeting of the Criminal and Juvenile Justice Policy Group on whether or not Minnesota should send millions of law enforcement records on Minnesotans to the FBI.  Some of the records are incident reports that police do when they are called by 911, or when a person calls for service.  The records can range from disorderly conduct to arson, every possible offense.  A great many of these records are initiated by complaints, people are named as possible suspects.  It is also true many people after an investigation are cleared.  But the Policy Group with reservations by three people passed it unanimously and will be encouraging the Legislature to do the same.

Therefore, millions of records on us could go the FBI-N-Dex, to their "large national data warehouse" to be used by the Federal Government and other criminal justice agencies for "administration of justice" purposes which in my view is broad.  The information can be used about you without you even knowing about.   No Fair Information law or rules for you.   Are our Minnesota rights and protections being thrown out the window? The following are the Fair Information principles:

The Code of Fair Information Practices was the central contribution of the HEW (Health, Education, Welfare) Advisory Committee on Automated Data Systems. The Advisory Committee was established in 1972, and the report released in July. The citation for the report is as follows:
U.S. Dep't. of Health, Education and Welfare, Secretary's Advisory Committee on Automated Personal Data Systems, Records, computers, and the Rights of Citizens viii (1973).

The Code of Fair Information Practices is based on five principles:

  1. There must be no personal data record-keeping systems whose very existence is secret.
  2. There must be a way for a person to find out what information about the person is in a record and how it is used.
  3. There must be a way for a person to prevent information about the person that was obtained for one purpose from being used or made available for other purposes without the person's consent.
  4. There must be a way for a person to correct or amend a record of identifiable information about the person.
  5. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuses of the data.
Now lets get back to the "all sinners".  After the meeting I spoke to the leading proponent of this proposal on the Policy Group.  He and I debated on issues I felt were not being addressed.  I stated that we are giving to the FBI/N-Dex many files on innocent people that should not be given.  People for example who are cleared by police of a charge, but who are not arrested.  Other examples were stated..  He then responded in a somewhat humorous way, to get his point of view across to me, we're "all sinners, born with sin". Therefore it seems his logic may be that government should keep these kinds of records, on all of us, all the time, and share them, because we can all be "bad".

The Policy Group will meet on February 1, 2012 with proposed statutory language to implement the recommendations.  The recommendations are as follows:

Please also note Minnesota Public Radio report on this issue several weeks ago.

Tuesday, January 10, 2012

LCCMR & Lessard-Sams heads should be protected from politics

The Star Tribune story headline on the LCCMR situation states "leaves questions and raw feelings."  But more than that, there are no solutions offered by policymakers nor others so that this position and another like it are not mired in the "politics of the Capitol."

The Legislative Citizen Commission on Minnesota Resources Director and the Lessard-Sams Commission Director can be fired at will.  With the LCCMR that issue is a bone of contention.

The LCCMR suggests as to how millions of dollars collected from the lottery should be spent on environment and natural resource projects.  Lessard-Sams recommends hundreds of millions of dollars of Legacy money to outdoor heritage. Both groups send their reports to the Legislature for action.

Do not kid yourself there is politics involved with these recommendations and process.  Being an upfront observer of the process at the Capitol for many decades leaves no doubt for me. 

But is it in the public interest to have these director positions fly and be directed in the winds of politics at the Capitol?

Depending as to holds the gavel of power this can change, GOP could control both bodies one or two legislative terms, DEMS maybe one or two, maybe one legislative body led by one party, the other another.  So what happens to the directors, they could be pointed to do or pressured by the politics at the time to do things that may not be in the "public interest."

A suggested solution:

The Legislature has a number of Commissions or offices that do the work of the public.  An office that does a great amount of work for the public is the Legislative Auditors Office.  Now what is so interesting about the position of the Legislative Auditor it has set term and can only be fired for cause and with a public hearing.  This is what the statute says:


Subdivision 1.Appointment and term.

"The legislative auditor is the executive secretary of the commission. The legislative auditor shall be appointed by the commission for a six-year term and serve in the unclassified service. When in office, the legislative auditor may not at any time hold any other public office. The legislative auditor may not be removed from office before the expiration of the term of service except for cause after public hearing."

Let us not have political friction over who should be the head of the LCCMR and the Lessard-Sams whenever the State House changes power.  That is not in the public interest.

Let us the people of Minnesota demand a legislative solution such as the Legislative Auditor model.

Wednesday, January 4, 2012

Minnesota Legislature: Sunshine on Personnel Matters

There has been a bit of banter and hub bub in the media and the public about the employment situations of Michael Brodkorb, Executive Assistant to the Senate Majority Caucus Rules and Administration Committee and Susan Thornton, Director of the Legislative-Citizens Commission on Minnesota Resources.

There have been comments by people who want to know the rationale or reason as to why Mr. Brodkorb was fired.  Many elements of the media have characterized his departure as being fired. In regards to Ms Thornton there have been op-ed articles and comments questioning her dismissal and wanting to know why.

With these decisions happening within the Legislature-the public may never know why.

As recently as a week ago I got a question from the public asking if they can get any information on the Brodkorb/Thornton employment situations.  I said virtually nothing because the Legislature is not subject to the Minnesota Government Data Practices Act, and more specifically 13.43 which governs personnel matters of local government, school districts, and state government.

If there was a firing of a high executive official in any other part of our state government or the Judiciary per their own rules which mirror the Data Practices Act, the public would know "the specific reasons for the action and data documenting the basis of the action."  There are some limited exceptions, but overall, the data is public.  Not the case with the Legislature.

Let's say a director of a division of a city government or a county planning commission was dismissed or resigned.  The public had an interest to know why.  Using the Data Practices Act, the public could find out "the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action."  Not the case with the Legislature.

Another example, a school board is discussing among themselves by e-mail, text-message, or memos the status of employment of the school districts coordinator of community outreach.  The superintendent and some school board members believe the person is in the way of of their community goals.  The person is summarily dismissed.  The public may want to know why, under current law, they may not be able to get the answers.  But the individual subject, the coordinator of community outreach, could get access to all those e-mails, text-messages, and memos with very limited exceptions.  Not the case with the Legislature.

The Legislature employs hundreds of people, many of a professional career nature such as House and Senate Research and the Legislative Auditor which are considered non-partisan positions.  Other positions though are of a political nature, such as committee administrators, or researchers who do work on issues for the majority and minority parties in each body of the Legislature.  The abundant majority of these people do great service for the people of Minnesota.

Over the years I have gotten and continue to get many questions from the public how they can get access to public data from the Legislature, that is public in the judicial and executive branch.  I basically say to them it depends on who you ask.  There is a large amount of discretion within the Minnesota Legislature. 

But the outstanding question remains:  Should the public not be able to have accountability and transparency for Legislative personnel matters as is done with the executive and judicial branches?

The Legislature can take a small step by implementing rules similar to parts of the Minnesota Government Data Practices that govern personnel matters.