CORA Training letter to our Jeffco Chief Legal Officer
From: Wendy McCord
To: rhess <email@example.com>
Cc: McMinimee Dan M <firstname.lastname@example.org>; jbranum <email@example.com>; Jeffco Schools Board of Education <firstname.lastname@example.org>; Dahlkemper Lesley <email@example.com>; Fellman Jill <firstname.lastname@example.org>; Newkirk John <email@example.com>; Witt Ken <firstname.lastname@example.org>; Brad Miller <email@example.com>
Sent: Mon, Feb 2, 2015 4:34 pm
Subject: CORA Discussion at January 29, 2015 Board Meeting
February 2, 2015
Chief Legal and Employee Relations Officer
Jeffco Public Schools
Via Email at: firstname.lastname@example.org
Dear Mr. Hess,
As the Chief Legal Officer of Jeffco Public Schools, I hope you are as dismayed as I am with respect to Mr. Miller’s “advice” last Thursday night to the members of the Board of Education. As you undoubtedly realize, the repeated failures of certain members of the Board of Education to comply with CORA are the responsibility of the district, not Mr. Miller. Ultimately, it is the district that will have to pay the costs of the myriad lawsuits that await the district should the BOE members not have a more thorough understanding of their CORA responsibilities, taking away valuable (and scarce) time and financial resources from our students. I hope that you will take the opportunity, as Chief Legal Officer of the district, to set the record straight with our BOE members.
One of the first inaccuracies you may have noticed in Mr. Miller’s ‘presentation’ last night was where he pointed out that, although state law requires the district to have a records retention policy that includes BOE emails, only one-third of districts actually did that. I understand from CORA experts that this is not true. It is true that only about one-third of the state’s school districts have specifically adopted the Records Management Manual for School Districts promulgated by the State Archivist. But state law requires such a policy, and the experts with whom I have consulted have indicated that they are unaware of a single district, other than Jeffco, that DOES NOT have any such policy. I am quite certain that quick calls to your colleagues in neighboring districts could provide you with a number of examples of such policies.
And despite Mr. Miller’s strong belief to the contrary, CASB does, in fact, have such a model policy. Using it, at least as a basis from which to start, would be an extremely low-cost alternative to having Mr. Miller prepare one from scratch that may or may not actually comply with the legal requirements of Colorado Law. Additionally, as a district policy, it would seem to me that such a policy should be drafted by district’s counsel (in-house or outside) rather than the BOE’s separate counsel.
Perhaps you were, like I was, shocked to hear Mr. Miller actually imply to the BOE members that a policy of deleting all district-related emails from their personal accounts was legally compliant. Sure, he suggested they might want to have a practice of forwarding them to their official BOE email, but once they’ve been “deleted,” how is anyone to know whether or not such messages were, in fact, forwarded.
Having been in-house counsel for an energy marketing company and a corporate attorney for more than ten years, I couldn’t believe that Mr. Miller was making such a suggestion to the BOE. Among many problems with his statements, he failed to mention that the nature of the email was critical. Having drafted and implemented dozens of records retentions policies for a variety of types of entities, I was flabbergasted that he failed to tell the BOE members such an important piece of information. When I heard this implication, I immediately thought of Enron and what a disaster that was for just such a reason.
Since Mr. Miller also included in his training a brief snippet related to the Sunshine Law, I thought I might mention it here, as well. As you likely heard, Mr. Miller advised the BOE members that an email among three of them would constitute an open meeting. He made a grave omission by failing to explain to the BOE that forwarding messages to other BOE members in a “daisy chain” will also constitute an open meeting under Colorado law, even if all three members are never copied on any single email. When looking at the actions of public bodies, the courts in Colorado are most interested in looking to the spirit of the Sunshine Law and not the letter of the law.
I find these errors and omissions to be critical obstacles to BOE members’ (and thus the district’s) compliance with Colorado law. We have seen time and again how Mr. Witt, Mr. Newkirk and Ms. Williams have no regard for Board or District policies. One of Mr. Witt’s failures to comply with law was quite publicly broadcast last fall. And I have personal experience with Mr. Miller and Ms. Williams’ failure to comply with CORA. Over the past year, I submitted several CORAs to which I received not only incomplete responses from Ms. Williams and Mr. Miller (who apparently was advising her on CORA compliance despite it being the district’s responsibility), but they both also told me outright lies. I would be happy to forward to you the series of emails that I received and sent with respect to these issues, should you want to investigate this.
In addition to providing clear, accurate and complete information to the Board of Education regarding CORA and their other legal obligations, I hope that you will take a serious look into the management of the CORA process at the district. It is highly flawed, and this will ultimately cost the district a lot of money, since at least some members of the Board of Education and the Board’s outside “expert” attorney lack the moral, ethical and legal understanding to follow the law.
Based on the lack of forthrightness that Miller & Williams displayed with respect to my CORAs, and the similar failing of Mr. Witt, I would strongly urge the school district to get a signed affidavit, swearing under oath that they have fully and completely complied with the CORA request, whenever a CORA request requires information from a board member (or any non-employee). The district is ultimately liable for responding completely to the CORA requests, and the district is the entity that would be sued for failure to comply with the Open Records Act.
If it later turns out that an affidavit was untrue, then the person signing it has committed perjury, and the district (or taxpayers) could pursue appropriate legal remedies.
This was standard practice when I was in-house counsel for an energy company – I would get certifications from employees when responding to data requests for lawsuits, investigations, etc. I would strongly urge you, as the Chief Legal Officer, to implement an affidavit procedure that you send out to all non-employees who may be in possession of Jeffco Schools’ public records. A simple certification from employees is generally sufficient, because signing a certification under false pretenses would typically be grounds for termination. But we don’t have that fallback with Board members and their attorneys.
And this should be something that staff can implement, as it would violate more policies than I can count for the Board to attempt to tell the staff what they can/should do in this respect. This is a ministerial activity, not a strategic one. If you don’t have any examples of affidavits or certifications, I suspect that a Google search might yield a variety of options that could easily be modified (and certainly Caplan & Earnest has done this before – my idea is likely not a novel one).
Just a few thoughts for you. I look forward to meeting you at one of the upcoming Board meetings.
Wendy R. McCord, Esq.
cc: Jim Branum, Caplan & Earnest
Dan McMinimee, Superintendent
Jeffco Board of Education