Wednesday, May 01, 2013


By Nora Fleming, Education Week

Santa Fe school board members turned over nearly 40 pounds of business correspondence from their personal email accounts.—Luis Sánchez Saturno/The New Mexican

Published in Print: April 17, 2013, :: School board members are struggling to interpret laws that govern where and how they do business now that as many conversations take place digitally as they do face to face.

As online and digital interactions increase, so too does public concern that officials have more opportunities to violate state open-meetings and open-records laws meant to prevent them from communicating secretly.

At the same time, others argue that today's capabilities for communicating and accessing information instantly are making government more transparent, and the public, in turn, more engaged.

"School boards have to realize most of the ways the open-meetings and -records laws have been written mean there should be an automatic interpretation that using new technology to communicate applies as a meeting and a record," said Mark Blom, a senior staff attorney with the National School Boards Association. "These issues can all be addressed by policy, but many school boards don't have a policy in place yet."

According to Mr. Blom, a growing number of states are attempting to make existing laws clearer on how new technology applies.

What's a Meeting?

In general, states' open-meetings or "sunshine" laws specify what government meetings must be held in public, and open-records laws determine what documents need to be publicly accessible.

But state regulations differ on the types of communication allowed between officials, whom the laws apply to, and how much information the public should have access to.

While most states consider a "meeting" to be communication among a quorum of officials, in Florida, school board members cannot use any form of back-and-forth electronic communication between just two or more officials.

Other states' laws as originally written were more vague. In recent years, though, through court rulings and legislative amendments, they've become more explicit in what is and isn't allowed.

In Virginia, for example, the state supreme court found last June that serial emails—in which one person emails another, who emails another, and so forth—are not considered a meeting. But in other states, such as Indiana and California, they are. New regulations and proposals are also cropping up in Maryland, Oklahoma, and Utah, among others.

Maryland is among several states that are taking other steps to bring such laws into the 21st century.

The legislature set up a joint committee on transparency and open government in 2011 to examine how Maryland can promote government transparency—in the state capital, Annapolis, and locally. Committee members evaluate current policies and practices on meetings and records and make recommendations on future legislation.

According to state Sen. Bill Ferguson, the chairman of the committee, it's hard for state governments to have laws that capture all the situations communities are facing today in complying with meetings and records regulations. But while the particulars of state laws vary, in general, he said, he thinks technology is making government more transparent than it was in the past.

"So much of open government is cultural habit; there are cultures within agencies—if the agency's day-to-day culture promotes transparency, new opportunities to increase openness are willingly adopted," said Mr. Ferguson, a Democrat.

"But as more modern communications and collaboration tools become cheaper and more accessible, public agencies will naturally become more transparent, and cultures will inevitably start to change," he said.

Personal Accounts

Local interpretation of state laws differ from community to community. Many school boards want direction on what topics they can discuss privately vs. publicly but lack guidance on the legal implications. Board members often don't think how common practices today—such as sending text messages to fellow members during a meeting—could be violating the law, some say.

As a result, school boards are devising their own policies, with the lines between a "record" and "meeting" starting to blur, said Frank LoMonte, a lawyer and the executive director of the Student Press Law Center, based in Arlington, Va. Emailing can constitute a meeting, but also a public record, for example.


A Sampling of Legislation

  • California: Allows officials to videoconference into meetings while out of town, but specifies that those officials must post advance notice of the location from which they will be participating in case a member of the public wants to join them.
  • Louisiana: Requires school board members to undergo training on open-meetings and -records law as part of their school board training.
  • Maryland: Toughens the penalties for public-records violations and requires all locally elected bodies to delegate at least one member to go through training on state open-meetings laws.
  • New Hampshire: Requires the state to develop and information-policy plan based on open-government data principles.
  • Utah: Requires certain public bodies (including school boards) to post open-meeting minutes and audio recordings on the state's public-notice website within three days after a meeting; meeting notification requirements changed from 24 hours to 72 hours.
  • Virginia: Specifies when officials can use electronic means to participate in a meeting if personal matters prevent attending in person, with limited allowances for remote participation.

Crafting new policies can become particularly vexing with records regulations because it is hard to retain text messages and emails for a set period of time and retrieve them later for public requests, Mr. LoMonte added.

Records policies can become even trickier when board members use their own mobile phones or personal email accounts, as seen recently in New Mexico.

State employees there are not allowed to use private email addresses for business purposes, but locally elected bodies, including school boards, do not have such restrictions.

A reporter for The Santa Fe New Mexican, Robert Nott, submitted a public-records request to obtain three months' worth of emails from all five school board members in the 14,500-student Santa Fe district; four were using their personal email addresses for district matters, he found.

Although no inappropriate emails were turned over to the New Mexican, the arduous process of obtaining them led the board to adopt a policy in February that bans the use of private email accounts for public business.

Across the nation, many school board members' work is part time and unpaid, and hence, they often don't think about potential conflicts arising from using their work or personal email addresses, said Gwyneth Doland, the executive director of the New Mexico Foundation for Open Government.

Using personal emails is a problem, she said, because officials control what information they disclose, unlike with a public email address, where a district employer can pull the messages from a server. Consequently, they can keep information secret they don't want others to see.

"Every elected official is freaked out their political opponent [or the public] is going to dig through their email and find that one smoking gun that's maybe illegal, maybe improper, and probably embarrassing," said Ms. Doland.

But Linda Trujillo, the president of the Santa Fe school board and a lawyer who works at the state records center and archives, said she used her personal email account because she ran into logistical issues, not as a way to be secretive.

As a state employee, she wasn't able to pull up her district email account at work because of regulations that prohibit her from performing "political activity on work time," and she ran into technical trouble trying to read those messages on her phone, she said.

After the experience coming out of the reporter's records request, Ms. Trujillo thinks the new policy barring personal email use is the best practice, though she worries about sharing emails community members send her that they don't realize could become public information. She now encourages them to call her on the phone.

"I still have angst about the fact that my communication with constituents can be publicized," she said. "I think it can chill the voice of those who want to share."

Often, there's not much of a legal deterrent to prevent officials from violating the law. The crimes tend to be second-class misdemeanors punishable by minimal fines. Colorado officials can't be fined any more than $100, and Kansas doesn't allow any fines.

In some situations, though, the penalties have been considerable. In Florida, the city of Sarasota paid $100,000 in fines for open-meetings lawsuits this past year, and Venice paid $750,000 in 2009.

Engaging Participation

New capabilities to connect and engage digitally do enable the public to access more information about government and have more of a "voice" in how it operates.

In Missouri's 10,500-student Park Hill district, outside Kansas City, for example, the public can make recommendations using online evaluation forms, suggestion boxes, surveys, and a Facebook page to guide the school system, say, on cutting costs and redistricting boundaries, said Nicole Kirby, its director of communication services.

Companies such as Granicus, Live Stream, and Peak Democracy provide digital services that allow school boards and districts to post videos and audio files of meetings online so the public can observe deliberations on its own time, without having to attend meetings in person. Granicus and Peak Democracy also provide platforms on which the public can submit feedback to guide policymaking.

Some districts are now incorporating such comments into public-meeting minutes and reports that school boards can use to craft policy. The 9,400-student Berkeley, Calif., district, for example, recently used Peak Democracy's Open Town Hall platform to gather public feedback on the creation of a district anti-bullying policy.

The goal of this new digital engagement is to make more members of the public aware of the decisionmaking process and expand opportunities for the community to take part in the conversation, some open-government advocates say.

Yet challenges remain with such digital engagement, others add, namely, how to encourage communities to use these more transparent practices regularly, rather than for special projects or one-time events, and how to address cost and cultural equity.

John Kaehny, the executive director of Reinvent Albany, an organization aiming to make New York state government more transparent via technology, says there is a "giant gap" nationally in how local councils and boards use the new tools, if they are used at all.

"The leaders tend to be richer towns and districts that are using all kinds of tools to make government more effective and accountable, while the laggards are poor, smaller communities that are wallowing in [digital] inefficiency and falling further behind," he said.

Those differences may soon unfold in Delaware, where proposed legislation would require all districts to post audio files of their school board meetings online within seven days. Some districts have expressed concern to local news media that they would not have the resources needed to execute such a policy.

Still, many observers say the public's expectation for government information and transparency continues to expand. When it comes to schools, the public is now desiring information on a wide range of matters, including budget figures and teacher evaluations.

Things are quickly changing as a younger generation, well accustomed to ubiquitous technology, enters the workforce and government, said Mr. LoMonte.

"There is no reason today, and certainly no excuse 15 years from now, that every school board and police department won't have records uploaded to the Internet the moment they are finished," he said. "We are waiting and ready for Google government, where we see everything in real time."

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