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Witt’s missing emails point to possible flaws in Jeffco policy, state open records laws

PHOTO: Courtesy: Witt for Jeffco Public Schools
Jeffco Public Schools board president Ken Witt

Call it “the case of Ken Witt’s disappearing emails.”

Jefferson County school board president Witt has no official record of district-related messages that he sent or received from a private email address during the last half of September, a time when the suburban county was embroiled in a heated debate about how teachers should be paid and how U.S. history should be taught.

But a Chalkbeat investigation found several instances of official business that Witt conducted during that time using that email address.

The discrepancy was discovered after Chalkbeat submitted an open records request asking for Witt’s emails from Sept. 15 through Sept. 30 and was told by district officials and board lawyer Brad Miller that there were none from his private account.

Additionally, Chalkbeat has learned Jeffco Public Schools might not be in compliance with state open records laws because it has no explicit policy for how its employees should maintain digital records, such as email.

That no records of email correspondence discussing school business exist in Witt’s private email account raises questions about the school board president’s commitment to transparency, a value to which he has repeatedly expressed his dedication.

In total, Chalkbeat has identified five email conversations pertaining to Jeffco business that Witt participated in through his private account but that were not included in the response to the records request. It’s unclear if more official emails were exchanged during that time that should have been issued to our request.

For example, Witt has no official record, according to the results of the records request filed by Chalkbeat, of an email he received at 8:20 p.m., Sept. 20 from a constituent encouraging him and board member Julie Williams to “keep up the good and hard work.”

Nor did Chalkbeat’s request turn up an email Witt sent his fellow board members from his private account at 9:06 a.m., on Sept. 16, asking how members of the board’s advisory committee is appointed. (Witt later forwarded that email to his colleagues from his Jeffco account.)

The request also failed to yield a copy of an email sent by one of Witt’s major campaign supporters discussing how to refocus the board on achievement goals and not on a controversial proposal to establish a curriculum review committee, even though Sheila Atwell, executive director of Jeffco Students First, told us she sent such correspondence.

“I’ve been emailing with him,” Atwell told Chalkbeat last month.

(Atwell, on Friday, told Chalkbeat she does not recall either that statement or emailing Witt during that time period. Atwell was unable to immediately review her email because she was on vacation with her family in Florida.)

And finally, the request should have yielded several exchanges with a Chalkbeat reporter discussing the future of an advanced history class offered by Jeffco Public Schools.

But Witt’s lawyer, Brad Miller, told the Jeffco official fulfilling Chalkbeat’s open records request that the board president — who has faced criticism for obscuring the board’s operations from public view — has no emails in his private accounts discussing the public’s business between Sept. 15 and Sept. 30.

“Frankly, I don’t recall what your request included,” Miller told a Chalkbeat reporter when he was asked why an email exchange with a journalist might not be disclosed as part of a Colorado Open Records Act request, or CORA. “We’ve had dozens upon dozens of requests. I’ve found Ken to be very diligent to respond every time I can tell.”

Any written correspondence to conduct public business sent or received by an elected official in Colorado, regardless of its medium or whether the device used is personal or state property, is subject to the state’s open records laws, a fact Miller said all board members know.

“I have advised the board they have an equal obligation [to disclose emails] contained in personal accounts as it pertains to district business,” Miller said Thursday by phone. “I’ve made it very clear with all five, they don’t have an excuse or an expectation of privacy.”

Witt did not return repeated requests for comment. He also declined to discuss our investigation in person at Thursday’s board meeting.

It is unclear why Witt did not turn over the email conversations Chalkbeat learned about or obtained, or if they still exist on his personal email server.

Witt’s response to Chalkbeat’s request points to what experts say is a critical flaw in the state’s open records laws: There are no statewide guidelines that dictate how an elected official is to maintain public correspondence using personal email accounts.

“It could be that the [district’s] policy allows them to delete these emails very quickly,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “But it doesn’t seem very transparent.”

Witt should be following Jeffco Public School’s policy on record-keeping, said Steve Zansberg, a lawyer for the Colorado Press Association.

Witt’s response also raises questions around whether he’s fulfilling his campaign promise of transparency.

Witt, Williams, and fellow board member John Newkirk, who make up the board’s majority, ran on a platform of transparency. And in an extensive interview with Chalkbeat earlier this year, Witt used the word “transparency” more than half a dozen times.

“We have worked very hard with this board to increase transparency and to increase dialogue,” Witt said in February.

Roberts argues that if an elected official truly believes in transparency, he or she shouldn’t be conducting public business outside of official channels.

“If a public official says they’re all about transparency, why are they conducting the public’s business on a private email account in the first place?” he said. “And why are [the emails] not available for the public to review for at least some reasonable time period?”

As part of its investigation, Chalkbeat asked for all emails sent or received by Witt and fellow board members Julie Williams and Lesley Dahlkemper from both their official Jeffco Public Schools account and their private email addresses between Sept. 15 and Sept. 30.

In response, the district provided hundreds of emails sent to and received by the three board members at their official Jeffco schools account. Miller also released dozens of district-related emails — that included notes from constituents, the media, and researchers — from Williams’ private account.

No emails from Dahlkemper’s personal email address were originally provided to Chalkbeat, either.

After receiving the open records request, forwarded to her from Miller, Dahlkemper scanned her personal email account for what she thought was considered “board business,” she said during an interview.

“When I think of board business, I think of conversations with other board members, about a vote or an issue,” she said.

When given other examples of what might constitute as a public document, including conversations with constituents, conducting research, or discussing political strategy with personal advisers, Dahlkemper revisited her email box and released to Chalkbeat five emails including a notice from Facebook that she had been tagged in a status update about school business and a newsletter from a Jeffco parent.

The law
Colorado law requires government agencies to establish a policy regarding digital records. The statue, 24-72-203(1)(b) reads, in part, “Where public records are kept only in miniaturized or digital form, whether on magnetic or optical disks, tapes, microfilm, microfiche, or otherwise, the official custodian shall: (I) Adopt a policy regarding the retention, archiving, and destruction of such records.”Here’s Poudre Valley’s policy, Denver’s policy,  and the Colorado Association of School Boards authored a generic policy members can adopt.

According to lawyers Chalkbeat consulted, Colorado law requires government agencies to adopt policies regarding the retention, archiving, and destruction of digital records, including emails. But the statute provides no further guidance on what those policies should be.

The state’s archive department does provided optional guidelines to different government bodies on how long to keep documents that agencies can adopt. For example, school districts should keep routine correspondence, including email, for two years.

Only about a third of the state’s school district’s have adopted the state’s guidance. Jeffco is not one of them.

Jeffco does have some written record-keeping policies, including for personnel and student files.

But the district does not have a written policy directing staff or its board when to delete emails, said district spokeswoman Melissa Reeves. And Miller said he’s never provided counsel to any of the five board members about how to either retain or destroy emails.

Kristin Edgar, outside counsel for Jeffco Public Schools, said that while she is not familiar with all of the policies Jeffco does or does not have, she believes the district is in accordance with the law regarding how the district maintains, releases, and destroys digital records — like email — because some of the district’s records are not digital.

Zansberg said Edgar’s position is “laughable.”

The district has been without a general counsel for nearly a year.

This lack of clarity and statewide expectations has created a de facto patchwork of policies, Roberts said.

“The retention issue is problematic,” Roberts said. “There doesn’t seem to be a whole lot in the law, which I think is unfortunate. There needs to be some kind of system for retaining these records — whatever that is.”

Roberts said he hopes the state’s legislature takes up the issue of records — especially electronic correspondence — retention.

The state’s archive department is working to recruit more school districts and other government agencies to adopt their guidelines, said Sabrina D’Agosta, a spokeswoman for the department.

“We’re very interested in getting as many government entities to adopt our guidelines,” she said. “It creates a solid standards from one entity to the next.”

Shawna Fritzler, a Jeffco Public Schools parent and critic of the board majority that Witt leads, said she hopes the board considers adopting the state’s archivists guidelines and complies with the law.

“You want to be more transparent than less transparent,” she said. “Clearly there are a lot of us in the district screaming about this — and we can’t get them to take it seriously.”

Witt’s disappearing emails

These are a few of the emails Chalkbeat learned about that were either sent by or received by Ken Witt via his private email account. He did not provide these documents to Chalkbeat. 

Decision day

Unity prevails: Jeffco incumbents easily beat back challengers

PHOTO: Nicholas Garcia
Meredith Van Deman signs the back of her 2014 mail-in ballot outside the Columbine Library in Littleton before turning it in.

The status quo has held in Jeffco Public Schools.

Two incumbents facing opposition easily defeated two challengers, ensuring that the governing board of the state’s second largest school district will remain united 5-0.

In District 1, incumbent Brad Rupert won by 20 percentage points over against Matt Van Gieson, a parent and former president of the parent teacher organization at a Jeffco charter school, Golden View Classical Academy.

In District 2, incumbent Susan Harmon claimed a similar margin over Erica Shields, a conservative Jeffco parent.

Current board president Ron Mitchell ran unopposed. The other two seats are not up for a vote this election.

The current board, supported in large part by the teachers union, was elected in 2015. That election, voters recalled three conservative board members and voted in five new members who have since hired a new superintendent, signed an extended contract with the teachers union, given some pay raises and voted to close an elementary school.

The school board incumbents raised considerably more money than the challengers, including thousands of dollars from the teachers union.

 

Keeping the peace

Jeffco voters to decide whether school board will remain united or include dissenting voices

Students at Edgewater Elementary School in Jefferson County work on iPads during class.

With little controversy, no national media attention and control of the school board not at stake, this fall’s school board race in Jefferson County has centered on whether a board that is consistently united could use a dissenting voice.

Three of the five board of education seats are up for grabs, but only two of the incumbents have challengers — a single one in each race.

A win by the two challengers, both conservatives who oppose much of what the current board has done, would not change many of the votes or direction of the school district, but it could change the conversations. Some voters now say they are weighing whether to vote to keep the stability of the current board, which often vote unanimously, or whether more diversity of thought is needed. One question is whether different voices would repeat the drama of the previous, split, school board that saw conservative members ousted in a recall election.

“Everyone in Jeffco wants us to commit to maintaining civility,” said Ron Mitchell, the board president, who is the member running unopposed. “I don’t see that changing.”

Some who support the current board say even one dissenting voice could slow down progress, distract from the current work or create doubt in voters if the district asks for a tax increase soon.

“I believe that even one or two detractors on the board will stagnate progress,” said Jeffco parent Kelly Johnson, who helped recall previous board members. “Our district has already paid too much in lost opportunities with the chaos of the past.”

Erica Shields and Matt Van Gieson, the two challengers, say they want to work with the current board.

“We are not there to disrupt,” Shields said. “We are not about that. We don’t want to return to the old type of board mentality. We want to make things better.”

The incumbents have a huge money advantage.

Those current members running for re-election — Mitchell, Susan Harmon and Brad Rupert — supported by the teachers union, have raised large amounts of money as of the last finance reports filed two weeks ago. The two in the contested race each had more than $40,000 raised, compared to about $3,200 raised by Shields and $2,300 raised by Van Gieson.

Mailers and yard signs for the incumbents advocate for all three together.

Since their election two years ago, the current board members have hired a new superintendent in Jason Glass, approved an extended contract with teachers union, given teachers a pay raise and advocated for better school funding.

Opponents Shields and Van Gieson say, recent events pushed them to consider running for school board independently, but now both also are running together, asking for voters to support them as a team.

Shields said she is running after realizing the work she does as a volunteer helping homeless people doesn’t address the root causes of the problem, which she now sees as a lack of good education opportunities for everyone.

Van Gieson, said that he hears too often from people who feel they no longer have a voice on the current school board. He said he official decided he wanted to run after a spring board meeting in which several community members asked the board not to close their schools.

School closures have not been a major issue for voters, most say, because Glass has said he would pause any school closure recommendations until district officials can create a better system for evaluating if a school should close.

Instead, campaign messages and questions at forums have centered on typical political divisions such the sources of campaign contributions, the support of teachers and positions on charter schools or private school vouchers.

“Sometimes I think there are issues created by others that are really just divisive wedges,” Mitchell said. “For example, charter schools. Every year we seem to try to drive the charter school wedge into the election.”

Mitchell said the current board is not against charters schools. In previous board discussions, Jeffco board members have expressed a desire for more authority to decide if a charter application is good enough for Jeffco, instead of just legally meeting its requirements to open.

Van Gieson, who is on the parent-teacher organization of a charter school in Jeffco, said he thinks charter schools are treated differently in Jeffco, and if elected, wants to help all schools have similar accountability.

“Where a charter school has to come in front of the board and answer for lower achievement, it would be beneficial to do the same things for neighborhood schools,” Van Gieson said.

The campaign also has included an increased focused on equity.

Joel Newton, founder of the local nonprofit Edgewater Collective, joined Jefferson County Association for Gifted Children to hosted, for the first time, a forum just for discussions on the needs of diverse learners. In previous years, the Jefferson County Association for Gifted Children has hosted a similar forum alone.

“I don’t think that was part of the conversation in the past,” Newton said. “The interesting thing now is both sides have a piece of the puzzle. One side talks about school choice…the other side makes the argument that poverty is the real issue.”

Glass, the superintendent, has emphasized the importance of the school district working with community partners to tackle poverty and other out-of-school factors that impact learning.

Tony Leffert, a Jeffco parent who lives in Golden and supports the new superintendent, said the issue on his mind is keeping the current board on track. He said adding a dissenting voice to the board, could set up a possibility for the minority opinion to take control of the board in two years.

“Given the last school board election that we had, every school board election is important in Jeffco going forward,” Leffert said. “We do not want a repeat of that again.”

Clarification: This story has been updated to note that a forum on the needs of diverse learners, which was hosted for the first time with the Edgewater Collective, has been hosted in the past by Jefferson County Association for Gifted Children.