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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. 

Idea pitch

Despite concerns, Jeffco school board agrees to spend $1 million to start funding school innovations

Students at Lumberg Elementary School in Jeffco Public Schools work on their assigned iPads during a class project. (Photo by Nicholas Garcia, Chalkbeat)

Jeffco school employees can apply for a piece of a $1 million fund that will pay for an innovative idea for improving education in the district.

The school board for Jeffco Public Schools on Thursday approved shifting $1 million from the district’s rainy day fund to an innovation pool that will be used to provide grants to launch the new ideas.

The district will be open for applications as soon as Friday.

The board had reservations about the plan, which was proposed by the new schools superintendent, Jason Glass, in November, as part of a discussion about ways to encourage innovation and choice in the district. The board was concerned about how quickly the process was set to start, whether there was better use of the money, and how they might play a role in the process.

Glass conceded that the idea was an experiment and that pushing ahead so quickly might create some initial problems.

“This effort is going to be imperfect because it’s the first time that we’ve done it and we don’t really know how it’s going to turn out,” Glass said. “There are going to be problems and there are going to be things we learn from this. It’s sort of a micro experiment. We’re going to learn a lot about how to do this.”

During the November discussion, Glass had suggested one use for the innovation money: a new arts school to open in the fall to attract students to the district. He said that the money could also be used to help start up other choice schools. School board members balked, saying they were concerned that a new arts school would compete with existing arts programs in Jeffco schools. The board, which is supported by the teachers union, has been reluctant to open additional choice schools in the district, instead throwing most of their support behind the district-run schools.

Board members also expressed concerns about what they said was a rushed process for starting the fund.

The plan calls for teachers, school leaders and other district employees to apply for the money by pitching their idea and explaining its benefit to education in the district. A committee will then consider the proposals and recommend those that should be funded out of the $1 million.

Board members said they felt it was too soon to start the application process on Friday. They also questioned why the money could not also help existing district programs.

“I think a great deal of innovation is happening,” said board member Amanda Stevens.

Some board members also suggested that one of them should serve on the committee, at least to monitor the process. But Glass was adamant.

“Do you want me to run the district and be the superintendent or not?” Glass asked the board. “I can set this up and execute it, but what you’re talking about is really stepping over into management, so I caution you about that.”

Glass later said he might be open to finding another way for board members to be involved as observers, but the board president, Ron Mitchell, said he would rather have the superintendent provide thorough reports about the process. The discussion is expected to resume at a later time.

Stevens said many of the board’s questions about details and the kind of ideas that will come forth will, presumably, be answered as the process unfolds.

“Trying is the only way we get any of that information,” Stevens said.

year in review

A new superintendent and a new vision for Jeffco schools in 2017

PHOTO: Denver Post file

Jeffco Public Schools started the year making big news when its board of education decided to open a search for a new superintendent. Former Superintendent Dan McMinimee left the role in March before a new leader had been hired.

Just before he left, McMinimee proposed to the Jeffco school board a plan to close five schools as a way to save money so the district could raise staff salaries as the board had directed.

The schools recommended for closure served a disproportionate number of low-income students and housed several centers for students with special needs. They also included a high-performing school. Officials said they did not consider academic achievement in selecting the schools.

In addition to closing five schools, the proposal suggested cuts to other programs, including one for helping students develop social and emotional skills and one that helped students struggling with reading.

But in a last-minute move, the superintendent altered the proposal during a school board meeting just before the board was set to vote. In the end, the board voted to close one elementary school and spare four others as well as the programs.

A few months later, the school board selected Jason Glass as the district’s new superintendent. Glass, who was a superintendent in Eagle County at the time, had a history as a reformer helping create pay-for-performance systems. But he changed his support of some reforms after learning about education systems around the world.

One of the first changes Glass announced in Jeffco was a timeout on any school closure recommendations while district officials review and create a new process for deciding if school closures are necessary and if so, which schools to close.

Glass also published his vision for Jeffco, which will have the district take a closer look at inequities and outside factors that affect students, such as poverty. At least one school was already experimenting with that work by moving to a community school model. And the district was already considering outside factors as they were rolling out restorative practices, which change how school leaders respond to student discipline issues.

More recently, Glass asked the board, which will remain the same after the November election, to consider an expansion of school choice in Jeffco with proposals to create new options schools such as an arts school to help attract new students to the district. District officials may release more information about that plan and other changes, like a study on high school start times, in the coming months.