By Del Stover
3/18/03 -- A school board member in Virginia Beach, Va., recently learned the hard way that e-mail is not as private as you might think.
Her e-mail to the superintendent, in which she questioned the school district's recruitment of teachers from the Philippines, ended up in the hands of the local chapter of the National Federation of Filipino American Associations. That group took offense with a reported remark that such recruits "do not speak or write English clearly."
Claiming her statement was taken out of context, the board member apologized -- and the matter was put to rest. But legal experts and school board veterans say too many board members do not fully grasp the legal and political issues surrounding e-mail. And that could one day come back to haunt them.
"People need to wake up on this one," says R. Craig Wood, a school board attorney in Virginia. "A lot of school board members do not appreciate the implications of e-mail."
That advice comes too late for the Oshkosh, Wis., school board. Last summer, board members were forced to spend hours downloading old e-mails from personal computers and turning them over to the local newspaper, which had filed a request under the state's open records law for correspondence concerning a controversial school boundary change.
"We apparently were not careful enough about the open records law," says board President Karen Bowen. "We were thinking that the open records law did not apply to constituent mail."
The school board got off lucky, some legal analysts suggest. In a more confrontational situation, board members might not have been trusted to turn over their documents -- and serious legal repercussions could have followed.
To avoid future problems, Oshkosh officials set up a system where future board correspondence is automatically archived in the school computer network, along with other public records.
That's a sound policy, says NSBA staff attorney Lisa Soronen. Although open records laws vary by state, most laws require the retention of public records for years -- or even permanently. Using an automated storage process greatly lowers the risk that a school board will run afoul of the law.
The issue of e-mail has generated its share of debate within the Wisconsin Association of School Boards (WASB), which appointed an e-governance committee to investigate how technology could improve school board effectiveness.
A resolution to ask the state legislature to exempt school board e-mail from the state open records law sparked media criticism and was handily defeated by the association's delegate assembly, says WASB Executive Director Ken Cole.
That decision made sense given public concerns about open government, he says. But the unfortunate result is that the efficient communications that e-mail makes available is running up against fears that board members' e-mail will end up on the front page of the local newspaper.
Meanwhile, an entirely different issue has put the Howard County, Md., school board on the hot seat. The board is defending itself in court against charges that it violated the state's open meetings law, partly through its alleged conduct of official business by e-mail.
District officials deny the allegations. But their legal battle highlights another potential risk that surrounds the use of e-mail, say legal analysts. Board members must take great care not to engage in deliberative activity when communicating with one another.
Many board members are aware of the risks if a sizable contingent of the board engages in an online discussion. But Richard G. Barrows, a school board attorney in Elko, Nev., points out that board members should take note of the details of their state's law.
In Nevada, for example, a school board cannot engage in what's called a "serial meeting," which can happen if one board member debates another, who in turn communicates with a third board member to influence an official decision, he says.
A school board is not likely to get into trouble for one-way communications, such as the board president sending out an agenda online, Soronen says. But when board members start sending e-mails back and forth about an issue, "you need to be cautious."
In Oshkosh, board members have decided to play it safe, Bowen says. "We don't discuss anything on e-mail anymore."
That's a hard line to take. But Wood says school boards would be wise to re-examine their district's computer use policy and make certain their conduct of online school business is clearly defined to satisfy state laws. "School boards need to review their policies," he says. "There are penalties to violating these laws."