David Wilson: E-mails and the rule of law

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The DeVincentis e-mails

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  • — As a Colorado attorney since 1986, I remain concerned how and why the DeVincentis e-mails were obtained. Regardless of their content, their disclosure presents serious questions under the law that are getting lost in the discussion over the Board's future.

    The e-mails are not automatically "public records" under the Open Records Act. The Colorado Supreme Court addressed this issue in a 2005 case involving e-mails sent from a county computer between the Arapahoe County Clerk and his county-employed girlfriend. As the court stated, the "possession, creation, or receipt of an e-mail record by a public... employee is not dispositive... The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer[s]... is insufficient to make the message a 'public record.'" Instead, the court focused on the e-mails' content, holding that if they did not directly address the performance of official duties or the expenditure of public funds, they were private, not "public records," even if computer use for personal purposes violated county policy.

    Here, the e-mails are not "public records" just because they were written on a District computer or because Dr. D acknowledged that they "may" be subject to disclosure. Rather, if an Open Records Act request had been made, they would need to be evaluated based on the Supreme Court's decision, under which many, if not all, appear to be private, not "open" records.

    Statutes, including the federal Electronic Communications Privacy Act (18 U.S.C. 2701-2710) and Colorado Revised Statutes 18-5.5-102, protect e-mails from unauthorized access and use. The Colorado Constitution and case law protect public employees from invasions of privacy.

    E-mails stored on a District computer belong to the District, not to any employee or District official. Consistent with the law, District policy presumably does not allow anyone to access an employee's e-mail at any time for any reason, but only permits access and use for official government purposes. Here, the e-mails appear to have been obtained, at least in part, for the private purpose of attacking Dr. D in retaliation for his views as a School Board member.

    Even if an employee had no reasonable expectation of privacy that would preclude the District from disclosing e-mails for an official purpose, it is an entirely different question whether one should have a reasonable expectation that a co-employee or District official would not access or disclose e-mails for a personal purpose. When he wrote them, Dr. D was a district employee, not an elected official. Like every other district employee, he had a reasonable expectation under the law that his communications would not be disclosed or used except as legally permitted (e.g., court order; official investigation, etc.).

    Even with their source revealed, big questions remain: (1) why is the district keeping old e-mails from a retired employee; (2) is this practice applied uniformly or was Dr. D singled out; (3) who searched for the e-mails, when, why, with whose knowledge, and at whose direction; and (4) who else was involved in deciding to disclose the e-mails now.

    Alleged "civil rights" violations were a focus of last November's election in Steamboat, and Ritter won the Governor's race, in part, because a Beauprez supporter used a government computer without permission to dig up dirt on Ritter. Shouldn't we at least be interested in evaluating whether laws were broken and rights violated here? Although a legitimate explanation may exist for what happened, a claim that the ends justify the means is not one.

    David Wilson is an attorney with the Denver firm of Holme Roberts and Owen LLP. He lives in Steamboat Springs.

    Comments

    hangchili 7 years, 7 months ago

    I appreciate the commentary from Mr. Wilson. Rather than celebrating his imminent annointment to sainthood, it sounds like Mr. Gleason and his accomplices might want to be consulting with a lawyer. From my reading of the commentary, it appears a crime may well have been committed. I also wonder about the Pilot's accountability in a legal sense for publishing the emails.

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    jerry carlton 7 years, 8 months ago

    I know David Wilson personally and like him very much, but he has on his lawyer hat in this letter and most Americans do not care for lawyer hats.

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    linus 7 years, 8 months ago

    Finally some very relevant and interesting information that we've been needing on this subject. Thank you, Mr. Wilson for providing some expertise. Looks like the Board has no choice but to be doing an investigation.

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    mom 7 years, 8 months ago

    Don't know the guy, but love the fact that he is above smear campaigns! And thanks to those that see beyond slander. As far as the school board...they rock! The only people in disagreement seem to be the OLD members. You go board!

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    Matthew Stoddard 7 years, 8 months ago

    JLC- Good reason to dispute his commentary...because he's wearing his lawyer hat. Wow. Just....wow. That is worse than everyone who wanted more information ever came out with.

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    linus 7 years, 8 months ago

    kielbasa matt - isn't that arapahoe county case the one you referenced a while back?

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    Matthew Stoddard 7 years, 8 months ago

    Linus- It's the exact case I quoted before, but without knowing the exact policy our BOE has in writing, it's hard to say if it would apply in this case. I've checked the School District's site, and I haven't found anything pertaining to inside policy or even what hoops to go thru to request things of this matter.

    Still, it's interesting that people without the objective perspective on this situation can only care about one side of the issue. They care about the content of the emails but not the secrecy by a Board member in knowing about those emails or sitting on them for 2 years. Pat Gleason said he didn't bring them forward due to D's retirement and just coming off a difficult battle with Simms. That's very noble, but with D then running for the BOE, I'm really surprised that Gleason didn't release those emails then.

    I have no problem with Gleason having access to the emails; that was his right as a BOE member. I just find the timing of releasing them suspect. Of course, the same would have been said by most people had he released them during the campaign period. At least releasing them then would have curtailed this whole thing from the get-go. Hindsight is 20/20, though. Still, he sat on those emails for 2 years...hiding them from all the people on this forum (and elsewhere) that are up in arms over being fooled by D. These people are putting Gleason up on a pedestal for allowing this to even get this far.

    He had them all this time and could have had anyone bring them forward on his behalf without having to quit the Board, per Distric Policy. He didn't. To a person with no prior knowledge, this would look like he quit the Board due to not being in the majority vote, and using the emails to get rid of one of the current Board members he disagreed with. It would look politically driven, and it is. He didn't agree with the politics D played with Simms, so he played the same game, but with different machinations.

    I did send an email pertaining to receiving Jim Gill's voting record and any emails during his tenure on the Education Fund Board. Bad example- his was the first name that stuck in my mind, but he didn't technically use a school computer in his capacity. I guess I'll have to try a different person to conduct this experiment. I'm going on vacation next week, though, so not sure how I can do this all in a timely matter. Maybe, I'll ask for Simm's emails. I'm pretty sure the Super's are using school computers. I wonder if her emails tell us anything important during this time period.

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    linus 7 years, 8 months ago

    Interesting. I would think that whether Gleason had a right to access the e-mails is one question, but releasing them to the newspaper another thing entirely. Whatever the legal answers, it was in my opinion an incredibly low move. And if old board members knew, why wasn't Denise or anyone on the new board told? He just blindsided them to try to get rid of Dr. D.

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    Matthew Stoddard 7 years, 8 months ago

    Good questions, Linus. Too bad people on this forum that are "directly affected" don't care about that part. They see that wrong was done on one side. I see the possibility for wrong being done by all sides in this matter. Then again, as I have stated, I have no personal interest in the matter. I just care that fair is fair, and gets played that way.

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    jerry carlton 7 years, 8 months ago

    keilbasa-You had me fooled. I thought you were pro Dr.D all the way, although you have said that you think the recall will pass. I should have expanded my lawyer hat comment. What I was referring to is that the United States has more lawyers per capita than any country in the world. We are a very "sue " happy society . I did not dispute David's commentary. David is 10 times my intellectial superior and I would never consider debating him. If a criminal law has been broken then is it not the police department and the district attorney that should be investigating it? My property taxes have gone up 82% between 1999 and 2006. If this school board buys out Donna Howell's contract to the tune of some $240,000 they will be going up again.

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    justice4all 7 years, 7 months ago

    Now that we know who released the private e- mails, for whatever the reason, maybe we should check his e-mail and release all of his to the public.

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    reallocal 7 years, 7 months ago

    Except his probably aren't on a public computer, written on public time from a public account, or nearly as interesting. Mr. Wilson, I find it hard to believe that you can imply that these emails do not "directly address the performance of official duties or the expenditure of public funds." To be sure, if DeVincentis had kept his comments to Simms, it would have been private. Instead he lashed out at Howell, a current employee of the district. And he described the ways that he spent the district's money to drive Simms out of a job. Seems pretty relevant to me. Secondly, you state, "E-mails stored on a District computer belong to the District," and as taxpayers, the district belongs to us, the taxpayers, not the BOE. Finally, according to you, the court decided that just because a public computer and public time were used, it does not automatically mean it is a public record. Does the fact that a public email account was used factor in this situation? It would seem to me this would be more relevant than when and where he wrote the emails.

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    David Wilson 7 years, 7 months ago

    Thanks sincerely for your interest. For what it's worth, the e-mails between Tracy Baker and his girlfriend also were written from a "public" computer; Arapahoe County had a policy that e-mails may be disclosed; and the newspapers argued that the e-mails were related to Baker's performance because he wrote them at work and were relevant to a subordinate's harassment complaint against him. In sum, for better or worse, the position you've articulated is essentially the same position that the Colorado Supreme Court rejected. The case is The Denver Publishing Co. v. The Board of Commissioners, Arapahoe County, 121 P.3d 190 (Colo. 2005).

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    reallocal 7 years, 7 months ago

    But my question is: was a publically owned email address used in the cited case? I don't really care what computer he wrote them on or when he wrote them, but using a publically owned email address implies that the person is representing the entity in some official or professsional aspect.

    Also, how is teh email explaining DeVincentis' use of surveys to drive Simms out not relevant to "official duties or the expenditure of public funds?" In my understanding, the surveys are addressed in district policy (therefore "directly address the performance of official duties")and were, presumably, administered using district owned materials and by a district employee who was on the clock (therefore "the expenditure of public funds"). I have a hard time believing that these emails really were, as you state, not relevant and considered private.

    Finally, thank you for going out on a limb and publically offering a free opinion. You're the first lawyer I've ever heard of that would do such a thing...

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    David Wilson 7 years, 7 months ago

    You're welcome. To the best of my knowledge, both Baker and his girlfriend also used (1) their school (publicly-sponsored) e-mail addresses; (2) wrote e-mails while they were on the clock; and (3) the e-mails were administered using district-owned equipment. Under the Court's analysis, these facts were insufficient to make the e-mails open records.

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    gwendolyn 7 years, 7 months ago

    "...relate to the performance of public functions or the receipt and public expenditure of public funds..."

    public records definition reviewed...

    http://www.aclu-co.org/docket/200501/Colorado_Supreme_Court_opinion.pdf

    when D indicated he lied through his teeth about Simms to get her hired elsewhere...he may have opened the can of worms on his email in regard to "public" vs. "private"

    the case cited was rather salacious and involved hundreds of sexually explicit emails mixed with business email, an elected official, and sexual harassment/hostile environment issues.

    but, please explain to me how this prevents a full review of the "content" of ALL of D's email for potential "public record" status? It would seem, on the surface, that at least some of his ugly correspondence regarding Simms could indeed be deemed "public record" documents.

    no doubt, this is a complex issue and one that may have windows of opportunity for further expansion/clarification of the laws...

    it would also seem that D would have been better off having an affair and using his computer to write pornographic lust emails to his sexual partner than ever penning his ugly thoughts about Simms....

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