Pitfalls to Avoid in Board Member Electronic Communications

Prepared and presented by: Carol S. Helms and Elena P. Serna

Agenda

• Considerations for all Electronic Communications • Email and Text Messaging • Social Media • Using Technology to Facilitate Meetings • Electronic Records • Recent Decisions • Practical Tips 2

Consider this . . .

• • • • • Confidentiality vs. convenience Compliance (OMA, IPRA, local policy) vs. convenience Quorum vs. one-on-one communication: Communication with one other board member, even if about official school business Professionalism vs. informality: If you would not say “it” in a formal letter or under oath, don’t say “it” via electronic medium.

Permanence vs. perishability: There’s no taking “it” back and no controlling the range or longevity of dissemination and re-dissemination.

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Email and Text Messaging –

p. 1

OMA implications:  “rolling” or “walking” quorum  telephonic or video compliance issues IPRA implications:  If “it” (email/text/twitter/blog/social media post) involves a quorum and is about official school business, then “it” is considered a record, the content of which is subject to IPRA analysis to determine if disclosure is limited by an IPRA exception. 4

OMA Resolution or policy to restrict Board member use of electronic devices during board meetings

– p. 2

Model language :

During a meeting of the board, no member of the board shall communicate with another board member or members or any other person by use of electronic or email methods which are not available for viewing by the general public.

Remember: The intent of the OMA is transparency!

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Public Record –

p. 3

“all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.” NMSA 1978, §14-2-6 E. (Emphasis added) 6

Public Record: Let’s break it down . . .

 regardless of physical form or characteristics email/text/twitter/blog/social media post…  used, created, received, maintained or held by or on behalf of any public body

and

 relate to public business  whether or not the records are required by law to be created or maintained 7

Don’t forget . . .

Tweet This!

Confidentiality Compliance Quorum Professionalism Permanence 8

Technology to facilitate meetings –

p. 4

Requirements to attend a meeting via electronic communication:  Authority of law or policy  Member participating electronically is identifiable when speaking  Participants are able to hear one another at the same time, and  Members of the public are able to hear any board member speaking during the meeting 9

Practice tip for the member or attendee joining telephonically:

Confidentiality! The person joining telephonically or via skype or similar device should note surroundings and ensure that his/her participation in the meeting is private from those in hearing range.

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Electronic records –

p. 4

All documents, regardless of form, that are “maintained or held by or on behalf of any public body and relate to public business” are considered “public record”. NMSA 1978, §14-2-6 (E). 11

Federal Rules of Civil Procedure

• Rule 34 of the FRCP • What is included in ESI?

• Safe Harbor p. 5 12

Record Retention

The records retention schedules may be accessed at www.nmcpr.state.nm.us/records/schedules.htm

.

The State records retention schedules are not particularly user friendly, and the length of retention may vary even within a particular category of records, for example:  1.15.3.119 – Minutes of Meetings, and  1.20.2.101 Student Cumulative Education Record File 13

1.15.3.119 NMAC

1.15.3.119

A.

MINUTES OF MEETINGS:

Program: administrative records

B.

C.

record.

D.

Maintenance system: entity preference Description: records of official proceedings of governing bodies. Information includes agenda, date, place, list of attendees, and a summary of discussion and decisions. Official minutes may also include all informational attachments such as reports, surveys, proposals, studies, and charts distributed to members for discussion and for use in making decisions on agency policy, planning, and administrative matters. Official minutes shall include only those documents and attachments that have been formally introduced as part of a

Retention: (1) Minutes of meetings of boards , commissions, and/or other policy-making bodies, as defined in open meetings Act (10-15-1, NMSA 1978):

permanent

(2)

appraisal and final disposal

(3)

at next meeting but no longer than two years after meeting date

(4) Minutes of meetings of all other bodies : Tapes or recordings of meetings :

five years , then transfer to archives for after minutes have been transcribed and accepted

All other documentation including agenda, agenda package, etc :

after next meeting date but no longer than two years after meeting date [7/13/98; 1.15.3.119 NMAC - Rn, 1 NMAC 3.2.90.11.A119, 10/1/2000; A, 1/6/2002] 14

1.20.2.101 NMAC Student Cumulative Education Record File

D.

(1) etc.: (2) etc.: Retention: Transcript . Cumulative achievement record equivalent for elementary and secondary school including information on school entry, withdrawal, graduation, subjects taken, grades received, high school proficiency exam score

90 years after date of high school graduation or 90 years after student concerned would normally have graduated from high school, whichever applies.

Student health records immunization record, results and recommendations from examinations, screening, treatment, parent or guardian referral record, teachers comments,

10 years after date of last entry or until individual attains age 19, whichever is longer (Item 1.15.8.101, NMAC).

. Record includes but is not limited to health history, (3) Federal program records . Records concerning the participation in programs in which federal grant or subgrant funds were used.:

five years after submission of final expenditure report by NM department of education.

(4) Other student records , including but not limited to registration record, screening evaluation reports, program participation records, remedial program participation record, counselor notes, teacher notes correspondence, transfer ot discharge notice, no-show student records, etc.:

two years after students last attendance.

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Board member use of personal email for board business –

p. 5

In weighing the pros and cons of using your personal email address convenience. instead of a District email address, there appears to be only one pro: The cons on the other hand . . .

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. . .outweigh any convenience –

p. 6

•

School district email systems are generally a unified archive mechanism that safeguards the preservation of

records and facilitates cost- and time-efficient access.

•

The District email system provides a secure system for the preservation of evidence in the event of threatened or actual litigation.

•

Use of the District email system protects a board member’s privacy and eliminates the potential for breach of confidentiality and/or waiver of board

privilege. 17

Practical tips:

 The subject matter, not the medium, determines if communication is subject to IPRA  Emails from or to district computers can be considered records if the content pertains to official district business  Successive emails/texts between/among board members can be considered “rolling quorums” or “walking quorums”  Avoid electronic communications between one another or with the public during board meetings  Minimize text messages unless text is purely personal  No violation if no quorum 18

Thank You

Make 2012-2013 the best year yet!

The information in this handout was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.

Copyright 2012: Walsh, Anderson, Gallegos, Green & Treviño, P.C.

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