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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. 

task force

Jeffco takes collaborative approach as it considers later school start times

File photo of Wheat Ridge High School students. (Photo by Nic Garcia/Chalkbeat)

The Jeffco school district is weighing pushing back start times at its middle and high schools, and the community task force set up to offer recommendations is asking for public input.

Nearby school districts, such as those in Cherry Creek and Greeley, have rolled out later start times, and Jeffco — the second largest school district in Colorado — in December announced its decision to study the issue.

Thompson and Brighton’s 27J school districts are pushing back start times at their secondary schools this fall.

The 50-person Jeffco task force has until January to present their recommendations to the district.

Supporters of the idea to start the school day later cite research showing that teenagers benefit from sleeping in and often do better in school as a result.

Jeffco is considering changing start times after parents and community members began pressing superintendent Jason Glass to look at the issue. Middle and high schools in the Jeffco district currently start at around 7:30 a.m.

The task force is inviting community members to offer their feedback this summer on the group’s website, its Facebook page, or the district’s form, and to come to its meetings in the fall.

Katie Winner, a Jeffco parent of two and one of three chairs of the start times task force, said she’s excited about how collaborative the work is this year.

“It’s a little shocking,” Winner said. “It’s really hard to convey to people that Jeffco schools wants your feedback. But I can say [definitively], I don’t believe this is a waste of time.”

The task force is currently split into three committees focusing on reviewing research on school start times, considering outcomes in other districts that have changed start times, and gathering community input. The group as a whole will also consider how schedule changes could affect transportation, sports and other after school activities, student employment, and district budgets.

Members of the task force are not appointed by the district, as has been typical in district decision-making in years past. Instead, as a way to try to generate the most community engagement, everyone who expressed interest was accepted into the group. Meetings are open to the public, and people can still join the task force.

“These groups are short-term work groups, not school board advisory committees. They are targeting some current issues that our families are interested in,” said Diana Wilson, the district’s chief communications officer. “Since the topics likely have a broad range of perspectives, gathering people that (hopefully) represent those perspectives to look at options seems like a good way to find some solutions or ideas for positive/constructive changes.”

How such a large group will reach a consensus remains to be seen. Winner knows the prospect could appear daunting, but “it’s actually a challenge to the group to say: be inclusive.”

For now the group is seeking recommendations that won’t require the district to spend more money. But Winner said the group will keep a close eye on potential tax measures that could give the district new funds after November. If some measure were to pass, it could give the group more flexibility in its recommendations.

first shot

Jeffco district giving charter school district status and district building, while letting it maintain autonomy

A 2013 image from Free Horizon Montessori Charter School in Golden. (Denver Post file).

In a rare deal, a Jeffco charter school will become a district-run school but keep much of its independence — and also secure a long-sought campus.

For its part, the Jeffco school district wins a stable school in a Golden neighborhood that lost its own elementary school last year.

Free Horizon Montessori in the Jeffco district will still be run by its own board and is requesting the same waivers from state education law that it has now. But instead of getting them by being a charter school, it will become a district-run innovation school. Innovation schools, which are popular in Denver and several other districts, can win waivers from certain state and district rules. Those waivers grant them more sovereignty than traditional district-run schools. Free Horizon will be the first school in Jeffco Public Schools to earn the status.

Jeffco Superintendent Jason Glass called it a “win-win-win.”

District officials had been considering what to do with the building that was emptied this year after the school board voted to close Pleasant View Elementary in 2017. Officials said feedback showed the community favored keeping the building as a school.

The charter school, now located about a mile away from the school building, just south of U.S. Highway 6, was looking for a new location. In its current space, configured more for an office than a school, the charter would have had to spend about $7 million for the changes it wanted.

Under the plan, the charter will get a rent-free campus at Pleasant View, which will still be owned and managed by the district. The community will again have a school in the building — one which officials believe will have more stable enrollment than the elementary school the district closed — and the plan would give Pleasant View-area students a priority at the charter school, if they choose to go there.

Finding a place to house a school is one of the most common challenges facing charter schools in the metro area, especially as market rates go up. Jeffco has no policy on how to choose to lease, give, or sell a district building to a charter school, but it has done so a few times. Last year, for instance, the school board reluctantly approved a lease for Doral Academy to temporarily move into a district building.

Glass said that after seeing how Free Horizon works out, he’d consider a more consistent way of sharing available district space with charter schools, provided they accept all Jeffco students equitably and serve the community’s interests.

“Free Horizon certainly meets the bill,” Glass said. “This is sort of our first shot at this.”

Free Horizon Montessori, a preschool through eighth grade school, has about 420 students, including 21.6 percent who qualify for subsidized lunches, a measure of poverty. Currently, about 20 students from the Pleasant View neighborhood attend Free Horizon.

Miera Nagy, the charter’s director of finance and advancement, said after the move, the school will likely shrink its preschool, which has 75 students, to be able to fit in the building.

When arguing to close Pleasant View, Jeffco officials had cited necessary and costly building repairs. Now, they say it was decreasing enrollment that was the primary reason that made the school unsustainable.

In talking about Free Horizon’s plans, Nagy said, the school building won’t allow the school space to grow much. Instead, the school wanted the Pleasant View campus for “dedicated space for our specials.” As an example she said, the school’s physical education class is located in a room without a field or things like basketball hoops.

“This expands those services and those programs,” Nagy said.

The school board approved the school’s proposed innovation plan last week and it now heads to the State Board of Education. Jeffco officials, meanwhile, are working to delineate in a new document what responsibilities their school board will have, and which ones will be left to the school’s board.

Glass is seeking to keep the school intact.

“What he asked us to do was find a way that we could do this without designing any changes to the program that Free Horizon has,” said Tim Matlick, Jeffco’s achievement director of charter schools at a board meeting last week. “Free Horizon has a very successful program.”

The charter school meets state academic growth goals and falls slightly short of standards for achievement. According to state test results from 2016-17, 41.7 percent of the charter’s third graders met or exceeded standards for language arts. That’s slightly lower than the district’s average of 45.4 percent for the same group.

As a charter school, Free Horizon hires custodial services and buys school lunches, but as a district-run innovation school, Jeffco will provide those services. In exchange, the school will get less money per student than it does now as a charter school.

“Some of those things will actually be under the district’s umbrella, allowing the team at Free Horizon to really focus on the educational process,” Matlick said

The plan will also include a way for the district or the school to terminate the agreement by allowing the school to revert to a charter school if things don’t go well.

“We know that we’re going to learn more as we continue to go down the path,” Nagy said. “We’re going to be figuring this out together.”