Board members L-R: Janell Ward, Dawn Smith, Alan Ward, Jeff Bass, Terry Elmore and Superintendent Tomlin.The Board of Trustees of the Garden Valley School District held a special meeting Tuesday night, to consider personnel matters involving employees and a public officer, among other matters. Because the District has not had a full board for close to six months, many issues have lain fallow. After sitting in executive session for almost 4 hours, the board returned to the open session and Chair Terry Dee Elmore read the following letter to patrons.
October 19, 2010
To the Garden Valley Community:
We are taking this time and using this format to communicate directly to you regarding several issues involving your school district.
First, we want to tell you that we are very pleased to be at full strength, with a five-member board. Over the summer we were hesitant, with only three trustees making major decisions. We now enjoy the benefit of a diverse and full board and look forward to using its collective wisdom and judgment to the benefit of our children, the District and taxpayers.
We know that one of the criticisms of our Board is that we have not publicly resolved or “closed the loop” on some issues before us, and of interest to you. We are renewed in our dedication to fully address and decide issues brought before us, and we will work to resolve each, and to make whatever public statement is allowed by law to indicate an issue has been addressed.
This Board will not allow rumors and innuendos to influence our decisions. Please know that we are restricted in many cases due to legal confidentiality concerns for district personnel and children.
Last June, some members of our faculty and staff filed complaints against Dr. Tomlin. These complaints properly came to the Board, and the Board sought clarification of the issues through the legal counsel of the Idaho School Boards Association attorney, Brian Julian.
All complaints were reviewed by Mr. Julian. He reported his findings to the Board. His review and report concluded that the complaints were “vindictive, without legal substance,” and designed to “cause harm” to Dr. Tomlin. He then reported his findings to the public and media in an open meeting on July 1, 2010.
In that meeting in response to a question, Mr. Julian stated that Dr. Tomlin could share or disclose the complaints as he wished. The Board has accepted the legal findings of its attorney and this matter is closed.
In August, the Idaho Education Association’s regional representative Harry McCarty, filed a complaint with the Board against Dr. Tomlin, for disclosing the complaints.
The Board accepted the letter of complaint and the Clerk sent it to our attorney for evaluation and comment. Mr. Julian has responded with the legal opinion of his firm, as Managing Partner of Anderson, Julian & Hull, LLP. The findings of law and fact in the opinion can be summed up into two basic statements:
1. The Superintendent (or any accused employee) has the absolute statutory right to copy and publish the documents in question and share with whomever he chooses.
2. Identification of the accuser and the complaint received by the Board is a public record open and subject to review and inspection.
The complaint filed by the IEA on behalf of the Garden Valley Education Association is found to be without merit or substantiation. A letter to that effect will be sent to the representatives of the involved parties. This matter is now closed.
We also received several petitions, one or more stating a lack of confidence in the district’s administration, and one or more expressing confidence and support. Please know that we received these and reviewed them, in executive session, but we do not and cannot discuss them in public.
Finally, we are in receipt of written complaints from patrons and those patrons will receive information specifying the actions that are planned. Again, “closing the loop.”
These comments represent the consensus of the Board and will be available to the public, along with the legal opinion of the Board’s attorney regarding disclosure of documents.
This Board asks all district employees and the community to join us in looking forward and not back, and to be respectful and support one another in our District.
We will have no further comments on these issues tonight.
Thank you.
Sincerely,
Terry Dee Elmore
Alan Ward
Janell Ward
Jeff Bass
Dawn Smith
The following is a letter from the Brian K. Julian, of Anderson Julian and Hull LLP, Attorneys and Counselors at Law:
October 19, 2010
VIA EMAIL
Board of Trustees
Garden Valley School District
P.O. Box 710
1053 Banks Lowman Road
Garden Valley, Idaho 83622
Re: Garden Valley School District – General
Public Records Act Exclusions
Dear Trustees:
This firm has been asked to offer a legal opinion regarding alleged disclosures of records protected by the Public Writings Act. The Idaho Education Association has provided an opinion by its contracted law firm which I have reviewed. The facts, as I understand them, concern certain complaints regarding the Superintendent. Earlier this year, I was given the opportunity to review the complaints and in particular a complaint deemed “sexual harassment.” It was my opinion then and it remains my opinion that there was absolutely no basis whatsoever for the complaint. It certainly did not amount to sexual harassment and, in my judgment, did not merit any discipline of the administrator in question.
It should be noted that there is no formal grievance policy for certified employees of the School District. Classified grievances are allowed by statute through Idaho Code § 33-517 and pursuant to District policy. However, certificated employee complaints are treated in the same fashion as any type of public complaint under Board Policy 233 and there is no statute which allows for grievances of certificated employees. However, it is worthy of note that in a grievance under § 33-517, the entire matter becomes a public record as the Board is ultimately responsible for rendering a decision in open session regarding the alleged grievance and/or the matter becomes public via the filing of a lawsuit in the appeal process. It is difficult to believe the Idaho Legislature created a system where certificated employees were given greater privacy rights over complaints than classified employees.
A careful review of District Policy 233, Complaint Resolution, indicates that the accuser of a complaint is to be public information:
. . . a signed statement of charges must be presented to the board during a regularly scheduled or special session, said statement thus becoming an integral portion of the legal and public minutes of said meeting. This process is not intended to discourage anyone from making such an accusation, but is intended that the accuser be identified during any subsequent actions by the board or the accused.
Given that there is no “grievance” policy for certificated employees and the above is the language from the policy at issue, identification of the accuser in a complaint pursuant to District Policy 233 is public information.
The next step of the analysis relates to employee personnel files, including the personnel file of the District’s Superintendent. Idaho Code § 33-518 specifically states that the personnel file shall contain only “material relevant to the evaluation of the employee.” Written notice of inclusive material in the file must be given to the employee. District Policy 233 also makes reference to complaints being placed into the personnel file of the accused prior to any action possibly being taken (Policy 233.5.d).
Nothing in Idaho Code § 33-518 or Policy 233 suggests that the filing of a complaint would result in the complaint being placed into the personnel file of the accuser as opposed to the accused. Such a document would not be material or relevant to the evaluation of the employee who filed the grievance. Thus, it is this writer’s opinion that the filing of a “public complaint” would not lawfully be filed in the personnel file of the employee who filed the complaint but rather be placed into the personnel file of the employee who was the accused, in this case the District’s Superintendent.
Pursuant to Idaho Code § 33-518, an employee has a right to access their own personnel file and has the right to copies of all documentation (except recommendation letters) contained in their personnel files. In such a situation, the employee can then do whatever the employee chooses to do with the contents of his personnel file – whether it is provided to his association representatives, family members, health care providers, members of the community or press. All of those specific situations have occurred multiple times all over the state with school employees. In this current context, Dr. Tomlin may have access to any material contained within his personnel file, except recommendation letters, contained within his personnel file, and may provide copies of those documents to whomever he so chooses.
The next question concerns an analysis of the Public Writings Act. I question whether this Act is even germane to the questions as to my knowledge, there has been neither a request for nor production of the documents at issue pursuant to a public records request.
Initially, there is a presumption that all public records in Idaho are open at all reasonable times for inspection. If a person has right to copy public records, the government agency may make no inquiry of the person as to the use of the public records. See Idaho Code § 9-338.
Absent from the analysis of the IEA is a critical code section, Idaho Code § 9-342. It states a person may inspect and copy the records of a public agency or independent body corporate and politic pertaining to that person even if the record is otherwise exempt from public disclosure. The statute contains absolutely no prohibitions on what the person may do with their own records. Clearly under Idaho Education law, a grievance (and in this situation a complaint) would be filed in the affected employee’s file, in this case the Superintendent’s file. The Superintendent then has an absolute statutory right to copy it and publish it to any particular person.
One might also take note that Policy 233 indicates that the complaint received by the Board becomes “an integral portion of the legal and public minutes of said meeting.” Thus, pursuant to the applicable Board Policy, this complaint is a public record and part of the public meeting minutes, subject and open for review or inspection.
To suggest that an employee who is not using a formalized grievance policy, but rather a public complaint form, has a right of privacy in what is filed leads to absurd results. For example, if an employee leaked information to the media suggestive that the Superintendent had a pending sexual harassment claim filed, the Superintendent would be completely unable to defend himself and clear his name under the IEA’s interpretation. In fact, it would appear that the employee could defame at will and simply refuse to ever have the document revealed. This is particularly troublesome when the employee or the employee’s agents or union representatives leak selected information to the press for the sole purpose of disparaging government employees.
The IEA analysis suggests that as an agent of the district the Superintendent could never release files. This conclusion is likewise absurd. Public personnel records, by definition, affect only government employees. Thus, it makes no sense that the agency law prohibited disclosure when the law allows the government employee to copy his own records and do whatever he wishes with those records. Agency is simply not a factor.
It should be noted that the IEA analysis contains no definition of grievance and has no discussion about the fact that no grievance policy is applicable. However, if we were to use the terms grievance as a general complaint of conduct, the logical result would be that a letter of reprimand to a school employee could never be disclosed to a third party without the administrator author’s permission, as it may contain grievance or complaints of the conduct of the affected employee. Of course, employees are free to share such a reprimand and whatever is in their personnel file with whomever they choose.
In sum, it is ridiculous to assume the Idaho Legislature has specifically set forth that a grievance filed by classified employees are in fact public records as the Board must ultimately decide on the grievance in a public session while certificated employees have greater privacy rights. Secondly, the public records law is somewhat inapposite to this situation as there is no pending dispute over a public records request. The Idaho law does allow the employee to copy his own records and there are no restrictions on how and to whom the employee may publish those records. Lastly, to suggest that an employee who files a public complaint, no different than any other member of the public, has a right of privacy different than members of the public and different than classified employees is nonsensical. The alleged complaints were never filed in the complaining employee’s file nor should they have been as they are not germane or material to the evaluation process of that employee. The complaints were or could have been filed in the affected employee’s file and that employee may exercise his rights to disclose the same.
Very truly yours,
Brian K. Julian
Brian K. Julian
BKJ/pk
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