BCPS implies state oversight of document purges is optional, public records say otherwise
Posted by Ann Costantino on 8th January 2019
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—– By: Ann Costantino —–

Photo Credit: Shutterstock, The Baltimore Post

After Baltimore County Public Schools’ (BCPS) law office called for a massive document purge last year, destroying nearly 2,600 financial disclosure statements which caught even school board members by surprise, monthslong discussions regarding the system’s document retention and destruction schedules ensued.

But despite seemingly contradictory statements made by Margaret-Ann Howie, BCPS’s legal counsel, regarding whether or not BCPS is required to comply with state archive laws before destroying any type of system document, Howie indicated that BCPS has chosen to do so voluntarily, under the vision and direction of interim Superintendent Verletta White.

Last month, during a December 18th school board meeting, Howie stated to the school board, “State law, Title 10, does require a records retention program for every unit of State government. But the Board of Education is not a unit of State government,” she said. “Notwithstanding, the lack of applicability of the statute to the local board, the superintendent still indicated some sort of program — given that there is a State law and State regulations that apply — that (it) was the easiest way to move forward.” 

Howie echoed some of those sentiments at Tuesday’s school board meeting, but qualified them to include modified guidance given by the Maryland State Department of Education (MSDE), which asked local school systems in December to deal directly with the Maryland State Archives (MSA) — the state’s central depository for government records — instead of earlier guidance she said asked school systems to send their retention schedules to the MSDE, directly. 

But in contrast to those assertions, in a November 7th email obtained by The Baltimore Post last week from the MSA via a Maryland Public Information Act (MPIA) request, Howie acknowledged understanding the requirement to update and maintain school system records with the MSA, which stores permanent records as well as detailed logs of documents to be destroyed, which first must be approved by the MSA before their disposal. 

“BCPS is in the process of revising its Record Retention Schedules,” Howie said in the email. “(MSA staff members) have been extremely helpful and responsive; their input and advice have proved invaluable.  Thus, it is our understanding that the schedules must be approved in the same way that all state agencies seek—and receive—approval,” she said. 

But, curiously, in order to abide by the MSA requirement, some type of document retention program, that Howie first said BCPS is not “required” to have, would first need to be in place in order to have any retention schedules to submit to the MSA for that approval.  A retention schedule is a document that defines types of documents and for how long each type is to be retained, or when an agency is permitted to destroy that category of document.

But does the MSA require all agencies to comply with its requirements?
According to a different State law, referenced by the MSA, it does.  That law says that the retention regulations apply to all agencies and is applicable to all records. In fact, the MSA has those requirements posted on its website and lists the government agencies that are required to comply with them. 

And, according to the document, those agencies are defined as “any office, department, board, commission or other separate unit of Maryland government, including the executive, legislative, and judicial branches of government, and all political subdivisions” which it defines as “a county, a municipal corporation; an unincorporated town; a school district; or a special district.”

As for an agency’s compliance with the MSA, whatever approved retention schedule that is in place with the MSA – even if it is from 1954 – is the one to be followed, unless and until it is updated.

The MSA recommends that retention schedules be brought up to date every two years.  To date, only a handful of Maryland school systems have done so.

But while the Baltimore County Board of Education does have about one dozen approved schedules in place with the MSA – some dating back to the 1950s – it did not have an approved destruction schedule for financial disclosure statements at the time Howie requested their destruction last year.

As a result, the system would have been required to seek and obtain approval prior to destroying the financial documents prior to the purge, as well as to submit a document detailing the record of destruction to the MSA, once completed. That approval was not sought by Howie until November 2018.  The Department of General Services approved it last week.

While BCPS has only recently sought the MSA’s approval of any BCPS retention schedules, a 31 page document – obtained by The Baltimore Post through an MPIA request – details BCPS’s very thorough plan for retaining documents.

BCPS has also received approval of its 4-year retention policy for its financial disclosure statements, both from the school board and from the State Ethics Commission (SEC), which is a requirement of the SEC.

However, SEC Executive Director Michael Lord told The Baltimore Post in an earlier phone interview that the SEC’s “involvement is limited to what (BCPS) has put on paper.”

Lord said that the rest is the job of State Archives.

“Archivists in their role record active retention of all records. All that is State Archives,” Lord said.

“All I can say is we don’t have charge over the retention. Our job is that the agency adopt laws,” But Lord said, “We have no role in the execution of that law.”

As such, the SEC is also not notified of record purges, such as the records destroyed by BCPS’s law office last year amidst discussions surrounding a financial audit of the school system.

“Purge-Gate”
Last August, The Baltimore Post discovered a massive document purge in which Howie directed her staff to destroy roughly 2,600 financial disclosure statements – 2,400 documents were destroyed on April 27 and 200 others were destroyed on August 1.

While records less than four years old were spared, per a 4-year document retention policy, thousands of others were destroyed, including those for 2012 and 2013, years which later would be included in the scope of an audit of the school system in which procurement practices and contracts had been under intense and widespread public scrutiny.

And while it was the first and only two purges of financial disclosure statements in the system’s recorded history, the timing could not have been worse.

Calls for the audit, which had been hotly debated by local and state officials for months, after two former BCPS top administrators were indicted for criminal misconduct, were first triggered after The New York Times and Baltimore Sun published stories which called into question the relationships between school system vendors and BCPS employees.

The first purge also occurred one day before former Superintendent S. Dallas Dance surrendered himself to a Virginia jail after pleading guilty to perjury after he failed to disclose nearly $147,000 in income on his financial statements, money he made from other organizations and school districts, while leading Baltimore County Public Schools.

Roughly $90,000 of the income Dance earned was from a school system vendor that had been contracted with BCPS at the time.

If filled out accurately, the financial disclosure statements are designed to capture those types of relationships between employees and vendors. And questions on the forms specifically ask employees to disclose all side jobs, positions, compensation, stock or ownership in companies, and any and all gifts received from vendors. The forms are also signed under penalty of perjury.

But up until their fate last April and August, the 2,600 documents – which contained over 20 years’ worth of records, ranging from 1997 to 2013 – had been stored in the school system’s law office.

Not enough room?
In an explanation about the purges to the school board and lawmakers, Howie said she had simply run out to room in the law office and asked staff to begin gathering the documents last February for disposal, records show.

The implication was that 2,600 records needed to be destroyed in order to make room for 300 incoming records which were due that April. (The financial disclosure statements are due by April 30 for the preceding reporting year and approximately 300 employees, who are authorized to direct the spending of system funds, are required to file them annually.)

Coincidentally, a Baltimore Post reporter began requesting the documents the same month Howie’s office began pulling records for the purge, which was immediately following a late January 2018 indictment of former Superintendent Dance.

The reporter was unaware at the time that financial disclosure documents were being gathered for destruction – and were later destroyed – by BCPS’s law office employees, while she was actively requesting records.

It was only after encountering multiple inconsistencies, while requesting no fewer than eight dozen statements, when The Baltimore Post requested a log that detailed the destruction of the financial disclosure statements.

The response to The Post’s MPIA request exposed the purges of the 2,600 financial disclosure statements.  The Baltimore Post began reporting on the purge discovery in August.

But while Howie directed the record destruction within school system policy requirements – that the district retain the financial records for at least four years – it was the timing of the purges that was alarming.

What’s more is that the resistance from school officials to cease purging further records due to fears of a logjam, complicated matters further.

In late August, school board members voted for a motion which directed the superintendent to direct school personnel to immediately cease all record purges until the conclusion of an audit that was called to ensure that procurement practices had been conducted without undue vendor influence.

Out of concern that the motion would be reversed – and record purges would continue in spite of the audit – in late September, four school board members filed complaints with five state agencies, imploring each to intervene and investigate.

In response, records show that in September, Howie and other school officials reached out to at least one of the agencies, the Maryland State Archives.  And in November, Howie began seeking approval of BCPS’s record retention schedules from the agency.

In September, an employee from the MSA confirmed with The Baltimore Post that the record destruction, directed by Ms. Howie, was “not lawful” because the system lacked an approved destruction schedule before purging the documents.

Moreover, the employee said that the system did not notify the MSA once the purges were completed as required, and as public records also confirm.

The official also said that what occurred at Baltimore County Public Schools was “not a common occurrence.”

The Baltimore Post was told after publishing the September 11, 2018 story  that the employee was not authorized to speak on behalf of the agency – which was not made clear during phone interviews. However, the MSA did not retract the statement.

But at last month’s board meeting, interim Superintendent Verletta White told school board members that “the state archivist has gone on record saying that our process is okay, and that it’s sound.”

Despite the assurance, the MSA did not respond to The Baltimore Post’s questions related to the comment, specifically. Neither would the agency confirm or deny the statement.

However, a MSA spokesperson sent an email response on Tuesday stating, in part, “Since September BCPS has submitted three retention schedules for review and approval.  One BCPS BOE retention schedule, for the Ethics Review Board, has just been approved.”  That retention schedule can be viewed here.

In a short email response from Howie to The Baltimore Post on Tuesday, she did not answer any questions posed to her about her conflicting statements, nor did she provide a comment or explanation. Instead, Howie stated she was “happy” to respond to record requests, specifically.

But, in comments she made to board members at Tuesday night’s board meeting, Howie doubled down on her previous statements, citing Maryland Article 10-610, in which she said the school board and school system are not “state units,” and therefore are not required to have a document retention program, although BCPS has now chosen to follow state archivist’s guidance anyway.

annc@thebaltimorepost.com