—– By: Ann Costantino —–
In an effort to uncover the details surrounding Baltimore County Public Schools’ destruction of nearly 2,600 financial disclosure statements last year, the system’s law office said on Tuesday that it is unable to provide six of seven emails it has after concluding that the records are classified as “attorney work products,” which makes the emails not available for public viewing.
The law office provided one email with an exemption regarding the information it deems private, saying of the rest, “My staff has collected those records in our custody that are responsive to your request. The record [SIC] we have compiled will be made available to you with the following exception. Six email exchanges between the General Counsel and members of the Board of Education are subject to attorney work product and therefore protected from disclosure by GP 4-301 as privileged or confidential records.”
But according to both state and federal law, the withholding of the records using the attorney work-product privilege is covered under one of the three primary privileges incorporated into the exemption which protects materials prepared by an attorney or others in anticipation of litigation, “preserving the adversarial trial process by shielding materials which would disclose the attorney’s theory of the case or trial strategy.”
Furthermore, the Maryland Public Information Act Manual GP §4-344 clarifies this point and states the following as it specifically relates to the disclosure of attorney work products. “We suggest that a presumption of disclosure should prevail, unless the responsible agency official can demonstrate specific reasons why agency decision-making may be compromised if the questioned records are released.”
The law office did neither.
When asked whether there is any such judicial proceeding or specific reason the request was being denied, the school system did not say. Nor did officials answer questions requesting clarification on whether the emails are being withheld so to shield and protect them specifically for that purpose.
Immediately following the indictment of Baltimore County schools’ former superintendent, S. Dallas Dance, who was later convicted for providing misleading information on the same type of documents destroyed in the purge, The Baltimore Post began a six-month investigation into the financial disclosure statements for dozens of system employees.
After experiencing several hit-and-miss responsive records to requests – spanning February through August 2018 – The Baltimore Post requested a “destruction log” to understand the anomalies.
The log revealed that the records were destroyed on two days in 2018: On April 27, nearly 2,400 records were destroyed. On August 1, the log shows 200 more were discarded.
Although not in compliance with state document destruction laws, which the system has since updated with Maryland State Archives amid complaints, the district made use of a school policy which allowed financial disclosure records over four years old to be discarded. However, it was the first time the district made use of the 4-year retention policy in its 21-year recorded history of maintaining the records.
The timing of the destruction of 2,400 records was a surprise to even school board members and was bookended by the January 23, 2018 indictment and April 28, 2018 incarceration of former Superintendent Dance, who surrendered to a Virginia jail for criminal misdemeanors for four perjury convictions the day after the first set of records was destroyed. The remaining 200 records were destroyed on Aug 1.
The single email provided to The Baltimore Post by the district’s law office on Tuesday also confirms that the same law office began reviewing the files for destruction the same month a Baltimore Post reporter began requesting the statements for review.
Some of the records were also purged after the school system decided on an audit firm to look into the district’s procurement practices and questionable employee and vendor ties, but the majority were destroyed less than one month before a decision was made surrounding the scope and time frame of the audit which included two years’ worth of records destroyed in the purge.
As part of a many months of effort in attempting to obtain information on the purged documents, last month, The Baltimore Post requested shred certificates which are routinely provided to the school system by the system’s contracted shredding companies. But the law office – where the financial statements were housed and whose chief counsel, Margaret-Ann Howie, called for the purge – said there were none.
Next, invoices related to the destruction or transportation of the documents were requested. But, according to the same official, they don’t exist.
Also requested were any and all payments to any contractors, subcontractors or other companies who may have assisted with the record purge or transported the documents offsite. The law office says there are none.
Even receipts of any kind related to the record destruction, including those for equipment, were requested. But there is nothing, according to the law office.
The Baltimore Post also asked for a payment detail, showing all costs associated with the purge. But there is no such record.
At a school board meeting last week, the audit firm, UHY Advisors, presented its findings of the first phase of what was intended to be a multi-phase audit that included a look into the system’s procurement activities. The firm was charged with looking into 18 employees, 19 board members and 18 contracts and the audit centered on the system’s procurement policies, processes and procedures used by staff in the solicitation of vendors and subsequent awards.
Additionally, the firm was asked to focus on travel expenditures, reimbursements, conference fees and professional memberships for the employees and board members.
But in the report, auditors noted the missing financial disclosure statements and how they were destroyed between the time the school system advertised a request for proposals for auditors to bid on the job, and when the district contracted with UHY to do the work, which included focusing the audit time frame to former Superintendent Dance’s entire tenure, years 2012 through 2017.
In a story analyzing the audit report last week, The Baltimore Post identified at least two records that were unavailable to the auditor upon his request of 2012 – 2017 financial disclosure statements: The 2013 records for two executive directors who were listed among the 18 employees who were part of the focus of the audit.
Both employees were hired as consultants by two active system vendors. Director of Human Resources, John Mayo, did not disclose his position with SUPES Academy on his statement. But a document obtained by The Baltimore Post shows that he worked as a consultant for the professional development company in 2013. In June, the Post reporter asked several school officials about the omission. No one responded, yet a month later, Mayo’s 2013 financial disclosure statement was destroyed.
The second employee whose financial statement was unavailable due to its destruction, Ryan Imbriale, the system’s director for the Department of Innovative Learning, worked for Casenex the same year. The company also provides professional development services. Imbriale’s original 2015 and 2016 financial statements were also destroyed outside of school policy, as reported extensively by The Baltimore Post. Only his amended versions for those two years are available.
Despite multiple attempts to obtain comment or clarification, Baltimore County schools officials will not comment on the mass purge of financial disclosure statements, nor any issues surrounding the destroyed records. The records, by their nature, are designed to capture potential conflicts of interest.
The Baltimore Post has requested that the system’s law office provide documentation supportive of any pending litigation or investigation that could be used as a justification for a denial of the emails requested in the Maryland Public Information Act request of the public information. The district has up to 30 business days to respond to the request.