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“Not legal,” says state agency regarding Baltimore County schools’ mass record purge
Posted by Ann Costantino on 11th September 2018
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—– By: Ann Costantino —–

Photo Source: Shutterstock – The Baltimore Post

“Baltimore County Public Schools’ destruction of records occurred outside of the legal process,” says a Maryland state archivist. “The only legal way to dispose of a government document is with written permission from State Archives.”

But when the school system’s law office destroyed nearly 2,700 financial disclosure records in April and August amid heated discussions on the scope of a hotly debated procurement audit, it relied on its own four-year document retention policy to say the purge occurred “within the bounds of the law.”

Yet according to Maryland State Archives (MSA), the state agency responsible for approving the system’s document retention and disposition schedule – or how often a government agency may legally discard its records – Baltimore County schools has not submitted to the state agency for approval, any retention and disposition plans for its financial disclosure statements — or even emails.  Ever.

In short: It is not legal to destroy government records without the prior written consent of State Archives.  Only after those documents are first defined by type and approved by the MSA, may they be destroyed. And even after the documents are purged, the MSA still requires further notification.

It is a requirement of state law, under the State Records Management Program, that each agency, division, and office in the state, county, and local government must prepare, and have approved by the authority of the Maryland State Archivist (MSA), a records retention and disposal schedule to legally destroy a public record.

Yet, without a word to the MSA, board members, nor the public, on April 27, the system’s law office, which houses the records for its independent ethics panel, destroyed the nearly 2,400 financial documents. It was the first mass financial disclosure purge of its kind in the system’s recorded history, records show.

And even the ethics panel that reviews the documents were not made aware that the purge would occur, according to an attorney who advises the panel.

The mass purge was discovered by The Baltimore Post last month when a reporter requested a “destruction log” of the system’s financial disclosure documents after a six month investigation into employees’ financial disclosure statements.

And it was a purge that included documents from 2013 – dating back to 1997 – for nearly 300 past and current employees.

In August, the district would destroy over 300 more.  In all, nearly 2,700 financial disclosure statements were destroyed over two separate days.

While the system’s chief legal counsel, Margaret-Ann F. Howie, would later say she simply just ran out of space to house them, the timing would eclipse a heated debate about the need for a full scale forensic audit, during a time when the system’s ethical procurement practices were in question – both statewide and nationally – and after two senior school officials had been convicted of criminal activity.

An official at Maryland State Archives told The Baltimore Post yesterday that what occurred with Baltimore County Public Schools “is not a common occurrence.”

The official said the case has since been elevated for investigation by the Records Management Division of General Services.

From there, The Post was told the issue could be elevated to Maryland attorney general, Brian Frosh, who would decide whether prosecution is imminent.

If the attorney general finds any Baltimore County schools officials’ to be in violation of having destroyed public records improperly, the penalty could entail prison time, a fine, or both, the MSA official said.

Financial disclosure statements are designed to capture potential conflicts of interest. Only employees with the ability to spend, direct the spending or commit school system funds are required to file the annual disclosures.  Although the school system has a policy which requires it retain those records for at least four years, a policy which mirrors that of the Maryland State Ethics Commission, until April, 21 years of records remained intact.

The purge occurred one week after the system’s former superintendent, S. Dallas Dance, was sentenced to jail for perjury after providing misleading information on his disclosure forms about money he had earned consulting for companies and other school districts.  Dance was released from a Virginia jail last month.

What is a Disposition and Retention Schedule?  According to the state agency responsible for approving them, a Records Retention and Disposition Schedule (or retention schedule, for short) is an official document, created by a government agency and approved by the Maryland State Archivist (MSA) that describes when and for how long a government record shall be kept and at what point it can be destroyed, or if it will be kept indefinitely.

And according to the MSA, before any government record can be destroyed, it must first have an approved plan for the destruction of the record which is first required to be defined by type, approved by the state, and then filed.

Moreover, even after records are destroyed in accordance with the approved disposal plan, the government agency must then also submit a certificate of records destruction to Maryland State Archives – a log that details the records that were destroyed.

Baltimore County Public Schools did neither.

The MSA says it has no record of the school system’s financial disclosure record purges. Nor does it have the required certificate of record destruction that logs the exact financial disclosure documents destroyed in the purge.

Without the required documentation, the April and August mass purges happened without any type of oversight and without a state record of the occurrence, a requirement under state law.

It’s a process different than the school system’s requirement to obtain approval of its ethics policies by the State Ethics Commission.

Michael Lord, the State Ethics Commission’s (SEC) executive director told The Baltimore Post yesterday that the SEC’s “involvement is limited to what (a state agency) has put on paper.”

Lord said that it’s 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.”

The SEC is also not notified of record purges, such as the ones that occurred in April and August.  But without the knowledge of school board members, while they debated the scope of an audit designed to look into procurement practices and possible inappropriate vendor influences on some of the system’s technology contracts, neither state agency even knew about the document disposal.

The timeline…

After the New York Times jolted Baltimore County with an article it published last fall that questioned some of Baltimore County schools’ technology contracts that Times’ reporters found increased after the system’s former superintendent met with a company who paid him to meet with its clients, calls for an audit of the system’s finances quickly ensued.  The Baltimore Sun also published a story, detailing Dance’s extensive travel.

But while board members and legislators were split on whether the state or school system should control the audit, the actual need for one was not debated.

  • In November, Maryland State Senator Jim Brochin urged the state school board to intervene and conduct an immediate audit of the system’s technology contracts.  The New York Times published Brochin’s plea.
  • In December, four Baltimore County school board members requested a state board audit.  Later that month, the board members called on legislators to conduct an emergency legislative audit.
  • In February, all seven Baltimore County Councilmembers requested a 2012-2017 state legislative audit of the district’s no-bid contracts with education technology firms, procurement process and ancillary costs associated with the contracts (e.g., travel, professional development, perks/promotions, and other financial transactions deemed appropriate).
  • In March, Three Baltimore County Councilmembers urged Gov. Larry Hogan to initiate an independent audit of the school system when councilmembers realized an audit had still not been initiated.
  • On April 20: Former Superintendent Dallas Dance was sentenced to jail for perjury
  • On April 27: Baltimore County schools’ law office would purge nearly 2,400 disclosure records that spanned 1997 up through 2014.
  • In May, the school system hired an audit firm to conduct its own audit.  The scope would include years 2012-2017.
  • In August, 315 more pre-2014 disclosure records would be purged.

The status of the audit is not known, as Baltimore County schools’ communication and law departments will not say. Neither have they answered The Baltimore Post’s questions about the document purge and its timing, or why the MSA was not made aware of its financial disclosure retention schedule and its massive document purges.

But an attorney who advises the Ethics Panel which reviews employees’ annual financial disclosure statements did tell the Baltimore Post last week that he was not informed in advance that the documents would be purged.

Andrew Nussbaum, Esq. wrote in an email to The Baltimore Post, “Neither the Panel nor I were advised that the documents would be destroyed and I do not believe there were any discussions in the past with the Panel regarding FDS (Financial Disclosure Statements) retention or destruction policies.  I was advised after the fact that the Office had simply run out of room to maintain all of the FDS’s that it had on file there.”

Nussbaum also said he did not believe there was a “’legal or ethical obligation’ to keep the documents pending the audit.”  He also said he believed that the system’s legal counsel, Margaret-Ann F. Howie, “was following Board Policy” when she discarded the records.

His statements came before The Baltimore Post realized the role of the MSA.

Howie did not notify Baltimore County’s school board of the purge until mid-August.  The Post requested the destruction log on August 3 and discovered the purge on August 9. It was only after The Baltimore Post published its first of five stories on the shredded documents when Howie notified the school board of the purge.  The Baltimore Sun published a report last week that Howie informed the school board of the purge in mid-August.

But the MSA states unequivocally that the financial disclosure disposal was not legal. “The only manner in which to legally dispose of a government document is with the written approval of the state archives. After a records’ disposal, a certificate of record destruction must be submitted to the MSA. The only legal way to dispose of a public document is through written permission,” the official said.

What this means, according to the MSA, is not only was the purge of 2,700 financial disclosures done illegally, but even emails the school system’s policy states it must only hold for 90 days, have also been destroyed in rouge-fashion and outside the bounds of a state mandate.

As with the financial disclosures, the MSA says it has not received nor approved the 90-day email retention/destruction schedule for Baltimore County Public Schools.

Directive to freeze record purges…

Late last month, the system’s interim Superintendent Verletta White directed all employees to cease the destruction of all records, including emails – even spam.

The directive was in response to a school board directive to the superintendent to freeze all further purges pending the outcome of the audit.  The reason, according to a board member’s motion, was due to the massive record purges that occurred in April and August.

That board member, Ann Miller, made the motion which requested the freeze.

“The board directs the interim superintendent and all BCPS personnel to immediately cease and desist in the routine or non-routine destruction of any and all school system documents and records until the conclusion of the external procurement audit AND until further direction by the board with regard to record retention.”

While Miller made a broad motion that the board approved, some would react to the email retention component, specifically, fearing a logjam, while seemingly unaware of the impetus behind the directive.

But, according to the MSA, the system lacks an approved destruction schedule for its emails, anyway.

With a nonexistent retention and destruction schedule, the school system has routinely purged its emails as well as the nearly 2,700 disclosure records this year, using school policies and retention schedules it created, but ones that have not been filed with, nor approved by, Maryland State Archives.

According to state law, although the MSA requires retention and disposition schedules be updated every two years, until schedules on file are updated, they are the schedules to be followed by a government agency.

But for documents lacking a retention schedule, such as those for financial disclosure statements and emails, Baltimore County schools did not in fact dispose of them within the bounds of the law.

While the school system may have followed its own self-imposed policies, it purged government records without the knowledge and oversight of the state agency charged with doing so.

The school system remains quiet on the matter.


annc@thebaltimorepost.com
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