Second Setback for Howard County School Board Member's Lawsuit Against Own School Board

A Howard County school board member's legal case against the county board of education was dealt another setback Wednesday (Nov. 24), the second strike against Allen Dyer's lawsuit over the school system's records-retention policy.

Dyer had requested a preliminary injunction asking for the Howard County Circuit Court to stop the school system from destroying all public records, including e-mail, while the lawsuit went forward. Dyer claims records, particularly e-mail, are being destroyed improperly.

In ruling against the request, Associate Judge Timothy J. McCrone said the problem was not with what Dyer was fighting for, but with how Dyer was fighting.

Dyer had argued that, as a member of the board, he could be held criminally liable – state law says improper destruction of public records is a misdemeanor. That, he believes, gives him legal standing to file a lawsuit.

He attempted to bring the issue up for discussion at three different school board meetings. Each time, however, he did not receive the backing of a second board member that is required to bring a topic up for a vote. Without any record of him voting one way or another, Dyer argued, he could be held as responsible as the rest of the board.

"I have a credible threat of prosecution," Dyer said in court. "I am not required to find out whether or not I'm going to be charged with a crime. I have a right to seek remedies in a court of law."

But as part of denying the preliminary injunction, McCrone concluded that Dyer could not face criminal charges.

"I believe that your efforts to essentially require the board of education to adhere to [state] regulations regulating records destruction are motivated by your sincere interest," McCrone said. "You believe that the law is important, that the preservation of these records is important for issues that come before the board and for the public in general.

"However, I do not believe you are personally in jeopardy of prosecution," McCrone said. "No one's suggesting that you are personally involved in the destruction of records as a member of the board of education."

Furthermore, McCrone said that Dyer's request for an injunction is not the appropriate place for him to lodge his complaint.

Rather, McCrone sided with the argument of the school board's outside attorney, Judith S. Bresler of Columbia-based law firm Carney, Kelehan, Bresler, Bennett and Scherr – that state regulations call for public officials to notify the state archives of any unlawful record destruction, rather than filing a lawsuit.

"That's the appropriate thing for you to do," McCrone said, noting that regulations call for the state archives to investigate and then to decide whether to call upon Maryland's attorney general to enforce the law.

Dyer's complaint claims records are being destroyed even though the board has not filed the proper paperwork required under Maryland law, which requires governmental bodies to provide an inventory of their records and a schedule for when certain records will be sent to the state archives.

The paperwork filed with the state archives was filed in 1961.

"It has not been updated since then," said Dyer, who noted that it should be updated every two years. "There is no mention of e-mail, but there is some mention of microfilm."

But Howard County is one of just three school systems in the state that has filed a schedule for destroying documents, Bresler countered. And while that document schedule does not reference e-mails, the state archivist has issued guidelines for how to handle them, she said.

Certain kinds of e-mails can be deleted immediately, Bresler said, while other kinds of e-mails can be deleted after a period of time, and specific e-mails must be transferred to the state archives. Deleted e-mails are removed from the school system's computer archives after 30 days.

"Does the schedule need to be updated?" Bresler said. "Yes."

But a preliminary injunction is not the way to bring that about, Bresler said, for it would force the school system to retain all e-mail, including spam e-mail that is now being blocked.

The school system received about 550,000 spam e-mails just on Oct. 25 alone. The least expensive option for retaining all this e-mail would cost approximately $175,000 to $200,000, plus an additional $24,000 in annual costs, Michael Borkoski, the school system's technology officer.

This also factored into McCrone's decision.

"When I balance the … potentially very significant impact this could have on the board of education and its budget, the balance of equities falls on the board of education," the judge said. "I deny your request for a preliminary injunction with all due respect, and I mean that very sincerely."

This was the second setback in Dyer's case. He had sought a temporary restraining order – a measure similar in intent to that of a preliminary injunction – but forgot to post a bond required to cover any damages caused by the issuing of such an order.

If a restraining order were granted – and if the school system went on to win the case – then the school system could be entitled the costs arising from the order or injunction.

"The case goes on," Dyer said after leaving the courtroom, referring to the actual lawsuit – not just the denied motions for a restraining order and a preliminary injunction.

 "There's a lot that needs to be looked into as to the importance of e-mail in the operation of local governments," he said. "I'm not sure that the court has a full understanding of that. There was some indication that the court wasn't aware of the impact of the destruction of e-mails without regard to the content."

The judge's rulings on Dyer's motions could portend the eventual decision on the lawsuit itself.

"This is not what I consider a favorable decision. I have to work harder to convince the court," Dyer said. "The idea of a board being able to violate the law with impunity until it catches the attention of the attorney general is not good government. That's bad government."