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E-mails Catch State's Eye

Messages may have violated state statutes.

Lobbying City Council through the use of the school system’s e-mail system may have restored funds to the school budget but it has also led to an investigation into whether the Board violated state law.

"I visited with both the Virginia Attorney General’s staff and the Commonwealth Attorney Randy Sengel, about the issues that I would like to see investigated,” said Paul Darby, a concerned city resident.

Darby became interested in the e-mails when a teacher brought to his attention an e-mail from school communications director, Barbara Hunter, listing portions of the city’s budget add-delete list and encouraging citizens to express their concerns to Council.

Darby expressed his concern to Board members in an e-mail and received a response from Board member Molly Danforth stating that it was “authorized communication.”

Darby said he was also concerned when he learned that the Board had decided not to send out clarifications to Hunter’s original e-mail that were prepared by Mayor Kerry J. Donley, Councilman David Speck and Councilwoman Claire Eberwein, who lost in her reelection bid Tuesday night.

“I think the manner in which the e-mails were sent from school system computers, the priority given to the communications and by reading of at least two statutes adopted by the Virginia legislature, raise questions that should be further explored,” Darby said.

The statutes he was referring to regulate the manner in which public bodies conduct business. Statute 2.2-3708 of the Virginia code states, in part, “It shall be a violation of this chapter for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled…”

HUNTER'S E-MAIL was suggested in an e-mail to all Board members from Board member Stephen J. Kenealy. Other Board members responded by e-mail to the superintendent of schools and, she, in turn, approved the e-mail. Hunter discussed this authorization in an e-mail to Eberwein.

“Thanks for your message about the budget information,” Hunter wrote. “I’ll be happy to send out a follow-up e-mail message about the $675,000 and Bill Euille signing on to the budget cut. I definitely agree that our message needs to be accurate. However, as you know, the superintendent and School Board are concerned about the programs and services that will have to be cut if $1.5 million is shaved off the school budget. I expect that you’ll still receive a great deal of pressure from parents and community members to keep it intact…”

As to allowing Eberwein, Donley and Speck to respond, Board Chairman Mark Eaton sent an e-mail to the Board late last week suggesting that their letters be sent to the same list. Several Board members responded to Eaton’s suggestion via e-mail and because of a consensus, Eaton decided not to send the responses.

THE FIRST RESPONSE was from Sally Ann Baynard. It said, in part, “Mark: There is no such thing as a confidential attachment in an e-mail message. I strenuously object to sending this piece of pure political propaganda to our listserv on behalf of Claire Eberwein. There were no errors in the April 21 e-mail, as I know quite well. She should not be permitted to use our list to serve her political ends without offering the same service to all other candidates.

"This is exactly the same type of immediate pre-election trickery that Claire always pulls—last year it was the giant (and therefore illegal) signs that she posted in the public right-of-way areas the weekend before the election. This year it’s her refusal to admit that she proposed $2.2 million cut to the ACPS operating budget. She usually gets her way by frontal assault and what was called in the old Soviet era, “the big lie.”

"Before her 'message' is sent out to our list, this opportunity must be offered to all other candidates and they should be sent jointly, all at once. Do not allow the message to be sent out without opening this offer to the other candidates because: (1) It is grossly unfair, (2) For political reasons, i.e. the end result will be that at least five other City Council candidates who are successful will resent our having furthered Claire’s candidacy and not theirs … Is this how we want to start off a new term of office!! (3) It is caving into loutish behavior on the part of Claire and several others…This kind of outrageous behavior should not be rewarded by meek compliance; and (4) How stupid is it to reward the City Council member who proposed the largest cut in our operating budget?? …”

KENEALY'S E-MAIL read, in part, “I believe the chairman/superintendent choosing option three without seeking at least a consensus of the Board is wrong. I am opposed to sending out a political piece and I strenuously object to the opening statement about misleading information sent out. As far as I can tell, what was sent was factual.”

Danforth wrote, “Would it be possible to just send to our communicators list a thank you to all Council members, naming them all who voted for the final budget supporting 99.8 percent of the education budget? We are not a community bulletin board, but if two are allowed to comment then we should extend invites to all Council candidates to comment on the budget. Perhaps it could be a destination on the web site that we advertise to our list.”

Board member Linda Cheatham wrote: “I object to the transmission of the messages from Claire and David over the school system. The message that was issued was factual and not political in my opinion. The message proposed to be sent by Claire and David are purely political. I strenuously object and I believe it to be totally inappropriate to send them and I agree that Becky and Mark should not have made a unilateral decision to issue these statements without consulting the Board! I am not sure what the authority is here, but this proposed e-mail must not be sent absent a full discussion of this matter by the Board.”

AFTER THOSE consultations, Eaton told Eberwein that the Board had decided not to send the responses that she, Speck and Donley had prepared. Darby believes that the second e-mail meeting simply compounded the original mistake. He is also concerned about using public funds to lobby a public body. However, the section of the code related to using public school students to lobby has now been deleted from the Virginia code.

Darby still wants answers. “When I filed my Freedom of Information Act request, I was more concerned about what led to the sending of the April 21 e-mail,” Darby said. “I have received one e-mail from a single School Board member, Molly Danforth, which states, 'this e-mail was an authorized communication.'

"While I don’t know what Ms. Danforth meant, I do understand the provisions of the Virginia Freedom of Information Act and the requirements that governmental bodies act in public on virtually all issues and not behind closed doors or in e-mails which are seen only by other Board members, the superintendent or the superintendent’s staff.”

Danforth still believes that the Board did nothing wrong. “The Virginia School Board Association does this all the time so I believe that we can,” she said. “It had the effect of allowing us to retain most of our budget.”

Board member V. Rodger Digilio refused to comment. "Because this matter is currently being investigated by the Commonwealth Attorney, it would be inappropriate for me to comment," he said.

NEWLY-ELECTED BOARD member Kenneth Foran understands VFOIA. “Public bodies cannot hold meetings electronically,” he said. “The law is very clear about that. Also, public money should not be used to lobby other public bodies. The school budget should be so well crafted that it flies through approval. Either this budget was not well crafted or the cuts were politically motivated.”

Darby intends to pursue the matter until he has his answers. “Obviously I would like to have answers to my questions quickly, but that’s not going to happen,” he said. “I intend to be patient and wait for the information to be produced so that we can all see how these communications were crafted. It is very hard for me to imagine any authorized exception which would provide the basis to denying the information that I am seeking. If the information requested is not forthcoming, Virginia law provides avenues to obtain full disclosure.”

Commonwealth attorney Randy Sengel confirmed that he is looking into the matter.