Use of Email by School Boards (PDF)

This page is intended to provide an overview of the use of email by school board members. This overview is for informational purposes only and does not constitute legal advice. Specific questions should be referred to the school district’s legal counsel.

• Email Discussions

Under Colorado’s Open Meetings Law (OML), all meetings of three or more members or a quorum, whichever is fewer, of any “local public body” at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.[1] “Local public body” includes boards of education as well as any committee, commission, authority, or other advisory, rule-making, or formally constituted body, including private entities that have been delegated a governmental decision-making function.[2]

Any formal action, resolution, policy, position, rule or regulation taken in violation of the OML shall be declared invalid.[3]

The OML defines a “meeting” as any kind of gathering convened to discuss public business, in person, by telephone, electronically, or by other means of communication.[4] Accordingly, an email discussion between three or more board members could, depending on the subject matter, constitute a meeting. 

A series of email communications may also be construed as a “meeting.” Although Colorado courts have not addressed this issue, other state courts have held that the use of serial email communication amongst a quorum of board members to deliberate toward a decision or to make a decision violates the state’s open meetings law. Another state court held that a series of faxes and phone calls sent between board members and the superintendent regarding an issue of board policy amounted to a meeting under the state’s open meetings laws. 

Note that the OML does not apply to email discussions among any number of board members that do not involve school district business. The OML provides that an email between board members that does not relate to the merits or substance of pending legislation or other public business–including an email regarding scheduling and availability, an email sent for the purpose of forwarding information, or an email posing a question for later discussion by the board­­–is not considered a “meeting.”[5] Additionally, the Colorado Supreme Court has found that a discussion between members of a public body will only be considered to violate the OML if the discussion has a meaningful connection to a pending action of the public body with regard to a rule, regulation, ordinance, or formal action by that public body.[6]

Accordingly, the use of email for the dissemination of information to all board members pertaining to a matter to be considered by the board and one-way transmission to and solitary review by board members of background material received via email does not constitute a “meeting.” 

• Board emails are most likely public records  

Board member emails are considered records open to public inspection under Colorado’s Open Records Act (CORA)[7] unless: 

• the content of the email falls within one of the narrow exceptions to public disclosure[8]; or
• the content of the email does not involve school district business and/or the receipt or expenditure of school district funds. 
  
  
• Protecting Confidentiality 

 State and federal law protect the confidentiality of student, employee, and other school district matters and require district staff and board members to maintain this confidentiality. Most boards adopt policies that require district staff to maintain confidentiality.[9]

To the extent the board does not have a specific policy requiring the board to maintain confidentiality (such as CASB sample exhibit BCA-E-1, Code of Ethics for Board Members), board members should comply with the same confidentiality standards as district employees. For example, CASB sample policy GBEE* provides: “It is imperative that staff members who share confidential student information via electronic communications understand the correct use of the technology, so that confidential records are not inadvertently sent or forwarded to the wrong party. . . If material is not legally protected but is of a confidential or sensitive nature, great care shall be taken to ensure only those with a “need to know” are allowed access to the material.”

• Guidelines

1. The board cannot use email as a substitute for deliberations at board meetings or for other communications or business properly confined to board meetings.
   
   
2. Board members should avoid back and forth discussions via email between more than two board members.
   
   
3. Board members should be aware that email and email attachments received or prepared for use in board business or containing information relating to school district business may be regarded as public records, unless otherwise confidential by law.
   
   
4. Board members must respect the confidentiality of school district matters when communicating via email.