clock menu more-arrow no yes

Filed under:

Ex-DPS board member mulls email lawsuit

Former Denver Public Schools board member Michelle Moss has filed a notice of intent to sue the district because her successor on the board, Andrea Merida, obtained some 11,000 emails from Moss’s board account without her knowledge.

Moss said she doesn’t want to sue the district but is concerned that Merida, with whom she has a rocky relationship, obtained access to emails containing sensitive board discussions as well as personal information about Moss’s children and her health.

The emails span Moss’s entire eight-year board tenure, including the period when she was diagnosed with, and began treatment for, a particularly virulent form of cancer that she did not publicly identify.

Merida did not respond to requests Tuesday afternoon for comment, sending instead an email stating, “Please submit your questions, and I will consider them. Thank you.” Told that EdNews does not submit questions in advance, Merida chose not to reply.

“Certainly, on a personal level, you would never want things that were written to teachers or administrators about your children to be made public,” said Moss, whose children attended DPS schools part of the time she was on the board. “My children have every bit as much right to privacy as any child in DPS and she violated that.”

Staff in the DPS information technology department determined that Merida forwarded a number of Moss’s emails to Merida’s personal account, including emails discussing the board’s superintendent search in 2005 that resulted in the hiring of Michael Bennet, the current U.S. senator.

Merida obtained Moss’s emails in February 2010, though Moss did not learn about the action until this year. In May and June 2010, Merida was paid $5,000 by the campaign of Bennet’s primary rival, Andrew Romanoff, at the same time she was publicly attacking Bennet, according to stories in The Denver Post. She later resigned from Romanoff’s campaign but said she had kept her campaign and board work separate.

From one board member’s account to another

Moss represented Southwest Denver on the city school board from 2001 through 2009, when term limits forced her exit.

Moss supported Merida in Merida’s successful bid for the seat but their relationship publicly crashed just before a Nov. 30, 2009, board meeting.

That’s when Merida, who had been sworn into office earlier in the day without notifying DPS officials, confronted Moss on the board dais and told Moss that she was taking her seat. The move shocked Moss, who had expected the meeting to be the last of her eight-year term, and pictures of a tearful Moss and defiant Merida were featured in EdNews and the Post.

Two months later, according to Moss and to records obtained by EdNews Colorado, Merida sent an email on her board account to the DPS information technology hotline with the message, “Hello. Would you please move all Michelle Moss’ email to my account? I will need to reference her history there.”

The next day, Feb. 10, 2009, a technician emailed Merida that he had copied Moss’s approximately 11,000 emails into Merida’s account. Merida then asked whether Moss was still using her DPS email account.

Told that Moss’s account was still active, Merida wrote back, “Let’s not worry about it … As long as I can get regular updates, we’re good.”

Moss said neither Merida nor anyone at DPS ever asked her permission for the emails. In fact, Moss said she didn’t learn Merida had received them until May of this year, when she had lunch with the school board’s former secretary.

Moss immediately contacted DPS officials, including board President Mary Seawell, who initiated an investigation.

An expectation of privacy with board emails?

Under the Colorado Open Records Act, known as CORA, email messages sent by elected officials on their government accounts and dealing with government business are public records.

Moss said she doesn’t doubt most of her emails are public.

But the CORA also provides specific exceptions for elected officials’ emails, stating that the official custodian of the emails “shall consult with the elected official prior to allowing inspection of the correspondence for the purpose of determining whether the correspondence is a public record.”

In other words, Moss had a right to know the records were being requested and to point out which ones she believed to be private, according to the outside attorneys who reviewed the issue for DPS.

As an example, EdNews this week filed a CORA request for all emails sent or received by Merida for the three years she’s been in office.

In response, DPS notified Merida of the request and asked EdNews for an extension of the law’s normal three-day limit so that Merida’s 19,000 emails could be reviewed.

“As we were being trained as new board members, we talked about CORA and we were always told that anytime something was requested that we would be informed and then we could decide if it was public or private,” Moss said. “So I was never worried about it because I always assumed if it was private, it would never be forwarded to anyone.”

Merida’s request for the emails, however, did not come via CORA. Her email to the DPS technology department hotline was assigned to an email technician, who filled it without consulting anyone else since “it was his understanding that because Merida was a Board member she had authority to access the emails,” the investigation found.

DPS: Any lawsuit unlikely to be successful

DPS board members met in closed session last month to discuss the investigation and Moss’s notice of intent to sue. Merida did not attend.

Seawell, the board president, sent a letter to Moss the next day noting, “We brought in outside legal counsel to do a thorough investigation of your allegations.”

She also said it was “their strong opinion that any claim brought by you against the District or the Board of Education will not be successful.”

The attorneys conducting the investigation counseled board members to consider a public apology from DPS and Merida. Moss said she has heard nothing from Merida and doesn’t see Seawell’s letter as an apology.

In it, Seawell wrote “We care deeply about you and acknowledge this incident has caused you unhappiness, something that we deeply regret.” Tuesday, Seawell said the letter was intended “to show our support for Michelle and our belief in her amazing work for the district … but based on what she asked for, legally, there wasn’t any redress for her.”

Moss’s filing of the intent to sue gives her two years to decide whether she will pursue a lawsuit. She said she’s being advised she could win in court and she’s concerned DPS isn’t taking the matter seriously.

“My biggest fear is that it becomes accepted practice for board members to violate the law and ethics that would say this is wrong,” Moss said. “I think that the law is very clear about what has to happen when someone wants access to my emails … DPS failed miserably at following what the law says.”

She’s concerned that Merida could release portions of her emails, including those involving work discussions with other board members or personal information, if Moss chose to again seek elected office.

“Yeah, it probably stings more than if somebody else had done it,” Moss said, acknowledging her history with Merida. “But the bottom line is, no matter who violates your privacy, you still feel violated. I mean everybody has things in their email that they wouldn’t want to be made public or to let just anyone see.”

Help Chalkbeat raise $80k by Dec 31

Chalkbeat is a nonprofit newsroom filling a vital community need. We could not do this without you, and we need your support to keep going in 2022.

Connect with your community

Find upcoming Colorado events

Sign up for the newsletter Chalkbeat Colorado

Sign up for our newsletter.