Jeffco school district, union argue in court about public release of teacher sick-out records

By Jeffrey A. Roberts
CFOIC Executive Director

Lawyers for the Jefferson County School District and the Jeffco teachers’ union squared off in court Friday over whether additional names of high school teachers who collectively called in sick last fall should be made public under the Colorado Open Records Act (CORA).

The Jefferson County Education Association (JCEA) won a preliminary injunction in February to block the release of names of teachers who used sick leave Sept. 19 and Sept. 29 to protest school board policies. A Golden parent, upset that classes were canceled at four schools, requested the names because “I don’t want (those teachers) teaching my kids.”

During a hearing in Jefferson County District Court, union attorney Sharyn Dreyer contended that teacher-absence records are protected from disclosure under CORA’s personnel files exemption. She said sick leave is a “classic example” of private information that is maintained, as the statute says, “because of the employer-employee relationship.”

But school district lawyer Stu Stuller said the Colorado Court of Appeals in 1998 narrowly construed the personnel file exemption to include only information that relates to a public employee’s “capacity as a private citizen,” such as home addresses and telephone numbers. He acknowledged that, under the appellate court’s interpretation, there is a broad array of personnel-file information that could be released to the public.

“If breadth is required by the statute, then breadth is required by the statute and there’s really nothing we can do about it,” Stuller said.

Fifty teachers at Conifer and Standley Lake high schools called in sick Sept. 19, forcing the closure of both schools. Classes at Golden and Jefferson high schools were canceled Sept. 29 after a large number of teachers took either sick or personal days. Some of the teachers said at the time they were concerned about proposed changes to the district’s Advanced Placement U.S. history curriculum and a teacher compensation proposal from the board.

Lisa Elliott, executive director of the JCEA, testified that the teachers who used sick leave on those days believe that publicly releasing their names would be an invasion of privacy. Many, she said, would be concerned about their safety and their reputations in the community, especially those teachers who legitimately stayed home with illnesses on those days.

“I had teachers call me and who were very afraid that something bad would happen, that threats would be made,” Elliott said, adding that the union did not encourage or condone the use of sick leave to protest school district policies.

Stuller argued that a public employee’s right to privacy concerning his or her use of sick leave cannot be found in case law, constitutional law or state statutes.

During the hearing, lawyers for neither side mentioned that the names of the Conifer High teachers who called in sick already have been released. Those were provided in September to parent and teacher Kyle Walpole after he filed a CORA request.

The Colorado Freedom of Information Coalition submitted a friend-of-the-court brief in the union’s lawsuit that was co-signed by the Colorado Press Association, the Colorado Broadcasters Association, The Denver Post and the Associated Press.

It contends that the Jeffco school district should be allowed to release the teachers’ names “because the public has a compelling interest in being able to monitor the performance (or, as here, non-performance) of public employees’ public functions and the expenditure of public funds.”

District Court Judge Christie Phillips said she expects to issue a ruling in June.

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