Outgoing Tacoma schools Superintendent Charlie Milligan has been told not to destroy any records of district business contained on his personal computer.

Milligan says he has no files and that he wiped records from his Gateway laptop when he gave it to his son for high school.

The News Tribune five times since March 20 has requested Milligan’s public records relating to his March 18 performance review.

School Board Vice President Jim Dugan gave Milligan the “no destruction” order by e-mail July 6. It came one day after The News Tribune asked Dugan for his recollections of a PowerPoint presentation Milligan was said to have made during the March 18 closed-door review.

“As you know, the district is in receipt of a public records request for your district business documentation from both your district and personal systems and equipment,” Dugan wrote.

Until that request “is resolved,” Dugan told Milligan: “Do not delete any district business documentation from either your district or personal systems and equipment.”

Milligan replied in an e-mail: “OK but I have no files as I gave my gateway laptop to my son for high school and cleared the system in any event there was nothing on the machine which pertained to Tacoma. It is not my habit to keep info and any documents created and saved would be on (his secretary’s) computer.”

School Board members Kurt Miller and Debbie Winskill specifically recall that Milligan used what appeared to be his own computer for a presentation he made to the board during the March 18 performance review.

He ferried in a laptop and other equipment when he arrived, Winskill said.

Milligan harangued the board for its lack of support and blasted the community in the computer-generated slide show that day, Miller and Winskill said.

He also threatened to quit working or do anything to improve student improvement unless the board agreed to modify his contract, the two said.

Milligan did not provide board members with copies of the slides, Winskill said.

Accounts differ about whether such a presentation document exists – and two board members present at the March session aren’t talking.

Dugan didn’t recall Milligan’s talk as a slide-based presentation.

“I remember him reading a printout,” Dugan said. It appeared to be a summary document, or talking points, Dugan added.

School Board President Connie Rickman said Wednesday that she was jet-lagged from a trip to South Korea and didn’t want to try recollecting a meeting that took place nearly four months ago. Board member Kim Golding responded by e-mail Thursday, saying she wouldn’t discuss a matter that took place in closed session.

Milligan twice told his secretary, Pearl Mora, this spring that the presentation didn’t exist when she asked for it in response to The News Tribune’s public records requests, Mora said.

In a written evaluation that came out after his departure was announced, board member Miller criticized Milligan for what he said was mistakenly believing that public records laws don’t apply to documents created on a home computer.

Tim Ford, assistant attorney general for government accountability, said a presentation to the School Board is a public record.

“It should be disclosed and it really doesn’t matter” whether it was created on district or personal equipment, he said.

Milligan has said he won’t comment on his review, and he did not return a phone call to his home on Wednesday.

Milligan and the board agreed June 21 that he should leave his post as CEO after only a year on the job. He’s on the payroll through July 31 but is “on call” only. His severance agreement includes pay and benefits amounting to about $418,000.

Rickman, Dugan and Golding rated Milligan’s performance as “satisfactory” during the March 18 review. Miller and Winskill declined to vote, saying they didn’t have enough information on the performance of a man who’d been on the job only 81/2 months.

District officials released Milligan’s four-page self-evaluation, along with other records, shortly after the March review session. The board’s evaluation forms and notes were released June 28, the same day the exit agreement was signed.

The presentation Milligan made March 18 wasn’t among those records. School district officials have said they’ve been unable to find any record of the presentation.

In all, The News Tribune made five public records requests for information about Milligan’s performance review. A March 20 request sought “all written and electronic records,” as well as notes on the subject. Two oral requests for a PowerPoint or other electronic presentation Milligan made concerning his relationships with the board and the community were made in the following weeks. A June 15 request asked for a number of records, “including any and all notes used or compiled during the evaluative process.”

And a June 29 public documents request sought “copies of any and all e-mails, memos, documents, PowerPoints, presentations and any other materials prepared by Dr. Charlie Milligan on any district or personal property regarding his performance review.”

School district spokeswoman Leanna Albrecht said in a letter written Tuesday that the district needs more time to determine whether such records exist, locate them and follow other aspects of the law. She promised a further response by Aug. 16.

Albrecht hasn’t answered the question of whether district officials believe that work done on personal equipment is subject to public disclosure laws. But she said the district would follow the law.

Ford, the assistant attorney general, said, “There’s a duty not to destroy public records once there has been a request until the issue of whether they’re disclosable is resolved.”

Albrecht said the district has no “policy or practice that limits employee work to only district machines or equipment, and we follow all applicable laws.”

The district also has no policy requiring that work performed at home or elsewhere be transferred into the school system’s computers, she said.

Ford said he didn’t know “what remedy might be available” if records were destroyed.

The smart thing would be for agencies to require that employees who use personal equipment for public business put copies of the records they create on the government’s computers, he said.

PUBLIC RECORDS, PRIVATE COMPUTERS

Even if a document is created on a public employee’s own computer, it may still be a public record in the eyes of the law. Below are model agency rules from the Washington attorney general, as contained in the Washington Administrative Code. Although the rules are nonbinding and advisory until they are adopted by an agency, they are supported by the Public Disclosure Act and case law, according to Tim Ford, the attorney general’s point man on public access.

Sometimes agency employees work on agency business from home computers. These home computer records (including e-mail) were “used” by the agency and relate to the “conduct of government” so they are public records. However, the act does not authorize unbridled searches of agency property. If agency property is not subject to unbridled searches, then neither is the home computer of an agency employee. Yet, because the home computer documents relating to agency business are “public records,” they are subject to disclosure (unless exempt). Agencies should instruct employees that all public records, regardless of where they were created, should eventually be stored on agency computers. Agencies should ask employees to keep agency-related documents on home computers in separate folders and to routinely blind carbon copy (“bcc”) work e-mails back to the employee’s agency e-mail account. If the agency receives a request for records that are solely on employees’ home computers, the agency should direct the employee to forward any responsive documents back to the agency, and the agency should process the request as it would if the records were on the agency’s computers.