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Use of Email in City Govt.
Posted on December 29, 2015 by Andrea Shindlebower in Use of Email in City Government

Use of Email in City Government

The use of email, especially personal email, by government officials has become the latest in headline news.  Keep in mind that emails are like any other public record in that each one, outside of an exception found in KRS 61.878, can constitutes a public record subject to the Open Records Act and the Record retention Schedule.  Because of this, the city must be certain to evaluate each electronic message to see if it fits into an exception and if not to be certain to follow the most recent record retention requirements set out by the Department of Libraries and Archives.

The Attorney General clearly states that public officials should avoid the use of a personal email account to conduct city business.  In 2014, the Attorney General stated that using private email accounts is a practice that raises “significant records management and retention issues.”  As an alternative to using a private account, the Attorney General states that public agencies can establish “separate email accounts for employees through a free service, such as Gmail, using a common naming convention that identifies” the government (for example, johndoecityofpleasant@gmail.com).  Another alternative is “to set up a single dedicated open records account, using a free service, to which all responsive email maintained on personal accounts could be forwarded, saved, and exported in the event of an open records request.”

In whatever way the city decides to handle email retention, a written policy needs to be in place that delineates the information for all city officials.  At the very minimum, the policy needs to address:  

  • That the Open Records Act as well as the Department of Libraries and Archives Record Retention Schedule is applicable to the city and its agencies;
  • That the policy applies to all electronic messages created, received, retained, used or disposed of related to city business or used in the name of the city; and
  • User responsibility in regards to retention and disposition of electronic messages.  

Deciding which electronic records must be retained is not an easy feat.  Electronic records will have to be gathered and a decision made as to whether or not they are exempt based on one of the open records exemptions.  More information on how that process works as well as a model policy can be found athttp://kdla.ky.gov/records/recmgmtguidance/Pages/elecrecmgmt.aspx

For additional sample policies or more information on this or any other personnel matter, contact Andrea Shindlebower at ashindlebower@klc.org.

 

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Romance in the Workplace
Posted on December 29, 2015 by Andrea Shindlebower in Romance in the workplace

Love is in the air!  And unfortunately for cities, sometimes that love can come in the form of those in employee relationships.  So what is an employer to do about these situations? 

Some employers choose to enact policies that completely ban romantic relationships in the workplace, but even this is not without its own set of issues.  By completely banning you can force employees that are in a romantic relationship to go into hiding, which leaves the city completely unaware and unprepared for the issues that may result.  By not dealing with this out in the open it can be the source of even bigger problems down the road.

Other employers choose to allow it to happen as long as there is disclosure.  This can also create problems of its own.  Many employees will perceive that preferential treatment is being received by a coworker based on their relationship, especially when one is in a supervisory role over the other. 

No matter the policy that your city enacts, you need to review your ethics ordinance and personnel policies to see what they say about employees and supervisory relationships.  In addition, does this relationship create a conflict of interest or the appearance of a conflict of interest and is it the subject of office gossip?  Any relationship, whether it is causal or romantic should not have a negative impact on city business.  And lastly, if love goes south, an employee can claim retaliation and harassment based on the previous relationship, which along with many other problems, may prove to be costly in court.

So how can the city protect itself from love gone wrong? 

  • First, have a clearly written policy with expectations set out in an easy to read and understand format.  And, it is recommended that those in supervisory positions should not be allowed to date subordinates under any circumstances. 
  • Second, if your city ethics ordinance applies to city employees, and your nepotism policy applies to dating relationships, be certain that it is also included in the personnel policy. 
  • Lastly make sure that your sexual harassment policy is up to date, has a clearly established complaint procedure and that all employees and supervisors are trained on what the policy states and what it requires.

Running a city is not all champagne and roses, so you need to protect the city by being proactive.  One of the ways to do this is to have a current and legally compliant personnel policy.  If your city needs to update personnel policies you need to work with someone who not only has expertise in personnel law and human resource matters, but someone who knows municipal law as well.  KLC can offer this expertise in a way that is specific to your city needs.  Whether it is creating or reviewing city personnel policies, providing training on your city policies, sexual harassment, or on a variety of specialized HR topics, we have you covered.  For more information on this service or any other personnel related matters contact Andrea Shindlebower at ashindlebower@klc.org.   

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Preservation, Safekeeping and Retention- Part 4

Preservation, Safekeeping and Retention

The last installment of this series addresses something that can be disastrous for a city.  If not handled properly, manager desk files can wreak havoc with the city personnel system as well as be an issue in regards to open records requests and lawsuits. 

The debate over whether manager desk files should be permitted is a long-standing issue. Personnel records, as well as any other city-generated document, should be kept at city hall as the city clerk, by statute, is the custodian of all city records.  If managers do have desk files, they need to be certain that the original document is maintained by the city clerk and that only a copy is contained within their files.  Managers also need to be aware that any confidential records must be securely maintained.  In many cases, this requires that managers be trained on what is confidential and what is considered an open record. 

Personnel policies should also address this issue and provide guidance on how the desk files will be maintained, if they are allowed at all.  Explanations in regards to statutory requirements should be given so that managers fully understand the importance of these procedures. 

Lastly, be aware that manager desk files are also discoverable in the event of a lawsuit. Because of this, managers need to know what is and is not acceptable in regards to their recordkeeping.  A periodic review of what a manager is keeping can assist a city in addressing potential issues before they arise. 

For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.

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Preservation, Safekeeping and Retention- Part 3

Preservation, Safekeeping and Retention, Part 3

In this, the third installment of the series, we will look at how to handle files of employees that are no longer with the city’s employment and also the hiring records of those who applied for employment with the city, but were never hired. 

Terminated Employee Files

Whether the employee was terminated by the city or the employee left on their own, you will need to be aware of the requirements for these particular employee files.  Many of these records will need to be maintained 60 years or more after the employee leaves employment.  For answers on the retention of specific information within personnel files, go to the searchable documents at the Kentucky Department of Libraries and Archives (KDLA) website

With the retention schedule in mind, does your city have a regular (weekly, monthly or quarterly) disposal plan for documents that have exceeded record retention guidelines?  If not, it is a good time to get one in place.  Who will oversee the program and verify the records have been kept according to the guidelines?   How often will this be done? 

Once you have determined that the employment records have met or exceeded record retention requirements, they must be disposed of via shredding, burning or otherwise fully destroying these records prior to disposal.  This must be done within the destruction guidelines of the KDLA, including the completion of the Destruction Certificates

Lastly, are any files that are related to a current or potential lawsuit maintained by legal counsel or in some other way marked as exempt from any disposal process until after the suit is closed? Keep in mind that under discovery and e-discovery laws, it is illegal to destroy documents related to a current or potential lawsuit.

Hiring Records

These records should include any job requisitions and job postings, interview notes, reference checks, and other hiring records such as applications and resumes.

These records can be accessed by the hiring manager as well as by HR, so they should not include any information irrelevant to the job or to the hiring decision, such as protected class information, arrest records and Social Security numbers (SSNs).      

Once the hiring decision has been made, any information on applicants that were not hired must be maintained for two years, or at the close of any litigation that was filed in regards to the failure to hire the applicant, whichever is longer.   Also, any information retained on applicants not hired would not be subject to open records. 

Next week will look at the issues with files that are kept solely by managers.  For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.

 

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