Sebring's affaire de e-mail: Spotting the Issues

June 14, 2012, 3:30 p.m.

[If you're interested in this blog entry, you might also want to see "Sebring's Emails, Part II; How Private Emails Become Public Records," June 24, 2012.]

Was This Really an "Email Policy" Resignation?
Internal Links to Contents

Language and Issue Spotting
The Superintendent's "Affair"
Morals Clauses
University of Iowa Tech Use Regulations

Nancy Sebring was one of Iowa's most outstanding, solid, well-regarded school superintendents. In Des Moines, she was leading one of the state's largest and most challenging school districts.

I recall meeting her when a great grandchild of mine was in her school system, and talking school board issues with her (as a former member of the school board for the Iowa City Community School District). She was as impressive in person as was her record on paper.

In May of this year she announced she would be resigning as superintendent, and later that she was accepting a comparable position in an even larger school district: Omaha.

Then, over a weekend, it all came crashing down.

It turned out she had sent some personal emails to a friend, using school computers and Internet connections. Because both the school district and the media considered these emails "public records" under Iowa law, once requested they were handed over and soon spread upon the front pages of major newspapers.

Why this media and public interest? These were not simple, brief emailed requests like, "Honey, please pick up some milk on you way home tonight," or, "Could we make lunch next Wednesday instead of Monday?" These were romantic exchanges with someone other than her husband, characterized as "an affair." E.g., "revelations of the affair were made public on Friday." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012.

It was the stuff of the gossipy, privacy-violating, sometimes fictional, supermarket tabloid National Enquirer. (Here are some illustrative headlines from its current online issue: "Mitt Romney Backstreet Abortion Shocker," "Travolta's Six-Year Affair with Male Pilot," "World's Fattest Bride," "Cops Probe Psycho Cannibal Porn Killer in Hollywood," "Zombie Apocalypse Now," and "The Dingo Did Eat Her Baby.")

Can you imagine how the Enquirer would handle and headline the Sebring story? Perhaps: "Iowa School Officials Cool to Administrator's Hot Sex."

Now don't get me wrong, judging, let alone condoning, the propriety of the superintendent's actions -- whether the relationship or her use of school computers to maintain it -- is not the subject of this blog entry.

Language and Issue Spotting

My purpose is simply an exploration of our use of language in how we analyze and think about the many issues surrounding email (and other Internet) use by employees.

Precision in the use of language is crucial in making wise decisions.

A corporation has to address, and express precisely, "What business are we really in?" A research scientist knows it's often more difficult to frame the question than to find the answer. In personal life, asking impossibly vague questions such as whether one is "successful" or "popular" or "rich" is more likely to lead to demoralization than answers. Coming up with the most appropriate measures in establishing John Carver's "ends policies" for board governance, or a management information reporting system, is hard work. How a doctor phrases a diagnostic question to a patient may end up being literally a matter of life or death.

In law school we speak of "spotting the issue."

No matter how good a lawyer's legal theory may be, no matter how much her winning appears to be a slam dunk, if she fails to "spot the issue" regarding a statute of limitations that has already run, or an exclusionary rule of evidence that will keep her convincing facts from the jury, she may lose not only her case but the client, her professional reputation, and in some instances her license to practice law.

So what are "the issues" in a school superintendent's use of school computers and Internet access for personal messages?

Initially, I see five categories of issues.

(1) Inappropriate behavior in general (without regard to where, with what, or when).

(2) Use of an institution's offices, facilities and equipment (whether government, schools, or private firms) for personal purposes.

(3) Devoting time to other than assigned tasks during "working hours."

(4) Unauthorized, or otherwise inappropriate, behavior with regard to the use of an institution's facilities.

(5) Public records requirements. (Are "personal" emails "public" records?)

The Superintendent's "Affair"

As a cyberlaw professor I'm drawn to the e-mail-related policy issues. But my initial reactions are that they were really peripheral to what happened in this case. And since a blog entry can't handle much more that this discussion of "issue 1," the rest will have to wait for later.

Sebring alleges, and no one contests, before the relationship was known it did not diminish the quantity or quality of her performance for the district. (Indeed, it may have increased both.) The added cost to the district of her computer use for personal purposes was so small as to be incapable of calculation. She was not engaging in hacking, cyber-bullying of employees, running a private business from her office, or other computer misuse of that nature.

Indeed, had her "personal use" been limited to innocuous messages involving rescheduling luncheons, or sharing items with family members, it is highly unlikely she would have been fired or found it necessary to resign.

[I haven't researched the details of her school district's computer and phone personal use policy, but here is one example of a common approach: "Electronic media and service are primarily for City business use. Limited, occasional or incidental use of electronic media (sending or receiving) for personal, non-City purposes is acceptable, as is the case with the occasional receipt or placement of personal phone calls." Excerpt from "Pleasant Hill City Manager Contract,"
p. 15, Section 7.2, "Electronic Media, Internet and Cell Phone Use". Even without such an administrative rule, or contractual provision, this would be a reasonable, common sense way to treat de minimis use of an employer's property.]

Similarly, had she used a handheld device and an e-mail account unrelated to the school district, if the relationship and comparable private messages became public she might have had to resign anyway.

No, I think the media coverage, and resignation, resulted from the content of the messages, and the relationship they revealed, not the computer she used to compose and send them.

Had she not been married, a relationship with a male friend would have been less problematical (although the explicit language in the emails might still have been an issue for the school board). Therefore, the nature of her "marriage" is relevant -- because the word "affair" suggests she may have been unfaithful to a husband in a strong, ongoing marriage.

Here is an excerpt from how her husband describes it: "Nancy and I have lived separate and independent lives for the past seven years. Our careers have led us in different directions both geographically and personally. We remain friends and enjoy spending time with our children and grandchildren." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012.

How does one go about fairly evaluating what she did (as distinguished from her choice of language in messages she believed to be private)? Was her rejection by two school boards -- or their acceptance of her resignation -- reasonable under the circumstances, and if so why or why not?

Because the answer turns, in large measure, on those boards' reflection of the values and standards of American society -- and in this case Iowans -- it's useful to try to figure out what they are. It's not an easy search. Partly this is because of the language we use to talk about them. Words like "affair," "adultery," "faithful," or "sexual harassment" can cover such a wide variety of behaviors, with an accompanying wide variety of reactions, as to impede their utility as a result of being both under- and over-inclusive.

President Clinton's involvement with Monica Lewinsky gave rise to a national conversation exposing the realization we can't even agree on what the phrase "sexual relations" includes (i.e., oral sex as well as sexual intercourse?). By his definition (and that of many high school and college students) he was telling the truth when he insisted, "I did not have sexual relations with that woman, Miss Lewinsky." "Lewinsky Scandal", Wikipedia.org.

Moreover, opinions and reactions vary with one's socio-economic group, educational level, geographic residence, religion, social friends' values -- not to mention personal experience and many other variables. They also vary over time; meaning both the century in question and one's age.

So let's take a stab at it.

Americans' attitudes about sex, from the time of the Pilgrims until today, have been highly charged -- emotionally, politically, socially, legally, judgmentally, and religiously. So it is not surprising that when "sex" is involved in stories about high profile individuals there will be great public interest in the gossip and details.

However, attitudes regarding sexual relations vary across a broad spectrum. Some think any sex with anything or anybody at any age or any time is inappropriate. Some think sex within marriage ("between one man and one woman") is OK, so long as it is for the purpose of creating children. Others think it's OK whatever the purpose.

What about sexual activity by and among those who are unmarried (single, divorced, long-time separated)? What if one of the couple is single and the other is married (to someone else)?

Given the number of births to young, unmarried mothers, one would have to conclude that, whatever they may believe, a lot of singles are engaged in sex outside of marriage. Jason DeParle and Sabrina Tavernise, "For Women Under 30, Most Births Occur Outside Marriage," New York Times, February 18, 2012, p. A1 ("It used to be called illegitimacy. Now it is the new normal. . . . [M]ore than half of births to American women under 30 occur outside marriage.").

On the other hand, some, but relatively few, will openly say it's OK for a married person to have a sexual relationship with someone other than their spouse. The so-called "open marriage" movement of the '70s was not spectacularly successful.

On the other hand, once again practice varies somewhat from professed belief -- and possibly varies even more than the statistics drawn from those willing to confess they've strayed would indicate. Tara Parker-Pope, "Love, Sex and the Changing Landscape of Infidelity," New York Times, October 28, 2008, p. D1 ("[T]he General Social Survey . . . data show that in any given year, about 10 percent of married people — 12 percent of men and 7 percent of women — say they have had sex outside their marriage. . . . [T]he lifetime rate of infidelity for men over 60 increased to 28 percent in 2006, up from 20 percent in 1991. For women over 60, the increase is more striking: to 15 percent, up from 5 percent in 1991.").

Even within these statistics, and the range of individuals' opinions about them, circumstances seem to make a difference.

At one extreme is former presidential candidate John Edwards, who represented while campaigning that he had a good marriage with his wife (who ultimately died of cancer), while he was having an ongoing sexual relationship that he denied, as well as denying his paternity of a child born of that relationship, for which he had an aide take responsibility, while using money from a wealthy campaign supporter to support and silence the mother. Neil A. Lewis, "For Edwards, Drama Builds Toward a Denouement," New York Times, September 20, 2009, p. A1.

On the other hand, there is the single "one-night-stand," or very brief and casual relationship, during an otherwise solid and lengthy marriage (as distinguished from an undisclosed, serious, ongoing relationship that undermines the marriage and lasts for years).

Some women (and men) accept such behavior from their spouse -- or at least don't pursue a divorce. Anne Sinclair, the billionairess wife of the womanizer and former IMF Director Dominique Straus-Kahn, (who certainly doesn't need to stay with him for his money) has said of him (even before the New York incident with the chambermaid), "It’s important to seduce, for a politician. As long as he is still attracted to me, and I to him, it is sufficient." Vanessa Grigoriadis, "The Womanizer’s Wife; Billionairess Anne Sinclair stood by her man when just about everyone else in the world believed the maid. Is it that she knows Dominique Strauss-Kahn? Or that she doesn’t?" New York Magazine, July 31, 2011.

Similarly, speaking of President Bill Clinton's relationship with Monica Lewinsky, then-presidential candidate Hillary Clinton said, "she had been embarrassed by Bill Clinton's cheating, but said she knew all along that he loved her. 'I never doubted Bill's love for me, ever . . .." "'I never doubted Bill's love': Hillary Clinton speaks for first time about Monica Lewinsky affair," Daily Mail [London], January 18, 2008.

Of course, now-Secretary Clinton also added on that occasion, "every case is unique. . . . 'No one story is the same as any other . . .. I can't possibly substitute my judgment for yours, but what I can tell you is you must be true to yourself.'"

And at the other extreme from Sinclair and Clinton are millions of women, and men, who decide that being "true to yourself" compels a divorce as a consequence of sometimes far less serious perceived transgressions by a partner (including what may have been in fact wholly innocent behavior), and behavior accompanied by none of the public humiliation suffered by celebrities from the media.

The Sebrings situation involved separation.

"Separations" can vary between temporary (whether because of a job relocation, or while the couple tries to "work things out"), and relatively long term and permanent (as seems to have been the case for the Sebrings). As quoted near the beginning, her husband described their relationship this way: ""Nancy and I have lived separate and independent lives for the past seven years. Our careers have led us in different directions both geographically and personally. We remain friends and enjoy spending time with our children and grandchildren." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012. This sounds like their status was, in fact if not in law, the full equivalent of divorce -- insofar as the social standards regarding fidelity are concerned.

From her husband's statement, he would seem to have been not at all surprised or upset that she would have other male friends with whom she might, or might not, have had sexual relationships.

Ms. Sebring said of her e-mail-based relationship that it "lasted a little over a month and has now ended" -- something that some would find ameliorating (because it was short-lived) and others would find more serious (because suggestive of additional relationships). Indeed, Sebring's reference to her "personal relationship in this case, or any other case," might suggest that possibility. Mary Stegmeir, "Nancy Sebring's sexually explicit emails disclosed; Her early exit as Des Moines schools superintendent was triggered by their discovery,", Des Moines Register, June 3, 2012.

These nuances might not make a significant difference to a school board's evaluation of their superintendent, and I'm not passing judgment one way or the other on either the superintendent or the board.

However, as I began this blog entry, language matters. In the realm of moral judgments, a word like "affair" (like the expression "sexual harassment") is used to describe a widely disparate range of situations and behaviors.

Therefore, I do believe the media does have an obligation in such a high profile case as Sebring's to be fair and precise.

I hear the echo of Joseph N. Welch's comment, following a similar loose use of language by Senator Joseph McCarthy during the Army-McCarthy hearings: "Have you no sense of decency, sir? At long last, have you left no sense of decency?" "Joseph N. Welch", Wikipedia.org.

It is not my purpose to judge what Superintendent Sebring did, either in her relationship or in her use of the school's email -- though I suspect, in retrospect she wishes she'd done things a little differently. Nor do I mean to suggest that the media has been the moral equivalent of Senator Joseph McCarthy or the National Enquirer. Judgment is neither my purpose nor my proper role.

My only contention is that it seems to me simple fairness would have dictated that the full texts of the explicit language in what were, after all, believed by the senders and recipients to be private in the extreme (even if they were mistaken in so thinking) did not need to be distributed to all the readers of mass-distributed newspapers. It is for that reason those texts have not been included in this blog entry.

At a minimum, fairness and decency required as much precision as possible in making clear that Nancy Sebring's "affair" was not John Edwards' "affair."

Morals Clauses

There is another enormous issue here which I'm not going to take time and space to explore, and that is the use of "morals clauses" in institutions' contracts of employment. Schools used to forbid, not only pregnant married women from teaching in their classrooms, but married women whether pregnant or not.

"[T]he scandal has prompted Iowa city and school officials to consider whether morality clauses should be part of the employment agreements signed by top public sector executives. A review of the contracts of more than two dozen Iowa school superintendents, city managers and county administrators showed that the inclusion of the clause — which allows employees to be fired for moral or ethical breaches — is not common. But, in education in particular, the current trend favors tighter controls on employee conduct, contract law experts said." Mary Stegmeir and Josh Hafner, "Few public contracts have morals clauses; But many school, municipal leaders' conduct in office is covered by other language," Des Moines Register, June 10, 2012.

In what jobs, contexts, and under what conditions are which personal qualities or behaviors grounds for dismissal?

Who will decide what constitutes "immoral" behavior? What procedures will be used to evaluate alleged transgressions?

To what extent should disciplinary actions be limited to immoral behavior that interferes with workplace performance? Ms. Sebring asserts that “my personal relationship in this case, or any other case, did not interfere with my job performance.” It apparently did not involve any district employee. Mary Stegmeir, "Nancy Sebring's sexually explicit emails disclosed; Her early exit as Des Moines schools superintendent was triggered by their discovery,", Des Moines Register, June 3, 2012. Notwithstanding the self-serving nature of her assertion, it's certainly plausible. It's possible the relationship even increased her energy and on-job performance.

When, and for which behavior, is it appropriate for an employer to try to regulate off-premises behavior? For example, if an employee can be fired, or not hired in the first place, for smoking in the workplace, can they be similarly rejected for smoking at home? If a college baseball team's first baseman can be dropped for using steroids, does the same standard have to apply to the marching band's first trumpet player? If an employer can fire a worker for having an "affair" with a co-worker, does it follow that they can also lose their job for an affair with someone who is not?

Could a pharmacy (without religious affiliation) that refuses to supply customers with birth control pills, fire an employee caught telling a potential customer which local pharmacies do carry the pills? If so, could it also fire that employee for an off-premises letter to the editor, or comment on a call-in radio program, on the subject? For a private, off-premises conversation with a friend? Compare, Laurie Goodstein, "Obama Shift on Providing Contraception Splits Critics," New York Times, February 15, 2012, p. A12.

So many issues, so little time and space. Perhaps there will be more to come at some point regarding the cyberspace issues.

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Appendix
Excerpts from University of Iowa Tech Use Regulations
University of Iowa Operations Manual, CHAPTER 19: ACCEPTABLE USE OF INFORMATION TECHNOLOGY RESOURCES (2002):

19.1 PREAMBLE
Although modest personal use of University-supplied technology resources may improve the skills of individual users and otherwise contribute indirectly to the University's mission, these resources should be used primarily for University-related educational and administrative purposes.

19.3 SECURITY AND PRIVACY.

Although it is the University's position that personal electronic files of faculty, staff, and students are not ordinarily to be considered "public records," users should be aware that a court of law, and not University officials, may ultimately decide such issues.

19.4 INDIVIDUAL RESPONSIBILITIES.

f. Avoid excessive personal use. Consistent with University telephone procedures (see VI-3.6), personal use of computer resources should be kept to a minimum. Personal use may be excessive if it takes place during regularly scheduled work time, if it overburdens a network, if it results in substantial use of system capacity, or if it otherwise subjects the institution to increased operating costs. Some uses will be plainly excessive in all environments, but the extent to which other uses become excessive may vary among units. In those instances, supervisors will provide more specific guidance to individual users by formulating unit policies or providing advice on a case-by-case basis.

g. Refrain from prohibited personal uses. Information technology resources, including the University's electronic address (e-mail, web), shall not be used for personal commercial gain, for charitable solicitations unless these are authorized by the appropriate University officer, for personal political activities such as campaigning for candidates for public office, or for lobbying of public officials. For purposes of this policy, "lobbying" does not include individual faculty or staff sharing information or opinions with public officials on matters of policy within their areas of expertise. Faculty and staff consulting that is in conformity with University guidelines is permissible.

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