Law­suit a re­minder of email’s per­ils

Fired water agency man­ager al­leges bosses en­forced rules se­lec­tively.

Austin American-Statesman - - VIEWPOINTS -


of­fice can run with­out email. It’s a nec­es­sary but some­times dan­ger­ous tool. Few are the of­fice work­ers who haven’t at least tem­po­rar­ily for­got­ten that their work email ac­count may have their name on it, but it doesn’t be­long to them. The per­sonal mes­sages you send from work can come back to haunt you.

This thought about the po­ten­tial per­ils of send­ing per­sonal mes­sages on work email ac­counts oc­curred to us last week af­ter we read a news story about Diane Hy­att by the Amer­i­can-States­man’s Marty Toohey.

The Texas Water Devel­op­ment Board fired Hy­att in May, ac­cus­ing her of us­ing her work email to raise money for Brigid Shea’s un­suc­cess­ful cam­paign for mayor last spring against in­cum­bent Lee Leff­in­g­well. Hy­att, a former man­ager at the board, is su­ing the agency in U.S. District Court be­cause she says she was fired for sup­port­ing a can­di­date whose lib­er­al­ism is con­trary to the pol­i­tics of the direc­tors ap­pointed to run the agency.

Now, this ed­i­to­rial’s ad­mo­ni­tion about email in the work­place is one Hy­att ap­pears to have un­der­stood, ac­cord­ing to her ver­sion of her dis­missal. As Toohey re­ported, Hy­att was plan­ning a fundrais­ing party for Shea. Hy­att says she merely for­warded emails to her per­sonal ac­count that Shea’s cam­paign mis­tak­enly had sent to her work ad­dress, and that she asked Shea’s cam­paign to cor­rect its con­tact in­for­ma­tion to in­clude her per­sonal email ad­dress rather than her work ad­dress.

Hy­att, who had worked at the Water Devel­op­ment Board since Novem­ber 2006 and, ac­cord­ing to her law­suit, had no prior dis­ci­plinary record, says she did not plan the fundraiser from work, but from home.

Hy­att says Shea’s email mes­sages were used by the agency as a pre­text to fire her, that she was really fired for sup­port­ing a lib­eral can­di­date while work­ing for an agency whose board of direc­tors are ap­pointees of Repub­li­can Gov. Rick Perry. She says her fir­ing co­in­cided with an Amer­i­canS­tates­man ar­ti­cle that quoted her as a Shea sup­porter and iden­ti­fied her as an em­ployee of the Water Devel­op­ment Board.

She was fired May 11, the day af­ter the ar­ti­cle ap­peared in print.

As part of her law­suit, Hy­att and her at­tor­ney filed an open records re­quest for emails sent to and from the Water Devel­op­ment Board. They found that at least a dozen other board em­ploy­ees used their state com­put­ers and their state email ac­counts to send polit- ical mes­sages. None of th­ese other em­ploy­ees has been fired or pun­ished, ac­cord­ing to Toohey’s ar­ti­cle, even though some of the emails re­vealed by Hy­att’s open records re­quest are ... in­sen­si­tive, let’s call them.

As Toohey re­ported, one email from Water Devel­op­ment Board em­ployee Mark Mi­chon to fel­low em­ployee Sanjeev Kalaswad reads: “Give a man a fish and he eats for a day. Give the man a wel­fare check, a forty ounce malt liquor, a crack pipe and some Air Jor­dans and he votes Demo­crat for a life­time.”

Not clever. Not funny. Never was. Never will be. But here’s the point, says Hy­att’s lawyer, Derek Howard:

“It’s our con­tention that a rule that isn’t en­forced isn’t a rule at all. It should not be used as a sil­ver bul­let to fire em­ploy­ees who hold po­lit­i­cal views you dis­agree with. The only con­clu­sion is that the email was a pre­tex­tual ex­cuse for fir­ing” Hy­att.

The Water Devel­op­ment Board’s rules, Toohey re­ported, pro­hibit “any po­lit­i­cal ac­tiv­ity on state time or us­ing state re­sources for any po­lit­i­cal ac­tiv­ity.” So if oth­ers were do­ing the very thing Hy­att ap­par­ently was fired for do­ing — and “any po­lit­i­cal ac­tiv­ity” cov­ers a pretty broad range of pos­si­ble ac­tiv­i­ties, from or­ga­niz­ing fundrais­ers to mak­ing in­ap­pro­pri­ate jokes — and if they weren’t held to the same stan­dard as Hy­att, then the board se­lec­tively en­forced its poli­cies.

The mer­its of Hy­att’s law­suit against the Texas Water Devel­op­ment Board are for the courts to de­cide.

But we can find two re­minders of use­ful lessons in her case, for work­ers and com­pa­nies or agen­cies alike. Com­pany poli­cies should be ap­plied evenly. And your work email is not a per­sonal email ac­count; you can’t al­ways con­trol what you’re sent but you can watch what you send.

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