Legal Brief
Personal Cellphone Use for Work Purposes
BY KEVIN T. SUTTON/School Administrator, August 2022

PICTURE THE MODERN school administrator. While dressed for success and undoubtedly confident, there’s a good chance he or she appears exhausted after two years of pandemic madness. If the mental image you’ve conjured is true to life, the administrator is clutching a cellphone, a tool more indispensable to carrying out daily functions than paper and pencil. Calls, texts, alerts, news and more at their fingertips 24/7 — whether they want them or not.

The utility of the cellphone is undeniable, but scant attention is given to the legal implications attached to all the school business being conducted on the device. The cellphone is often a personal device, used casually to respond to messages and crises outside the hours of the school day.

Casual and routine use has dangers, both obvious and hidden. The primary list of pitfalls is an alphabet soup of considerations — FERPA, HIPAA and FOIA to cite a few. But having awareness of these entanglements is just the first step. If your conduct becomes the focus of a legal action, your messages may end up being disclosed. 

So how does an administrator navigate these challenges effectively, while avoiding a misstep?

A Public Record

The first key is recognizing that any school business conducted on a cellphone could be subject to disclosure in some forum. As a general rule, if the communication is part of the administrator’s execution of job duties, there’s a good chance that the material is a public record, making it subject to production upon request.

While the parameters of each state’s sunshine laws differ, all favor disclosure of public records, even if the record is created on a personal cellphone. If the user is communicating as an administrator, disclosure is more likely.

It takes limited imagination to conjure a list of who might come looking for your texts, e-mails and messages. The parent who is upset about a discipline decision. The local reporter who wants to understand how the school district responded to a threat made on social media. A disgruntled employee who is convinced that senior leadership in the school district was plotting to terminate him. The possibilities are endless.

Limiting Wrangling

While the complete elimination of the threat to produce your cellphone records is not possible, there are a few helpful rules to live by to minimize legal wrangling.

»Have a personal cellphone for personal use and a work cellphone for work use. Carrying two cellphones is a pain, but maintaining separation between personal and business use may ultimately save headaches. With one phone, business and personal communications inevitably become intertwined. Sorting through which bucket the communications fall into is not only time-consuming, it might not be you, but a judge or an arbitrator who gets to do the sorting.

»Limit the amount of official business you conduct through electronic messages. You are unlikely to eliminate working through texts and e-mails completely, and it may sometimes be burdensome to have a phone call. Still, if you conduct business via phone call, you can greatly reduce the number of text messages you will be required to search and produce in response to a legal request for records.

»Avoid the urge to be casual in your text and e-mail messages. Casual messaging has many pitfalls. Clumsy or ambiguous wording might make your motives unclear. That’s red meat in litigation and in the public square. Treat messages sent from your phone with at least as much formality as e-mails sent from your desktop.

Personal Control

Ultimately, administrators’ days don’t end when they leave the office and there is nothing to stop a request for work-related records. But administrators can control the texts and e-mails they create. Especially in the current environment where schools are under intense scrutiny with respect to student safety and hot-button issues, diligence is critical. Be intentional, vigilant and succinct.

KEVIN SUTTON is an education attorney with Miller Johnson in Detroit, Mich. Twitter: @MJEdLaw