Can a school board discuss a lawsuit update or pay-period costs behind closed doors in Delaware?

Official title

11-IB10 08/15/11 FOIA Opinion Letter to Ms. Shirey re: FOIA Complaint Against Larel School Board

Plain-English summary

Christie Shirey complained that the Laurel School Board's June 22, 2011 executive session covered topics FOIA does not allow behind closed doors. The Board's agenda described the session as covering collective bargaining, litigation, and personnel, but the draft minutes showed the Board actually discussed the cost of an extra pay period, a Construction Liaison applicant's qualifications and the financial case for that position over a buildings-and-grounds supervisor, a personnel recommendation for a vacant job, an "update" on a lawsuit, and even the Board's own need for confidentiality about what was discussed in executive session.

The AG found a mix of problems. Labeling the Construction Liaison discussion as a "personnel matter" mixed up two different statutory categories, job-applicant qualifications versus current-employee personnel matters, but because the public had already substantially weighed in on that hiring decision at an earlier meeting and the Board ultimately voted on it in public, the AG found the mislabeling harmless and required no fix. The other topics were a different story: discussing the cost of an extra pay period, the financial reasoning behind the hiring decision, the Board's own confidentiality concerns, and a general lawsuit update (FOIA allows only litigation "strategy sessions" in executive session, not general updates) all fell outside any of FOIA's nine permitted executive-session purposes. The AG ordered the Board to put those specific items on the agenda for its next public meeting and to send the AG's office a copy of that agenda once posted.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware school board discuss the cost of a pay period or a hiring decision's finances in executive session?

No, according to this opinion. The AG found the cost of an extra pay period and the financial reasoning behind a hiring decision did not fall within any of FOIA's nine permitted purposes for executive session, and ordered the board to place those topics on a future public meeting agenda.

Can a school board discuss a pending lawsuit "update" behind closed doors?

Only a genuine litigation strategy session, according to this opinion. The AG found that FOIA's litigation exception covers "strategy sessions," not general status updates, so the board's lawsuit "update" in executive session should have taken place in public.

Does mislabeling an executive session always require a school board to redo the process?

Not if the public was otherwise well informed, according to this opinion. The AG found labeling a job-applicant discussion as a "personnel matter" was a harmless, technical error here because the public had already substantially discussed the hiring decision at an earlier public meeting and the board ultimately voted on it in public.

Background and statutory framework

FOIA requires public bodies to meet in public except for one of nine specific purposes, 29 Del. C. § 10004(a)-(b), including discussing a job applicant's qualifications, 29 Del. C. § 10004(b)(1), as distinct from discussing the "names, competency and abilities" of current employees, 29 Del. C. § 10004(b)(9), a distinction the Board had overlooked before, see Att'y Gen. Op. 11-IB08, 2011 WL 3013796, at 3 (Del. A.G.). Where the public was substantially involved in a matter despite a mislabeled agenda, the AG's precedent does not require remediation for that mislabeling alone, Att'y Gen. Op. 06-ID22, 2006 WL 3387935, at 4 (Del. A.G.).

But FOIA permits executive session for litigation only as a "strategy session," 29 Del. C. § 10004(b)(4), not for general updates, and none of FOIA's nine purposes cover discussing routine budget costs like an extra pay period, the comparative financial merits of a staffing decision, or a public body's own concerns about confidentiality. Because the Board's June 22 executive session strayed into all of these areas, the AG required the Board to place those specific topics on the agenda of its next regular public meeting and to provide the agenda to the AG's office once posted.

Citations

• 29 Del. C. § 10004(a) (meetings of a public body must generally be open to the public)
• 29 Del. C. § 10004(b) (nine permitted purposes for executive session)
• 29 Del. C. § 10004(b)(1) (executive session for an individual's job qualifications)
• 29 Del. C. § 10004(b)(9) (executive session for personnel matters involving current employees)
• 29 Del. C. § 10004(b)(4) (executive session limited to litigation "strategy sessions")
• Att'y Gen. Op. 11-IB08, 2011 WL 3013796, at *3 (Del. A.G.) (distinguishing job-applicant qualifications from current-employee personnel matters)
• Att'y Gen. Op. 06-ID22, 2006 WL 3387935, at *4 (Del. A.G.) (mislabeled executive session is harmless error where public was substantially involved)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/08/15/11-ib10-081511-foia-opinion-letter-to-ms-shirey-re-foia-complaint-against-larel-school-board/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 11-IB10

August 15, 2011

Ms. Christie Shirey

302 W. 8th Street

Laurel, DE 19956

RE:  Freedom of Information Act Complaint Against Laurel School Board

Dear Ms. Shirey:

You have asked for an Attorney General’s determination as to whether the Laurel School Board  (“ Board “)  violated  the Freedom  of Information  Act, 29 Del. C. ch. 100  (“ FOIA “),  by meeting in executive session on June 22, 2011 to discuss both the district’s finances and hiring a Construction  Liaison.  The Board has provided us with a response to your complaint, which includes the agenda, minutes and draft executive session minutes for the June 22 meeting.  This is the Delaware Department of Justice’s determination pursuant to 29 Del. C. § 10005(e).

RELEVANT FACTS

The agenda for the Board’s June 22, 2011 regular meeting includes “Executive Session – Discussion of Collective Bargaining and/or Pending or Potential Litigation and/or Personnel.”  The draft minutes of the executive session of June 22, 2011, indicate that in the executive session the Board discussed:

• the cost of having an extra pay period at the end of the year

• the qualifications of one of the applicants for the position of Construction Liaison, and the financial reasons why the district should hire a construction liaison instead of a building and grounds supervisor

• a personnel recommendation received for a vacant position

• an “update” on a lawsuit • the need for confidentiality on matters discussed in executive session

The Board’s response to your complaint states that none of these matters were voted on in executive session, and the minutes confirm that.  During the public portion of the meeting, there was substantial public input on the question of construction liaison versus building and grounds supervisor, and the Board voted, without discussion, to hire one of the applicants as Construction Liaison.

RELEVANT STATUTES

All meetings of a public body must take place in public, unless the meeting is for one of the nine purposes listed in 29 Del C. § 10004(b).  29 Del C. § 10004(a).  Section 10004(b)(l) permits executive session (closed to the public) for “[d]iscussion of an individual citizen’s qualifications to hold a job … unless the citizen requests that such a meeting be open.” Section 10004(b)(9) allows a public body to meet in executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees … are discussed, unless the employee … requests that such a meeting be open.”

DISCUSSION

The Board has overlooked the distinction between an executive session to discuss the qualifications of job applicants (§ 10004(b)(l)) and one to discuss confidential personnel matters concerning current employees (§ 10004(b)(9)).  See Att’y Gen. Op. 11-IB08 , 2011 WL 3013796, at *3 (Del. A.G.).

Although members of the public who were interested in the hiring of a construction liaison may not have attended the June 22 public meeting because of the misleading agenda, our precedent is that where the public was substantially involved in the process, we will not require any remediation for the violation of labeling a question of job qualifications as a personnel matter.  Att’y Gen. Op. 06-ID22 , 2006 WL 3387935, at *4 (Del. A.G.).  The minutes of the April 20, 2011 Board meeting show substantial discussion in public of the construction liaison issue, and after the executive session on June 22, the Board heard from the public on the issue, and voted in public.  Therefore, the mislabeling of the Agenda was a harmless error that does not need be remedied.

However, the June 22 executive session also went into areas that FOIA does not permit: the cost of having an extra pay period at the end of the year, the financial reasons for hiring a construction liaison instead of a buildings and grounds supervisor, 1 and the need for confidentiality on matters discussed in executive session.  It also appears from the draft minutes that the update on pending litigation should have taken place in public, because 29 Del. C. § 10004(b)(4) permits only “[s]trategy sessions” to be held in executive session. 2    These violations will have to be corrected.

CONCLUSION

For the reasons stated above, the Laurel School Board violated the Freedom of Information Act in describing the purpose of an executive session as “personnel” when in fact it was to discuss the qualifications of a job applicant.  However, because the public was significantly involved in discussion of the issue, we do not seek remediation here.  Remediation is necessary for the violations of discussing in executive session the following items:

• the cost of having an extra pay period at the end of the year,

• the  financial  reasons  for  hiring  a  construction  liaison  instead  of  a buildings and grounds supervisor,

• an “update” on a lawsuit, and

• the need for confidentiality on matters discussed in executive session.

The Board should put those items on the agenda for the next regular public meeting, and provide this office with a copy of the agenda when it is posted.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

APPROVED

/s/ Lawrence W. Lewis

Lawrence W. Lewis

State Solicitor

cc:  James D. Griffin, Esquire

FOOTNOTES

1 The fact the financial reasons for hiring a construction liaison were publicly discussed on April 20, 2011 (agenda item 10g), does not excuse repeating that discussion only in executive session on June 22.  According to the minutes of the June 22 public meeting the reasons given in executive session were not repeated in public, depriving the public of the opportunity to hear that discussion.

2 The Board may have been misled by its boilerplate agenda item, “Executive Session – Discussion of Collective Bargaining and/or Pending or Potential Litigation and/or Personnel.”  That broad reference to “Pending or Potential Litigation” may have implied to the Board that any discussion of litigation can be held in executive session.