Can a Delaware school board add a brand-new vote to its agenda by motion at the start of the meeting?

Official title

19-IB48 9/9/2019 FOIA Opinion Letter to Ms. Kristin Gibbons re: FOIA Complaint Concerning Sussex Technical School District

Plain-English summary

Kristin Gibbons, the parent of a student in Sussex Tech's hospitality program, filed a FOIA petition over how the Board of Education and Superintendent eliminated the program. Three meetings were in play. At the May 13, 2019 meeting, the Board moved at the meeting's outset to add a discussion and vote about a four-year phase-out of the program (the only hospitality teacher would have to be notified of any non-renewal by May 15, two days later). The phase-out item had not been on the seven-day-advance agenda or on a six-hour-amended agenda. At the August 12, 2019 meeting, the Superintendent announced he had unilaterally decided to terminate the program immediately after the sole teacher resigned. Gibbons also raised concerns about a pattern of long executive sessions at the start of every Board meeting under the labels "Personnel" and "Legal."

The AG found one violation. The May 13 meeting failed FOIA's agenda rules. Section 10002(a) requires a "general statement of the major issues expected to be discussed at a public meeting." The two amendment safety valves are § 10004(e)(5) (six-hour-prior amendment for items "which arise suddenly and cannot be deferred") and § 10004(e)(2) (items "arising at the time of the public body's meeting"). Neither applied. The Board did not amend six hours in advance, and the new item did not arise out of the natural evolution of a noticed agenda item. As the opinion put it, "[a] public body may not simply amend its agenda at the meeting to adopt a new item."

The AG declined to file suit despite the petitioner's request under § 10005(d). The August 12 meeting did not constitute a separate violation because the Superintendent's unilateral authority was a non-FOIA question. The opinion ended with a cautionary note about the Board's pattern of routine executive sessions for "Personnel" and "Legal."

Currency note

This opinion was issued in 2019. 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

What does FOIA require for an agenda amendment in Delaware?

There are two valid mechanisms. Section 10004(e)(5) lets a public body amend the agenda up to six hours before the meeting if a matter arises suddenly and cannot be deferred; the amendment must briefly state the reasons for the delay in posting. Section 10004(e)(2) lets a body add an item that "arises at the time" of the meeting, but Delaware AG opinions narrowly construe this: the item must naturally evolve from discussion of a noticed item, not be added by motion.

Why didn't the May 13 meeting fit either exception?

The Board did not post a six-hour amendment. And the phase-out item did not naturally evolve from anything else on the agenda; the Board simply moved to add the new item as the meeting opened. The opinion states a public body "may not simply amend its agenda at the meeting to adopt a new item."

Can the Superintendent unilaterally end a program without Board action?

The opinion does not decide this. It is a question about the Superintendent's authority under the District's bylaws, employment contracts, and education law, all of which are outside the AG's FOIA petition jurisdiction. The opinion treats the August 12 decision as the Superintendent's individual call, not a Board vote.

The petitioner asked the AG to file a lawsuit. Why did the AG decline?

Section 10005(d) gives the AG discretion to bring suit for equitable remedies. The AG concluded that the May 13 violation was procedural and that the substantive dispute (the Superintendent's authority) was not a FOIA matter. A lawsuit would not unwind the program decision in any sense the AG could justify under the statute.

Is there anything about the routine "Personnel" and "Legal" executive sessions that the AG criticized?

Yes, gently. The opinion ends with a "cautionary note to the District suggesting review of its use of executive sessions, in light of their limited scope under FOIA." The petition described 45 to 60 minutes of executive session at the start of every regular meeting under labels like "personnel" and "legal," and the AG flagged that pattern for review without resolving the specific allegations.

Background and statutory framework

Delaware FOIA requires an agenda to include a "general statement of the major issues expected to be discussed at a public meeting," and the opinion states the agenda "must alert members of the public with an 'intense interest' in the matter that the subject will be taken up at the meeting."

FOIA gives seven days' notice of a meeting and its agenda but permits two later amendments. A public body may amend the agenda up to six hours before the meeting for items "which arise suddenly and cannot be deferred," stating briefly the reasons for the delay in posting. And under 29 Del. C. § 10004(e)(2), a body may add items that "arise at the time of the public body's meeting." The opinion explains that this second exception "has been narrowly construed to prevent the exception from swallowing the rule": the item must "truly . . . arise at the time of the meeting, as a natural evolution of discussions of a related publicly-noticed item," and "[a] public body may not simply amend its agenda at the meeting to adopt a new item."

Here, the Board neither amended six hours in advance nor showed that the phase-out arose out of discussion of another noticed item. It moved at the meeting's outset to add the new item, which the opinion held was a FOIA violation.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10004(e)(2) (items arising at the meeting)
• 29 Del. C. § 10005(d) (equitable remedies)
• 29 Del. C. § 10005(e) (petition determinations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/09/09/19-ib48-9-9-2019-foia-opinion-letter-to-ms-kristin-gibbons-re-foia-complaint-concerning-sussex-technical-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB48.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB48

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB48

September 9, 2019

VIA EMAIL

Kristin S. Gibbons

[email protected]

RE: FOIA Petition Regarding the Sussex County Vocational Technical School District

Dear Ms. Gibbons:

We write in response to your correspondence alleging that the Sussex County Vocational Technical School District ("District") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA's open meeting requirements has occurred or is about to occur. As set forth below, we conclude that the District committed a violation of FOIA but decline to file a lawsuit regarding this violation, as you requested.

BACKGROUND

The District recently decided to eliminate its hospitality program from the Sussex Technical High School curriculum. This Petition is filed by a parent of a student in the program who alleges that the District improperly considered and made decisions about this matter outside of public view and without sufficient public input, in violation of FOIA's open meeting requirements.

The Petition makes the following specific allegations: 1) the District's Board of Education ("Board") improperly discussed and voted at its May 13, 2019 meeting to end the hospitality program through a four-year phase-out; 2) the Board exhibited a pattern of noncompliance by holding executive sessions at the outset of every regular meeting, typically 45 to 60 minutes in length, without proper public notice; and 3) noting that the agenda did not contain the hospitality program item and that the minutes were not available at the time of your petition filing, you argue that the Board must have improperly decided to terminate the hospitality program effective immediately, due to the resignation of the only teacher in the program at the August 12, 2019 meeting without any public notice. The Petition concludes that "[a]ll of the affected students and parents are devastated by the Board's abrupt decision to end the Hospitality Program without notice and an opportunity to be heard in any meaningful manner by those directly impacted." If a violation is found, the Petition requests that the Attorney General bring suit against the District on your behalf and others who are affected and seek "any and all equitable remedies pursuant to § 10005(d)."

On August 22, 2019, the District's counsel provided a responsive letter ("Response"). First, the District asserts that the Board's discussion and vote to phase out the hospitality program at the May 13, 2019 meeting was proper, as FOIA permits public bodies to "amend an agenda when an issue arises suddenly and cannot be deferred." The District explains that this issue arose suddenly, and prior to the meeting, "the Superintendent and his staff were working diligently to determine the options for and viability of the hospitality program." The District asserts that "[t]hey were in heavy discussions as late as May 13, 2019 after engaging freshmen, parents and others with regard to what would be best for the students in the program." Because one option under consideration was immediate termination and the District would have to notify the sole teacher by law by May 15, 2019, the issue had to be decided at the May 13, 2019 meeting. Second, the District states that both the August 12, 2019 executive session and regular meeting were proper, and no discussion of the elimination of the hospitality program occurred at those meetings; the District attached meeting minutes as supporting evidence. Instead, the District alleges that the Superintendent made the decision without Board approval to end the program immediately, due to the sole teacher's resignation, and an affidavit from the District Superintendent was enclosed in support of these factual allegations.

By letter dated August 15, 2019, you responded to the District ("Reply"). First, citing to the April 18, 2019 letter from the High School principal, you claim that the Board's decision at the April 8, 2019 meeting to initiate the elimination of the hospitality program during executive session is a violation of FOIA, as the descriptions "Personnel" and "Legal" do not provide adequate notice on the agenda and even if adequately noticed, the hospitality program discussion is an improper purpose for an executive session. Second, the Reply reiterates that the decision to phase out the hospitality program at the May 13, 2019 meeting was improper, as the topic did not unexpectedly arise at the meeting. Instead, you allege that the Superintendent proposed this addition at the beginning of the meeting, noting that he did not propose it for the agenda earlier because according to your transcription of the meeting, "he was still working with the option." As further proof of the Superintendent's prior knowledge, your Reply points to the Superintendent's acknowledgment in his affidavit that his prior discussions about deleting the program "may have reached" certain Board members and you note the letter from the principal in which he states that rising sophomores would be counseled to another career pathway. On this basis, you allege that the District made a concerted effort "to keep those who might oppose the Board's actions from attending meetings and fully participating." Third, the Reply asserts that the Board improperly discussed ending the hospitality program under its executive session item for "personnel," as the sole teacher had resigned that morning. You argue that ending the program constitutes public business and unless a delegation of authority had been made to the Superintendent, the Superintendent's unilateral decision to end the program violated the District's own policy and FOIA's requirement to allow observation of public officials conducting public business. In either case, the Reply alleges a FOIA violation is present here.

The Reply concludes that the Board has "repeatedly taken action behind closed doors and in violation of FOIA laws designed to promote transparency among public bodies." As remediation for these alleged violations, you assert that the Board should be required to re-post the topic of the phase-out and/or the termination of the hospitality program at an open meeting with at least seven days' advance notice, so "all who wish to be heard on the matter may be heard." You further argue that the decision to terminate the program is voidable and the Board should immediately seek a certified teacher for the program or offer alternatives through outside partnerships. If violations are found, you again ask the Attorney General to file suit on your behalf and the behalf of others to seek all available equitable remedies, including those noted above.

DISCUSSION

Our Office is limited to reviewing those issues raised in the Petition. We first determine that the claims regarding the August 12, 2019 meeting and executive session do not constitute a FOIA violation. Although you argue it was improper under FOIA and other laws for the Superintendent to unilaterally make the decision to eliminate the hospitality program, the boundaries of the Superintendent's legal authority to make decisions is outside the scope of FOIA, and FOIA does not dictate the specific types of decisions that a Board of Education is required to make at its public meetings versus those decisions reserved for a superintendent. The District has provided sworn testimony from its Superintendent that he made the decision to terminate the hospitality program this school year, and the District's counsel represents that no discussions of eliminating the program, other than a "tangential reference" related to the teacher's resignation, took place in executive session or at the regular meeting, citing to the relevant minutes in support of this contention. On this record, we can find no basis for a violation at the August 12, 2019 meeting.

The May 13, 2019 meeting is a different matter. The parties do not dispute that the phase-out of the program did not appear on the public agenda; instead, the Board voted at the beginning of the meeting to add this new item. FOIA requires an agenda to include a "general statement of the major issues expected to be discussed at a public meeting" including notice of an executive session and the specific grounds for the executive session. The agenda must alert members of the public with an "intense interest" in the matter that the subject will be taken up at the meeting. FOIA mandates that a public body give seven days' notice of a public meeting and its agenda but permits the agenda to be subsequently amended in two ways. First, the public body may amend the agenda up to six hours before the meeting for items which arise suddenly and cannot be deferred; this requires the public body to state briefly the "reasons for the delay in posting" on the amended agenda. Second, under 29 Del. C. § 10004(e)(2), FOIA allows the amendment of the agenda for those items that "arise at the time of the public body's meeting," but this exception has been narrowly construed to prevent the exception from swallowing the rule. Section 10004(e)(2) requires a showing that the item truly did arise at the time of the meeting, as a natural evolution of discussions of a related publicly-noticed item. A public body may not simply amend its agenda at the meeting to adopt a new item. At the May 13, 2019 meeting, the Board did not amend the agenda six hours in advance nor has the District demonstrated that the phase-out of the hospitality program arose out of discussions of another item on the agenda. Instead, the record reflects the Board made a motion at the meeting's outset to amend its agenda to allow consideration and vote on this new item without any prior public notice. This constitutes a FOIA violation.

We next consider the appropriate remedial steps for this violation, including your request to file suit on your behalf and the behalf of any other affected parties. The discussion and vote at the May meeting to phase out the hospitality program was procedurally improper when viewed through the lens of FOIA, but the factual record demonstrates that the Superintendent unilaterally decided to change this decision a few months later to end the program after resignation of the sole teacher in the program. We view the gravamen of this dispute as one relating to the authority of the Superintendent to take a particular action. FOIA is not the appropriate legal tool to assess the contours of the Superintendent's authority. As such, we respectfully decline to engage in litigation regarding the matters raised in this Petition.

Finally, the Petition references concerns with the District's alleged practice of routinely holding executive sessions for typically 45 to 60 minutes at the outset of the Board meetings for purposes such as "personnel" or "legal." The Petition and Reply also raise the specter of whether improper discussions may have occurred in executive session; both submissions included a copy of the High School principal's letter which states that initiating the deletion of the hospitality program was decided in the Board's executive session at the April meeting. While we do not determine the accuracy or merits of any of these particular allegations, the totality of these factors warrant a cautionary note to the District suggesting review of its use of executive sessions, in light of their limited scope under FOIA.

CONCLUSION

For the reasons set forth above, this Office concludes that the District violated FOIA's open meeting requirements at its May 13, 2019 meeting but declines to file a law suit regarding this violation, as requested.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

APPROVED BY:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc:

James H. McMackin, III, Attorney for the District