Was a later public vote enough after a Delaware school board approved an unannounced consultant contract?

Official title

19-IB50 9/16/2019 FOIA Opinion Letter to Mr. Walter Gilefski re: FOIA Complaint Concerning The Sussex County Vocational Technical School District

Plain-English summary

Sussex County Vocational Technical School District sought a consultant for a feasibility study of its facilities. The Board’s March 11, 2019 agenda did not list the consultant selection. At the meeting’s outset, the Board voted to add the item and later voted to approve a consultant. Walter Gilefski petitioned the AG, challenging both votes.

The AG found a FOIA violation. The consultant item was not in the public notice and did not arise from discussion of a related, already noticed item. Adding it by motion at the start of the meeting violated the open-meeting requirement, consistent with Opinion 19-IB48.

During the petition process, the Board voted again to ratify the award at a publicly noticed meeting. Gilefski objected that the ratification item was added three days before that meeting rather than seven days. The District said it arose during consultation with counsel about his petition, gave a reason for the amendment, and could not be deferred without risking delay and costs. On this record, the AG found that the public ratification made additional remedial steps unnecessary. It still concluded that the March meeting violated FOIA.

Currency note

This opinion was issued in 2019. Check current Delaware notice rules before relying on its treatment of a later agenda amendment.

Common questions

Why was the March vote a FOIA violation?

The consultant award was absent from the agenda. It did not come out of discussion of a noticed item; the Board added it by motion at the meeting’s outset and then approved it. The AG applied Opinion 19-IB48 to find that sequence improper.

Did the later vote undo the violation finding?

No. The AG still found that the March 11 meeting violated FOIA. It found the later publicly noticed ratification sufficient to avoid recommending an additional remedy in these circumstances.

Was a three-day agenda amendment always allowed?

The opinion does not announce that rule. It describes Delaware’s exception for items arising suddenly that cannot be deferred, with posting at least six hours before the meeting and a brief reason for late posting. It considered the District’s explanation and the publicly noticed ratification together in declining further steps.

What reason did the District give for the ratification amendment?

The amended agenda referred to “consulting with legal counsel regarding action to be fully transparent in light of a citizen’s concern regarding process for prior approval.” District counsel said the issue arose during this petition and could not be deferred without risking invalidation of the contract, construction delay, and added costs. These were the District’s representations to the AG.

Does this opinion guarantee ratification will resolve every agenda violation?

No. It says prior AG opinions had treated public ratification as an appropriate step for an improperly noticed contract change order, then judged this particular ratification sufficient. It does not set out a universal cure for every FOIA meeting defect.

Background and statutory framework

The opinion relies on 19-IB48 for the rule against adding a wholly new item by motion when a meeting starts. Its footnote 8 collects earlier opinions describing a late agenda amendment: adequate description, at least six hours’ advance posting, a reason for delay, and a showing that the issue unexpectedly arose and required prompt attention. The AG applied the record before it to decide whether any further remedy was needed after the Board’s public ratification.

Citations

• 29 Del. C. § 10004(e)(5)
• Del. Op. Att’y Gen. 19-IB48 (Sept. 9, 2019)
• Del. Op. Att’y Gen. 05-IB23, 2005 WL 3991282, at *4 (Aug. 15, 2005)
• Del. Op. Att’y Gen. 17-IB15, 2017 WL 3426253, at *6 (July 7, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/09/16/19-ib50-9-16-2019-foia-opinion-letter-to-mr-walter-gilefski-re-foia-complaint-concerning-the-sussex-county-vocational-technical-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB50.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Attorney General Opinion No. 19-IB50

September 16, 2019

VIA EMAIL

Walter P. J. Gilefski
[email protected]

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

Dear Mr. Gilefski:

We write in response to your correspondence alleging that the Sussex County Vocational Technical School District (“District”) violated the open meeting requirements of 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 requirements has occurred or is about to occur. As set forth below, we conclude that the District violated FOIA by failing to give proper public notice of its action regarding a contract for a feasibility study. However, we do not recommend additional steps, as the District subsequently ratified its vote regarding this contract in a publicly-noticed open session.

BACKGROUND

On December 20, 2018, the District released a public notice of a Request for Proposals for a consultant to conduct a feasibility study to “(i) assess existing buildings and grounds, (ii) make recommendations with regard to improving or replacing existing facilities, and (iii) assist with the development thereafter of a certificate of necessity for the project.”1 While the original anticipated date of award was February 11, 2019, three finalists were not selected until March 1, 2019, and the price negotiations were concluded on March 5, 2019. On March 4, 2019, the District posted public notice, including an agenda, for a meeting of the District’s Board of Education (“Board”) on March 11, 2019; this agenda did not include this consultant’s contract as a topic.

At the March 11, 2019 meeting, the Board voted to add an agenda item at the outset of the meeting to approve the selection of a consultant for the study and later in that meeting voted

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Response.

to approve the consultant selection. This Petition followed, alleging that both votes violated FOIA.

On September 3, 2019, the Board’s counsel provided a responsive letter (“Response”). The District asserts that the Board’s vote to add the agenda item and approve the consultant at the March 11, 2019 meeting was proper, as FOIA permits public bodies to “amend an agenda when an issue arises suddenly and cannot be deferred.”2 The District asserts that “the number of bidders, the length and complexity of the bids, and Procurement Act requirements” caused the District to miss its targeted deadline that would have permitted a vote at the February meeting.3 The District argues that it “is the practice of the Superintendent to (i) notify all unsuccessful bidders before the successful candidate is identified publicly, and (ii) offer such unsuccessful bidders an opportunity to meet and discuss their proposal before the successful candidate is identified publicly” and that his schedule provided no opportunity to do so until March 11, 2019 before the meeting was to be held; therefore, the meeting was the only opportunity to add the agenda item.4 The District further contends that the selection could not be deferred to a future meeting as it would delay the entire study and prevent its completion in time to apply for a certificate of necessity for potential construction by August 31, 2019. Finally, the District states that the Superintendent explained to the Board that negotiations had just concluded and that a year’s delay in construction would be detrimental to the student population if the Board did not vote that day when requesting the addition of the agenda item.

By email dated September 3, 2019 (“Reply”), you dispute that missing the original deadline and the Superintendent’s schedule were valid reasons for making this change at the meeting and argue that a delay would not have harmed the student population. You assert that the District’s submission admits to not giving proper notice.

DISCUSSION

The District acknowledges that the topic of the contract for the feasibility study was not on the public notice and agenda for the March 11, 2019 meeting. This topic “was added during the Meeting” and did not arise out of discussions related to a publicly-noticed item on the agenda.5 Instead, the Board voted to amend the agenda at the outset of the meeting to add this new item and then proceeded to address and vote upon this matter. Consistent with our recent decision in Attorney General Opinion 19-IB48, this practice violates the open meeting requirements of FOIA.6

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Id.
3
Id.
4
Id.
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See id.
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Del. Op. Att’y Gen. 19-IB48 (Sept. 9, 2019).

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We next consider whether any remedial steps are appropriate. Our Office has previously determined that ratification at open session is the appropriate remedial step when a public body failed to give proper public notice of the approval of a contract change order.7 By email dated September 10, 2019, the District’s counsel informed our Office that “[w]hile it was unnecessary for the Board of Education to do so, in caution the Board last night ratified the award of the Feasibility Study at issue in this dispute” and supplied a copy of the agenda and minutes of its public meeting in support thereof. By separate submission dated September 12, 2019, you objected to this ratification as appropriate remediation, noting that the agenda was not amended until three days prior to the meeting, instead of seven days.

FOIA allows the agenda to be amended up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting, provided that a reason for delay is stated on the amended agenda.8 By separate submission to this Office dated September 12, 2019, the District’s counsel contends that the District properly asserted a reason for delay in the agenda. The agenda states as the reason: “consulting with legal counsel regarding action to be fully transparent in light of a citizen’s concern regarding process for prior approval.” The District’s counsel also represents that the matter emerged suddenly through consulting its counsel in this petition process, and it could not be deferred in order to avoid having its vote approving the contract potentially invalidated, resulting in construction delays and cost accruals. On this record, we find this publicly-noticed ratification of the consultant’s contract sufficiently obviates the need to recommend additional remedial steps.

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Del. Op. Att’y Gen. 05-IB23, 2005 WL 3991282, at 4 (Aug. 15, 2005); Del. Op. Att’y Gen. 03-IB22 (Oct. 6, 2003).
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See Del. Op. Att’y Gen. 17-IB38, 2017 WL 3628771, at 5 (Aug. 11, 2017) (“FOIA provides flexibility for a public body to amend the agenda up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.”) (citation omitted); Del. Op. Att’y Gen. 17-IB15, 2017 WL 3426253, at 6 (July 7, 2017) (citing a three-step test for determining if an agenda was properly amended six hours in advance of a public meeting: 1) the amended agenda must adequately describe the new items and be posted at least six hours in advance of the meeting; 2) the amended agenda must include a brief statement describing the reason for delay; and 3) the public body must be able to make a showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention); Del. Op. Att’y Gen. 07-IB10, 2007 WL 4732793, at 2 (May 10, 2007) (stating that our Office has cautioned that Section 10004(e)(5) does not allow a public body to amend the agenda up to six hours prior to the meeting for any reason, but it permits the addition of items up to six hours before the meeting that come up suddenly and cannot be deferred to a subsequent meeting) (citation omitted).

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CONCLUSION

For the reasons set forth above, this Office concludes that the District violated the open meeting requirements of FOIA in these circumstances. However, we do not recommend additional steps, as the District subsequently ratified its vote regarding this contract in a publicly-noticed open session.

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

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