If a Delaware school board votes to add an item to its agenda at the start of a meeting, can a later open-session ratification cure the FOIA violation?

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 Tech issued an RFP in December 2018 for a consultant to conduct a feasibility study on improving or replacing existing facilities. Three finalists were selected on March 1, 2019, with price negotiations concluding March 5. The Board of Education's March 11, 2019 meeting agenda, posted March 4, did not include the consultant contract. At the meeting, the Board voted to amend the agenda at the outset and then voted to approve the consultant. Walter Gilefski petitioned, alleging both votes violated FOIA.

The AG agreed. Following 19-IB48 (issued just two days earlier), the AG held that adding an item by motion at the meeting's outset, when the item did not naturally evolve from a noticed agenda topic, violates FOIA's open-meeting provisions. Section 10004(e)(2) does not authorize that pattern; it covers items that organically arise during noticed discussion. Section 10004(e)(5) covers six-hour-prior amendments with stated reasons; the District did neither.

The District then ratified the consultant award at a later, publicly-noticed open meeting. The AG accepted that as sufficient remediation. Prior opinions (05-IB23, 03-IB22) had used the same approach: a public-notice-compliant ratification cures a procedural agenda defect, particularly where the underlying decision is otherwise lawful and there is no evidence of bad faith.

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 is "ratification" as a FOIA remedy?

The public body re-takes the same action at a properly-noticed open meeting, with the topic clearly identified on the agenda in advance. The intent is to give the public the meaningful chance to attend and speak that the original procedural defect denied. The ratifying meeting must itself comply with FOIA.

Can a school district always cure an agenda defect by ratifying later?

Not always. The AG's discretion to find ratification sufficient turns on the substance: was the underlying decision lawful, was there bad faith, was a substantive public right harmed in a way ratification cannot fix? Where the Board could lawfully have decided the matter at a noticed meeting and chose to fix the procedural error, ratification typically suffices.

The District labeled its later amended agenda as posted "three days prior to the meeting" rather than seven. Was that itself a problem?

The AG accepted the agenda's stated reason (consulting with legal counsel about the prior process) as a valid 29 Del. C. § 10004(e)(5) explanation, given that the matter emerged through the petition process and the District wanted to avoid further delay or invalidation of the contract.

Why was 19-IB48 the controlling authority?

It was issued days earlier and addressed the same agenda-amendment-at-meeting-outset pattern. The AG explicitly described the May 13 violation in 19-IB48 as procedurally identical to what happened on March 11 in this opinion.

What practical advice should a Delaware public body take from this opinion?

If a contract or appointment must be approved on a tight deadline, post a six-hour-prior amendment with a brief stated reason that explains why the matter cannot wait until the next meeting. Don't rely on motions to add at the meeting's outset.

Background and statutory framework

The seven-day notice requirement at § 10004(e)(2) is the floor for regular meeting agendas. Section 10004(e)(5) creates the only valid mid-cycle adjustment: a six-hour-prior amendment with a stated reason for the delay. The pattern of motion-at-outset addition does not appear in the statute and has been repeatedly disapproved in AG opinions (03-IB22, 05-IB23).

The District's stated rationale, that legal counsel believed ratification was a prudent response to the petition, was treated as a legitimate post-hoc reason under § 10004(e)(5) when the District did its corrective ratification on three days' notice rather than seven. That kind of belt-and-suspenders ratification is precisely what the AG has encouraged in similar cases.

Citations

• 29 Del. C. § 10004(e)(2), (e)(5)
• 29 Del. C. § 10005(e)
• Del. Op. Att'y Gen. 19-IB48 (Sept. 9, 2019)
• Del. Op. Att'y Gen. 05-IB23, 2005 WL 3991282 (Aug. 15, 2005)
• Del. Op. Att'y Gen. 03-IB22 (Oct. 6, 2003)
• Del. Op. Att'y Gen. 17-IB38, 2017 WL 3628771 (Aug. 11, 2017)
• Del. Op. Att'y Gen. 17-IB15, 2017 WL 3426253 (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

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
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." 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 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." 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. 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. 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. 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.

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. 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. 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.

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