Can a Delaware school board fill a vacant seat by secret-ballot vote in open session?

Official title

19-IB63 11/8/2019 FOIA Opinion Letter to Mr. John Young re: FOIA Complaints Concerning The Christina School District

Plain-English summary

The Christina School District Board of Education had a vacant seat in Nominating District D. At its October 8, 2019 public meeting, the Board entered executive session (which listed "Board Vacancy – Nominating District D" as one item), then returned to open session. In open session it took a "secret ballot" vote: each member wrote a nominee's name on a slip of paper, the slips went to the Board President, and the President read the tally aloud without saying who voted for whom. By 4-2, a new member was selected.

John Young filed two FOIA petitions. The first argued the secret-ballot vote and a possible improper executive-session discussion of voting procedures violated FOIA. The second, two weeks later, repeated the secret-ballot point and zeroed in on § 10004(f), which requires meeting minutes to record each member's vote individually.

The AG consolidated both into one opinion and found two violations.

First, the secret ballot violated FOIA. The opinion is direct: "A public body's vote by secret ballot clearly subverts" the open-meeting requirement. § 10004(f) requires minutes that record "each vote taken and action agreed upon" by individual members. A vote that obscures who voted for whom defeats both the public-observation principle and the mandatory recordkeeping rule.

Second, the Board failed to meet its burden on the executive session. The burden is on the public body to justify its decision to meet in executive session. The Board's response acknowledged that any discussion of voting method in executive session would be improper but did not allege facts about what the executive session covered. Lacking factual support, the AG could not determine whether a discussion of voting procedures actually occurred or whether the executive session was held for a proper purpose. It therefore failed.

The remedy: the Board committed to a roll-call revote at its November 5, 2019 study session. The AG endorsed that and recommended the Board conduct a roll-call vote or otherwise vote in a way that lets the public see how each member votes.

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

Why is a "secret ballot" in open session a FOIA violation?

FOIA's purpose is to let the public see how its representatives vote. § 10004(f) requires minutes to record each member's vote. A secret ballot, even one tallied in public, does not let observers attribute votes to members and does not produce the individualized minutes the statute requires.

Does the AG's office handle the Title 14 angle too?

No. The Board acknowledged it "arguably" violated Title 14, Chapter 10 of the Delaware Code by failing to vote by roll call, but the opinion notes that the AG's authority runs to FOIA. The AG resolved the matter under FOIA and treated the Title 14 question as outside its jurisdiction.

Can the Board talk about voting procedures in executive session?

No. The opinion states that "voting procedures do not fall within one of the enumerated exceptions permitting a public body to meet in executive session." So a closed-session discussion of how the Board would vote would be improper.

What does "burden of proof" look like in practice?

The public body must come forward with facts. Here, the Board's counsel said only that any executive-session discussion of voting method would be improper, but offered no factual allegations about what the session actually covered. Without that, the AG could not determine whether the session was held for a proper purpose, so the Board failed to meet its burden.

What is "remediation" in a FOIA finding?

When the AG finds a violation, it can recommend specific corrective steps. Here, the recommendation was a public revote with attributed votes. The Board's commitment to revote at its November 5 study session was treated as appropriate compliance.

Background and statutory framework

Delaware FOIA requires that a meeting, other than an executive session or other exception, be open so citizens can observe the public body conducting its business. As the opinion quotes it, FOIA also requires minutes that "include a record of those members present and a record, by individual members . . ., of each vote taken and action agreed upon" (29 Del. C. § 10004(f)). A secret ballot, the opinion holds, "clearly subverts" the open-meeting requirement and produces none of the individualized record the minutes rule demands.

Executive session is available only for enumerated exceptions; the opinion states that voting procedures are not among them. The opinion also places the burden on the public body to justify a decision to meet in executive session. Because the Board offered no facts about what its October 8 executive session covered, the AG could not find the session proper.

The Board separately acknowledged it "arguably" violated Title 14, Chapter 10 of the Delaware Code by not voting by roll call, but the AG treated that as outside its FOIA jurisdiction.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10004(f) (minutes recording individual votes)
• 29 Del. C. § 10005 (petition determinations)
• 14 Del. C. ch. 10 (school board voting procedures)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/11/08/19-ib63-11-8-2019-foia-opinion-letter-to-mr-john-young-re-foia-complaints-concerning-the-christina-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/11/Attorney-General-Opinion-No.-19-IB63-Corrected.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-IB63
November 8, 2019
VIA EMAIL
Mr. John Young
[email protected]
RE: Two FOIA Petitions Regarding the Christina School District Board of Education

Dear Mr. Young:

We write in response to your two documents alleging that the Christina School District Board of Education ("Board") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as two Petitions for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur and issue this combined opinion to address both Petitions. As discussed more fully herein, we determine that the Board has violated FOIA, and we recommend that it conduct a public vote on its vacancy in open session at a future public meeting.

BACKGROUND

On October 8, 2019, the Board held a meeting to discuss its Board member vacancy for Nominating District D. At the outset of the public meeting, the Board entered executive session; one of the items on the executive session agenda was "Board Vacancy – Nominating District D." During the public session of that same meeting, the Board voted on this vacancy by "secret ballot" in which each member wrote down her/his nomination and passed it to the Board President who read the votes aloud without attributing any specific vote to a particular member. By a 4-2 vote, a new Board member was selected. You filed two Petitions in response.

The first Petition challenges the Board's vote by secret ballot, asserting such voting procedure violates Title 14, Chapter 10 of the Delaware Code and alleging that the Board, as it seemingly adopted a completely new voting procedure, must have had an improper discussion about its voting procedures in the executive session in violation of FOIA. You believe that a "cursory discussion/interview of board members would reveal the non-allowable topic being covered/discussed in executive session outside of public view." As a remedy for these violations, you request that the Board be required to revote in public and inform the Board that such improper discussions in executive session are unlawful and should not be repeated. The second Petition again challenges the secret ballot procedures under Title 14, Chapter 10 of the Delaware Code, and further alleges this secret ballot vote violated Section 10004(f) of the FOIA statute, which requires that the minutes record the votes by individual members. The second Petition also realleges that the executive session violated FOIA, as you believe the implementation of this new procedure without discussion "strongly suggests" that the secret ballot method was discussed in executive session.

The Board responded through counsel to each of your Petitions ("Responses"). In response to the first Petition, the Board acknowledges that the Board's vote by secret ballot occurred. Although the Board also acknowledges it "arguably" committed a procedural violation of Title 14, Chapter 10 of the Delaware Code by failing to vote by roll call, the Board contends that this Office cannot consider this violation, as it is outside the scope of this Office's jurisdiction under FOIA. Nonetheless, the Board states that "the District will cure this alleged violation" at its November 5, 2019 "Study Session" meeting. Regarding the executive session, the Board notes that you submitted no facts showing improper discussions but "acknowledges that to the extent there was a discussion in executive session of the manner in which the vote would occur, this discussion was appropriate for open session." In response to the second Petition, the Board reiterates its commitment to cure the alleged violation as you have requested, by holding another vote at its November 5, 2019 meeting.

DISCUSSION

The Petitions raise two issues for our consideration: 1) whether the Board's vote by secret ballot at its October 8, 2019 meeting violated FOIA; and 2) whether the Board's October 8, 2019 executive session included improper discussions in violation of FOIA. A meeting, other than an executive session or other exception, must be open to the public to allow citizens to observe the public body as it conducts its public business. A public body's vote by secret ballot clearly subverts this requirement. Further, FOIA requires a public body to maintain meeting minutes that must "include a record of those members present and a record, by individual members . . ., of each vote taken and action agreed upon." The Board admits that there was no such vote during the public session. Based on this record, we conclude that the Board violated FOIA by conducting a secret ballot vote.

The Petitions next allege that the October 8, 2019 executive session included improper discussions about this secret ballot voting procedure. The burden is on the public body to justify its decision to meet in executive session. In response to the Petitions, the Board's counsel merely notes that to the extent any discussions of voting method occurred in the executive session, it would be improper. Discussions of voting methods in executive session are improper, as voting procedures do not fall within one of the enumerated exceptions permitting a public body to meet in executive session. However, the Board submits no factual allegations upon which we can determine whether a discussion of voting procedures actually occurred during the October 8, 2019 executive session or if the executive session was held for a proper purpose. As such, we conclude that the Board failed to meet its burden and find a second violation occurred at the October 8, 2019 executive session.

As remediation, the Board committed to conduct a roll call vote in open session at a future meeting. To comply with FOIA, we recommend that the Board conduct a roll call vote or otherwise vote again on the matter in open public session in such a way that the public may observe how every member is voting.

CONCLUSION

As set forth above, we conclude that the Board violated FOIA as alleged. To comply with FOIA, we recommend that the Board conduct a new vote by roll call or otherwise revote on the Board vacancy at a future public meeting in a manner by which votes may be observed by the public and attributed to individual members.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

James H. McMackin, III, Attorney for the Christina School District (via email)