Can a Delaware school board avoid the state's open meeting law by calling a gathering an informal 'breakfast meeting'?

Official title

95-IB04: RE: Freedom of Information Act Complaint 29 Del. C. §10005(e)

Plain-English summary

A parent complained that the Woodbridge School District was violating Delaware's open meeting law by holding monthly "breakfast meetings" where the full Board, administrative staff, and selected secretarial, instructional, and custodial staff gathered informally starting at 7:00 a.m. The District argued this wasn't a "meeting" under FOIA at all, saying the breakfasts were just a chance for the Superintendent to introduce invited employees, let them share some biographical background, and offer suggestions for the school system, with no public business conducted and no executive session held.

The Attorney General's office disagreed and found a violation. The District did not dispute that a quorum of the Board attended. And by the District's own description, invited employees used the gathering to offer suggestions for the betterment of the school system in their official capacity, which the opinion found squarely met the statutory definition of "discussing...public business," since it concerned matters over which the District had supervision, control, jurisdiction, or advisory power. Because a quorum of the Board was discussing public business, the breakfast was a "meeting" that had to comply with FOIA's open meeting requirements, including public notice, agendas, and minutes. The opinion directed the District to either re-notice the breakfasts properly and follow the Act's recordkeeping rules going forward, or face enforcement action.

Currency note

This opinion was issued in 1995. 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

Q: Does calling a gathering an informal "breakfast" instead of a "meeting" get a public body out of Delaware's open meeting law?
A: No, according to this opinion. The label the public body uses doesn't control; what matters is whether a quorum of the body gathered and discussed matters within its supervision or control. The opinion found that test met even though the District called the event a breakfast and said no formal business was conducted.

Q: If school employees just introduce themselves and offer suggestions, is that "public business"?
A: In this opinion, yes. The Attorney General found that employees offering suggestions "for the betterment of the school system" in their official capacity, at a gathering the Superintendent led, counted as discussing public business under the statute's definition, even though the District characterized the exchange as informal and non-decisional.

Q: What was the school board supposed to do differently?
A: The opinion directed the District to re-notice the breakfast meetings and comply with the Act's recordkeeping and notice provisions, including the sections governing public notice, minutes, and agendas, if the Board intended to continue holding them with a quorum present.

Background and statutory framework

Delaware's FOIA declared it "vital in a democratic society that public business be performed in an open and public manner," so citizens could observe public officials and monitor their decisions, 29 Del. C. § 10001. The Act defined "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power," 29 Del. C. § 10002(b), and defined a "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business," 29 Del. C. § 10002(e). The definition's reach to "informal" gatherings was central to the opinion's analysis: the statute did not require a formal vote or agenda item, only a quorum discussing business within the body's jurisdiction. Once a gathering qualified as a meeting, the Act's notice, agenda, and minute-keeping requirements applied, 29 Del. C. § 10004(b), (c), (e), and (f), with 29 Del. C. § 10005(e) providing the Attorney General's enforcement mechanism for complaints.

Citations and references

Statutes:

• 29 Del. C. § 10001, declaration of policy favoring open, observable public business
• 29 Del. C. § 10002(b), definition of "public business"
• 29 Del. C. § 10002(e), definition of "meeting," including informal gatherings of a quorum
• 29 Del. C. § 10004(b), (c), (e), and (f), notice, agenda, and minutes requirements
• 29 Del. C. § 10005(e), FOIA complaint and enforcement procedure

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/01/23/95-ib04-re-freedom-of-information-act-complaint-29-del-c-§10005e/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 95-IB04 (Del.A.G.), 1995 WL 794535

Office of the Attorney General

State of Delaware

Opinion No. 95-IB04

January 23, 1995 ( concluding that school board violated open meeting provisions of FOIA by discussing “public business” at informal breakfast meetings )

RE: Freedom of Information Act Complaint 29 Del. C. §10005(e)

*1 Ms. Kathleen M. Morozowich

R. D. 2 , Box 166

Bridgeville, DE 19933

James D. Griffin, Esquire

Griffin & Hackett, P.A.

Mellon Bank Building- Second floor

14 The Circle

P.O. Box 612

Georgetown, DE 19947

Dear Ms. Morozowich and Mr. Griffin:

This is the decision on the above-referenced Freedom of Information Act Complaint.

The operative facts are that Ms. Morozowich (the “complainant”) filed the instant complaint on or about December 19, 1994. The complainant alleged, inter alia , the Woodbridge School District (the “District”) was holding closed monthly meetings for all Board members in violation of Delaware’s Open Meeting Law. The complainant enclosed in her complaint a copy of the District’s breakfast meeting announcement which was held at 7:00 a.m. on Tuesday, December 13, 1994. She alleges that despite corrective efforts the District continues to violate the law and requests the Attorney General’s office to immediately invoke the enforcement provisions contained in 29 Del. C. §10005(e) . A copy of said notice is attached and appended to this opinion as Exhibit “A”.

On January 11, 1995 the District responded to the complaint. The District asserted under the Act that the instant complaint involves an interpretation of 29 Del. C. §10002(e) defining a meeting. The District stated that the breakfast meeting has occurred for a number of years and the purpose of this meeting “[i]s to allow the Board, the administrative staff and selected invitees from among the secretarial, instructional and custodial staffs to meet in an informal atmosphere.” (Response at 1). The District stated that discussion at the meeting is “primarily led by the Superintendent who provides the introduction of the invitees allowing each of them to present some brief biographical information, explaining their backgrounds, their present jobs and offering suggestions for betterment of the school system.” (Response at 1,2). The District asserted that it believes does not conduct public business and does not hold any form of Executive Sessions. Finally, the District states that based on the above description of the activities at the breakfast, it believed that the meeting does not meet the definition of a public “meeting” in § 10002(e) .

A review of the Board’s December 6, 1994 notice indicate that the same is written on Woodbridge School District stationary and is from Mr. Dan Kingery, Assistant Superintendent in re: “Monthly District Breakfast”. It stated as follows:

The Board of Education cordially invites you to join them for breakfast in Woodbridge Early Childhood Cafeteria on Tuesday, December 13, 1994 at 7:00 a.m. Please mark your calendar with this important date.

The Board and Administration values your input and the opportunity to share breakfast with you. We hope that you also consider this a valuable opportunity to meet together. Please make every effort to attend. We look forward to meeting with you on December 13, 1994.

*2 According to the memorandum, the Board of Education, Robert C. Sutton, Superintendent and Administrative Staff received copies.

THE LAW

§10001. Declaration of Policy.

It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.

29 Del. C. §10002(b) .

“Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power.

29 Del. C. §10002(e) .

“Meeting” means the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.

DECISION AND ORDER

For the following reasons, the Attorney General believes a violation of the Act has occurred. From the characterization of the District’s counsel as outlined above, the discussion of the meeting is “primarily led by the Superintendent who provides the introduction of the invitees allowing each of them to present some biographical information, explaining their backgrounds, their present jobs, and offering suggestions for betterment of the school system .” First, the District does not dispute that a quorum of the Board is present. 29 Del. C. §10002(e) . Second, by the District’s own analysis, a discussion by the invited employees involves “offering suggestions for the betterment of the school system” in their official capacity which this office finds clearly constitutes the “discussing of public business.” 29 Del. C. § 10002(e) . It also is clear from the District’s response that this discussion concerns matters over which the District has “supervision, control, jurisdiction or advisory power.” 29 Del. C. §10002(b) .

If the Board continues to hold said meetings, this office formally requests that the District re-notice the instant meetings and comply with all the recordkeeping and notice provisions of the Act including, but not limited to, 29 Del. C. §10004(b), (c), (e), and (f) . If the District fails to comply with these provisions of the Act, this office shall immediately invoke the enforcement provisions contained in 29 Del. C. §10005(e) .

Sincerely,

John K. Welch

Deputy Attorney General

APPROVED:

Michael F. Foster

State Solicitor

Del. Op. Atty. Gen. 95-IB04 (Del.A.G.), 1995 WL 794535

End of Document
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