DE 20-IB04 2020-01-14

Can a Delaware charter school board's subcommittee hold an executive session, or is that authority reserved for the full board?

Short answer: Yes. The Delaware AG ruled the Odyssey Charter School Nominating Committee, as a public-body subcommittee of the Board, can notice an executive session under FOIA for an authorized purpose. The Committee in fact conducted its December 14, 2019 meeting in open session, mooting the dispute, but the AG confirmed the underlying authority.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

20-IB04 1/14/2020 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning Odyssey Charter School

Plain-English summary

The Nominating Committee of the Odyssey Charter School Board of Directors noticed a public meeting for December 14, 2019. The agenda listed two items: an open-session discussion of "applications for open Board of Directors positions and recommendation for Board to fill positions" and a potential executive session to discuss "qualifications for job or personnel matters."

State Rep. Kim Williams petitioned, asking whether a board's subcommittee can hold an executive session at all, or whether that authority is reserved for the full board with quorum.

The Board (and the AG) said the subcommittee can. Odyssey's Board is a public body under FOIA. Its Nominating Committee, as a subcommittee, also qualifies as a public body. Once an entity is a public body subject to FOIA, it can hold an executive session for any of the nine purposes enumerated in 29 Del. C. § 10004.

The Petition became practically moot: the Committee did not actually hold an executive session at the December 14 meeting and conducted all its business in open session. The AG noted that and found no FOIA violation in the Nominating Committee's mere noticing of an intent to hold an executive session.

Currency note

This opinion was issued in 2020. 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 makes a subcommittee a "public body"?

Under § 10002(h), a body established by a public body, or appointed by any body or public official of the State, is itself a public body if it advises or makes reports, investigations, or recommendations. A board-created subcommittee with a defined task usually qualifies.

Are charter-school boards public bodies?

Yes. Delaware charter-school boards of directors are public bodies under FOIA, by statute (14 Del. C. §§ 503, 513) and by their function. Their subcommittees inherit that public-body status.

What are the nine executive-session purposes?

§ 10004(b) lists them. They include personnel matters, real estate, pending or potential litigation strategy, collective bargaining, certain investigations, and others. Any executive session must fit one of these categories or it violates FOIA.

Is "qualifications for job or personnel matters" a valid executive-session purpose?

The opinion does not parse this as a substantive question, because the Committee did not actually hold the executive session. If it had, the propriety would have depended on whether the discussion truly fit the personnel-matters exception in § 10004(b).

Does noticing an executive session that you don't actually hold cause any problem?

Generally not. Many agendas list "potential" executive sessions as contingencies. If the body decides the items can be handled in open session, that is permitted and arguably preferable. The downside is creating public confusion or expectations that an executive session will happen.

Background and statutory framework

29 Del. C. § 10002(h) defines public body broadly to capture both top-level entities and the subcommittees, councils, and panels they create. Once an entity meets the definition, all of FOIA applies.

29 Del. C. § 10004 governs open meetings and executive sessions. The default rule is openness; § 10004(b)'s nine enumerated exceptions are the only grounds for closed deliberation. The list is exhaustive, not illustrative.

The Odyssey Charter Nominating Committee's task (recommending candidates for open Board seats) likely involves personnel-style discussion that could fit § 10004(b)'s exceptions. The opinion does not need to resolve whether a particular discussion would have qualified, because the Committee chose to handle everything in open session.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(h)
29 Del. C. § 10004
29 Del. C. § 10005

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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. 20-IB04
January 14, 2020
VIA EMAIL
The Honorable Kimberly Williams
State Representative, 19th District
[email protected]
RE: FOIA Petition Regarding the Odyssey Charter School

Dear Representative Williams:

We write in response to your correspondence alleging that the Odyssey Charter School Board of Directors ("Board") violated Delaware's 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 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Board's Nominating Committee has not violated FOIA by issuing an agenda noticing its intent to hold an executive session.

BACKGROUND

The Nominating Committee of the Board of Directors noticed a public meeting for December 14, 2019 with two agenda items, an open session discussion of "applications for open Board of Directors positions and recommendation for Board to fill positions" and a potential executive session to discuss "qualifications for job or personnel matters." You filed a Petition questioning whether this Committee had the authority to hold an executive session. More specifically, you asked: "[e]xecutive session only applies to the board (with a quorum present) not to a board's subcommittee, correct?" The Petition further notes that this seems to be a "practice" of the Board.

The President responded on the Board's behalf on December 23, 2019 ("Response"), stating that the Board is a public body and "[l]ikewise, the Committee, which was established by the Board, is also a 'public body,' as defined by FOIA." The Board states therefore the Board's Nominating Committee has the right to hold an executive session under FOIA for certain purposes. Furthermore, the Board reveals that its Nominating Committee did not hold an executive session at the December 14, 2019 meeting and conducted its business at the meeting in open session. Thus, the Board contends the Petition is moot.

DISCUSSION

The Board states in its Response that both the Board itself and its subcommittee, the Nominating Committee, are public bodies. We agree. FOIA's open meeting requirements apply to public bodies. These requirements mandate that a meeting of a public body be held in open session, unless the topics of discussion fall within one of the exceptions enumerated in the statute. Those exceptions include nine limited topics that a public body may discuss in executive session. Accordingly, any public body subject to FOIA may hold an executive session for an authorized purpose.

CONCLUSION

Based on above, we cannot find on this record a basis to conclude that the Board's Nominating Committee violated FOIA by issuing an agenda noticing its intent to hold an executive session.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

Josiah Wolcott, Esq., Odyssey Charter School Board President