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

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 Representative 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 a quorum.

The Attorney General concluded it can. The opinion agreed with the Board that both the Board and its Nominating Committee are public bodies under FOIA, and that any public body subject to FOIA may hold an executive session for an authorized purpose. The dispute was also effectively moot: the Committee did not actually hold an executive session on December 14 and conducted its business in open session. On that record, the AG found no FOIA violation in the Committee's noticing 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

Did the subcommittee have authority to meet in executive session?

The AG agreed with the Board that the Nominating Committee, established by the Board, is itself a public body under FOIA, and that any public body subject to FOIA may hold an executive session for an authorized purpose. So the Committee was not barred from executive session simply because it was a subcommittee rather than the full board.

Did the Committee actually violate FOIA here?

No. The Committee did not hold the noticed executive session; it conducted its business in open session. The AG found no basis on that record to conclude that merely noticing an intent to hold an executive session violated FOIA.

What did the opinion say about when a public body may close a meeting?

It stated that a public body's meeting must be held in open session unless the topics of discussion fall within one of the exceptions the statute enumerates, which the opinion described as nine limited topics. The AG did not analyze whether the Committee's noticed topic would have qualified, because no executive session took place.

Background and statutory framework

Delaware's FOIA, 29 Del. C. §§ 10001-10007, applies to public bodies. The opinion noted that FOIA's open-meeting requirements mandate that a public body meet in open session unless the topics fall within one of the limited exceptions the statute enumerates, described in the opinion as nine limited topics that may be discussed in executive session. Once an entity qualifies as a public body, those requirements apply to it.

The Board represented, and the AG agreed, that both the Board and its Nominating Committee are public bodies. Because the Committee handled its December 14, 2019 business in open session and held no executive session, the opinion did not decide whether any particular topic would have qualified for closed discussion.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA petition for determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/01/14/20-ib04-1-14-2020-foia-opinion-letter-to-rep-kim-williams-re-foia-complaint-concerning-odyssey-charter-school/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/01/Attorney-General-Opinion-No.-20-IB04.pdf

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