Can two school board members negotiate with a new superintendent privately, then bring the contract back to the full board for a vote?
Official title
20-IB29 12/2/2020 FOIA Opinion Letter to Mr. John Young re: FOIA Complaint Concerning the Christina School District Board of Education
Plain-English summary
Christina School District selected a new superintendent in 2020. The Board interviewed candidates in two executive sessions in May, then held a public meeting on June 4, 2020 where it first went into executive session for "Superintendent Search" and then publicly approved a contract under the agenda item "Board Action on Superintendent Search." The petitioner alleged that the candidate had been chosen and the contract terms negotiated outside public view, citing news coverage. The Board's counsel countered that the May executive sessions involved candidate interviews only, no decisions, no straw polls, and that two Board members (the President and Vice President) negotiated with the chosen candidate privately, but did so on their own and were not a formally appointed committee.
The AG split the result. On the question of whether the May 18, 20 and June 4 executive sessions were the venue for selecting the superintendent, the AG accepted the Board attorney's representations and found no violation. But on the question of whether the President-Vice President pair was a "public body" required to follow open-meeting rules, the AG sided with the petitioner: the factual record showed the two members had to have been formally appointed to do the next steps after interviews, and they were impliedly charged with negotiating with the candidate of their choice and reporting back. That makes them a public body. They violated FOIA by meeting without public notice and without keeping minutes. On the agenda specificity question, the AG found "Board Action on Superintendent Search" sufficient to alert anyone with intense interest. Because the new superintendent had already started, the AG declined to recommend remediation but cautioned the Board to follow FOIA going forward.
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
Why is a two-person group treated as a public body when a quorum is more than two?
The "public body" definition under § 10002(h) (now § 10002(k)) does not require a quorum-size group. It captures any "committee, ad hoc committee, ... group, panel, council, or any other entity ... appointed by any body or public official of the State." Once a public body formally appoints members to do work on its behalf and report back, the appointed group is itself subject to FOIA's open-meeting rules. The AG also distinguished its prior 19-IB21 and 06-IB03 opinions, where two members happened to attend meetings without a formal committee mandate, those did not trigger public-body status.
What's the "stenographic recounting" exception?
The AG cited 17-IB12 for the principle that a public body's committee may not violate FOIA if it is just taking a "stenographic recounting of information passively received at its meetings with the Executive Branch," rather than engaging in substantive dialogue or making decisions. That exception did not help the Christina Board pair because they were actively negotiating contract terms, not just listening.
Doesn't a vote on the contract at a public meeting cure earlier private negotiations?
The AG's office said no. A public ratification vote does not erase the earlier procedural defect of negotiating without notice or minutes. The remedy of invalidating the appointment is reserved to the Court of Chancery (under Ianni), and the AG declined to recommend invalidation here because the new superintendent was already in role and invalidation would harm innocent parties (students, staff, the new hire).
Was the agenda item "Board Action on Superintendent Search" too vague?
The AG said no. Citing the Lechliter decisions, the AG read the agenda item as enough to alert someone with "intense interest" that the Board would take an action on the superintendent matter. That is the relevant standard, not whether the agenda lists every alternative the Board might consider.
Could the two-member group have done this lawfully?
Yes, but with notice and minutes. The pair could have met as a publicly noticed two-member committee, perhaps in a properly invoked executive session under § 10004(b)(2) (personnel matters), and then surfaced its recommendation publicly. Alternatively, the full Board could have done the negotiation itself in an executive session with proper notice. The defect was not that negotiations happened privately, but that they happened without any open-meeting compliance at all.
Why did the AG accept the Board attorney's word that no decisions were made in the May executive sessions?
The AG's office routinely accepts factual representations from a public body's attorney as a matter of practice (citing 17-IB59 and 03-IB16) because the office is not a fact-finding body in the petition process (15-IB06). Petitioners with stronger evidence of decisions inside an executive session must usually go to court, where discovery and sworn testimony are available.
Background and statutory framework
The Christina School District Board of Education interviewed superintendent candidates in executive sessions on May 18, 2020 and May 20, 2020. According to the Board's counsel, the Board President and Vice President then negotiated with their preferred candidate "at their own risk." A draft contract was emailed to all Board members two days before the June 4, 2020 meeting "without advocacy or substantive comment." On June 4, 2020 the Board first entered executive session for "Superintendent Search," then publicly approved a contract under the agenda item "Board Action on Superintendent Search."
Under 29 Del. C. § 10002(g) (definition of "meeting") and § 10002(h) (definition of "public body" at the time, now § 10002(k)), a meeting is the formal or informal gathering of a quorum of members for the purpose of discussing or taking action on public business. The petitioner carried the initial burden under 05-IB10 of showing a meeting occurred. Once shown, the burden shifts to the public body.
The two-prong public-body test asks (1) whether the entity is "appointive or legislative" or otherwise empowered by a state governmental entity, and (2) whether it expends public funds or is "impliedly or specifically charged" to advise or make reports. The AG found both prongs met by the President-Vice President pair, citing 17-IB12 (City Council President's appointed group treated as a public body) and contrasting 19-IB21 and 06-IB03 (two attendees, no formal committee).
For agenda specificity, the AG cited Chem. Indus. Council (Del. Ch. 1994), the Lechliter decisions (Del. Ch. 2017), and Ianni (Del. Ch. 1986). The Chancery rule is that an agenda must use plain, comprehensible language sufficient to alert someone with intense interest in the topic.
For remediation, the AG cited Levy v. Bd. of Educ. of Cape Henlopen (Del. Ch. 1990), 02-IB17 (declining to invalidate a superintendent hire after the academic year began), and Ianni (limiting invalidation to circumstances where remedies would not harm innocent parties). The AG could only recommend remediation; invalidation belongs to the courts under § 10005(e).
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10002(a) (definition of agenda)
- 29 Del. C. § 10002(g) (definition of meeting)
- 29 Del. C. § 10002(h) (definition of public body, as numbered in 2020)
- 29 Del. C. § 10005 / § 10005(e) (petition procedure and remedies)
- Levy v. Board of Educ. of Cape Henlopen School Dist., 1990 WL 154147 (Del. Ch. Oct. 1, 1990)
- Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
- Lechliter v. Delaware Dep't of Envtl. Control and Natural Res., 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
- Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017)
- Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224 (Aug. 6, 2002)
- Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240 (Apr. 11, 2005)
- Del. Op. Att'y Gen. 17-IB12, 2017 WL 2917928 (Jun. 19, 2017)
- Del. Op. Att'y Gen. 19-IB21, 2019 WL 4538307 (Apr. 23, 2019)
- Del. Op. Att'y Gen. 06-IB03, 2006 WL 1242013 (Jan. 23, 2006)
Source
- Landing page: https://attorneygeneral.delaware.gov/2020/12/02/20-ib29-12-2-2020-foia-opinion-letter-to-mr-john-young-re-foia-complaint-concerning-the-christina-school-district-board-of-education/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/12/Attorney-General-Opinion-No.-20-IB29.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 20-IB29
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB29
December 2, 2020
VIA EMAIL
Mr. John Young
RE: FOIA Petition Regarding the Christina School District Board of Education
Dear Mr. Young:
We write in response to your correspondence 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 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 committee violated the open meeting requirements of FOIA by failing to properly post notice and prepare minutes for its meetings to select and negotiate a contract with a superintendent candidate.
BACKGROUND
The Board selected a new superintendent earlier this year. The Board interviewed candidates during two executive sessions and held a public meeting on June 4, 2020. At the June meeting, the Board first entered executive session to discuss an item entitled "Superintendent Search." [1] The meeting also included an open session item, "Board Action on Superintendent Search." [2] At that time, the Board publicly voted to approve a contract with a candidate. This Petition followed.
The Petition alleges the Board improperly selected the superintendent outside of public view. Pointing to a news article on the matter, you assert that the candidate was selected and terms of the contract were negotiated prior to the June 4, 2020 meeting. You attached the meeting agendas for the June 4, 2020, May 27, 2020, May 20, 2020, and May 18, 2020 meetings, showing no public discussions of the Board's selected candidate. You also cite to Attorney General Opinions 15-IB01 and 02-IB17, describing this precedent as "apt and very instructive on the question at hand." [3] In addition, you allege that the meeting agendas lack specificity as they make no mention of a contract. In conclusion, you note that by the time a decision is reached on this matter, the new superintendent "will likely be weeks if not months into his role." [4] Nonetheless, you argue "[t]hat does not render the power of this office to rule that Title 29 Chapter 100 was violated, even if remediation is impracticable[,] any less valuable." [5]
The Board responded through counsel to your Petition by letter dated September 29, 2020 ("Response"). The Board asserts it conducted interviews at the May 18, 2020 and May 20, 2020 meetings in executive session. The Board's counsel states that the Board President and Vice President then "set out . . . to negotiate with the" selected candidate but did so at their own risk, and "[f]or all they knew, they could have been alone in their assessment of [the selected candidate's] perceived support on the Board." [6] The Board's counsel specifically states that the two members' discussions with the candidate were not subject to FOIA because there were only two Board members, and they "were not part of a Board-created committee." [7] The Board's counsel also states the "seven Board members may be interviewed and all will agree: (i) there was no vote in executive session, (ii) there was no straw poll, (iii) there was no effort to seek a consensus, and (iv) there was no 'wink or nod.'" [8] The Board also clarified that despite the news article's loose wording, no job offer was made before the June 4, 2020 vote, and any negotiations were subject to full Board approval. Finally, the Board's counsel contends that Attorney General Opinion 15-IB01 is a departure from the FOIA statute and established FOIA law. Even if it was still good law, the Board asserts that the facts here are distinguishable, as the Board in this case solely discussed the competencies and abilities of the candidate in the executive session, not the contract which had been emailed to the Board members for review two days earlier, "without advocacy or substantive comment." [9] Based on the foregoing, the Board asked this Office to dismiss the Petition.
DISCUSSION
The Petition contains two primary issues: 1) whether the Board improperly selected and negotiated with the new superintendent outside of public view; and 2) whether the June 4, 2020 meeting agenda sufficiently alerted the public regarding the vote on the superintendent contract. We address these two issues in turn below.
Meetings Outside of Public View
The petitioner carries the initial burden of establishing a prima facie case that a meeting occurred before the burden shifts to the public body to prove a meeting did not violate FOIA. [10] In this instance, the Petition alleges improper discussions occurred at the executive session meetings on May 18, 2020, May 20, 2020, and June 4, 2020. The Board's counsel specifically states that no vote, consensus gathering, straw poll, or "wink and nod" occurred at these executive sessions to select the candidate. [11] Furthermore, the Board's counsel specifically represents that the Board did not discuss the contract for the new superintendent in the June 4, 2020 executive session. On the basis of these representations, we find the alleged violations did not occur. [12]
In addition, the Board's counsel acknowledges that two Board members, the President and Vice President, engaged in selecting a candidate and negotiating with that candidate, but he argues they were not a committee created by the Board subject to open meeting requirements. Instead, he asserts that these two individuals selected a candidate and negotiated a contract in the hopes that the Board would ultimately agree and accept the contract with this candidate. We must determine whether this two-member group constitutes a public body under FOIA. The test for whether an entity is a public body under FOIA is two-fold. The first inquiry is whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," which includes a ". . . committee, ad hoc committee, . . . group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity." [13] If the first part is met, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations." [14]
The Board is a public body that undertook a significant task, selecting and hiring a new superintendent. [15] Despite the Board counsel's arguments to the contrary, the factual record here indicates that two members of the Board must have been formally appointed to engage in regular meetings to undertake the next steps in the candidate selection process after interviews were completed and that this group was impliedly, if not directly, charged with negotiating with the candidate of their choice and returning to the full Board to advise of its recommendations. [16] In other words, rather than having the full Board discuss and decide on the candidate and the terms of the agreement, the Board appointed this committee to meet regularly to have these discussions outside of public view. Based on this specific factual record, we find that the Board formally appointed this committee and charged the committee to select and negotiate with a candidate and make its recommendations to the full Board. As such, this committee is a public body that violated the open meeting requirements by not giving appropriate public notice of its meetings and preparing minutes when it engaged in a "meeting" as defined by FOIA. [17]
Our Office has previously determined that open meeting violations resulting in the selection of a superintendent outside of public view affects the substantial public rights of students, parents, teachers, and other concerned citizens. [18] When our Office finds a violation of the open meeting requirements, we may recommend remediation when a public body has taken action on a matter affecting substantial public rights. [19] However, the authority to invalidate a vote or impose other injunctive relief is reserved for the courts. [20] As acknowledged in the Petition, the selection of the superintendent was subject to a public vote at the June 4, 2020 Board meeting, and the new superintendent has been in his position for months, while the students and staff are well into the new school year. Accordingly, we do not find any recommended remediation within our Office's authority is feasible at this time, but we strongly caution the Board to follow FOIA's requirements in similar circumstances in the future. [21]
June 4, 2020 Meeting Agenda Item Regarding Board Action on Superintendent Search
An agenda serves the important function of notifying the public of "a general statement of the major issues expected to be discussed at a public meeting." [22] An agenda should be worded in "plain and comprehensible language." [23] The agenda must alert those with an "intense interest" in a subject that this subject will be considered. [24] "In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration." [25] When an important specific aspect of a general subject is to be discussed, "it satisfies neither the spirit nor the letter of the Freedom of Information Act to state the subject in such broad generalities as to fail to draw the public's attention to the fact that that specific important subject will be treated." [26] However, FOIA does not require "public notice to provide every alternative that may take place with respect to a specific subject under consideration." [27]
The Petition alleges that the June 4, 2020 meeting agenda's failure to reference the contract renders the notice insufficient under FOIA. [28] The agenda item for discussion at the June 4, 2020 meeting was described as "Board Action on Superintendent Search." [29] This description allows any member of the public with an intense interest in the superintendent search to attend and observe the Board's action on the subject. [30] Accordingly, we conclude that the June 4, 2020 agenda item for "Board Action on Superintendent Search" constituted adequate public notice.
CONCLUSION
As set forth above, we conclude that the Board created a committee for purposes of selecting and negotiating with a superintendent and find that this committee violated the open meeting requirements of FOIA by not providing public notice or maintaining the minutes of its meetings.
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, Esquire
Counsel for the Christina School Board
[1] Petition.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Response.
[7] Id.
[8] Id.
[9] Id.
[10] Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240, at 2-3 (Apr. 11, 2005).
[11] Unlike Attorney General Opinion 02-IB17, which determined the Board in that case must have selected its new superintendent in an executive session, as no public discussion of the candidates' qualifications took place in public, the Board's counsel in this case denies any such discussions took place in executive session. Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224, at 8 (Aug. 6, 2002).
[12] See Del. Op. Att'y Gen. 17-IB59, 2017 WL 6348853, n. 12 (Nov. 20, 2017); Del. Op. Att'y Gen. 03-IB16, 2003 WL 22404934, at 2 (Aug. 8, 2003); see also Del. Op. Att'y Gen. 15-IB06, 2015 WL 5014135, n. 2 (Aug. 19, 2015).
[13] 29 Del. C. § 10002(h).
[14] Id.
[15] Levy v. Board of Educ. of Cape Henlopen School Dist., 1990 WL 154147, at 2 (Del. Ch. Oct. 1, 1990).
[16] See Del. Op. Att'y Gen. 17-IB12, 2017 WL 2917928, at 4 (Jun. 19, 2017); Del. Op. Att'y Gen. 19-IB21, 2019 WL 4538307, at 2 (Apr. 23, 2019); Del. Op. Att'y Gen. 06-IB03, 2006 WL 1242013, at 3 (Jan. 23, 2006).
[17] 29 Del. C. § 10002(g).
[18] Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224, at 8 (Aug. 6, 2002).
[19] Del. Op. Att'y Gen. 05-IB15, 2005 WL 2334344, at 4 (Jun. 20, 2005) (citing Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 6 (Del. Ch. Aug. 29, 1986)).
[20] 29 Del. C. § 10005; Del. Op. Att'y Gen. 17-IB15, 2017 WL 3426253, at 7 (July 7, 2017); Del. Op. Att'y Gen. 16-IB23, 2016 WL 7010495, at 2 (Oct. 28, 2016).
[21] Ianni, 1986 WL 9610, at 7.
[22] 29 Del. C. § 10002(a).
[23] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 8 (Del. Ch. May 19, 1994).
[24] Lechliter v. Delaware Dep't of Envtl. Control and Natural Res., 2017 WL 2687690, at 2 (Del. Ch. Jun. 22, 2017) (citation omitted).
[25] Id.
[26] Ianni, 1986 WL 9610, at 5.
[27] Lechliter v. Becker, 2017 WL 117596, at 2 (Del. Ch. Jan. 12, 2017) (citation omitted).
[28] The Board's counsel states that the contract was available only for the June 4, 2020 meeting, having only been drafted for review in the days immediately preceding the meeting. Thus, the June 4, 2020 meeting agenda is alleged to have this defect.
[29] Petition.
[30] See Lechliter, 2017 WL 117596, at 2; Del. Op. Att'y Gen. 17-IB29, 2017 WL 3426269, at 3 (July 20, 2017); but cf. Del. Op. Att'y Gen. 07-IB01 (Jan. 25, 2007); Del. Op. Att'y Gen. 05-IB05, 2004 WL 3266027, at 2 (Feb. 22, 2004).