Can a school board discuss disagreements between its own members in a closed personnel executive session?

Official title

01-IB01: FOIA Complaint Against Indian River School District

Plain-English summary

A resident complained that the Indian River School District improperly discussed a topic called "Boardsmanship" in executive session at a July 25, 2000 meeting. The agenda for that meeting listed the standard personnel, strategy, and hearing categories FOIA allows for executive session, plus a separate "Boardsmanship" item for the open portion of the meeting. But the minutes showed the board actually discussed "Boardsmanship" behind closed doors, and it's a matter of public record that during that closed session, the board president asked one of the board's own members to resign. The district argued this was akin to discussing "a citizen's qualifications to hold a job," one of FOIA's personnel-related exceptions, and pointed out that discussing Boardsmanship in executive session had been its past practice. The AG rejected that reasoning. The "qualifications to hold a job" exception is meant for decisions about hiring outside employees, like a town manager or police chief, not personal disputes among the elected members of the board itself. Because the matter had already been fully discussed in public at a later October 26 board meeting, where members read an eight-page report on the incident aloud, the AG found no purpose in ordering the district to redo the July 25 meeting. But the AG did find a real violation, and directed the district to stop discussing "Boardsmanship" issues in executive session going forward, explaining that public debate among elected officials over how they conduct themselves is exactly the kind of matter the open meeting law is meant to keep in public view.

Currency note

This opinion was issued in 2001. 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 FOIA's personnel exception for executive session cover disagreements among the elected members of a board itself?
A: No, according to this opinion. The AG found the exception for discussing "a citizen's qualifications to hold a job" applies to hiring decisions about outside employees, not personal conflicts among the board's own members.

Q: If a public body has a long-standing practice of discussing something in executive session, does that make it legal?
A: No. The AG found the district's past practice of discussing "Boardsmanship" in executive session didn't change the FOIA analysis, and ordered the practice stopped regardless of how long it had been going on.

Q: If a topic discussed improperly in a past closed session later got aired publicly anyway, does the AG still order a remedy for the earlier meeting?
A: Not necessarily. The AG found no purpose in directing the district to redo the July 25 meeting since the underlying issue had already been fully discussed in public months later, but still ordered the improper practice discontinued going forward.

Q: Why does it matter whether board members' internal conflicts are discussed in public?
A: The opinion explained that debates among elected officials about their own conduct go to the core purpose of the open meeting law, giving the public a chance to be involved in exactly the kind of disputes that affect how their representatives govern.

Background and statutory framework

The complaint concerned a July 25, 2000 Indian River School District executive session where the board discussed a "Boardsmanship" issue involving one of its own members, alongside legitimate personnel, strategy, hearing, and site-acquisition matters properly authorized under 29 Del. C. § 10004(b)(2), (6), (7), and (9). The district's defense relied on the personnel exception's coverage of "a citizen's qualifications to hold a job," which the AG found limited to decisions about hiring outside employees rather than internal disputes among the board's own elected members. Because the underlying incident had since been fully aired in public at a subsequent board meeting, the AG found no remedy necessary for the specific July 25 session, but found a genuine FOIA violation and directed the district to discontinue discussing "Boardsmanship" matters in executive session going forward.

Citations and references

Statutes:

• 29 Del. C § 10004(b)(2), (6), (7), and (9), the specific authorized grounds for executive session invoked (personnel, litigation strategy, and related matters)
• 29 Del. C. § 10004, general executive session provisions, including the personnel exception's limits

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/01/16/01-ib01-foia-complaint-against-indian-river-school-district/

Original opinion text

January 16, 2001

Civil Division-Kent County

Mr. Joseph E. Carmean, Jr.

P.O. Box 37

Lewes, DE 19958

Re: Freedom of Information Act Complaint Against Indian River School District

Dear Mr. Carmean:

Our Office received your Freedom of Information Act (“FOIA”) complaint on December 11, 2000. You allege that the Indian River School District (“the School District”) violated the open meeting requirements of FOIA by going into executive session on July 25, 2000 for a purpose not authorized by law.

By letter dated December 15, 2000, we asked the School District to respond to your complaint within ten days. We granted the School District’s request for an extension of time in light of the winter school break, and received the City’s response on January 10, 2001.

The agenda for the July 25, 2000 meeting included an agenda item for the open session called “Boardsmanship” and also stated that the School District would go into executive session to discuss: “A. Personnel: To discuss matters pertaining to names, competencies and abilities of individual employees or students. B. Strategy Session: To discuss collective bargaining, pending or potential litigation. C. Hearing: To conduct a hearing regarding employee or student discipline or employee dismissal. D. Such other business as may properly be discussed in an executive sessions.”

The minutes of the executive session on July 25, 2001 show that the School District approved the minutes of previous executive sessions, and discussed personnel, student discipline, collective bargaining, and site acquisition matters, which are all authorized by FOIA for executive session. See 29 Del. C §§ 10004(b)(2), (6), (7), and (9). In that executive session, the School District also discussed the agenda item, “Boardsmanship.” It is a matter of public record that, at the executive session on July 25, 2000, the Board President asked one of the board members to resign.

In its response to the complaint, the School District agrees that “the term ‘Boardsmanship’ is not specifically listed within the 9 reasons for which a public body may call an executive session closed to the public (29 Del. C. § 10004)” but contends that it is akin to discussing “a citizen’s qualifications to hold a job.” The School District also states that “[t]he past practice of the Board had been to discuss Boardsmanship issues in executive session.”

Personal disagreements among the members of a public body do not fall within the FOIA exception to discuss “a citizen’s qualifications to hold a job.” That exception is limited to discussions whether to hire a new employee, such as a town manager or police chief. It does not apply to members of the public body itself.

As noted in your letter, several board members “brought this matter to the attention of the public during the district’s October 26 board meeting” and “read aloud an eight-page report detailing the alleged infraction.” No purpose would be served by directing the School District to re-notice the July 25. 2000 meeting to discuss “Boardsmanship” since the matter was fully aired in public at the October 26 meeting.

The School District, however, must cease and desist its practice of discussing “Boardsmanship” in executive session. Such issues go the very heart of the open meeting law: to allow the public the opportunity to be involved in debates among elected officials on matters of public interest.

Conclusion

For the foregoing reasons, we find that the School District violated the open meeting requirements of FOIA by going into executive session on July 25, 2000 to discuss “Boardsmanship.” We direct the School District to discontinue its practice of discussing such matters in executive session in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

cc: James D. Griffin, Esquire

Mr. Phillip G. Johnson, Opinion Coordinator