Can a Delaware school board hold a retreat out of state to discuss district business without public notice?

Official title

04-IB18: Re: Freedom of Information Act Complaint Against Cape Henlopen School Board

Plain-English summary

A resident complained that the Cape Henlopen School Board violated FOIA by holding a July 20-22, 2004 retreat at a resort in Chestertown, Maryland, discussing district business without notice to the public, and asked that the board members reimburse the district for the trip's cost. The board admitted that on the morning of July 22, a quorum of members discussed district matters with administrative staff, calling it a good-faith mistake since they viewed it as a staff gathering rather than a board meeting. The AG found two violations: the meeting lacked required public notice, and it was held outside the school district and Sussex County, both required under FOIA regardless of whether the board took formal action. Even so, the AG declined to order any remedy, because the board didn't vote on or take any action regarding the general district-direction topics discussed at the retreat, only cautioning that any future action on those topics would first require proper public notice. The AG also declined to seek the requested restitution, since Delaware law only allows a court, not the AG directly, to order forfeiture of compensation, and only when a public body knowingly closed a meeting in violation of FOIA, which wasn't shown here.

Currency note

This opinion was issued in 2004. 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 a Delaware school board violate the open meetings law just by gathering informally, even if it doesn't vote on anything?
A: Yes, according to this opinion. FOIA's open meeting requirement doesn't depend on whether the board takes formal action; it applies to fact gathering, deliberation, and discussion of public business by a quorum.

Q: Can a Delaware school board hold a meeting or retreat outside its own district?
A: No, based on this opinion, except for a narrow list of situations not present here. FOIA requires school boards to hold meetings within the school district or the county where the district's principal office is located.

Q: If a board violates FOIA by meeting without notice, does it automatically have to redo the meeting or pay money back?
A: Not necessarily, according to this opinion. The AG found no remedy was needed here because the board took no formal action on what was discussed, and restitution of compensation can only be ordered by a court, not the AG directly.

Background and statutory framework

The complaint concerned a Cape Henlopen School Board retreat held July 20-22, 2004 in Chestertown, Maryland, where a quorum of members discussed district business on the final morning. Applying the open-meeting requirement of 29 Del. C. §10004(a), the notice requirement at §10004(e)(2), the geographic-jurisdiction requirement at §10004(g), and the compensation-forfeiture provision at §10004(i), and drawing on its own prior opinions holding that the open-meeting law applies regardless of formal action (Att'y Gen. Op. 02-IB07, citing Levy v. Board of Education of Cape Henlopen School District) and disfavoring out-of-district school board workshops (Att'y Gen. Op. 89-IO14), the AG found violations on both the notice and location requirements but declined to order remediation or restitution.

Citations and references

Statutes:

• 29 Del. C. §10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. §10004(e)(2), public bodies must give at least seven days' public notice of regular meetings
• 29 Del. C. §10004(g), regularly scheduled meetings of political subdivisions, including school districts, must be held within their jurisdiction or home county
• 29 Del. C. §10004(i), a court may order forfeiture of compensation for a closed meeting the public body knew violated FOIA, on the Attorney General's application

Cases:

• Att'y Gen. Op. 02-IB07 (Mar. 22, 2002), the open meeting law applies to fact gathering, deliberation, and discussion regardless of whether formal action is taken
• Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Sept. 11, 1989), FOIA applies to workshops, not just meetings with formal votes
• Att'y Gen. Op. 89-IO14 (June 27, 1989), out-of-district school board workshops are suspect and ill-advised under FOIA's geographic requirements
• Att'y Gen. Op. 98-IB04 (May 20, 1998), a board must give public notice before acting on matters discussed at an improperly held gathering

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/10/18/04-ib18-re-freedom-of-information-act-complaint-against-cape-henlopen-school-board/
• Original PDF: not linked from landing page

Original opinion text

October 18, 2004

Kent County – Civil Division (739-7641)

Mr. Dean Dey

30738 Edgewater Drive

Lewes, DE 19958

RE: Freedom of Information Act Complaint

Against Cape Henlopen School Board

Dear Mr. Dey:

On July 23, 2004, we received your letter alleging that the Cape Henlopen School Board (“the School Board”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by holding a retreat over the course of July 20-22, 2004 at the Great Oaks Resort in Chestertown, Maryland. You allege that the Board discussed matters of public business which FOIA required to be open to the public at a meeting within the School District’s jurisdiction. You also allege that because the retreat was subject to FOIA, the School Board failed to post the required notice and agenda to inform the public about the meeting. As a remedy, you ask that the Board members “make restitution to the [School] District of monies expended for their attendance.”

By letter dated July 28, 2004, we asked the School Board to respond to your complaint within ten days. We received the School Board’s response on August 4, 2004. We received a supplemental response from the Board on August 10, 2004.

According to the School Board, there was only one Board member at the retreat on July 20, 2004 and during the day on July 21, 2004. A quorum of the Board was present at a dinner and social gathering that followed on the evening of July 21, 2004. The Board does not dispute that on the morning of July 22, 2004 a quorum of the Board discussed matters of public business regarding the Cape Henlopen School District with School District administrative staff members in violation of FOIA. The Board contends that we should not direct remediation because “the Board members made a good faith mistake by gathering on July 22, 2004 to discuss public business. The Board now fully understands its obligations to comply with all the requirements of [FOIA] anytime a quorum of the Board gathers to discuss public business, including situations such as the gathering on July 22, 2004 which the Board members understandably viewed as a meeting of administrative staff rather than a Board meeting.”

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public” except those authorized by statute for executive session. 29 Del. C. §10004(a). FOIA also requires all public bodies to “give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof.” Id. §10004(e)(2)

FOIA imposes geographic limits where a public body can hold a meeting. “Every regularly scheduled meeting of a public body shall be held within the geographic jurisdiction of that public body. All such other meetings shall be held as follows: (1) A public body serving any political subdivision of the State, including, but not limited to, any city, town or school district, shall hold all such other meetings within its jurisdiction or the county in which its principal office is located; . . . .” 29 Del. C. §10004 (g).

Legal Analysis

Th School Board does not dispute that it violated FOIA by holding a meeting on the morning of July 22, 2004 to discuss matters of public business without the required notice to the public, and by holding that meeting outside Sussex County. The only remaining issue is whether we should require remediation for those violations.

While we do not doubt the good faith of the School Board members, the law is well established that the “application of the open meeting law does not turn on whether the [Board] took any ‘official action’ at the [retreat].” Att’y Gen. Op. 02-IB07 (Mar. 22, 2002). “‘The Chancery Court has held that FOIA applies, not only to gatherings where a public body takes formal action, but also to a “workshop” held at a local restaurant. Otherwise, ‘there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business so long as the Board reached no formal decision at that private meeting.’” Id. (quoting Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Sept. 11, 1989) (Chandler, V.C.)). “The open meeting law applies to ‘fact gathering, deliberations and discussions, all of which surely influence the public entity’s final decision.’” Id.

It is also well established that school boards must hold public meetings within the jurisdiction of the school district. In 1988, the General Assembly amended FOIA to impose geographic limits on where public bodies can meet. “The specific purpose of the 1988 amendment . . . was to prevent local school boards from circumventing the Act by holding meetings in locations that are inconvenient for their constituents. One local school board, for example, had been considering matters of extreme interest and importance to the board’s constituents at so-called workshops held at the opposite end of the state or in Pennsylvania.” Att’y Gen. Op. 89-IO14 (June 27, 1989). In that 1989 opinion, we cautioned that “out-of-district workshops . . . are suspect and in derogation of [FOIA]. They are ill advised because they will always be viewed with suspicion by the public, the media, and the courts.” Id.

Remediation

In the circumstances of this case, we do not believe that any remediation is necessary for the School Board’s violations of the open meeting law. The School Board does not appear to have taken any action on the general matters discussed at the retreat (“positive and progressive direction” for the school district). We caution that if the Board “were to take any action on any of the matters discussed at the [July 20-22, 2004] retreat,” it must first give the required “notice to the public.” Att’y Gen. Op. 98-IB04 (May 20, 1998).

You also ask that “the Board should make restitution to the District of monies expended for their attendance” at the Chestertown retreat. FOIA authorizes the restitution of “all or part of the compensation of members of a board, commission, or other public body for any closed meeting which such board, commission, or other public body closed knowing that such action violated this chapter.” 29 Del. C. §10004(i). The statute makes clear that forfeiture is a remedy that “may only be ordered by the Court if the Court makes a specific factual finding that the board, commission or other public body had no good faith defense to believe that the meeting could be closed.” Id. In order to seek such a remedy, the Attorney General must apply to a court of competent jurisdiction for such relief. Under the circumstances, we decline to do so.

Conclusion

For the foregoing reasons, we determine that the School Board violated the open meeting requirements of FOIA by: (1) holding a meeting on July 22, 2004 where the Board discussed matters of public business without giving notice to the public; and (2) holding that meeting outside the School District or Sussex County. For the reasons previously explained, we do not believe that any remediation is necessary. We caution the School Board to comply strictly with the requirements of the open meeting law in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

David H. Williams, Esquire

Phillip G. Johnson

Opinion Coordinator

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