Can a Delaware school board avoid open meetings law by briefing members in two separate small private sessions on the same topic?

Official title

06-IB20: Re Freedom of Information Act Complaint Against Christina School District Board of Education

Plain-English summary

A citizen complained that the Christina School District Board of Education split into two unposted private briefings on July 10, 2006, one with two board members, one with three (one by phone), to hear the superintendent's plans for laying off dozens of paraprofessionals and security associates and for a tax warrant vote coming up the next day. Together the two sessions reached five of the board's seven members, enough for a quorum, and the board admitted the discussions went beyond passively receiving information. The AG found this added up to an unlawful "constructive quorum" meeting held without public notice, extending a line of prior rulings on serial or split discussions. Even so, the AG ordered no fix: the layoff briefing touched personnel matters the board could have discussed lawfully behind closed doors anyway, and the tax warrant matter was properly listed on the public agenda the next day and actually discussed in public before the vote. The opinion also announced that going forward, the AG's office would judge these split or serial meetings using an objective test, based on the number of members, the timing, and the subject matter, rather than trying to determine whether the board intentionally tried to dodge the open meetings law.

Currency note

This opinion was issued in 2006. 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: Can a Delaware school board split a briefing into two smaller private meetings to avoid triggering a quorum?
A: Not according to this opinion. The AG found that two back-to-back sessions covering the same subject, together involving five of the board's seven members, counted as a single quorum meeting subject to FOIA's notice rules.

Q: Does a board have to give public notice before privately discussing layoffs with the superintendent?
A: According to this opinion, that kind of personnel discussion can lawfully happen in a properly noticed executive session, so even though the board skipped notice here, the AG found no remediation necessary since the board could have held the same discussion lawfully.

Q: What if a matter discussed privately without notice is later put on a public agenda and voted on?
A: Per this opinion, when the matter (here, a tax warrant resolution) is properly noticed and openly discussed before the board votes, the AG treats the earlier notice lapse as not requiring remediation.

Background and statutory framework

The complaint concerned two unposted private sessions the Christina School District Board of Education held with the superintendent on July 10, 2006, ahead of a public meeting the next day covering layoffs and a tax warrant vote. Applying the open-meeting requirement of 29 Del. C. §10004(a), the definition of "meeting" as a quorum gathering at §10001(e), and the seven-day notice requirement at §10004(e)(2), and drawing on its prior rulings that serial or split discussions can form a constructive quorum when they involve an active exchange of views rather than passive information-sharing (Att'y Gen. Op. 03-IB11; Att'y Gen. Op. 06-ID16; Att'y Gen. Op. 04-IB10; Att'y Gen. Op. 05-IB03), on withholding remediation where a personnel-related discussion could have lawfully occurred in executive session (Att'y Gen. Op. 06- IB15), and on a public body curing a notice lapse through full public airing of an issue before voting (Att'y Gen. Op. 06-IB12; Att'y Gen. Op. 06-IB05), the AG found a notice violation but ordered no remediation.

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. §10001(e), defines "meeting" as the formal or informal gathering of a quorum for discussing or acting on public business
• 29 Del. C. §10004(e)(2), public bodies must give at least seven days' notice, including an agenda, of regular meetings and planned executive sessions

Cases:

• Att'y Gen. Op. 03-IB11 (May 19, 2003), an active exchange of information among a nominating committee's members amounted to a meeting
• Att'y Gen. Op. 06-ID16 (Aug. 7, 2006), the nature, timing, and substance of serial communications together determine whether they form a constructive quorum
• Att'y Gen. Op. 04-IB10 (Oct. 18, 2004), serial telephone calls among four of seven county council members amounted to a meeting of a quorum
• Att'y Gen. Op. 05-IB03 (Feb. 3, 2005), a circulated letter followed by conversations with four of five town council members amounted to a meeting
• Att'y Gen. Op. 06- IB15 (July 24, 2006), no remediation required where a board could have lawfully discussed the same personnel matter in executive session
• Att'y Gen. Op. 06-IB12 (June 19, 2006), a council noticing an issue for public discussion and voting in public cured an earlier notice lapse
• Att'y Gen. Op. 06-IB05 (Mar. 27, 2006), a thorough public airing of an issue before a council vote cured a FOIA violation

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/09/11/06-ib20-re-freedom-of-information-act-complaint-against-christina-school-district-board-of-education/
• Original PDF: not linked from landing page

Original opinion text

September 11, 2006

Kent County – Civil Division (739-7641)

Mr. Robert P. Reeder

1302 Barksdale Road

Newark, DE 19711

RE:

Freedom of Information Act Complaint Against Christina School District Board of Education

Dear Mr. Reeder:

On July 13, 2006, our Office received your letter alleging that the Christina School District

Board of Education (“the School Board”) violated the open meeting requirements of the Freedom

of Information Act, 29

Del. C. Ch. 100 (“FOIA”), by meeting twice in private on July 10, 2006 to discuss matters of public business without notice to the public.

By letter dated July 17, 2006, we asked the School Board to respond to your complaint by

July 28, 2006. We received the School Board’s response on July 28, 2006. We then made several

requests to the Board for additional information, which we received over the course of August 22-

29, 2006.

According to the School Board:

At 7:30 on July 10 the Superintendent and senior

administrators met with Board members Beverly

Howell and Gina Backus. The session lasted approximately

one hour. At noon on July 10 the Superintendent

and senior administrators met with Board

members Jimmy Durr and George Evans. Board

member John MacKenzie participated in a portion

of the meeting by telephone. This session lasted

about an hour and 30 minutes.

The School Board explains that “the purpose of each of these meetings was to brief Board

members on the reduction in force and the tax warrant recommendations the Superintendent would

make at the Board’s July 11, 2006 meeting.” The Board acknowledges that these two meetings

“went beyond the mere passive receipt of information to include, at least to some extent, the active

exchange of information and opinions.” According to the School Board, “All of the information

presented to Board members at the July 10, 2006 meetings was presented at the Board’s open session

on July 11, 2006, with the exception of identifying the names of employees affected by the reduction

in force.” The School Board acknowledges that it did not post public notice for the two discussions

on July 10, 2006 between the Superintendent and Board members.

On June 30, 2006, the School Board posted notice of a public meeting for July 11, 2006 at

7:30 p.m. preceded by an executive session at 6:00 p.m. to discuss personnel and legal matters. The

agenda listed among other items for public discussion: “Approval of 2006-2007 Tax Warrant and

Resolution”; and “Personnel Recommendations.”

The minutes of the July 11, 2006 public meeting reflect that all seven members of the Board

attended (Backus, Scherer, Resler, Mackenzie, Evans, Howell, and Durr). The minutes show that

“Kathy Dick-Frederick presented the 2006-2007 Tax Warrant Resolution and answered questions.

It was moved by Mr. Evans, seconded by Dr. Mackenzie, and unanimously carried that the Christina

Board of Education approve the Fiscal Year 2007 Tax Warrant and Resolution.”

The minutes of the July 11, 2006 meeting show that “Ed Bosco presented the

recommendation for reductions in force for paraprofessionals and security associates.” Five

members of the School Board (two abstained) voted to terminate nine security associates and 71

paraprofessionals effective August 14, 2006.

RELEVANT STATUTES

FOIA requires that “[e]very meeting of all public bodies shall be open to the public execpt

those closed for” executive session as authorized by law. 29

Del. C. §10004(a). FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members

of any public body for the purpose of discussing or taking action on public business.”

Id. §10001(e). FOIA requires all public bodies to “give 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. The notice shall

include the agenda, . . . .”

Id. §10004(e)(2). LEGAL ANALYSIS

A. July 10, 2006 Meetings

Our Office has previously determined that a public body may achieve a quorum for purposes

of FOIA through serial discussions which allow members of a public body “to receive and comment

on other members’ opinions and thoughts, and reach a consensus on action to take.”

Att’y Gen. Op.   03-IB11 (May 19, 2003) (exchange of e-mails between the three members of a nominating

committee over a two-day period). For serial discussions to amount to a constructive quorum, there

must be “an active exchange of information and opinions” as opposed to “the mere passive receipt

of information.”

Id.   “It is the nature, timing, and substance of the communications which together may turn serial

discussions into a constructive quorum.”

Att’y Gen. Op. 06-ID16 (Aug. 7, 2006). Serial discussions may amount “to a constructive quorum of the public body when there was an active exchange of

thoughts and opinions and members were asked to vote or adopt a particular point of view or reach

a consensus on what action to take.”

Id.   In

Att’y Gen. Op. 04-IB10 (Oct. 18, 2004), a member of the county council drafted a memorandum proposing to allocate $15 million to the City of Wilmington for law enforcement and

then circulated a copy of the proposal to the other six members of the council. Four members of the

council signed the proposal which stated it “represents a consensus” based on telephone

conversations among members of the council. Our Office determined “that those serial telephone

calls amounted to a meeting of a quorum of the council in violation of [FOIA].”

In

Att’y Gen. Op. 05-IB03 (Feb. 3, 2005), a member of the town council drafted a letter critical of another member of the council and circulated it to three members of the five-member

council, following up with telephone or face-to-face conversations to see if they agreed with her

position. Our Office determined that “these contacts were more than the passive receipt of

information” and “the sum of these communications amounted to a meeting of a public body covered

by FOIA.”

The School Board has seven members and four members constitute a quorum. The record

shows that, collectively, five Board members participated in the two meetings with the

Superintendent on July 10, 2006 to discuss reductions in force and tax warrants. We believe that

these two meetings amounted to a constructive quorum for purposes of FOIA. The meetings were

scheduled only a few hours apart, the subjects discussed were the same, and the School Board

acknowledges that the meetings “went beyond the mere passive receipt of information.”

The Board originally intended to hold a single meeting with the Superintendent on July 10,

2006 and provided us with a copy of a “posting” for that meeting. The posting stated the purpose

of the meeting was “to review and receive materials for the July 11, 2006 Board of Education

meeting. This meeting is being posted because a quorum may be present. The Board may go into

Executive Session to discuss Personnel and Legal Matters.”

The Board never posted that notice to the public, apparently because not all members could

make the meeting at noon, so a first meeting was held at 7:30 a.m. between the Superintendent and

two Board members and a second meeting at noon between the Superintendent and three other Board

members. Under these circumstances, we believe that the two back-to-back meetings amounted to

In Att’y Gen. Op. 06-ID16 (Aug. 7, 2006), our Office suggested that serial

We determine that the School Board violated the public notice requirements of FOIA by

failing to post a notice and agenda for the two meetings on July 10, 2006 with the Superintendent

which involved a quorum (five members) of the Board.

C. Remediation

We do not believe that any remediation is necessary for these violations of the open meting

law. The School Board could have met privately on July 10, 2006 with the Superintendent to discuss

reductions in force under FOIA’s personnel exemption for executive session.

See Att’y Gen. Op. 06- IB15 (July 24, 2006) (no remediation directed because “the Board could have lawfully met in

executive session to discuss the qualifications of job applicants for the position of superintendent”).

FOIA did not authorize the School Board to meet in executive session to discuss tax warrant

resolution. We do not believe that remediation is necessary, however, because the Board noticed the

tax warrant resolution for the July 11, 2006 public meeting and there was public discussion of the

resolution before the Board voted to approve.

See Att’y Gen. Op. 06-IB12 (June 19, 2006) (“the council noticed the issue for discussion [at a public meeting] and voted in public”);

Att’y Gen. Op . 06-IB05 (Mar. 27, 2006) (city council cured the FOIA violation by a “thorough public airing of the

issue before the Council voted”).

CONCLUSION

For the foregoing reasons, we determine that the School Board violated FOIA when a

constructive quorum of the Board met with the Superintendent on July 11, 2006 to discuss reductions

in force and tax warrants without notice to the public.

We do not direct any remediation for this violation because: (1) the Board could have met

privately on July 10, 2006 to discuss the reductions in force under FOIA’s personnel exemption for

executive session; and (2) the tax warrant resolution was on the agenda for the July 11, 2006 public

meeting, and the public had a right to review the resolution and ask questions before the Board voted

to approve.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Lawrence W. Lewis, Esquire

State Solicitor

Mr. Robert P. Reeder

September 11, 2006

Page 8

cc: The Honorable Carl C. Danberg

Attorney General

Malcolm S. Cobin, Esquire

Chief Deputy Attorney General

Keith R. Brady, Esquire

Assistant State Solicitor

David H. Williams, Esquire

Phillip G. Johnson

Opinion Coordinator

I:\TUPMAN\FILES\foia.christina.reeder.wpd

discussions in groups of less than a quorum might violate FOIA if they were a deliberate attempt

to circumvent the open meeting law. In determining whether serial meetings are lawful under

FOIA, we will from now on use a constructive quorum analysis based on objective factors rather

than delving into the subjective issue of intent. That is not to say, however, that a deliberate

attempt to avoid the open meeting law may not be relevant to the issue of remediation.

a constructive quorum of the Board.

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