If a school board's vote wasn't on the meeting agenda, does redoing that same vote in public later fix the problem?

Official title

11-IB12:RE: Freedom of Information Act Complaint Against Town of Woodbridge School Board

Plain-English summary

A resident complained that Woodbridge School Board members attended a candidates' night and a bond committee hearing that weren't board meetings, and separately that the board voted to hire a new superintendent at its June 14, 2011 meeting without listing that vote on the agenda. The AG found no violation on the first point: FOIA only restricts a quorum of board members gathering to discuss board business, and nothing showed the members discussed board matters as a quorum at either outside function. On the agenda point, the AG agreed the June 14 vote technically should have appeared on that meeting's agenda, but found no remediation was needed because it simply repeated a vote the board had already properly taken at its May 25 meeting, albeit at nearly midnight after every member of the public had left. Voting again in June was actually the board's own effort to let the public see the decision, and forcing a third vote over the same already-resolved question would have served no purpose. A separate claim that the board held secret pre-meeting votes in executive session went unaddressed because the resident offered no specific facts to support it.

Currency note

This opinion was issued in 2011. 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 Delaware school board members attend community events together without triggering open meetings law?
A: Yes, according to this opinion, as long as they don't gather as a quorum to discuss the board's own public business while there; simply being present at the same outside function isn't itself a FOIA violation.

Q: What happens if a public body votes on something that wasn't listed on the meeting agenda?
A: Per this opinion, that's a technical FOIA violation, but if the vote just repeats an earlier, properly noticed vote on the same matter, the AG may find no remediation necessary rather than requiring the vote a third time.

Q: Can the AG's office rule on a FOIA complaint that doesn't include specific supporting facts?
A: No, according to this opinion. A vague allegation, here that the board secretly voted in executive session before its public meetings, went unaddressed because the complainant didn't provide specific facts to support it.

Background and statutory framework

The complaint concerned Woodbridge School Board members' attendance at non-board functions and a June 14, 2011 off-agenda revote on hiring a new superintendent. Applying the definition of "meeting" as a quorum gathering at 29 Del. C. § 10002 (c), the seven-day notice and agenda-amendment provision at § 10004(e)(2), and the definition of "agenda" at § 10002 (a), the AG found no violation in the outside-function attendance and only a harmless technical agenda violation in the June 14 revote, since it duplicated a properly noticed May 25 vote.

Citations and references

Statutes:

• 29 Del. C. § 10002 (c), defines "meeting" as the formal or informal gathering of a quorum for discussing or taking action on public business
• 29 Del. C. § 10004(e)(2), public bodies must give at least seven days' notice, including an agenda, and may amend the agenda for items arising at the meeting
• 29 Del. C. § 10002 (a), defines "agenda" as a general statement of the major issues expected to be discussed

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/08/18/11-ib12re-freedom-of-information-act-complaint-against-town-of-woodbridge-school-board/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 11-IB12 (Del.A.G.), 2011 WL 4062223

Office of the Attorney General

State of Delaware

Opinion No. 11 – IB12

August 18, 2011

RE: Freedom of Information Act Complaint Against Town of Woodbridge School Board

*1 Mr. Martin D. Shuey

6312 Ray Road

Bridgeville, DE 19933

Dear Mr. Shuey:

On or about July 12, 2011, you asked for an Attorney General’s determination as to whether the Woodbridge School Board (“Board”) violated the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”). The Delaware Department of Justice having received the Board’s response to your complaint, this is our determination pursuant to 29 Del. C. § 10005 (e). 1

FACTS

You allege that on May 3, 2011, at least three Board members attended a Meet the Candidates night at the Woodbridge Elementary School, and that on June 23, 2011, three Board members attended a Bond Committee hearing in Dover. The Board responds that the members did not discuss the Board’s business at either of those functions, the second of which they attended in order to hear your objections to the Bond Bill.

At the Board’s June 14, 2011 meeting, the Board voted on the hiring of a new superintendent, which action was not listed on the posted agenda for the meeting. The Board responds that the June 14 vote was a duplication of the vote that took place on May 25, 2011, at about 11:45 in the evening, after all public observers had left. In order to keep the public informed, the Board voted again on June 14.

RELEVANT STATUTES

A meeting for purposes of FOIA “means the formal or informal gathering of a quorum … for the purpose of discussing or taking action on public business ….” 29 Del. C. § 10002 (c). Section 10004(e)(2) of FOIA provides the criteria for proper notice of meetings and preparation of agendas:

All public bodies shall 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. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings, including whether such meeting will be conducted by video-conferencing; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

Section 10002 (a) defines “agenda” as, “a general statement of the major issues expected to be discussed at a public meeting ….”

DISCUSSION

Two of your complaints involve Board members attending meetings or functions other than Board meetings. You do not allege that the Board members met “for the purpose” of discussing public business of the Board at those meetings or functions. 29 Del, C. § 10002 (c). Nor is there any evidence that they even discussed public business of the Board. FOIA does not prohibit members of a public body from participating in other groups or attending other functions, so long as at those gatherings they do not discuss, as a quorum, the public business of the public body of which they are members.

*2 You also complain that on June 14, 2011 the Board voted for a new superintendent, when that vote was not on the agenda. While technically the vote on June 14 should have been on the agenda for that meeting, no harm was caused by the omission because the vote simply repeated what had already occurred in a public — although no member of the public was present — meeting. To require this omission to be remedied would be to require yet a third vote, when the first vote was perfectly sufficient.

CONCLUSION

For the reasons stated above, we conclude that the Board technically violated FOIA when it voted on an issue not on the agenda, and that was not an emergency that arose at the time of the meeting. See 29 Del. C. § 10004 (e)(2) (“[T]he agenda shall be subject to change to include additional items … which arise at the time of the public body’s meeting.”) However, because that vote was simply a repeat of a properly noticed vote, a third vote on the same issue is unnecessary.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Footnotes

1
You also complain that the Board meets in executive session before the public meeting to discuss, and even vote on, every item on the agenda. However, as you have presented no specific facts supporting that complaint, we do not address it.

Del. Op. Atty. Gen. 11-IB12 (Del.A.G.), 2011 WL 4062223