Can a Delaware school board post only a 'Tentative Agenda' instead of a final one before its meetings?

Official title

12-IIB04: Freedom of Information Act Regarding the Board of Education

Plain-English summary

Two open-government advocacy groups raised four FOIA complaints against the Caesar Rodney School District. Two of the four stuck. First, the Board had been posting only "Tentative Agendas" for its meetings, which the AG found violated FOIA: while an agenda can be amended under narrow circumstances, labeling it "tentative" wrongly implies a final, non-tentative version is coming later, when in practice it usually wasn't. The Board agreed to drop the word. Second, the Board's agendas didn't specify the grounds for its planned executive sessions, the same defect flagged in a companion opinion involving another district, and the Board again agreed to fix it, doing so starting with its January 17, 2012 meeting. The other two complaints failed. The Board's December 20, 2011 budget vote included raises for teachers and administrators, but those increases came from collective bargaining and "meet and confer" agreements the Board had already properly adopted earlier in 2011; approving the overall budget later didn't require separately flagging pay raises that were already locked in. And although the minutes of that meeting didn't itemize each member's individual vote as FOIA technically requires, recording the roll call and a unanimous decision under the school code's voting procedure was enough to satisfy FOIA's minutes rule in the AG's view.

Currency note

This opinion was issued in 2012. 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: Is it enough for a Delaware school board to post a "Tentative Agenda" before its meetings?
A: No, according to this opinion. Calling an agenda "tentative" misleads the public into expecting a later, final version, and doesn't satisfy FOIA's requirement for a proper meeting agenda.

Q: Does a school board have to disclose a teacher or administrator pay raise on its budget-vote agenda?
A: Not necessarily, per this opinion, when the raises were already approved through a separately adopted collective bargaining or compensation agreement; the later budget vote is just reflecting funding for an already-final decision.

Q: Does a Delaware public body always have to record how each individual member voted in its minutes?
A: FOIA technically requires that, but this opinion found that recording a roll call and a unanimous vote consistent with the school code's own voting procedure was sufficient, even without listing each member's vote separately.

Background and statutory framework

The complaint concerned Caesar Rodney School District Board of Education practices in late 2011 and early 2012, including its use of "Tentative Agendas," undisclosed executive session grounds, a December 2011 budget vote reflecting salary increases, and the adequacy of its minutes. Applying the seven-day notice requirement at 29 Del. C. § 10004 (e)(2), the definition of "agenda" at § 10002 (a), the requirement that an executive session's purpose be set forth in the agenda at § 10004 (c), the minutes requirement at § 10004 (f), and the school code's voting procedure at 14 Del. C. § 1048 (d), and applying its repeated holding that an agenda must let the public decide whether to attend (Att'y Gen. Op. 03-IB22, quoting Att'y Gen. Op. 97-IB20), the AG found the "Tentative Agenda" practice and undisclosed executive session grounds violated FOIA, while the budget vote and minutes did not.

Citations and references

Statutes:

• 29 Del. C. § 10004 (e)(2), public bodies must give at least seven days' notice, including an agenda, of regular meetings
• 29 Del. C. § 10002 (a), defines "agenda" to include a general statement of major issues and a statement of intent to hold an executive session with the specific ground
• 29 Del. C. § 10004 (c), the purpose of an executive session must be set forth in the agenda
• 29 Del. C. § 10004 (f), public bodies must maintain minutes recording members present and each member's vote and action agreed upon
• 14 Del. C. § 1048 (d), governs voting procedure for Delaware school boards

Cases:

• Att'y Gen. Op. 03-IB22 (Oct. 6, 2003), quoting Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), an agenda must notify the public of matters to be discussed so they can decide whether to attend

Source

• Landing page: https://attorneygeneral.delaware.gov/2012/03/27/12-iib04-freedom-of-information-act-regarding-the-board-of-education/
• Original PDF: not linked from landing page

Original opinion text

2012 WL 1244477 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 12-IIB04

March 27, 2012

*1 Margaret M. McKay

Chair

Open Government

League of Women Voters of Delaware

and

John Flaherty

President

Delaware Coalition for Open Government

OPINION

We received from you on December 12, 2011 a complaint against the Caesar Rodney School District (“the District”) alleging certain violations of the Freedom of Information Act (“ FOIA ”), 29 Del. C. Ch. 100. Pursuant to 29 Del C. § 10005 (e), we treat your complaint as a petition (“Petition”) to the Attorney General to determine whether a violation of FOIA has occurred. By letter on February 20, 2012, we referred the Petition to David H. Williams, Esquire, legal counsel to the Board of Education of the District (the “Board”) for the District’s response.

By letter dated March 7, 2012 from Mr. Williams, the District responded to the Petition.

THE PETITION

The Petition alleges four specific violations of FOIA by the District:

1. Failure of the Board to provide an adequate Agenda for its Regular and Special Meetings by posting only “Tentative Agendas” for its meetings.

2. Failure of the Board to inform the public in its agenda that it was planning to increase salaries of administrators and teachers during its December 20, 2011 meeting and by failing to announce that the Board would be voting on the budget for the 2012 fiscal year that included teachers’ salaries raises.

3. Failure of the Board to include in its agenda the specific ground or grounds for executive sessions it proposes to hold.

4. Failure of the Board to provide adequate Board Minutes, including salary increases adopted at the December 20, 2011 Board meeting.

ANALYSIS

1. We find that the Board violates FOIA by not disclosing “agendas” for its meetings. FOIA , 29 Del. C. § 10004 (e)(2) requires that: “All public bodies [[including school boards] shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least seven (7) days in advance thereof. The notice shall include the agenda …” We agree with the petitioners that posting only “Tentative Agendas” does not meet the statutory requirements. As this office has repeatedly observed: “An agenda serves the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, and so that members of the public can decide whether to attend the meeting and voice their ideas or concerns.”D’ Att’y Gen. Op. 03-IB22 (Oct. 6, 2003) (quoting Att’y Gen. Op. 97-IB20 (Oct. 20, 1997)). While it is true, as the Board observes, that a posted meeting agenda may be revised and items added, that may be done only under narrow statutory circumstances. And while it is also true that FOIA does not prohibit the term “tentative,” we find that its use implies that the “tentative agenda” will be revised and misleads the public to believe that a non-tentative agenda will be posted later, when that is unlikely to happen. The Board has agreed to drop the use of the term “tentative.”

*2 2. We find that the Board did not violate FOIA by failing to disclose in its agenda for its December 20, 2011 meeting that the board was planning to increase salaries of administrators and teachers. The Board has provided us with copies of its collective bargaining agreement with the Caesar Rodney Education Association and evidence that it was properly adopted by the Board at its June, 2011 meeting. The salary increases for which this agreement provides are reflected in the budget adopted by the Board at its December 20, 2011 meeting.

Likewise, the Board has given us a copy of its “Administrators’ Meet & Confer Agreement” that provides for certain compensation increases for District administrators, which increases are also reflected in the budget adopted at the December 20, 2011 meeting. This agreement also appears to have been properly adopted by the Board.

3. We agree with the Petitioners that the Board violates FOIA when its agendas fail to specify the specific grounds for holding proposed executive sessions. 29 Del. C. § 10002 (a) requires that Board’s meeting agendas include “a statement of intent to hold an executive session and the specific ground or grounds therefor …” Lest there be any doubt of this requirement, § 10004 (c) also requires that “[t]he purpose of such executive sessions shall be set forth in the agenda …” The agendas for the Board’s meetings, prior to the meeting on January 17, 2012, give no indication of the “specific ground or grounds” for the anticipated executive sessions. The Board has agreed to post specific grounds for executive sessions in the future and it did so in its agenda for the January 17, 2012 meeting.

4. We find that the Board did not violate FOIA by failing to provide adequate Board Minutes, including salary increases adopted at the December 20, 2011 board meeting. As we observed in Paragraph 2, above, the compensation increases for teachers and administrators were made pursuant to existing, binding contracts. Hence, there was no need for the Board to approve what it has already approved. The minutes of the December 20, 2011 meeting, page 7, item D.2., clearly show the adoption of the District’s operating budget by a unanimous vote of the Board members present.

Moreover, although the minutes do not “include a record, by individual members … of each vote taken and action agreed upon” as 29 Del. C. § 10004 (f) specifies, having recorded the call of the roll of Board members and announced a unanimous decision in accord with 14 Del. C. § 1048 (d), we conclude that FOIA’s minutes requirements were met.

CONCLUSION

We are satisfied that the Caesar Rodney School Board in future will post its Agendas as required by FOIA and will specify in those Agendas the specific grounds for any proposed executive sessions. And we have concluded that approval of the Fiscal Year Operating Budget was properly listed in the Agenda for the December 21, 2012, and duly adopted, and that compensation increases for teachers and district administrators had previously been duly approved and required no further action.

Very truly yours,

*3 Kent Walker

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

2012 WL 1244477 (Del.A.G.)