Can a Delaware school board hold no-confidence and mask-mandate votes under a vague '2021-2022 School Year' agenda heading without separate notice?
Plain-English summary
The Indian River School District Board of Education met on August 22, 2021, in the early days of the 2021-2022 school year and at the height of a public dispute over Governor Carney's mask mandate for Delaware schools. The agenda listed an item titled "2021-2022 School Year (D)" for discussion. During the meeting, after a public comment period in which residents urged the Board to act on the mask issue, the Board took two votes: a vote of no confidence in the Governor and a vote to petition the Delaware State Board of Education to withdraw the mask mandate.
William Pickett petitioned the AG. He argued the agenda did not adequately notice these significant votes. The District responded that the agenda heading covered a discussion of the "Safe Return to In Person Instruction and Continuity of Services Plan" and that masks naturally arose during that discussion, so the votes were a "natural evolution" of a publicly-noticed item permitted under § 10004(e)(3).
The AG ruled for Pickett. Two holdings:
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The agenda item was too broad. "2021-2022 School Year (D)" did not "alert members of the public with an intense interest in [masks] on notice that they should attend the meeting" (Lechliter v. DNREC, citing Ianni). The District's narrower internal description ("Safe Return to In Person Instruction and Continuity of Services Plan") was not on the published agenda. What was published controls.
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The votes did not naturally evolve from the noticed item. Section 10004(e)(3) allows additional items "which arise at the time of the public bodies' meeting," but Op. 97-IB20 cautioned that "[a]t some point, the issues may so far depart from the issues noticed on the agenda that they are better reserved for the next meeting." A school-year-plan discussion is a long way from formal no-confidence votes against the Governor and petitions to a state agency. The Board knew or should have known the mask issue was coming. Under Op. 19-IB48, items the Board could foresee must be specifically noticed.
The AG recognized the District's argument that the timing made noticing difficult, but rejected it: "that is not a sufficient reason to avoid providing proper notice of important topics."
What this means for you
If you serve on a Delaware school board or other local public body
This opinion is the controlling precedent for what counts as adequate agenda specificity in highly contested or politically sensitive cases. The principle: when you know an issue is on people's minds and you have any sense it might get to a vote, name it on the agenda. "Discussion of [topic]" works. "Possible action on [topic]" works better. Generic headings invite FOIA petitions.
Practical steps:
- Audit recurring vague items. "Old Business," "New Business," "Updates," "School-Year Plan," "Town Business" all raise the same question Indian River faced.
- Use a "may take action" footnote. When you list a discussion item, indicate whether action is contemplated. This signals to the public that the meeting is a decision point.
- Schedule an emergency meeting if needed. Section 10004(e)(2) allows shortened notice with reasons stated for delay. That is a much cleaner path than reading a major vote into a vague heading.
If you are a Delaware parent or resident watching school governance
This case is the template for a successful agenda-specificity petition. Three things to document for a successful petition:
- The agenda heading as published. Save a copy from the District website or the printed copy distributed at the meeting.
- The actual votes taken. Either the audio or video recording (most school boards now record), or the official minutes after they are adopted.
- The mismatch. If the heading is "2021-2022 School Year" and the vote was "no confidence in the Governor," that is the violation in 14 words.
The AG's office accepts petitions by email or letter and applies a six-month rule from the date of the alleged violation. The petition does not require legal representation.
If you handle counsel work for a Delaware school district
Section 10004(e)(3) is much narrower than people think. The "naturally evolve" standard from Op. 19-IB48 forbids using a vague heading to bootstrap unrelated votes. Brief your client on the specific examples in this opinion: a school-year plan heading does not cover no-confidence votes or petitions to other agencies, even if those issues come up during public comment.
The District's procedural arguments (last-minute mask mandate, no time to renotice) failed. The AG was clear: hard timing is a reason for an emergency meeting under § 10004(e)(2), not a reason to skip notice.
Common questions
Q: How specific does an agenda have to be?
A: It must "alert members of the public with an intense interest in the matter that the subject will be taken up." Lechliter v. DNREC (Del. Ch. 2017). Generic headings fail; specific topical descriptions succeed.
Q: Can a board still take a vote on an item that came up unexpectedly?
A: Yes, but only if it "naturally evolves" from a publicly noticed item (Op. 19-IB48). Practically: a vote to direct staff to gather information on something raised in public comment is fine; a vote of no confidence in a state official based on public comment is not.
Q: What if the public comment period brought up the issue?
A: The AG was clear: "If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA."
Q: Does the violation invalidate the votes?
A: Section 10005(a) reserves invalidation to the Court of Chancery. The AG cannot void a vote. Petitioners would have to file in Chancery for invalidation, weighing factors like whether substantial public rights were affected and whether other parties have relied on the votes.
Q: Why does the agenda matter so much?
A: FOIA's policy rests on giving the public actual notice. A heading that conceals what will be voted on undercuts that policy. Delaware case law treats published agendas as the public's contract about what will be discussed.
Background and statutory framework
Notice and agenda requirement. Section 10004(e)(2) requires public bodies to give at least seven days' notice of meetings, including "the agenda, if the agenda has been determined." Section 10002(a) defines an agenda as a document including "a general statement of the major issues expected to be discussed at a public meeting." The "general statement" language has been narrowed significantly by case law: it must be specific enough to put a reasonable interested member of the public on notice.
Specificity standard. Lechliter v. DNREC, 2017 WL 2687690 (Del. Ch. June 22, 2017), and Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), establish the "intense interest" test. Op. 97-IB20 (Oct. 20, 1997) put it more directly: "when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of [FOIA] to state the subject in such broad generalities."
Additional items at meeting. Section 10004(e)(3) allows public bodies to add items "which arise at the time of the public bodies' meeting." Op. 19-IB48 (Sept. 9, 2019) limited that exception to items that naturally evolve from a publicly-noticed item. Items the body could have foreseen, even if surfaced through public comment, do not qualify.
Discretion to defer. Op. 94-IO23 (June 21, 1994) and 97-IB20 reaffirmed that public bodies have "discretion to determine the agenda for any public meeting and to make additions, corrections or deletions, if necessary." That discretion is not a license to evade notice; it is a protection for genuinely unexpected business.
Citations and references
Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10002 (Definitions)
- 29 Del. C. § 10004 (Open meetings, notice, agenda)
- 29 Del. C. § 10005 (Enforcement)
Cases:
- Lechliter v. Del. Dep't Nat. Res. and Env'tl Control, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
- Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
Prior AG opinions:
- Del. Op. Att'y Gen. 97-IB20 (Oct. 20, 1997) (specificity requirement)
- Del. Op. Att'y Gen. 19-IB48 (Sept. 9, 2019) (additional items must naturally evolve)
- Del. Op. Att'y Gen. 94-IO23 (June 21, 1994) (discretion to amend agenda)
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/09/27/21-ib21-09-27-2021-foia-opinion-letter-to-william-pickett-re-foia-complaint-concerning-the-indian-river-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/09/Attorney-General-Opinion-No.-21-IB21.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
ATTORNEY GENERAL
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 21-IB21
September 27, 2021
VIA EMAIL
William Pickett
[email protected]
RE:
FOIA Petition Regarding the Indian River School District
Dear Mr. Pickett:
We write in response to your correspondence alleging that the Indian River School District
(the "IRSD") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007
("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C.
§ 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed
herein, we determine that the IRSD has violated FOIA as alleged in the Petition.
BACKGROUND
The Petition alleges that the IRSD Board of Education violated FOIA by holding two votes
at its August 22, 2021 meeting without providing proper notice to the public on the agenda. The
first vote was to express no confidence in the Governor, and the second vote was to petition the
Delaware Department of Education for a change in its emergency order on masks in schools.
The IRSD, through its legal counsel, provided a response to the Petition on September 1,
2021 ("Response"). The IRSD argues that the Board of Education did not violate FOIA's open
meeting requirements as FOIA "allows for the amendment of the agenda for those items that 'arise
at the time of the public body's meeting.'" 1 The IRSD further argues that the standard for
1
Response.
1
amendment of the agenda at the meeting, which "requires a showing that the item truly did arise
at the time of the meeting, as a natural evolution of discussions of a related publicly-noticed item" 2
was met.
IRSD asserts that its agenda for the August 23, 2021 meeting included a topic titled "5.02.
2021-2022 School Year (D)" which it asserts included a discussion "concerning Safe Return to In
Person Instruction and Continuity of Services Plan" 3 and one of the topics that came up during
this discussion was masks. 4 The IRSD argues that the two contested votes occurred after the public
comment period during which "several members of the public expressed their dissatisfaction and
concerns regarding the Governor's mask mandate for students in Delaware schools and urged the
Board to take action." 5 The IRSD asserts that the vote was made directly in response to the public
comments and was a "natural evolution of the discussions related to the 2021-2022 School year
plan, which was a publicly noticed item." 6
Petitioner provided a response to the IRSD's submission and argues that the "2021-2022
School Year" agenda item was not sufficient notice as it was too vague to put members of the
public on notice that masks would be included in that discussion. Petitioner further argues that the
board was aware that masks were an issue of interest to the public, and cannot now claim that it
came up for the first time at public comment and could not have been properly noticed.
DISCUSSION
FOIA requires that public bodies, such as the IRSD, give at least seven days' notice of
any meetings, and shall include in the notice "the agenda, if the agenda has been determined." 7
The agenda should, at least "'alert members of the public with an intense interest in' the matter
that the subject will be taken up by the [public body]." 8 The statute further provides that an agenda
may be changed to "include additional items . . . which arise at the time of the public bodies'
meeting." 9
2
Id. (citing Del. Op. Att'y Gen. 19-IB48, 2019 WL 5208244 (Sep. 9, 2019).
3
Response.
4
Id.
5
Id.
6
Id.
7
29 Del. C. § 10004(e)(2).
8
Lechliter v. Del. Dep't Nat. Res. and Env'tl Control , 2017 WL 2687690, at 2 (Del. Ch.
2017) (citing Ianni v. Dep't of Election of New Castle Cnty., 1986 WL 9610, at 4 (Del. Ch. Aug
29, 1986)).
9
29 Del. C. § 10004(e)(3).
2
The agenda posted by the IRSD included a topic for discussion (not action) titled the "20212022 School Year (D)." While the IRSD asserts this title implies a planned discussion of "Safe
Return to In Person Instruction and Continuity of Services Plan," no such language was included
on the agenda. The question is then whether the entry titled "2021-2022 School Year (D)" satisfies
Ianni and was sufficient to "put members of the public 'intensely interested' in [masks] on notice
that they should attend the meeting." 10 We find that it does not. This office has previously stated
that
[w]hile the statute requires only a 'general statement' of the subject
to be addressed by the public body, when an agency knows that an
important specific aspect of a general subject is to be dealt with, it
satisfies neither the spirit nor the letter of the Freedom of
Information Act to state the subject in such broad generalities as to
fail to draw the public's attention to the fact that specific important
subject will be treated. 11
The agenda item "2021-2022 School Year (D)" is too broad and general to satisfy Ianni by alerting
the public that the IRSD was going to hold votes on the significant issues of finding that the IRSD
has no confidence in the Governor and requesting the State Board of Education withdraw the mask
mandate.
As the agenda was not specific enough, the issue is now whether the IRSD could add this
item to the agenda after the start of the meeting. This office has previously found that "[a] public
body has discretion to determine the agenda for any public meeting and to make additions,
corrections or deletions, if necessary, at the next regularly scheduled meeting when the minutes
are adopted." 12
IRSD argues that the two contested votes flowed naturally from the "2021-2022 School
Year (D)" agenda item such that the votes were permitted changes to the agenda at the time of the
meeting. We do not agree.
The agenda item "2021-2022 School Year (D)", is a very broad and encompassing topic,
and is too vague to be reasonably tied to the two contested votes. In Del. Op. Atty. Gen. 97-IB20,
this office found that a vote to hire more teachers was a natural extension of a noticed discussion
on "Class Sizes and Enrollment" and FOIA provides flexibility to address such situations.13
10
Id.
11
Del. Op. Att'y Gen. 97-IB20, 1997 WL 800814 (Oct. 20, 1997) (citing Ianni v. Dep't of
Elections of New Castle Cnty., 1986 WL 9610 (Aug. 29, 1986)).
12
Id. (citing Del. Op. Att'y Gen. 94-IO23, 1994 WL 908550 (June 21, 1994)).
13
1997 WL 800814 (Oct. 20, 1997).
3
However, this office cautioned that "[a]t some point, the issues may so far depart from the issues
noticed on the agenda that they are better reserved for the next meeting of the public body so that
the public will have adequate notice." 14 This is that point. While the IRSD argues that it was
unable to notice a meeting due to the start of the school year and it had to be handled at that
meeting, that is not a sufficient reason to avoid providing proper notice of important topics such
as voting no confidence in the Governor or requesting a mask mandate be removed.
"If a public body knows that an item of public interest will be addressed at a meeting, then
it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order
to circumvent the notice requirements of FOIA." 15 The IRSD knew or should have known that the
State mask mandate would come up during the public comment period, and if it wanted to hold a
vote on topics related to mask mandates, it should have been listed as its own item on the agenda
to put parties on notice.
CONCLUSION
Based on the foregoing, we determine that the IRSD has violated FOIA by voting on two
items that had not been adequately noticed on the agenda.
Very truly yours,
/s/ Annie Cordo
Annie Cordo
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
James H. McMackin, III, counsel for IRSD
14
Id.
15
Id.
4