DE 21-IB35 2021-12-17

If two extra Delaware school board members show up at a board committee meeting and a quorum is suddenly present, do they have to cancel the meeting?

Short answer: No, but the Board's caution wasn't a FOIA violation either. The Board Policy Review Committee adjourned the October 27, 2021 meeting when two non-Committee Board members appeared as the public, creating a quorum of the full Board. The AG ruled the silent observation of two Board members in the audience would not have transformed the Committee meeting into a Board meeting. FOIA also does not require committee meetings to be audio-recorded, nor minutes to be posted online.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

21-IB35 12/17/2021 FOIA Opinion Letter to Jose Matthews and Adriana Leela Bohm, Ph.D. re: FOIA Complaint Concerning the Red Clay Consolidated School District Board of Education

Plain-English summary

The Red Clay Consolidated School District Board of Education has seven members. Four constitute a quorum of the full Board. The Board Policy Review Committee, a standing committee, has three Board members plus the Deputy Superintendent and several teachers' union representatives. Three Board members on the Committee plus two non-Committee Board members would total five Board members, which is more than the four-member quorum.

On October 27, 2021, the Committee scheduled a virtual public meeting. The notice and agenda said it was open to the public and provided for public comment. Board members Jose Matthews and Adriana Leela Bohm attended virtually. At the start, when the Committee Chair (the Deputy Superintendent) realized that two non-Committee Board members were present, the Committee adjourned the meeting because a quorum of the full Board was now simultaneously present, and the meeting had not been publicly noticed as a full Board meeting.

Matthews and Bohm filed a FOIA petition. They contended (1) the Committee's adjournment was improper, (2) the Board's failure to post committee meeting minutes online violated FOIA, (3) the Board's omission of certain discussions in committee minutes violated FOIA, and (4) committee meetings are not recorded.

The Board's response, with the Committee Chair's affidavit, explained that the adjournment was a precaution against improperly conducting a Board meeting that had not been noticed.

The AG ruled for the Board on the substance, but with a clarifying note. Under 29 Del. C. § 10002(j), a "meeting" is "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." The mere physical (or virtual) presence of a quorum is not enough; the quorum must gather "for the purpose of discussing or taking action on public business." Matthews and Bohm intended to silently observe the Committee meeting as members of the public. Their silent presence would not have transformed the Committee meeting into a full Board meeting. The Committee's adjournment was a cautious choice but not legally required.

On the other claims:
- FOIA does not require committee meetings to be audio-recorded. (14 Del. C. § 208 separately requires the Board itself to digitally record its own public meetings, but enforcing § 208 is outside the AG's FOIA jurisdiction.)
- FOIA does not require minutes to be posted online (29 Del. C. § 10004(f)).
- The allegations of "missing discussions" in minutes were too vague to support a finding.

The Board voluntarily maintains committee meeting minutes on its website and offered to fix any missing minutes; the AG encouraged it to continue this practice.

What this means for you

For Delaware school boards and other multi-tiered public bodies. When a quorum of the parent body is suddenly present at a sub-committee meeting (because some non-committee members showed up to observe), you do not have to cancel. The non-committee members can stay as silent observers. They cannot speak, deliberate, or vote on any public business; if they do, the gathering becomes a "meeting" of the parent body, which has not been noticed. Document the observers' silence in the minutes and continue.

For Delaware school boards interested in transparency through audio recording. FOIA does not require it, but 14 Del. C. § 208 separately does require Delaware school boards to digitally record their own public meetings. AG enforcement of § 208 is outside the FOIA petition process; you would need to seek mandamus or other relief to enforce that statute. Practically, most Delaware school boards do record because § 208 requires it; whether each committee separately falls under § 208 is a question for the school district's solicitor.

For Delaware citizens interested in committee-level transparency. FOIA's online-posting requirement is narrow: minutes must be made available, but they need not be posted online (§ 10004(f)). Many Delaware public bodies voluntarily post online; if your local body is not doing so, ask. Most will comply with a polite request even though FOIA does not compel it.

For two-or-more Board members thinking about attending another committee's meeting. Be careful. The "silent observer" carve-out works only if you are silent. The moment two non-committee Board members start asking questions, talking among themselves about Board business, or discussing the Committee's recommendations with each other, the Committee meeting could become an unnoticed Board meeting. The Open Meetings Act is about purpose: if your purpose is to silently observe, you are fine; if your purpose is to deliberate, you are not.

Common questions

What's a "meeting" under Delaware FOIA?
29 Del. C. § 10002(j): "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." The two-pronged definition (quorum + purpose to discuss or act) is the key. A serial-email exchange among a quorum that does not happen in real time is not a meeting under § 10002(j); a hallway conversation about Board business at a coincidental gathering of a quorum could be.

Why was the Committee Chair right to be cautious?
Because the consequences of an unnoticed Board meeting are serious. If the Board members had actually started discussing public business, any action would have been taken at an improperly noticed meeting and could be voidable by the Court of Chancery under § 10005(a). The cautious choice protects the validity of any actual decisions taken later at a properly noticed meeting.

Does 14 Del. C. § 208 require school boards to record committee meetings?
The opinion notes only that § 208 requires the Board to digitally record its own public meetings. Whether it requires standing committees to record is a question for the school district's solicitor. Practically, recordings are cheap and useful; many districts record everything as a matter of course.

Why didn't the AG decide the § 208 question?
The AG's FOIA petition jurisdiction is limited to FOIA. AG opinions 21-IB11, 18-IB50, and 96-IB28 all reaffirm that other statutes are outside this jurisdiction.

What about the missing-minutes claim?
The petition was not specific enough about which committee minutes were missing or what specific discussions were omitted. Delaware FOIA petitions need fact-specific allegations to support a finding. The Board offered to fix any missing minutes voluntarily, which the AG encouraged.

What's the practical lesson for sub-committee operations?
(1) Notice and agenda should clarify the role of non-committee public attendees (e.g., "Members of the public, including other Board members, may attend as observers without converting this Committee meeting into a Board meeting"). (2) Minutes should record who attended in what capacity. (3) If non-committee members start to deliberate, the chair should restate the meeting's status or adjourn.

Background and statutory framework

29 Del. C. § 10002(j) defines "meeting" as the gathering of a quorum for the purpose of discussing or taking action on public business.

29 Del. C. § 10004(f) addresses minutes; it does not require online posting.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021), a sworn affidavit may be required.

29 Del. C. § 10005(e) limits the AG's FOIA petition jurisdiction. Other statutes (§ 208 for school board recordings, charter provisions, etc.) are outside the AG's reach in this proceeding.

The "purpose" element of the meeting definition is the key to the silent-observer principle. The silent presence of two extra Board members did not constitute a "gathering . . . for the purpose of discussing or taking action on public business" because the two members' purpose was to observe, not to deliberate.

Citations

29 Del. C. § 10002(j): meeting definition
29 Del. C. § 10004(f): minutes
29 Del. C. § 10005, § 10005(c), § 10005(e): petition; burden; jurisdiction
29 Del. C. §§ 10001-10007: Delaware FOIA chapter
14 Del. C. § 208: school board digital recording requirement (outside FOIA jurisdiction)
Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)
Del. Op. Att'y Gen. 21-IB11 (May 12, 2021): non-FOIA statutes outside jurisdiction
Del. Op. Att'y Gen. 18-IB50 (Oct. 12, 2018): same
Del. Op. Att'y Gen. 96-IB28 (Aug. 8, 1996): same

Source

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-IB35
December 17, 2021
VIA EMAIL
Jose Matthews
Red Clay Consolidated School District Board Member
[email protected]
Adriana Leela Bohm, Ph.D.
Red Clay Consolidated School District Board Member
[email protected]

RE: FOIA Petition Regarding the Red Clay Consolidated School District Board of Education

Dear Board Members Matthews and Bohm:
We write in response to your correspondence alleging that the Board of Education of the Red Clay Consolidated School District ("Board") violated the Delaware 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(e) regarding whether a violation of FOIA's open meeting requirements has occurred. As set forth below, we conclude that the Board has not violated FOIA as alleged.

BACKGROUND
A standing committee of the Board, the Board Policy Review Committee ("Committee"), scheduled a virtual public meeting for October 27, 2021. The meeting notice and agenda indicated the meeting was open to the public and provided for a public comment period. You both attended the meeting virtually, but at the outset of the meeting, upon learning of your presence, the Committee members adjourned the meeting because a quorum of the full Board was suddenly, unexpectedly present and the meeting notice and agenda did not provide public notice that a full Board meeting would take place. The Petition alleges that the Committee members decided to reschedule the meeting for a later date. This Petition from you, the two Board members not on the Committee, followed.

The Petition questions whether the Committee's actions at this meeting complied with FOIA, and whether the Board's failure to post committee meeting minutes online and the Board's omission of certain discussions that pertain to the purview of the Board committees were proper. The Petition also alleges that the Board's committee meetings are not recorded. The Petition asks this Office to determine whether these omissions impede the public's rights under FOIA.

The Board, through its counsel, submitted a response to your Petition ("Response"). The Board included the affidavit of the Committee Chair, the District's Deputy Superintendent. The Chair attests that the Board consists of seven members, and four members constitute a quorum. The Committee consists of three members of the Board, the Deputy Superintendent, and several teachers' union representatives. At the October 27, 2021 meeting of the Committee, the Chair attests that the three Board committee members were in attendance and you two Board members attended the Committee meeting as members of the public. Because five members of the seven-member Board were present at the Committee meeting simultaneously, the Committee immediately adjourned the Committee meeting, fearing it was improperly holding a Board meeting that had not been publicly noticed as such, because a quorum of Board members were now present in the Committee meeting at the same time.

With regard to your allegations of the Board's failure to record its committee meetings, the Board maintains that there is no requirement in FOIA for the committee meetings to be recorded; instead, another statute, 14 Del. C. § 208, only requires the Board to digitally record its own public meetings. Regarding your allegation of missing minutes, the Board states that the Petition does not specify which meeting minutes are missing from the website, but the November 9, 2021 Community Financial Review Committee meeting minutes will be posted after they are approved at the next meeting; the October 26, 2021 Diversity Committee meeting minutes and the October 28, 2021 Student Code of Conduct Committee meeting minutes have already been posted. Copies of those minutes were attached to the Board's Response.

DISCUSSION
The Board has the burden of proof to demonstrate its compliance with FOIA. A meeting is defined 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." The Board consists of seven members, and four members constitute a quorum. In this case, two Board members who were not Committee members attended a Committee meeting, inadvertently resulting in the presence of a quorum of the Board being present at the Committee meeting. The Committee immediately adjourned the meeting to avoid improperly conducting a Board meeting without public notice. Although cancelling a meeting for this reason does not run afoul of FOIA, FOIA does not mandate the Committee's immediate cancellation upon the mere presence of a quorum, as the silent observation of two Board members in the audience would not transform this Committee meeting into a Board meeting. A "meeting" under FOIA requires a quorum of members to gather for the purpose of discussing or taking action on public business, but the two members in this case intended to silently observe the meeting as members of the public.

We likewise find no violation of FOIA with respect to the remaining issues in the Petition. FOIA does not require audio recordings of meetings, and to the extent another statutory requirement exists, it is not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA. In addition, the Board is not mandated by FOIA to post its meeting minutes online. As the Board voluntarily maintains its committee meeting minutes on its website and offered to rectify the omission of any committee meeting minutes, we encourage the Board to do so and to continue to make timely and complete postings of those minutes on its website.

CONCLUSION
For the reasons set forth above, we conclude that the Board has not violated FOIA as alleged.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

APPROVED BY:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: Michael P. Stafford, Attorney for the Red Clay Consolidated School District Board of Education