Can a Delaware school board discuss substitute teacher pay rates in executive session under the personnel exception?
Official title
22-IB19 05/16/2022 FOIA Opinion Letter to William Pickett re: FOIA Complaint Concerning the Sussex County Vocational – Technical School District
Plain-English summary
The Sussex County Vocational-Technical School District's Board of Education held a March 9, 2022 regular meeting. The agenda's executive session included a line for "Personnel recommendations – Hires, Retirements, Resignations, Non-renewals, Reassignments, EPERS, Substitute Compensation." After the executive session, the Board returned to open session and approved a batch of personnel actions, including a major raise to substitute compensation (Class A daily rate from $116 to $179, Class B from $99 to $143, Class C from $74 to $113), in a single roll-up vote.
William Pickett petitioned, arguing two things: (1) substitute compensation should not have been discussed in executive session, and (2) the open-session vote was a roll-up vote with no real discussion, providing no transparency. The AG agreed on the first issue but not the second.
On executive session: substitute compensation involves public funds and is not a discussion of "an individual citizen's qualifications to hold a job" under 29 Del. C. § 10004(b)(1). The Board did not dispute this, conceding compensation "could have been discussed in open session." The AG found a clear FOIA violation and recommended a public discussion of substitute compensation at a future meeting to inform the public of the rationale.
On the consent agenda: the AG accepted that voting on a batch of personnel matters together was acceptable. Volunteer school boards routinely use consent agendas, and the AG cited prior opinions and noted that "operating without a personnel agenda would be unworkable for volunteer school boards." The agenda's listing of "Substitute Compensation" within the personnel-recommendations bucket was sufficient to give an interested citizen notice that the issue would be considered.
What this means for you
For Delaware school board members and meeting clerks. Compensation belongs in open session, full stop. The qualifications exception in § 10004(b)(1) covers whether a particular candidate is qualified for a particular job. It does not cover what an entire class of employees will be paid going forward. Substitute pay rates, employee bonuses, raises, and benefit changes all have to be discussed in open session.
For teachers and substitute teachers in Delaware. The substitute pay-scale changes in this case (a 50% increase at all three levels) are exactly the kind of substantive compensation policy that the public is entitled to hear discussed. If you are a substitute teacher curious about how rates are set, you can expect to see the rationale in open session, not just a final vote.
For parents and citizens watching school boards. The "consent agenda" or "personnel agenda" technique, where many personnel matters are batched into a single vote, is permissible. But you can still object during public comment if a particular item should be pulled out and discussed separately. If a Board uses a consent agenda to bury a controversial item like a major pay-scale change, that's a fair criticism, but it is not by itself a FOIA violation.
For attorneys advising Delaware school boards. Pre-meeting agenda review by counsel is the most effective way to avoid the executive-session compensation trap. The Sussex County Vo-Tech Board's prior history (Opinion 19-IB48 had cautioned the District about its use of executive sessions, and the Board had already pulled "Legal Matters" from the same March 9, 2022 agenda after another petition) shows that pattern problems compound. Build training into the annual cycle.
Common questions
Why didn't the Board's compensation discussion qualify under § 10004(b)(1)?
The qualifications-to-hold-a-job exception covers individual candidate evaluation. It is about whether this person is qualified to do this job. Substitute pay rates are not about any individual; they are a policy decision about how the District will spend its money. The AG has been consistent on this since at least Opinion 02-IB12 (police salaries) and 15-IB01 (contract renewal).
Why didn't the consent-agenda vote violate FOIA?
A consent agenda is a procedural device that batches multiple non-controversial items into a single vote. The agenda has to give the public enough notice to identify any item of interest. Here, the agenda listed "Substitute Compensation" as one of the categorized items, which the AG found sufficient to alert citizens with intense interest. Once an item is on the agenda, FOIA does not require the Board to discuss it again at the public meeting if there's nothing more to add; the deliberation has already happened.
What was the Board's defense to the executive-session violation?
None really; the Board conceded that "compensation of substitutes could have been discussed in open session." The Board's main argument was that any violation was unintentional, that the agenda listed substitute compensation by name, and that the Board would do FOIA training over the summer. The AG took the training plans into account and recommended only a public discussion of substitute compensation at a future meeting, not invalidation.
Why didn't the AG try to void the substitute pay raise?
The AG cannot void a public-body action; only the Court of Chancery can do that under § 10005(a). And the analysis the Chancery court would apply considers "adverse consequences upon innocent parties": substitute teachers had earned the higher rate after the vote, so voiding it would punish them for the Board's procedural error.
What's the takeaway for the District's next budget cycle?
Discuss compensation in open session every time. Even when the discussion is about routine pay-scale adjustments, FOIA requires it to happen in front of the public.
Background and statutory framework
29 Del. C. § 10004(b) lists the nine permitted purposes for executive session. Section 10004(b)(1) covers "[d]iscussion of an individual citizen's qualifications to hold a job." Compensation, salary, bonuses, and contract terms have been consistently held outside this exception:
- 02-IB12 (police salaries during emergency staffing crisis): improper for executive session.
- 15-IB01 (contract renewal): improper for executive session.
- 15-IB10 (superintendent compensation distinct from competencies): permissible to discuss superintendent's competencies in executive session, but not the contract renewal terms.
- 22-IB27 (employee bonuses and raises): improper for executive session.
The agenda-sufficiency standard from Lechliter v. DNREC controls the consent-agenda question. The agenda must "include a general statement of the major issues" and use "plain and comprehensible language." It must alert citizens with intense interest, but it does not have to forecast every alternative. Lechliter v. Becker had previously found an agenda stating that the City would "present and consider" an item to be sufficient public notice of a vote.
The remediation analysis follows the Chancery framework from Ianni and Levy v. Cape Henlopen Board of Education, considering the substantive impact on public rights, the nature of the violation, and whether it was an isolated incident or part of a pattern. The District had been cautioned in 19-IB48 about routine 45-to-60-minute executive sessions for "personnel" or "legal" purposes; the AG's reference to that earlier caution is what made the Sussex Vo-Tech Board's March 9, 2022 lapse look like part of a pattern.
Citations
- 29 Del. C. § 10002(a): agenda requirement
- 29 Del. C. § 10004(b): executive-session exceptions
- 29 Del. C. § 10004(c): vote to enter executive session
- 29 Del. C. § 10005(c): burden of proof
- Chem. Indus. Council v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994): plain-language agenda standard
- Lechliter v. DNREC, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
- Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
- Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017)
- Levy v. Cape Henlopen Bd. of Educ., 1990 WL 154147 (Del. Ch. Oct. 1, 1990): invalidation factors
- Del. Op. Att'y Gen. 10-IB12, 2010 WL 4154564 (Sept. 28, 2010): agenda need not answer every question
- Del. Op. Att'y Gen. 19-IB48, 2019 WL 5208244 (Sept. 19, 2019): prior caution to Sussex Vo-Tech
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/05/16/22-ib19-05-16-2022-foia-opinion-letter-to-william-pickett-re-foia-complaint-concerning-the-sussex-county-vocational-technical-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/05/Attorney-General-Opinion-No.-22-IB19.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 22-IB19
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB19
May 16, 2022
VIA EMAIL
William Pickett
RE: FOIA Petition Regarding the Sussex County Vocational – Technical School District
Dear Mr. Pickett:
We write in response to your correspondence alleging that the Board of Education of the Sussex County Vocational – Technical School District 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. For the reasons set forth below, we determine that the Board violated FOIA by improperly discussing substitute compensation in executive session.
BACKGROUND
On March 9, 2022, the District's Board of Education held a regular Board meeting. The agenda included an executive session for "Personnel recommendations – Hires, Retirements, Resignations, Non-renewals, Reassignments, EPERS, Substitute Compensation." [1] The minutes indicate that an open session item, "Approval of Personnel Action Items," occurred later in the open session of the meeting. Under this item, the minutes list a batch of personnel issues that were approved, including "Substitute Compensation changing effective January 2022. Class 'A' Substitute from $116 daily rate to $179. Class 'B' Substitute from $99 daily rate to $143. Class 'C' Substitute from $74 daily rate to $113." [2]
This Petition followed, alleging that the discussion of substitute compensation in an executive session and voting under a catch-all heading in public session was inappropriate. [3] After returning to open session, you assert that the Board voted with apparently no further discussion about the personnel matters, the details of which were posted in the minutes after the next Board meeting. You claim that these violations were intentional; "[i]n short, the Board both talked about both an improper item secretly and voted to take action on that item secretly without proper notice to the public and without public discussion of the item." [4] As the substitute compensation is a financial matter with direct bearing on district finances and employment practices, you ask this Office to order immediate remediation and require FOIA training for Board staff.
On April 21, 2022, the Board, through its legal counsel, answered the Petition ("Response"). The Board first references an earlier petition you made prior to this same meeting, alleging that another item, entitled "Legal Matters," was inappropriately scheduled for executive session. The Board states that it resolved that earlier petition by removing the proposed item from the executive session agenda. The Board asserts that it does "not disagree that compensation of substitutes could have been discussed in open session," but notes that the issue may have been avoided entirely if you had made the Board aware of your complaint regarding executive compensation prior to the meeting at the same time as your earlier petition. [5] In addition, the Board asserts that any FOIA violation was not intentional, as the topic of substitute compensation was stated plainly on the agenda, voting occurred in open session, and the minutes were made public. With regard to your second issue related to the vote, the Board maintains that its use of catch-all voting via a "personnel" or "consent" agenda is appropriate and a common practice among Delaware school districts. The Board contends that voting by catch-all topics such as a personnel agenda is supported by Attorney General precedent, and that operating without a personnel agenda would be unworkable for volunteer school boards, as the Board meetings would last many hours in order to take up each action item individually, rather than in a batch. Finally, to address these issues, the Board offers that it plans to hold FOIA training this summer, and that agendas will be sent to the Board's counsel for review prior to posting.
DISCUSSION
Subject to certain limited exceptions, FOIA requires the meetings of all public bodies to be open to the public. Although certain topics may be discussed privately in executive session, all voting on any items of public business must take place during open session. [6] When a public body decides to meet in executive session, it carries the burden of proof to justify that this executive session complies with FOIA. [7] In this case, the Board does not dispute that compensation for District substitutes was an inappropriate topic for executive session. As FOIA provides no exception for discussing substitute compensation privately, we agree that the discussion in executive session constitutes a violation of FOIA. [8]
The Petition claims that the Board committed a second violation of FOIA, as the agenda did not give sufficient notice of the vote on the substitute compensation. An agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss [9] and must be worded in "plain and comprehensible language." [10] Delaware courts have opined on the means to determine the sufficiency of an agenda:
In order that the purpose of the agenda requirement be served, it 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]. In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration. . . . . [11]
However, "the point of the agenda is to put the public on notice, not to answer every question about the agenda item." [12] Further, "nothing in FOIA, and importantly nothing in a common-sense reading of the statute in light of its purpose, requires public notice to provide every alternative that may take place with respect to a specific subject under consideration." [13] Here, the Board's agenda indicated that under the topic of "Personnel recommendations" a number of specific items, including "Substitute Compensation," would be considered in the executive session, and "Approval of Personnel Action Items" was planned later in the agenda. We believe that this agenda constitutes adequate notice to the public that substitute compensation was anticipated to be an item under consideration at the meeting, and the agenda gave those citizens with an intense interest in substitute compensation sufficient notice to attend the meeting. Accordingly, we find no violation in this regard.
Having found that the Board violated FOIA by improperly discussing substitute compensation in executive session, we must determine whether it is appropriate to recommend any remedial steps. The authority to invalidate a public body's action or impose other relief is reserved for the courts, and the courts have emphasized that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." [14] In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." [15] When a public body violates FOIA by privately discussing a matter that is later voted upon at a public meeting, the court when evaluating a remedy also may consider "whether there was a substantial reconsideration of the challenged decision," the nature of violation, and "whether it was an isolated incident or an ongoing pattern of infractions." [16]
In this case, the Board improperly discussed the topic of substitute compensation privately and then held a vote in public session, possibly without further discussion. This violation was not the first issue with the March 9, 2022 Board meeting brought to this Office's attention. Prior to the March 9, 2022 meeting, the Board proposed to discuss another topic, "Legal Matters," which it presumably conceded was not appropriate under FOIA and struck from the executive session agenda prior to the meeting. Additionally, in Attorney General Opinion No. 19-IB48, the "totality of the factors" warranted a cautionary note to the Board to review its use of executive sessions to ensure it was complying with FOIA. [17] While we do not find this record sufficient to determine that a court is likely to invalidate the Board's action on this item, we nonetheless recommend that the Board hold a public discussion of substitute compensation to inform the public of the rationale for its vote on the substitute compensation. Further, we recommend the Board undertake the FOIA training as it has indicated it has planned.
CONCLUSION
For the foregoing reasons, we conclude that the Board violated FOIA by improperly discussing substitute compensation in executive session.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc: James H. McMackin, III, Attorney to Sussex County Vocational-Technical School District
[1] Petition.
[2] Id.
[3] Id.
[4] Id.
[5] Response.
[6] 29 Del. C. § 10004(c).
[7] 29 Del. C. § 10005(c).
[8] 29 Del. C. § 10004(b).
[9] 29 Del. C. § 10002(a).
[10] Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *8 (Del. Ch. May 19, 1994).
[11] Lechliter v. Del. Dep't of Natural Res. & Env't Control , 2017 WL 2687690, at 2 (Del. Ch. Jun. 22, 2017) (quoting Ianni v. Dep't of Elections of New Castle Cty. , 1986 WL 9610, at 4 (Del. Ch. Aug. 29, 1986).
[12] Del. Op. Att'y Gen. 10-IB12, 2010 WL 4154564, at *1 (Sept. 28, 2010).
[13] Lechliter v. Becker , 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017) (finding that an agenda stating that the City would "present and consider" an item was sufficient public notice that a vote would take place).
[14] Ianni , 1986 WL 9610, at *7.
[15] Chem. Indus. Council of Del., Inc. , 1994 WL 274295, at *15.
[16] Levy v. Bd. of Educ. of Cape Henlopen School Dist., 1990 WL 154147, at *7 (Del. Ch. Oct. 1, 1990).
[17] Del. Op. Att'y Gen. 19-IB48, 2019 WL 5208244, at *4 (Sept. 19, 2019) ("Finally, the Petition references concerns with the District's alleged practice of routinely holding executive sessions for typically 45 to 60 minutes at the outset of the Board meetings for purposes such as 'personnel' or 'legal.' The Petition and Reply also raise the specter of whether improper discussions may have occurred in executive session; . . . While we do not determine the accuracy or merits of any of these particular allegations, the totality of these factors warrant a cautionary note to the District suggesting review of its use of executive sessions, in light of their limited scope under FOIA.").