DE 22-IB44 2022-11-28

If a Delaware school board member has been elected but not yet sworn in, can that person sit in on an executive session?

Short answer: Yes, narrowly. Victor James Leonard, Sr. was elected to the Red Clay Consolidated School Board on May 10, 2022, with a term beginning July 1, 2022. He attended two executive sessions on July 11 and 13, 2022 before being sworn in. The AG ruled the Board did not violate FOIA: as an elected member with a term already running, his interest was different from a member of the public. The opinion does not extend to any other invitee.

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 AG opinions are persuasive authority but not binding precedent.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

22-IB44 11/28/2022 FOIA Opinion Letter to Henry Clampitt re: FOIA Complaint Concerning the Red Clay Consolidated School District Board of Education

Plain-English summary

Victor James Leonard, Sr. was elected to the Red Clay Consolidated School Board on May 10, 2022. Under 14 Del. C. § 1052(d), the term of his office began July 1, 2022, when the prior incumbent's term expired on June 30. He attended two executive sessions on July 11 and July 13, 2022. He was not sworn in until shortly after the July 13 executive session, at the first regular Board meeting following his election and the prior incumbent's term expiration.

Henry Clampitt filed a FOIA petition arguing that allowing an unsworn person into a closed executive session violated FOIA. The general rule is that non-members may not observe executive sessions, because admitting one non-member to the exclusion of the public converts the session into a meeting that should be open to all.

The Board responded with the Superintendent's affidavit. The affidavit established that Leonard's term had begun before the executive sessions, that he attended to be informed of pending legal matters, that no votes were taken during the sessions, and that he was sworn in at the next public meeting (which is the first lawful occasion to administer the oath under district practice). The Board argued that for FOIA purposes, Leonard should be treated as a Board member.

The AG agreed. Because Leonard had been elected and his term had begun, his interest in the executive session was different from any member of the general public. His admission did not transform the session into an open meeting. The AG was careful to limit the holding: it does not create an exception for any other invitee. Leonard's status as an elected (though unsworn) Board member was determinative.

What this means for you

For Delaware school boards and other elected bodies bringing in newly-elected members. This opinion gives you cover to include an elected-but-unsworn member in executive sessions held between term-start and swearing-in. Document the term-start date in writing (using the relevant statute setting term lengths), keep no votes happening in the executive session if possible, and have the Superintendent or Clerk note in the minutes that the new member attended to be informed and not to vote.

For school district solicitors and municipal solicitors. Build a short policy: between the date a newly-elected member's term begins (per statute or charter) and the next opportunity for the swearing-in oath, the member is treated as a member for executive-session attendance purposes. After the term-start date and before the oath, the member should not vote on action items that require a sworn member's signature, but may attend executive sessions to be briefed on pending matters. Distinguish between a member-elect (term not yet started) and an elected-but-unsworn member (term started, oath not yet administered): the AG's opinion only covers the latter.

For school board members in transition. If you are newly elected and your term has begun but you have not yet been sworn in, you may attend executive sessions on legal and personnel matters to be informed. Confirm the term-start date with your district's solicitor and avoid voting until you are sworn. Take care that your attendance is documented in the minutes so the Board's affidavit can defend the practice if challenged.

For citizens worried about non-members in executive sessions. This opinion is narrow. The AG's footnote 8 expressly says: "This decision does not create an exception for any other invitees to an executive session." If you see a non-elected person sitting in on a closed session and there is no clear necessary-non-member explanation (counsel, minute-taker, subject expert), you have a real petition. The Leonard exception is only for the elected-but-unsworn slice.

Common questions

When does a new Delaware school board member's term begin?
Under 14 Del. C. § 1052(d) (cited by the Board), the term begins on the date set by statute, often July 1 following the May election. The swearing-in oath is typically administered at the next public Board meeting after the term has begun. There can be a gap of days or weeks between term-start and oath.

Why does the swearing-in matter at all if the term has already started?
The oath formalizes assumption of duties and obligations of office under Article XIV of the Delaware Constitution. Some statutory powers (signing documents, voting) are typically exercised only after the oath. But the term itself runs from term-start, not from the oath, in many Delaware offices.

What's the rule for non-member attendees in executive sessions?
The default: non-members may not attend, because admitting some members of the public to the exclusion of others converts the closed session into an open meeting. AG 02-IB17 (Aug. 6, 2002) is the foundational opinion. The exceptions are narrow: counsel for legal-strategy sessions, the official who takes the minutes, and subject-matter experts whose information is necessary for the authorized executive-session purpose.

Does this open the door to letting other people sit in (interns, advisors, candidates the Board hopes to appoint)?
No, and the AG's footnote was emphatic about that. The Leonard analysis depends on his status as an elected member with a term in progress. An advisor, an intern, or a candidate-to-be-appointed has no analogous status.

What if there's no formal swearing-in for weeks?
The Board's discretion is not unlimited. If a newly-elected member's term has begun but the Board pointedly delays the swearing-in to keep them excluded, that could itself raise FOIA concerns. The Board should administer the oath at the first reasonable opportunity (typically the next public meeting). Here, Leonard was sworn in shortly after the July 13 executive session, at the first regular meeting after his election and the prior incumbent's term-end.

Background and statutory framework

Delaware FOIA's open-meetings rule (29 Del. C. § 10004) makes meetings of public bodies open to the public, with executive sessions allowed only on enumerated grounds. The principle that non-member observers convert a closed session into an open one comes from AG 02-IB17 and is the consistent enforcement standard.

14 Del. C. § 1052(d) sets school board member term lengths. The Board cited it for the proposition that Leonard's term had already begun when he attended the executive sessions.

29 Del. C. § 10005(c) places the burden of proof on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required to meet that burden. Here the Superintendent's affidavit was sufficient.

The narrow holding doctrine: the AG repeatedly notes that the Leonard analysis is fact-specific. The reader should not extract a broad rule from this opinion.

Citations

29 Del. C. § 10004: open meetings
29 Del. C. § 10005, § 10005(c): petition; burden of proof
29 Del. C. §§ 10001-10007: Delaware FOIA chapter
14 Del. C. § 1052(d): Board member term
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 02-IB17 (Aug. 6, 2002): non-member attendees rule
Del. Op. Att'y Gen. 13-IB01 (Mar. 26, 2013): non-member attendees recommendation

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB44
November 28, 2022

VIA EMAIL
Henry Clampitt
[email protected]

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

Dear Mr. Clampitt:
We write in response to your correspondence alleging that the Board of Education of the Red Clay Consolidated 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 did not violate FOIA by allowing Board Member Victor James Leonard, Sr., a member of the Board who was elected but unsworn at the time, to observe two executive sessions on July 11 and 13, 2022.

BACKGROUND
The Board held two executive sessions: one on July 11, 2022 and one on July 13, 2022 to discuss legal and personnel matters. Board Member Victor James Leonard, Sr. was elected to the Board on May 10, 2022, and his term began on July 1, 2022. Board Member Leonard was sworn in approximately an hour after the July 13, 2022 executive session. Despite the fact that he was not sworn in yet, he attended both executive sessions on July 11 and 13, 2022.

This Petition followed, alleging that the Board violated FOIA by allowing Board Member Leonard to observe these executive sessions. You argue that attendance at executive sessions is limited to public body members, although legal counsel and staff with germane knowledge of the legal matters under discussion are also permitted to attend. You do not believe that Board Member Leonard should have been permitted to attend the executive sessions.

On November 2, 2022, the Board, through its legal counsel, answered the Petition ("Response") and provided the affidavit of the District Superintendent in support of its Response. The Board acknowledges that Board Member Leonard was elected, but not sworn in, at the time of the executive sessions on July 11 and 13, 2022. The District Superintendent attests that Board Member Leonard's term began on July 1, 2022 after the incumbent's term expired on June 30, 2022 and that Board Member Leonard was sworn in at the first public Board meeting following his election to the Board and the expiration of the incumbent's term. Although Board Member Leonard had not yet undertaken his official duties, as he was not statutorily permitted to do so until after his swearing in, the Board asserts that he attended the sessions to ensure that he was informed of the pending issues of legal significance to the Board. Under these specific circumstances, the Board contends that Board Member Leonard should be treated as a board member at the time of these executive sessions. The Board argues that no votes occurred during these sessions, and even if a violation is found, it is a technical violation for which no remediation is necessary.

DISCUSSION
Subject to certain limited exceptions, FOIA requires the meetings of all public bodies to be open to the public. 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. In certain circumstances, a sworn affidavit may be required to meet that burden.

Executive sessions, by their nature, are private and therefore closed to the public. In past Attorney General Opinions, this Office has found that inviting select members of the public as observers is not permissible. As the interests of non-member observers are indistinguishable from those of any other member of the public, "their admission to the exclusion of others transforms the so-called executive session into a meeting that must be open to all of the public." However, a public body may "invite individuals to attend an executive session to provide information related to the subject matter for which the executive session is authorized."

In this case, Board Member Leonard was an elected member at the time of the executive sessions. Board Member Leonard's interest in the executive sessions, as an elected member, is distinguishable from the interests of other members of the public. His admission due to his unique status as an elected member, to the exclusion of others, did not transform the executive sessions into meetings that must be open to the public. As such, we find that in these circumstances, the Board did not violate FOIA by permitting Board Member Leonard to attend the July 11 and 13, 2022 executive sessions.

CONCLUSION
For the foregoing reasons, we conclude that the Board did not violate FOIA by permitting Board Member Leonard, a member of the Board who was elected but unsworn at the time, to observe two executive sessions on July 11 and 13, 2022.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Lauren E.M. Russell, Attorney for Red Clay Consolidated School District Board of Education