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

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. His term of 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. The opinion holds that the Board did not violate FOIA by allowing Leonard, an elected but not-yet-sworn member whose term had already begun, to observe the two executive sessions. The result turned on his status as an elected member with a term in progress, which made his interest distinguishable from that of an ordinary member of the public.

For school district solicitors. The opinion is expressly limited to "these circumstances." The reasoning depends on Leonard being an elected member whose term had begun on July 1, even though he was not sworn until the next public meeting; the Board's affidavit established that he attended to be informed of pending legal matters and that no votes were taken. The opinion does not address a member-elect whose term has not yet started.

For school board members in transition. The opinion confirms that an elected member whose term has begun may attend executive sessions even before being sworn, at least where the purpose is to be briefed on pending matters and no votes are taken. The Board noted Leonard was not statutorily permitted to undertake his official duties until after his swearing in.

For citizens worried about non-members in executive sessions. The opinion holds the general rule still stands: inviting select members of the public as observers is not permitted, because their interests are indistinguishable from any other member of the public and their admission "transforms the so-called executive session into a meeting that must be open to all of the public." Leonard was treated differently only because of his unique status as an elected member.

Common questions

When did Leonard's term begin?
Per the Superintendent's affidavit, his term began July 1, 2022, after the prior incumbent's term expired June 30, 2022. He was sworn in about an hour after the July 13 executive session, at the first public Board meeting following his election and the incumbent's term-end.

Why does the swearing-in matter if the term has already started?
The Board acknowledged that Leonard had not yet undertaken his official duties because, the Board said, he was not statutorily permitted to do so until after his swearing in. The opinion treats his term as having begun July 1 regardless, which is why it found his status distinguishable from a member of the public.

What is the rule for non-member attendees in executive sessions?
The opinion restates that inviting select members of the public as observers is not permissible, because their interests are indistinguishable from the public's and "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." A public body may, however, invite individuals to attend to provide information related to the subject matter for which the executive session is authorized.

Does this open the door to letting other people sit in?
The opinion limits its result to "these circumstances" and rests on Leonard's status as an elected member with a term in progress. It does not find an exception for observers who lack that status.

How quickly was Leonard sworn in?
About an hour after the July 13 executive session, at the first public Board meeting after his election and the prior incumbent's term-end.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires the meetings of public bodies to be open to the public, with executive sessions permitted only on limited grounds. When a public body meets in executive session, it carries the burden of proof to justify that the session complies with FOIA, and the opinion notes that in certain circumstances a sworn affidavit may be required to meet that burden. Here the Board supported its Response with the District Superintendent's affidavit.

The opinion restates the established rule that non-member observers cannot be admitted to an executive session, because their interests are indistinguishable from the public's, while a public body may invite individuals to provide information related to the authorized subject matter. It then holds that Leonard, as an elected member whose term had begun, was distinguishable from a member of the public, so his attendance did not transform the sessions into open meetings. The petition was brought under 29 Del. C. § 10005, and the opinion stresses that the result is confined to these circumstances.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/28/22-ib44-11-28-2022-foia-opinion-letter-to-henry-clampitt-re-foia-complaint-concerning-the-red-clay-consolidated-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB44.pdf

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