If a Delaware school board agenda just says 'executive session' and 'personnel report,' is that enough notice when the board uses the meeting to retire and replace the superintendent?

Official title

23-IB12 04/18/2023 FOIA Opinion Letter to A. Nicole Mezick re: FOIA Complaint Concerning the Delmar School District Board of Education

Plain-English summary

At its December 13, 2022 monthly Board meeting, the Delmar School District Board of Education unanimously approved three motions about its superintendent: (1) accept the superintendent's retirement effective July 1, 2023; (2) place the superintendent on administrative leave until her retirement date; and (3) after an executive session, appoint an interim superintendent.

Five days earlier, on December 8, 2022, the Board had held a special meeting whose two substantive agenda items were "Executive Session" (with no stated reason) and "V. Business Items – 1. Monthly Personnel Report."

A. Nicole Mezick, the Board's Recording Secretary, filed a FOIA petition. She alleged: (1) the December 13 motion placing the superintendent on leave was a "surprise" item not noticed; (2) she had prepared the personnel report for the December 13 meeting and was aware that a Board member had amended it before the meeting to add the leave and interim items; (3) at a January 17, 2023 Board meeting, she learned the Board President had asked on the morning of December 13 for the superintendent's State system access to be deactivated; and (4) either the Board members had private discussions about deactivation and personnel-report changes before the meeting (which would violate FOIA), or the Board President acted unilaterally (which would violate her authority).

The Board's counsel responded with the Board President's affidavit. The Board acknowledged its past practice of "scant agenda descriptions" did not necessarily comply with FOIA. The Board explained that the superintendent issues arose suddenly hours before the meeting; the superintendent announced her retirement on the eve of the December 13 meeting; the Board could not defer because Delaware Code requires nonrenewal notice by December 30th; and there was no available date for another meeting before December 30. The Board ratified a "personnel report" with the two superintendent items at its March 21, 2023 meeting (an attempted cure). The Board's counsel said he would provide FOIA training. The Board President swore she did not have any conversations with fellow Board members about amending the personnel report or deactivating access prior to those actions.

The AG split the result.

On the agenda claims, the AG found violations on both meetings. Section 10004(c) requires that the purpose of executive sessions "shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b)." Both agendas just said "Executive Session" with no purpose. That violates the rule. On the open sessions, "personnel report" alone was inadequate to alert the public that the Board would be discussing and acting on the superintendent's employment. AG opinion 21-IB03 (Feb. 25, 2021) had already held that broad descriptors like "Personnel Action Items" are not sufficient to alert citizens with intense interest in superintendent contracts.

On the secret-meeting claim, the AG denied. The petitioner had to make a prima facie case of a private quorum gathering, then the burden shifted to the Board. The Board President's sworn statement that she had no pre-meeting conversations with fellow Board members about the deactivation or personnel-report amendment was sufficient to rebut. The AG made no FOIA finding here.

For remediation, the AG recommended ratifying the superintendent-related votes in open session at a future Board meeting after providing appropriate agenda notice. The interim superintendent had been in place for several months; invalidation would have been disruptive.

What this means for you

For Delaware school boards making superintendent decisions. Two specific lessons.
1. Executive-session agendas must state the purpose, drawn from the § 10004(b) list (e.g., "personnel matters where individual employees are discussed by name, competency, and ability"; "strategy session re pending litigation"). "Executive Session" without a purpose is per se inadequate.
2. Open-session personnel agenda items must specifically reference major decisions about the superintendent. "Personnel Report" or "Personnel Action Items" alone is not enough. Use "Discussion and Possible Action on Superintendent Contract Status / Retirement / Replacement."

For Delaware school district solicitors. Build a school-district FOIA training that specifically covers superintendent contract decisions. The case law (AG 21-IB03, AG 15-IB01) is consistent: the public has an "intense interest" in superintendent decisions, and the agenda must alert that audience. The Delmar Board's training response after this opinion is the right model.

For the public watching school board meetings in Delaware. When you see "Personnel Report" on a school board agenda, watch carefully. AG 23-IB12 establishes that the Board cannot lawfully use that label to hide significant superintendent decisions. If you suspect that is happening, file a FOIA petition challenging the agenda's adequacy.

For petitioners alleging secret meetings. Two prongs: (1) prima facie case (specific dates, specific members, specific evidence of communication or deliberation), then (2) burden shift to the body. The body's affidavit must affirmatively state no prohibited gathering occurred. A bare denial may not be enough; an affidavit that addresses the specific times, individuals, and topics is. Mezick's prima facie case was sufficient to shift the burden, but the Board's affidavit rebutted.

For school boards on the brink of a superintendent change with December 30 deadline issues. The opinion implicitly acknowledges that Delaware Code's December 30 nonrenewal-notice deadline (14 Del. C. § 1066) creates timing pressure. A board genuinely facing a sudden retirement should still notice properly: (a) call a special meeting under § 10004(e)(4) with an explanation of why seven days' notice could not be given, and (b) include specific superintendent items on the agenda. The deadline does not excuse the notice deficiency.

Common questions

What's the December 30 deadline?
Under 14 Del. C. § 1066, a school board must give a superintendent notice of nonrenewal by December 30 of the year before the contract expires. If the board misses that deadline, the contract may automatically renew. The Delmar Board cited this as the reason it could not defer the December 13, 2022 decision.

What's the proper way to notice a superintendent personnel item?
"Discussion and possible action on Superintendent contract retirement and interim appointment" would be adequate. The agenda need not "provide every alternative that may take place" (Lechliter v. Becker, Del. Ch. 2017), but it must "alert members of the public with an intense interest in the matter that the subject will be taken up." AG 15-IB01 explicitly required the public to know the superintendent's contract was on the table.

What's the burden-shifting framework for secret-meeting claims?
- Plaintiff must make a prima facie case of a meeting (a quorum gathered for the purpose of discussing or taking action on public business).
- "Substantive proof, not mere speculation."
- Allegations must be specific (dates, members, communications).
- Once prima facie case is made, burden shifts to the public body.
- Body must "prove a negative" by affidavit; AG accepts sworn denial from someone with personal knowledge.
This framework is from AG 17-IB20 (citing Iowa and Oregon precedents).

Why was the Board President's affidavit sufficient here?
She had personal knowledge of her own actions and conversations. She affirmatively stated, under oath, that she had no conversations with fellow Board members about the deactivation or personnel-report amendment prior to those actions. That answered the specific allegation. A more general "the Board did not have a secret meeting" affidavit might not have sufficed.

What's the cure that the Board attempted?
The Board ratified the personnel report (with the two superintendent items) at its March 21, 2023 meeting. The AG implicitly accepted this as part of the recommended remediation: that re-notice and ratification at a properly noticed future meeting is the right cure. But the December 8 and 13 violations were already in the record.

Could the Court of Chancery void the superintendent decisions?
Theoretically. Section 10005(a) gives Chancery the authority to invalidate. But the AG framed the equities: invalidation is a "serious sanction" reserved for cases of substantial public-rights impact and circumstances allowing a specific remedy. With the interim superintendent in place for months, invalidation would harm "innocent parties." The AG opted for re-notice-and-ratify rather than recommending invalidation.

Background and statutory framework

29 Del. C. § 10002(a) requires meeting agendas to include a "general statement of the major issues expected to be discussed at a public meeting" and a "statement of intent to hold an executive session and the specific ground or grounds" for the session.

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

29 Del. C. § 10004(b) lists the executive-session grounds. Section 10004(c) requires the purpose of an executive session to be set forth in the agenda and limited to the § 10004(b) grounds.

The "intense interest" test for agenda specificity comes from Lechliter v. DNREC (Del. Ch. 2017) and Ianni (Del. Ch. 1986). The "no need to enumerate every alternative" rule comes from Lechliter v. Becker (Del. Ch. 2017).

The burden-shifting test for secret meetings comes from AG 17-IB20 (citing Gavin v. City of Cascade and Harris v. Nordquist). Specific allegations are required (AG 16-IB18).

The remediation framework comes from Ianni, Chemical Industries Council, and O'Neill v. Town of Middletown (Del. Ch. 2007). Superintendent decisions specifically have been treated as matters of substantial public rights (AG 12-IIB13, AG 02-IB17).

Citations

• 29 Del. C. § 10002(a): agenda content
• 29 Del. C. § 10002(j): meeting definition
• 29 Del. C. § 10004(b), § 10004(c): executive session grounds; agenda requirement
• 29 Del. C. § 10005, § 10005(c): petition; burden of proof
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
• Lechliter v. Del. Dep't of Natural Res. & Env't Control, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
• Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017)
• Ianni v. Dep't of Elections of New Castle Cty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007)
• Gavin v. City of Cascade, 500 N.W.2d 729 (Iowa App. 1993)
• Harris v. Nordquist, 771 P.2d 637 (Or. App. 1989)
• Del. Op. Att'y Gen. 21-IB03 (Feb. 25, 2021): superintendent agenda specificity
• Del. Op. Att'y Gen. 15-IB01 (Jun. 12, 2015): superintendent contract notice
• Del. Op. Att'y Gen. 17-IB20 (July 12, 2017): burden shifting for secret meetings
• Del. Op. Att'y Gen. 16-IB18 (Sept. 29, 2016): specificity of allegations
• Del. Op. Att'y Gen. 05-IB10 (Apr. 11, 2005): burden shifting
• Del. Op. Att'y Gen. 12-IIB13 (Dec. 21, 2012): superintendent selection
• Del. Op. Att'y Gen. 02-IB17 (Aug. 6, 2002): superintendent selection

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/04/18/23-ib12-04-18-2023-foia-opinion-letter-to-a-nicole-mezick-re-foia-complaint-concerning-the-delmar-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/04/Attorney-General-Opinion-No.-23-IB12.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 23-IB12

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 23-IB12

April 18, 2023

VIA EMAIL

Nicole Mezick
[email protected]

RE: FOIA Petition Regarding the Delmar School District Board of Education

Dear Ms. Mezick:

We write in response to your correspondence, alleging that the Delmar School District Board of Education violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this 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 more fully herein, we determine that the Board violated FOIA by giving insufficient notice on its December 8 and 13, 2022 meeting agendas of the executive sessions and the superintendent matters intended to be addressed in open session at these meetings. However, we find that the Board met its burden to demonstrate that it did not violate FOIA by meeting privately prior to the December 13, 2022 meeting to discuss deactivating the superintendent's access and making changes to the personnel report presented at the December 13, 2022 meeting.

BACKGROUND

At its December 13, 2022 monthly Board meeting, the Board unanimously approved motions to accept the retirement of its superintendent effective July 1, 2023, to place the superintendent on administrative leave until her retirement date, and after convening an intervening executive session, to appoint an interim superintendent. Five days prior to this meeting, the Board held a special meeting, in which the two substantive agenda items were an executive session without a stated reason and "V. Business Items – 1. Monthly Personnel Report." This Petition followed.

The Petition alleges that the December 13, 2022 motion placing the superintendent on leave was a "surprise" item and "never publicly presented or discussed." As the Board's Recording Secretary, you prepared the personnel report before this meeting pursuant to your duties, but you believe a board member amended it prior to the meeting to add placing the superintendent on leave and appointing the selected individual as the interim superintendent. You allege that the Board did not provide proper notice of its intention to make these changes to the superintendent position in the December 8 and 13, 2022 meeting agendas for the open and executive sessions. As the December 8, 2022 special meeting minutes also did not include any mention of the superintendent, you maintain that the public would have no reason to expect that the superintendent would be replaced at the December 13, 2022 meeting. In addition, at the January 17, 2023 Board meeting, you learned that the Board President had asked on the morning of December 13, 2022 for the superintendent's access to State systems to be deactivated. You state that either the Board members had private discussions about its plans to deactivate the access and change the personnel report before the meeting in violation of FOIA, or the Board President acted unilaterally, which you believe is a violation of her authority as a board member.

The Board's counsel replied to the Petition on March 28, 2023 ("Response"). The Board acknowledges that its past practice of "scant agenda descriptions" in its meeting agendas do not necessarily align with FOIA, but the issues with the superintendent arose suddenly, only a few hours before the meeting. The Board asserts that it could not defer action to a later meeting; Delaware Code requires a notice of nonrenewal be provided to the superintendent by December 30th in the year prior to the contract expiration, and the Board did not have availability before December 30, 2022 to schedule another meeting. The Board states that the December 8, 2022 executive session concerned one or more administrators' contracts, and the superintendent then announced retirement on the eve of the December 13, 2022 meeting. To cure any potential deficiencies, the Board states that it ratified a "personnel report" with the two items of accepting the superintendent's retirement and the appointment of an interim superintendent at its March 21, 2023 Board meeting. The Board's counsel noted that he plans to provide the interim superintendent, the Board, and the Board Secretary with relevant FOIA training. Regarding the claim alleging a private meeting, the Response included the sworn affidavit of the Board President, who attests that "[p]rior to amending the personnel report for the December 13, 2022 meeting and directing that a certain school employee's network access be deactivated, I did not have any conversations with fellow Board members about these actions."

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden. For the Petition's first claim, we determine that the December 8 and 13, 2022 meeting agendas for the executive and open sessions failed to give proper notice of the items related to the superintendent position. FOIA requires that the "purpose of . . . executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section." Both agendas for the December 8 and 13, 2022 executive sessions merely state "Executive Session" and lack any mention of the purpose of the executive session. Accordingly, we find a violation of FOIA for both the December 8 and 13, 2022 executive session agendas.

Regarding the open sessions of the December 8 and 13, 2022 meetings, an agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss and must be worded in "plain and comprehensible language." Delaware courts have opined an 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]." "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." 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."

In this case, the agendas both referred to personnel "reports" under the section called "Business Items" in open session. The December 8, 2022 agenda refers to the "monthly personnel report," while the December 13, 2022 agenda includes an item merely identified as "personnel report." The public could not review these agendas citing to a personnel report and discern that the Board planned to discuss and undertake the significant actions related to the superintendent's employment. We find that the Board violated FOIA by insufficiently notifying the public in its agenda of the open session items related to the superintendent position at the December 8 and 13, 2023 meetings.

The Petition's second claim is that the Board must have met privately prior to the December 13, 2022 meeting to discuss the superintendent position in relation to the deactivation of the superintendent's access and the pre-meeting changes to the personnel report for the December 13, 2022 meeting. A meeting under FOIA 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." When a petitioner makes a claim of a secret meeting between public body members, the petitioner carries the initial burden of making a prima facie case that a meeting occurred. "A plaintiff must show substantive proof of a secret meeting rather than mere speculation in order to shift the burden of proof going forward." The allegations must be sufficiently specific to allow consideration. "Once a plaintiff has made a prima facie case that a quorum of a public body has met in private for the purpose of deciding on or deliberating toward a decision on any matter," the burden then shifts to the public body to prove that no violation of the open meeting requirements occurred. This burden-shifting occurs to avoid requiring a public body from having to "prove a negative," i.e., prove that a meeting did not occur. In this case, although the Petition has offered a basis to suspect that the Board may have met privately in violation of FOIA, the Board President attests that she did not have any conversations with other board members regarding the deactivation of the access or amending the personnel report prior to undertaking those actions. Accordingly, we find that the Board did not violate FOIA by holding these discussions outside a duly noticed public meeting.

Having found that the Board violated FOIA by failing to provide adequate notice of its executive and open session items related to the superintendent position, we must determine whether any remediation is appropriate to recommend. The authority to invalidate a public body's action or impose other relief is reserved for the courts. The Delaware Court of Chancery stated 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." In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." When a decision is reached primarily outside of public view, that factor is also weighed heavily in determining whether remediation is appropriate. Selecting superintendents outside of public view has been previously determined to impact substantial public rights. The deficiencies in these December meeting agendas means that the public could not discern that the superintendent position would be a topic of action at the meetings, and therefore, interested members of the public could not attend these meetings. The interim superintendent has been in place for several months. As such, we recommend that the Board ratify the votes related to the superintendent in open session at a future Board meeting, after providing appropriate notice of the superintendent items on its agenda. The Board is further cautioned to include the purpose of any executive sessions in its meeting agendas in the future.

CONCLUSION

For the reasons set forth above, we conclude that the Board violated FOIA by giving insufficient notice on its December 8 and 13, 2022 meeting agendas of the executive sessions and the superintendent matters intended to be addressed in open session at these meetings. However, we find that the Board met its burden to demonstrate that it did not violate FOIA by meeting privately prior to the December 13, 2022 meeting to discuss deactivating the superintendent's access and making changes to the personnel report presented at the December 13, 2022 meeting.

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:

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

cc: James H. McMackin, III, Esq., Counsel to the Delmar School District Board of Education