Can a Delaware school district hide the appointment of an acting high school principal inside a generic 'personnel agenda' and refuse to tell the public the names or positions involved?

Plain-English summary

After an incident at Sussex Central High School, AP reporter Randall Chase pushed for staff information from the Indian River School District, including suspension dates and leave status. The District denied the records, leading to AG Op. 23-IB21 (July 2023). Then on August 16, 2023, the Board met, held an executive session for "personnel," and voted on a "personnel agenda" and "personnel addendum." Afterward, the District announced the Board had appointed an acting principal of Sussex Central High School at that meeting. None of the agendas told the public that the principal appointment was on the table.

Mr. Chase filed another petition. He argued (1) the Board restricted free speech, (2) the Board did not verbally state the executive-session purpose when voting to enter executive session, (3) the Board's "personnel agenda" practice violated FOIA's notice requirements, and (4) the District's records-denial practice violated state law and its own past practices.

The AG handled each:

• Free speech and underlying state-law / past-practice claims. Not FOIA issues; the AG declined to consider them.
• Verbal statement of executive-session purpose at the vote. Not required. FOIA requires a majority vote to enter executive session and requires the purpose to appear in the agenda. A separate verbal statement at the moment of the vote is encouraged but not mandatory.
• Personnel agenda specificity. Violation. Listing "personnel" for the executive session and "personnel agenda" / "personnel addendum" for the open-session vote did not give notice that the Board would appoint an acting Sussex Central principal. The AG cited a line of prior opinions (21-IB03, 23-IB12, 15-IB01, 12-IIB13, 02-IB17) holding that "personnel" is too generic when significant individual decisions (like a superintendent or principal appointment) are on the agenda.

The AG recommended that the Board ratify the acting-principal appointment at a future open meeting with proper notice. It also recommended that the Board review the rest of the personnel-agenda items and identify which ones needed more specific notice.

What this means for you

If you are on a Delaware school board (or an attorney advising one)

The opinion holds that the agenda's use of the word "personnel," with no further descriptors, "is not sufficient to alert any citizen with an intense interest in the significant matter of appointing the acting Sussex Central High School principal" that the matter would be addressed. It places the appointment of an acting high school principal alongside superintendent appointments as a decision affecting "substantial public rights." The opinion did not accept the Board's argument that naming items would cause "protracted meetings" or harm employee privacy; it found the Board "did not meet its burden" to show the items were appropriately noticed. The opinion recommends the Board ratify the appointment in open session at a future meeting with proper notice, and review the remaining personnel-agenda items to decide whether more specific notice is required.

If you are a parent following a Delaware school board

The opinion frames the notice right around the agenda itself: "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." Here, the opinion concluded a citizen reading the August 16 and June 26 agendas "would have no way of knowing" the acting-principal appointment would be considered. It treats that appointment as affecting the "substantial public rights of the school community and other concerned citizens."

If you are a journalist covering Delaware schools

The opinion found a FOIA violation in the gap between a generic "personnel agenda" line item and a significant action (the acting-principal appointment) that the public was not alerted to. It separately held the Board did not violate FOIA by failing to verbally state the executive-session purpose at the vote, since FOIA requires only the majority vote and the purpose in the agenda. On the public-comment restriction Chase raised, the opinion declined to rule, holding that free-speech claims are "not allegations related to the FOIA statute" and outside the AG's authority under § 10005(e).

If you are a Delaware school district FOIA Coordinator or Board secretary

The opinion measures the agenda against § 10002(a)'s requirement of "a general statement of the major issues" in "plain and comprehensible language," read with the case-law gloss that the notice must "alert members of the public with an intense interest in the matter." It holds that "personnel" without further descriptors failed that test for the acting-principal appointment, and that the Board "did not present any information regarding the items on the personnel agenda and therefore did not meet its burden to demonstrate that items 79 and 120, or any other personnel items, were appropriately noticed."

Common questions

Q: Does a Delaware public body have to verbally state its executive-session purpose when voting to enter executive session?
A: No. FOIA requires a majority vote to enter executive session and requires the purpose to be on the agenda. The AG "encourages" a verbal statement at the vote as a best practice but did not find a violation when one was missing.

Q: Why isn't 'personnel' enough? Doesn't FOIA only require a 'general statement' of major issues?
A: It requires a general statement that is also specific enough to "alert members of the public with an intense interest in the matter." Courts have read that as requiring the agenda to name positions and roles when significant decisions are involved. The general/specific balance is fact-dependent: a routine reassignment of a paraprofessional can stay generic; the appointment of a high school's acting principal cannot.

Q: Can a school district refuse to publicly name the people involved in a personnel action?
A: Names of candidates can be kept private until appointment, particularly when sensitive (e.g., a sitting employee receiving a promotion before notifying their current employer). What the AG requires is naming the position and action, not necessarily the candidate. "Appointment of Acting Principal, Sussex Central HS" is enough; the candidate's name can come at the moment of the appointment.

Q: Does this opinion mean the Board's appointment is invalid?
A: No. Section 10005(a) reserves invalidation to the Court of Chancery. The AG's recommendation is ratification: the Board adds the acting-principal appointment to a future agenda with proper notice and re-votes in open session. That cures the FOIA defect prospectively.

Q: What about the Board's policy of not hearing complaints about school personnel?
A: The AG declined to address that as a FOIA issue. It may be challenged on First Amendment grounds in court, but it is not a § 10005 question. The Board's stated policy was that it permitted "objective criticisms of school operations and programs" but routed personnel-specific complaints to other channels.

Q: How does this compare with prior school-personnel opinions?
A: The opinion relies on a line of prior opinions. Op. 21-IB03 found "Personnel Action Items" insufficient to alert citizens to a superintendent appointment; Op. 23-IB12 reached a similar result; and Op. 15-IB01 found that an executive session noticed for "Legal and Personnel Issues" was insufficient for a vote on renewing a superintendent's contract. The opinion also cites 02-IB17 and 12-IIB13 on superintendent decisions affecting substantial public rights. It applies that same reasoning to the acting-principal appointment here.

Background and statutory framework

Delaware FOIA's open-meetings rules in 29 Del. C. §§ 10001-10007 build on a single guiding principle in § 10001: public business should be done in public so citizens can observe and monitor decisions. Two operative provisions did the work in this opinion:

• Section 10004(c). "The vote on any public matter shall be in open session." Executive sessions are limited to the topics listed in § 10004(b), and "the purpose of such executive sessions shall be set forth in the agenda." A verbal statement of purpose at the vote is encouraged but not separately required.
• Section 10002(a). Agendas must include "a general statement of the major issues expected to be discussed." Court decisions and AG opinions add a specificity gloss: the agenda must "alert members of the public with an intense interest" that their issue is on the table.

The case-law layer comes from Lechliter v. DNREC (2017), Lechliter v. Becker (2017), Chem. Indus. Council (1994), and Ianni (1986). Together they hold that agendas must be specific enough to inform interested members of the public, but they do not require listing every alternative or every detail.

The remedy framework is also well-established. Section 10005(a) reserves invalidation to the Court of Chancery, which uses the "substantial public rights" / "innocent parties" test from Ianni and Chemical Industry Council. The AG's response is typically prospective: ratification at a properly noticed future meeting.

The personnel-agenda question has a long history. Earlier opinions (02-IB17, 12-IIB13, 15-IB01) addressed superintendent appointments; the pattern carries forward to acting principals (this opinion) and other significant administrative positions. The AG has been consistent: "personnel" alone is too thin when the position at issue would draw an interested public.

Citations and references

Statutes:

• 29 Del. C. § 10001 (Policy)
• 29 Del. C. § 10002 (Definitions, agenda)
• 29 Del. C. § 10004 (Open meetings)
• 29 Del. C. § 10005 (Enforcement)

Cases:

• 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. June 22, 2017)
• Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017)

Prior AG opinions:

• Del. Op. Att'y Gen. 21-IB03 (Feb. 25, 2021) (superintendent appointment)
• Del. Op. Att'y Gen. 23-IB12 (Apr. 18, 2023) (Delmar superintendent notice)
• Del. Op. Att'y Gen. 15-IB01 (June 12, 2015) ("Legal and Personnel Issues" insufficient for superintendent contract)
• Del. Op. Att'y Gen. 02-IB17 (Aug. 6, 2002) (early superintendent-appointment case)
• Del. Op. Att'y Gen. 12-IIB13 (Dec. 21, 2012) (substantial public rights affected by closed-door superintendent decisions)
• Del. Op. Att'y Gen. 23-IB21 (July 25, 2023) (related District records-denial petition by same petitioner)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/10/03/23-ib28-10-3-2023-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-indian-river-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/10/Attorney-General-Opinion-No.-23-IB28.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 23-IB28

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 23-IB28

October 3, 2023

VIA EMAIL

Randall Chase

Associated Press

[email protected]

RE: FOIA Petition Regarding the Indian River School District

Dear Mr. Chase:

We write in response to your correspondence alleging that the Indian River School District 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 District's Board of Education violated FOIA by providing insufficient notice to the public in its June 26, 2023 and August 16, 2023 agendas. However, the Board did not violate FOIA by failing to state verbally the purpose of the executive sessions during its vote to enter the August 16, 2023 executive session.

BACKGROUND

Following an incident at Sussex Central High School, you submitted a FOIA request to the Indian River School District for employment information about several staff members, including suspension dates and leave status. After receiving the District's denial of this records request, you filed a petition with this Office, resulting in Attorney General Opinion No. 23-IB21 issued on July 25, 2023. [1] The Board of Education met on August 16, 2023 and privately discussed "personnel" issues during an executive session and voted on a "personnel agenda" and "personnel addendum." Following this meeting, the District announced that the Board had approved the appointment of an acting principal of the Sussex Central High School during the meeting. This Petition followed.

In the Petition, you argue that at the August 16, 2023 meeting, the Board unconstitutionally restricted free speech by stating it would not hear complaints about the school personnel or others during public session. You assert that the Board failed to state the reason for the executive session when voting to go into executive session. In addition, you state that the Board routinely votes on "personnel agendas" at its meetings that do not give information about the positions or the individuals in question. The Board voted on a personnel agenda at the August 16, 2023 meeting, which included the appointment of the acting high school principal for Sussex Central High School. You also cite to the June 26, 2023 meeting in which a personnel agenda, excluding items numbered 79 and 120, was approved. Those two items were subject to separate votes and certain board members abstained from these votes. You assert that this conduct leaves the public to wonder what items were approved or why the board members abstained, as the public is not provided any information about the items on these personnel agendas. These personnel agendas are not available on the District's website or explained in another publicly available document. Finally, you allege that the District's refusal to provide information about staff suspensions is improper under state law and violates the District's own past practices.

On September 13, 2023, the Board's counsel replied on its behalf to the Petition ("Response"). The Board states that its August 16, 2023 and June 26, 2023 minutes reflect that the executive session was to "review a personnel agenda and personnel addendum," and these meeting agendas stated the purpose would be "personnel." [2] The Board contends that it was not required by the FOIA statute to make a statement about the reason for entering executive session. The Board also maintains that FOIA does not require the relevant employees to be named in the agenda. Rather, the Board claims that it is common practice for all Delaware school districts to list "personnel" or "personnel matters" for a personnel agenda or a consent agenda. The Board asserts that these agendas do not have specifics but include all employees, from the rank and file staff to the leader, in order to protect employee privacy. The Board concedes the "personnel agendas" are not published and all decisions made with regard to these employees are completely unknown to the public. The Board claims individual votes on employees would result in protracted meetings, and someone receiving a new position or promotion should be given the opportunity to notify others before the announcement. Rather than naming these individuals at the meetings, the Board asserts that citizens may obtain this information through the FOIA process after the meeting, subject to any remaining privacy concerns.

The Board argues that you mischaracterized its statement at the August 16, 2023 meeting regarding public comment; the Board asserts that the statement made at the meeting was that the public may "offer objective criticisms of school operations and programs, but the Board will not hear complaints about school personnel or other persons" and that "other channels provide for [the Board's] consideration of complaints involving those individuals." [3] The Board believes that this statement was appropriate in the circumstances.

DISCUSSION

The Board carries the burden of proof to demonstrate its compliance with FOIA. [4] In certain circumstances, a sworn affidavit may be required to meet that burden. [5] The first and fourth claims presented in the Petition, that the Board restricted free speech and that the Board violated other laws and its own precedent, are not allegations related to the FOIA statute. This Office lacks the authority to address non-FOIA claims and will not consider these claims in this Opinion. [6]

Subject to certain limited exceptions, FOIA requires the meetings of all public bodies to be open to the public. [7] Although certain topics may be discussed privately in executive session, all voting on any items of public business must take place during open session. [8] The Petition claims that the Board violated FOIA by failing to state its reason for entering executive session at the August 16, 2023 meeting. FOIA requires public bodies, prior to entering executive session, to receive an "affirmative vote of a majority of members present at a meeting of the public body." [9] FOIA also requires the purpose of the executive session to appear in the agenda. [10] Accordingly, while explicitly stating the purpose of the executive session at the time of the vote would benefit the meeting attendees and we encourage such a practice, we find that the Board did not violate FOIA by failing to state the purpose for its executive session during the vote to enter the session.

The Petition next claims that the Board committed a violation of FOIA by voting on personnel agendas at the August 16, 2023 and June 26, 2023 meetings without sufficient notice to the public of the items subject to approval. An agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss [11] and must be worded in "plain and comprehensible language." [12] 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]." [13] "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." [14] 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." [15]

We consider these agendas in their totality. The Board's August 16, 2023 agenda indicated an executive session for the purpose of "personnel" would be held and later in the agenda, the items, "personnel agenda" and "personnel addendum," would be considered in open session. [16] Similarly, the June 26, 2023 agenda indicated an executive session for three purposes, including "personnel," which was followed by the open session items of "personnel agenda" and "personnel addendum." [17] In both agendas, no other information is provided. We believe that the August 16, 2023 meeting agenda's use of the word "personnel" without further descriptors is not sufficient to alert any citizen with an intense interest in the significant matter of appointing the acting Sussex Central High School principal would be addressed at the meeting. In similar circumstances where board action was taken on a superintendent position following an executive session for "personnel" reasons, this Office determined that the open session item entitled "Personnel Action Items" was insufficient to alert citizens interested to attend the meeting that the Board voted on the appointment of the superintendent. [18] Likewise, in this case, a citizen would have no way of knowing the significant matter of the appointment of the acting Sussex Central High School principal would be considered at this meeting, in order to allow the citizen to decide whether to attend the meeting. Additionally, in its Response, the Board did not present any information regarding the items on the personnel agenda and therefore did not meet its burden to demonstrate that items 79 and 120, or any other personnel items, were appropriately noticed. Thus, we determine that Board violated FOIA by providing insufficient notice to the public with respect to these two agendas.

Having found that the Board violated FOIA, 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." [19] In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." [20] Our Office has previously declined to recommend remediation when such a recommendation would cause significant disruption and the public had additional opportunities to observe the selection process. [21] Selecting superintendents outside of public view has been previously determined to impact substantial public rights of students, parents, teachers, and other concerned citizens in the District. [22]

Similar to selecting superintendents, we believe that this appointment of an acting high school principal impacts the substantial public rights of the school community and other concerned citizens. Neither party has submitted evidence that the public had any opportunity to observe the appointment process for the acting principal, and in these circumstances, we find that a ratification of this matter will not cause significant disruption to the District. Accordingly, we find that the Board's lack of specificity in the June 26, 2023 and August 16, 2023 agendas violated FOIA and, at a minimum, recommend that the Board ratify the appointment of the acting high school principal in open session at a future meeting with proper notice to the public. Additionally, it is recommended that the Board review the remaining items in these personnel agendas and determine whether, under the relevant precedent, more specific notice of the items intended for consideration should be provided.

CONCLUSION

For the reasons set forth above, we conclude that that the Board violated FOIA by providing insufficient notice to the public in its June 26, 2023 and August 16, 2023 agendas. However, the Board did not violate FOIA by failing to state verbally the purpose of the executive sessions during its vote to enter the August 16, 2023 executive session.

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 Indian River School District Board of Education

[1] The first claim in the Petition related to Attorney General Opinion No. 23-IB21 was not accepted for consideration.

[2] Response, p. 2.

[3] Id. , p. 3-4.

[4] 29 Del. C. § 10005(c).

[5] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).

[6] 29 Del. C. § 10005(e).

[7] 29 Del. C. § 10004.

[8] 29 Del. C. § 10004(c).

[9] Id.

[10] Id. ("The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section.").

[11] 29 Del. C. § 10002(a).

[12] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *8 (Del. Ch. May 19, 1994).

[13] 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 Cnty. , 1986 WL 9610, at 4 (Del. Ch. Aug. 29, 1986).

[14] Id.

[15] 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).

[16] Response, Ex. D.

[17] Id. , Ex. C.

[18] Del. Op. Att'y Gen. 21-IB03, 2021 WL 961062, at 3 (Feb. 25, 2021); see also Del. Op. Att'y Gen. 23-IB12, 2023 WL L 3090720 at 2-3 (Apr. 18, 2023); Del. Op. Att'y Gen. 15-IB01, 2015 WL 3919060, at *4-5 (Jun. 12, 2015) (determining that an agenda noticing an executive session for "Legal and Personnel Issues" accompanied by a statement that the board "planned to take action with respect to each of the items discussed in executive session during the public meeting" was insufficient notice to the public for a vote on the renewal of the superintendent's contract).

[19] Ianni , 1986 WL 9610, at *7.

[20] Chem. Indus. Council of Del. , 1994 WL 274295, at *15.

[21] Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224, at *8 (Aug. 6, 2002).

[22] See, e.g., Del. Op. Att'y Gen. 12-IIB13, 2012 WL 6858971, at *5 (Dec. 21, 2012) ("We believe that the Board's conduct in this case affected substantial public rights. In Att'y Gen. Op. 02-1B17, a similar case also involving this Board, we determined that the Board violated substantial public rights 'by deciding who to hire as the new [District] superintendent outside of public view.'").