DE 24-IB25 2024-06-26

Can a Delaware school board hold an unannounced executive session about Robert's Rules and vote no confidence in the superintendent?

Short answer: Yes for two of four claims. The AG ruled the Christina School Board violated FOIA by holding an unannounced executive session on parliamentary procedure (not a permitted purpose) and by failing to agenda its vote of no confidence in the superintendent. The Board's vote on contract rescission was also a violation; the suspension vote was not.

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 AG opinions are persuasive authority but not binding precedent.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

24-IB25 06/26/2024 FOIA Opinion Letter to State Representatives Madinah Wilson-Anton, Paul Baumbach, Cyndie Romer, Sophie Phillips, and Eric Morrison re: FOIA Complaint Concerning the Christina School District Board of Education

Plain-English summary

Five Delaware state representatives filed a FOIA petition challenging four actions by the Christina School District Board of Education. At the May 24, 2024 meeting, the Board held an unannounced executive session to discuss Robert's Rules of Order, then took a vote of no confidence in the superintendent without listing it on the agenda. At the March 12, 2024 meeting, the Board went into executive session for items listed under "Personnel Matters" and then voted in open session to rescind a contract and to take administrative action that turned out to be a suspension.

The AG found two clear violations and a third on a closely related issue. The Robert's-Rules executive session violated FOIA twice over: it had not been on the agenda and it was not held for any of the nine purposes Section 10004(b) lists (parliamentary procedure is not on that list). The no-confidence vote violated FOIA because Section 10002(a) requires an agenda to "include a general statement of the major issues expected to be discussed."

For the March meeting, the AG split. The "Personnel Matters" descriptor on the executive session items was sufficient under Delaware case law (O'Neill v. Middletown, plus prior AG opinions). The open session vote on the employee suspension was sufficient because employee discipline carries a strong privacy interest that outweighs the public's interest in knowing the agenda detail in advance. But the open session vote on the contract rescission was a violation: the AG has held that contracts and appointments of certain senior employees (superintendents, principals) carry significant public interest that demands more specific agenda notice. The Board's counsel said the affected employee was not the superintendent but did not provide that under oath, so the AG could not accept the assertion. The Board was told to reconsider the noncompliant items at a future compliant meeting.

The AG also clarified two limits on its own authority: it cannot adjudicate non-FOIA claims (like alleged violations of Robert's Rules itself or Board policies), and it cannot invalidate Board action; only the Court of Chancery can.

What this means for you

If you are a Delaware school board member

This opinion sets clear rules:

Parliamentary procedure cannot be discussed in executive session. There is no exemption for it.
Every vote you plan to take needs to be flagged in the agenda. "Board Discussion" or generic action items will not satisfy a no-confidence vote, a contract rescission, or anything else with public stakes.
"Personnel Matters" is enough notice for executive session, but the open-session vote afterward needs more specific framing depending on what the action is. Discipline of a rank-and-file employee can carry less detail; a contract action involving a senior official needs more.
If you slip up, expect the AG to recommend ratifying the action at a future compliant meeting.

If you are a Delaware citizen tracking school board action

Watch the agenda. If a vote happens that did not appear, that is itself a basis for a § 10005 petition. The AG enforces agenda specificity and will find violations even where the board had a defensible reason for the substantive vote.

If you are an attorney advising a Delaware public body

The AG has been refining how much detail an open-session item following an executive session needs. Two practical takeaways from this opinion. First, items affecting senior employees (superintendents, principals) need more specific agenda language than items involving rank-and-file discipline. Second, when you are asked whether the open-session item meets that standard, get a sworn affidavit on file, especially when the position-of-the-employee question is contested. The AG declined to accept counsel's unsworn assertion that the disciplined employee was not the superintendent.

If you are a Delaware reporter covering school boards

This opinion gives you a checklist for the next agenda you review:

Look for "Personnel Matters" with no further detail in open-session voting items. If a senior-level action follows, that's a potential FOIA violation.
Look for items moved from a discussion section into an action section at the meeting. Movement is fine; what matters is whether the agenda told the public the vote could happen.
Watch for executive sessions called for purposes outside the nine listed in Section 10004(b). Robert's Rules, "general counsel," "policy review" without more, are not on the list.

Common questions

What are the nine purposes for executive session?

Section 10004(b) lists discussion of: pending or potential litigation; personnel matters where individual names, competency, or abilities are discussed; certain real estate transactions; criminal investigation matters; security matters; collective bargaining; certain land use matters; certain consultations between certain officials; and consideration of records exempted under FOIA. Parliamentary procedure is not among them.

Why didn't "Personnel Matters" satisfy the open-session contract rescission notice?

Because "Personnel Matters" satisfies executive session notice, where less detail is acceptable, but does not always satisfy open-session vote notice. The AG distinguishes the two. Open-session votes that affect senior officials carry significant public interest and need more specific agenda language. The Board did not show under oath that this contract rescission did not involve a senior official, so the AG had to find a violation.

Why did the suspension vote survive scrutiny?

Because employee discipline implicates the employee's privacy interest, which the AG balances against the public interest. Disciplinary actions against rank-and-file employees do not require detailed agenda notice; that would chill the agency's ability to discipline at all. Once the AG saw that the action was a suspension of a non-senior employee, the privacy interest dominated.

Are there limits to what the AG can do?

Yes. Section 10005(e) limits the AG to FOIA claims. The AG cannot rule on alleged Robert's Rules violations, alleged violations of Board policy, alleged failures of audio recording, or other non-FOIA legal authority. Section 10005(a) reserves invalidation of action to the Court of Chancery. The AG can only recommend remediation (re-vote at a properly noticed meeting).

What's the remedy here?

The AG recommended the Board reconsider the noncompliant items at a future public meeting in strict compliance with FOIA, including ratifying any votes. For the contract rescission item, if it involved a superintendent, principal, or staff of similar significance, the AG asked the Board to provide more specific notice when it does the re-vote.

Background and statutory framework

The petition raised four FOIA claims. (1) The May 24, 2024 unannounced executive session on Robert's Rules of Order. (2) The May 2024 vote of no confidence in the superintendent without agenda notice. (3) The March 12, 2024 vote on a contract rescission listed only under "Personnel Matters" in executive session. (4) The March 12, 2024 suspension vote listed under "Action, Discussion & Information Items" with the descriptor "Administrative Recommendations."

The Board conceded the first two violations. The AG agreed: parliamentary procedure is not a Section 10004(b) executive session purpose, and Section 10002(a) requires the agenda to "include a general statement of the major issues expected to be discussed at a public meeting."

For the March meeting, the AG applied a two-tier analysis. Executive session notice can be brief; O'Neill v. Town of Middletown (Del. Ch. 2007) approved "Personnel & Legal Issues" as adequate, and prior AG opinions (12-IIB13, 10-IB03) approved "Personnel Matters" alone. Open-session vote notice requires more, with more sensitivity when the public interest is high (superintendent and principal contracts and appointments, per 23-IB28, 21-IB03, and 15-IB01) and less when employee privacy interests dominate (per 23-IB30 on discipline, 22-IB27, 02-IB12, 98-IB05).

The Board's counsel said the suspension involved a non-superintendent employee, but did not provide a sworn affidavit. Judicial Watch v. Univ. of Del. (Del. 2021) requires sworn evidence to meet the burden of proof under § 10005(c), so the AG could not accept the unsworn statement on the contract issue. The AG ordered remediation under § 10005, with invalidation reserved for the courts (Ianni (Del. Ch. 1986), Chem. Indus. Council (Del. Ch. 1994)).

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(a) (agenda requirement)
29 Del. C. § 10004(b) (permissive executive sessions)
29 Del. C. § 10004(b)(9) (personnel matters)
29 Del. C. § 10004(c) (open meeting voting)
29 Del. C. § 10004(e) (executive session notice)
29 Del. C. § 10005 / § 10005(a) / § 10005(c) / § 10005(e) (petition procedure)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007)
Lechliter v. Del. Dep't of Natural Res. & Envtl. Control, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
Del. Op. Att'y Gen. 23-IB28, 2023 WL 6798839 (Oct. 3, 2023)
Del. Op. Att'y Gen. 23-IB30, 2023 WL 8125409 (Nov. 8, 2023)
Del. Op. Att'y Gen. 22-IB27, 2022 WL 4263282 (Aug. 19, 2022)
Del. Op. Att'y Gen. 21-IB03, 2021 WL 961062 (Feb. 25, 2021)
Del. Op. Att'y Gen. 15-IB01, 2015 WL 3919060 (Jun. 12, 2015)
Del. Op. Att'y Gen. 15-IB10, 2015 WL 8772946 (Dec. 1, 2015)
Del. Op. Att'y Gen. 12-IIB13, 2012 WL 6858971 (Dec. 21, 2012)
Del. Op. Att'y Gen. 10-IB03, 2010 WL 1048826 (Mar. 10, 2010)
Del. Op. Att'y Gen. 02-IB12, 2002 WL 1282812 (May 21, 2002)
Del. Op. Att'y Gen. 98-IB05, 1998 WL 648714 (July 6, 1998)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 24-IB25

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB25

June 26, 2024

VIA EMAIL

The Honorable Madinah Wilson-Anton

The Honorable Paul Baumbach

The Honorable Cyndie Romer

The Honorable Sophie Phillips

The Honorable Eric Morrison

House of Representatives

Delaware General Assembly

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

Dear State Representatives Wilson-Anton, Baumbach, Romer, Phillips, and Morrison:

We write in response to your correspondence alleging that the Christina School District Board of Education violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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. We find that the Board violated FOIA at its March and May 2024 Board meetings as follows.

BACKGROUND

At the May 24, 2024 Christina School District Board of Education meeting, the Petition asserts that the Board held an unannounced executive session to discuss Robert's Rules of Order, which is not a permitted reason for an executive session. You also contend that a vote of no confidence in the superintendent was held at the May meeting without proper notice on the agenda. At the March 2024 Board meeting, you state that the Board discussed and voted to rescind a contract and to suspend the superintendent without appropriate public notice on the meeting agenda. In addition to these allegations of FOIA violations, the Petition also alleges that the Board failed to follow the Board's policies, Robert's Rules of Order, and other authority in various instances.

On June 7, 2024, the Board's counsel replied to the Petition on the Board's behalf ("Response"). In its Response, the Board addresses the FOIA allegations, noting that the violations of other legal authority, including a claim that a meeting recording did not record a vote due to a lapse in the audio recording, are not claims under the FOIA statute appropriate for determination in this process. The Board concedes two violations occurred: 1) an executive session at its May Board meeting to address parliamentary procedure was not noticed and was called for an improper purpose; and 2) the Board's failure to notice its vote of no confidence in the superintendent in the May meeting agenda.

Regarding the Petition's third claim that the contract rescission considered at the March 12, 2024 Board meeting was not appropriately noticed, the Board argues that its notice in the agenda was appropriate, as it noticed an executive session in the "Personnel Matters" section entitled: "[b]ased on actions, to reverse an Administrative contract (Employee 23-38) extension from June 30, 2025 through June 30, 2026 as voted on at the December 13, 2023 meeting." [1] The Board states that the "recording makes clear that the contract rescission concerned a sensitive employee matter involving a particular employee and contended acts or omissions by that employee." [2] Regarding the fourth claim that the agenda did not properly notice the suspension of the superintendent, the Board's counsel asserts that it is not accurate to state that the Board suspended the superintendent at that meeting. The Board points to the executive session item under "Personnel Matters" in the March 12, 2024 agenda, which states: "[d]iscussion and action upon Administrative recommendation in matter concerning employee 23-38." [3] The Board argues again that the identity of the employee subject to this action is not appropriate for disclosure, stating "[a]n employee's right to privacy with regard to discipline exceeds the public's rights of transparency." [4]

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA. [5] In certain circumstances, a sworn affidavit may be required to meet that burden. [6] In this case, the Petition alleges several violations, two of which are conceded by the Board.

First, the Board concedes that its May 7, 2024 executive session to address parliamentary procedure was a violation of FOIA. We agree. FOIA does not permit an executive session without notice in these circumstances, and it does not allow a public body to hold an executive session to discuss a parliamentary procedure issue. [7] Second, the Board acknowledges that the vote of no confidence in the superintendent did not appear on the agenda in violation of FOIA. FOIA requires that a meeting agenda include "a general statement of the major issues expected to be discussed at a public meeting," and we agree that the lack of notice for this vote of no confidence in the superintendent constitutes a second violation. [8]

We next consider the claims alleging the executive session items regarding the rescission of a contract and a vote to suspend the superintendent were inadequately noticed on the agenda. When considering the sufficiency of the notice provided in an agenda, we evaluate the agenda in its totality. [9] These two items appear in the executive session portion of the agenda under "Personnel Matters." The notice required for executive session discussions is less stringent; for example, the descriptor, "Legal & Personnel," has been found adequate. [10] The descriptions in the March meeting agenda satisfy FOIA's requirement for public notice of these two executive sessions, and we find that no violation occurred in this regard. [11]

The notice for open session items following an executive session require more scrutiny. Although discussions of certain authorized matters are permitted in executive session, "all voting on public business must take place at a public meeting and the results of the vote made public." [12] An agenda must include a general statement of the major items planned to be discussed. 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]

In this case, the executive sessions were held for discussing "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." [15] The personnel exception for an executive session "was intended to protect the personal privacy of individual employees, and applies only when the discussion reflects on an individual's 'competence or ability.'" [16] "This exception reflects the balance between the public interest in open discussion of governmental matters and the rights of employees to have their work performance considered in private." [17] In the context of evaluating the requisite notice for an open session item following an executive session for a personnel matter, the interest in public disclosure must be weighed against the reason for the executive session, here, the employees' rights to have their job performance or other personnel matters considered in private.

In this instance, the open session votes to rescind the employee contract and to take administrative action against this employee, which followed executive sessions on the same subjects, were entitled "Administrative Recommendations" and considered under the "Action, Discussion & Information Items" section of the agenda. [18] The Board's meeting recording reveals that this administrative action involved a vote to suspend an employee. [19] Disciplinary actions taken against an employee present a significant privacy interest, which we do not believe is outweighed by the public interest. [20] As such, we find no violation with regard to the notice provided in the agenda for this vote on the suspension of an employee.

Open session items affecting employee contracts may require a different result. For example, this Office has previously found a significant public interest in contracts and appointments of superintendents and high school principals, requiring more specific public notice of the open session items involving these types of matters. [21] In this case, the Board did not provide sufficient statements under oath or other evidence about this contract. [22] Without further evidence regarding whether this contract involved a position subject to significant public interest, this Office cannot determine whether the agenda's open session item constitutes adequate notice. As the Board has the burden to demonstrate its compliance with FOIA, we must conclude a violation of FOIA occurred regarding the notice of the contract rescission in the March agenda.

Finally, the Petition alleges violations of other legal authority outside of the FOIA statute. This Office's authority is limited to determining violations of the FOIA statute. [23] As such, the remaining claims in the Petition are not appropriate for consideration in this Opinion.

Having found violations of FOIA occurred, we consider the appropriate remediation to recommend. Section 10005(a) states that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate a public body's action, or to impose other relief, is reserved for the courts. [24] 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." [25] In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." [26]

In this case, we recommend that the Board reconsider those noncompliant items, including the ratification of any votes, at a future public meeting held in strict accordance with FOIA. If the contract rescission involves a superintendent, principal, or staff in which the public interest is of similar significance, the Board is recommended to discuss and ratify the open session item on the contract in a future public meeting after providing appropriate public notice with greater specificity.

CONCLUSION

Based on the foregoing, we conclude that the Board violated FOIA by holding an unannounced executive session for an improper purpose and by failing to provide adequate notice in its March and May meeting agendas for the votes regarding the contract rescission and vote of no confidence. We find no violation with respect to the notice of the executive sessions on the March Board meeting agenda and the notice for the vote on the employee suspension on this same agenda.

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, Attorney for the Christina School District Board of Education

[1] Response, p. 5.
[2] Id., p. 6.
[3] Id.
[4] Id., p. 7.
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] 29 Del. C. § 10004(b), (e).
[8] 29 Del. C. § 10002(a).
[9] Del. Op. Att'y Gen. 23-IB28, 2023 WL 6798839, at 3 (Oct. 3, 2023).
[10] See, e.g., O'Neill v. Town of Middletown, 2007 WL 2752981, at 7 (Del. Ch. Mar. 29, 2007); Del. Op. Att'y Gen. 12-IIB13, 2012 WL 6858971, at 4 (Dec. 21, 2012); Del. Op. Att'y Gen. 10-IB03, 2010 WL 1048826, at 2 (Mar. 10, 2010).
[11] See also Del. Op. Att'y Gen. 15-IB10, 2015 WL 8772946, at 2 (Dec. 1, 2015).
[12] 29 Del. C. § 10004(c).
[13] Lechliter v. Del. Dep't of Natural Res. & Envtl. Control, 2017 WL 2687690, at 2 (Del. Ch. Jun. 22, 2017) (citation omitted).
[14] Id.
[15] 29 Del. C. § 10004(b)(9).
[16] Del. Op. Att'y Gen. 98-IB05, 1998 WL 648714, at 2 (July 6, 1998).
[17] Del. Op. Att'y Gen. 22-IB27, 2022 WL 4263282, at 2 (Aug. 19, 2022); Del. Op. Att'y Gen. 02-IB12, 2002 WL 1282812, at 2 (May 21, 2002).
[18] Response, p. 6.
[19] Christina School District Board of Education Meeting, March 12, 2024.
[20] Del. Op. Att'y Gen. 23-IB30, 2023 WL 8125409, at 4 (Nov. 8, 2023).
[21] See, e.g., Del. Op. Att'y Gen. 23-IB28, 2023 WL 6798839, at 3 (Oct. 3, 2023); Del. Op. Att'y Gen. 21-IB03, 2021 WL 961062, at 3 (Feb. 25, 2021); Del. Op. Att'y Gen. 15-IB01, 2015 WL 3919060, at 4-5 (Jun. 12, 2015).
[22] Response, p. 6. Judicial Watch, Inc., 267 A.3d at 1010-11.
[23] 29 Del. C. § 10005(e).
[24] 29 Del. C. § 10005.
[25] Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 7 (Del. Ch. Aug. 29, 1986).
[26] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *15 (Del. Ch. May 19, 1994).