Can a Delaware school board take votes on iPads or laptops at a public meeting without announcing the result, or do votes have to be open?

Plain-English summary

Connie Merlet attended the July 9, 2024 meeting of the Christina School District Board of Education and watched as the Board took several votes on computers. The audience could not see what was being voted on, what the results were, or how individual members voted. Merlet left the meeting without knowing the outcomes. She also alleged that one Board member tried to raise a point of order and was ignored.

She petitioned the AG. The Board did not respond.

The AG ruled in Merlet's favor on the voting issue. Section 10004(c) of FOIA is direct: "all voting on public business must take place at a public meeting and the results of the vote made public." Section 10004(f) requires meeting minutes to record "by individual member" each vote taken. A vote taken silently on individual computers, with no announcement of result and no transparent record of who voted how, is functionally a secret ballot. Op. 19-IB63 (2019) had already found a violation of FOIA in a similar secret-ballot situation. Combined with the Board's failure to respond, the AG was "compelled to find a violation."

The AG declined to address the Robert's Rules of Order point-of-order claim. Section 10005(e) limits the AG's authority to determining FOIA violations. Robert's Rules are a parliamentary procedure choice, not a FOIA requirement.

For remediation, the AG recommended that the Board "ratify any noncompliant votes from the July 9, 2024 meeting by conducting a roll call verbally in open session at a future public meeting held in strict accordance with FOIA." Court of Chancery cases (Ianni and Chemical Industries Council) reserve actual invalidation of decisions to the courts; the AG can recommend a fix but cannot order one.

What this means for you

If you serve on a Delaware public body that votes using computers or devices

The opinion holds that FOIA requires all voting on public business to take place at a public meeting and the results to be made public, and that a public body cannot take a vote by secret ballot in an open meeting. The Christina Board violated FOIA when it took votes by computer at its July 9, 2024 meeting without informing the audience of the results or how each member voted. The opinion also points to § 10004(f), which requires meeting minutes to record, by individual member, each vote taken and action agreed upon.

If you are a parent, resident, or journalist who saw votes taken without an announced result

The opinion confirms that under § 10005(e) any citizen may petition the AG to determine whether a FOIA violation occurred, and that a vote whose result and per-member breakdown are not made public is a violation. It also shows the limit of the remedy: under § 10005(a) the authority to void an action taken in violation of FOIA is reserved to the Court of Chancery, so the AG could recommend, but not order, a fix.

If your concern is the ignored point of order

The opinion declines to address the Robert's Rules point-of-order claim. It explains that this Office's authority under § 10005(e) is limited to determining FOIA violations, and FOIA does not require compliance with Robert's Rules of Order or address points of order. The AG made no finding on that claim.

Common questions

Q: Can a Delaware public body take a secret ballot at an open meeting?
A: No. The opinion states that FOIA requires all voting on public business to take place at a public meeting "and the results of the vote made public," and that public bodies cannot take a vote by secret ballot in an open meeting. It relies on Op. 19-IB63 (Nov. 8, 2019), which found a violation when a board voted by secret ballot in open session.

Q: Does each individual member's vote have to be recorded?
A: Yes. The opinion cites § 10004(f), which requires meeting minutes to include "a record, by individual member … of each vote taken and action agreed upon."

Q: What remedy did the AG recommend?
A: The opinion recommends that the Board ratify any noncompliant votes from the July 9, 2024 meeting by conducting a verbal roll call in open session at a future public meeting held in strict accordance with FOIA. It notes that under § 10005(a), the power to void an action is reserved to the Court of Chancery, citing Ianni (Del. Ch. 1986) and Chem. Indus. Council (Del. Ch. 1994).

Q: Why didn't the AG address the point of order?
A: The opinion explains that under § 10005(e) the AG's authority is limited to determining FOIA violations, and FOIA neither requires compliance with Robert's Rules of Order nor addresses points of order, so the claim was not appropriate for consideration.

Background and statutory framework

Open voting requirement. Section 10004(c) of FOIA sets the rule: "All voting on public business must take place at a public meeting and the results of the vote made public." This is a categorical requirement. There is no exception for routine business, for technology, or for member preference. Every vote at a public meeting must be open in form and result.

Per-member minutes requirement. Section 10004(f) lists what minutes must contain. Among the items: "a record, by individual member . . . of each vote taken and action agreed upon." The combination of § 10004(c) and § 10004(f) effectively prohibits secret-ballot voting at open meetings: the vote must be public in real time, and the per-member outcome must be in the long-term record.

Op. 19-IB63 precedent. The 2019 opinion involved a school board that used a paper secret-ballot process to choose a board officer at an open meeting. The AG found a violation. The Christina case follows the same logic with a different technology: voting via computer device with no public announcement is a functional equivalent of secret-ballot voting.

Burden when public body does not respond. Section 10005(c) places the burden on the public body. The opinion found a violation in part because the Board did not respond to the assertion that it failed to make the vote results and per-member votes public, leaving the AG "compelled to find a violation."

Remediation: AG recommends, court invalidates. Section 10005(a) reserves the power to invalidate a public body's action to the Court of Chancery. The AG's role is recommendation, not enforcement. Ianni v. Dep't of Elections (Del. Ch. 1986) said invalidation is "a serious sanction" reserved for cases where "substantial public rights have been affected" and the remedy can be crafted "to protect other legitimate public interests." Chemical Industries Council (Del. Ch. 1994) added that courts consider "adverse consequences upon innocent parties" before invalidating. Ratification at a future open meeting is the AG's standard recommendation when the underlying matter has not produced large reliance interests.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10004 (Open meetings, voting, minutes)
• 29 Del. C. § 10005 (Enforcement)

Cases:

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

Prior AG opinions:

• Del. Op. Att'y Gen. 19-IB63 (Nov. 8, 2019) (paper secret-ballot vote violated FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/08/09/24-ib29-08-09-2024-foia-opinion-letter-to-connie-merlet-re-foia-complaint-concerning-christina-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/08/Attorney-General-Opinion-No.-24-IB29.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 24-IB29
August 9, 2024

VIA EMAIL
Connie Merlet
[email protected]

RE:

FOIA Petition Regarding the Christina School District Board of Education

Dear Connie Merlet:
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 by failing to meet its burden to demonstrate that its votes at the July 9, 2024
Board meeting complied with FOIA.

BACKGROUND
The Petition states that the Christina School District Board of Education used computers
to review information and record votes at its July 9, 2024 Board meeting. You assert that "[s]everal
times during the meeting the Board took votes via computer but did not inform the public what
those votes were or how individual members voted." 1 You state that the Board moved to the next
item, and you left the meeting not knowing the results of these votes. In addition, the Petition
claims that one Board member called for a point of order and the President refused to hear the
point of order, which you believe is a violation of FOIA and Robert's Rules of Order. The Board
did not submit a response to this Petition.

1

Petition.
1

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 In this case, the Petition
makes two claims.
First, the Petition alleges that the Board used computers to vote at the meetings, resulting
in the meeting audience being unable to ascertain the results of several votes and how the
individual members voted. FOIA expressly requires that "all voting on public business must take
place at a public meeting and the results of the vote made public." 4 Public bodies cannot take a
vote by secret ballot in an open meeting. 5 As the Board did not respond to the assertion that it did
not adequately inform the meeting attendees about the results of several votes and how each
member voted, we are compelled to find a violation of FOIA in this regard.
Second, the Petition alleges that the President improperly refused to hear a point of order,
in violation of Robert's Rules of Order. This Office's authority is limited to determining violations
of the FOIA statute. 6 The FOIA statute does not require compliance with Robert's Rules of Order,
nor does it address requirements for points of order. Thus, this claim is not appropriate for
consideration.
Having found a violation 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. 7 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." 8 In determining whether invalidation is
2

29 Del. C. § 10005(c).

3

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

4

29 Del. C. § 10004(c).

5

Del. Op. Att'y Gen. 19-IB63, 2019 WL 6273317, at *2 (Nov. 8, 2019) (finding a violation
of FOIA occurred when a public body took a vote in open session by secret ballot); see also 29
Del. C. § 10004(f) (stating that meeting minutes must include "a record, by individual member …
of each vote taken and action agreed upon").
6

29 Del. C. § 10005(e) ("Any citizen may petition the Attorney General to determine
whether a violation of this chapter has occurred or is about to occur.").
7

29 Del. C. § 10005.

8

Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29,

1986).
2

appropriate, the court will consider the impact of "adverse consequences upon innocent parties."9
In this case, we recommend that the Board ratify any noncompliant votes from the July 9, 2024
meeting by conducting a roll call verbally in open session at a future public meeting held in strict
accordance with FOIA.

CONCLUSION
Based on the foregoing, we conclude that the Board violated FOIA by failing to meet its
burden to demonstrate that its votes at the July 9, 2024 Board meeting complied with FOIA.

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

9

Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL
274295, at *15 (Del. Ch. May 19, 1994).
3