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 uses electronic voting tools
Many bodies have moved to BoardDocs, Diligent, OnBoard, or similar platforms that let members register votes from a tablet or laptop. Those tools are FOIA-compatible if used correctly. The legal requirements are simple:
- Announce the question being voted on. Even if the motion is in BoardDocs, read it aloud or display it on a public-visible screen.
- Display or announce results in real time. Either project the vote tally and member-by-member result on a screen the public can see, or have the chair call out the result ("motion carries, 6 to 1, with Member Smith voting no") immediately after the vote.
- Keep the per-member vote in the minutes. Section 10004(f) requires recording each vote by individual member. The minutes are the long-term record.
What you cannot do: take the vote silently on personal devices and move on without telling the audience the outcome. That is a secret ballot, even if the underlying device produces an audit trail. The audit trail satisfies you, not the public.
If your body has been doing this, the practical fix is the same one the AG recommended here: at a future meeting, ratify the questioned votes by audible roll call. Take the underlying matter back up, take a new vote in the open, and record it.
If you are a parent, resident, or local journalist watching a school board
Two practical things to track:
- Watch how votes get announced. A meeting where the chair says "all in favor" and the audience cannot see the actual count is a problem. So is a meeting where members tap their tablets and the chair moves on. Note the time stamp, the motion language if you can hear it, and which device they appear to be using.
- Petition promptly. Section 10005(e) lets any citizen petition the AG. The AG generally applies a six-month rule for FOIA petitions (Op. 17-IB31), so do not wait. The petition can be a simple letter or email; you do not need a lawyer.
What you can ask for: a finding of violation, a recommendation that the Board re-do the votes by open roll call, and a referral to the Court of Chancery if specific decisions need to be unwound. The AG cannot itself void the votes; that is a judicial remedy.
If you handle counsel work for a Delaware school district
Three points to brief your client. First, computer-assisted voting is fine if accompanied by clear public announcement. Pair the platform with a "chair calls out the result" practice and you are FOIA-compliant. Second, when a petition is filed, respond. Default findings of violation are common when the Board does not engage. Third, ratification by future open vote is the AG's standard remedy here. Do not over-resist a ratification recommendation; it is far less costly than a Court of Chancery action.
If your concern is the procedural-fairness angle (the ignored point of order)
The AG correctly noted that Robert's Rules of Order are not part of Delaware FOIA. If you have a complaint about parliamentary procedure or fair treatment of dissenting members, the channels are: (1) the Board's own bylaws and rules of procedure, often contain internal grievance mechanisms; (2) the Department of Education's school-district oversight functions if there is a pattern of dysfunction; or (3) electoral accountability at the next school board election. The FOIA petition process will not help with parliamentary issues that do not also involve open-meeting violations.
Common questions
Q: Can a Delaware public body ever take a secret ballot?
A: No. Section 10004(c) says voting on public business must take place at a public meeting "and the results of the vote made public." Op. 19-IB63 found a violation when a board took an open-meeting vote by paper secret ballot. Computer voting without public announcement is the same problem in a different form factor.
Q: Does each individual member's vote have to be recorded?
A: Yes. Section 10004(f) requires meeting minutes to include "a record, by individual member . . . of each vote taken and action agreed upon." Aggregate tallies (e.g., "passed 5-2") are insufficient if the per-member breakdown is not in the minutes.
Q: What is "ratification" and why is it the recommended fix?
A: Ratification means re-doing the action correctly so it has a clean foundation. Here, the Board would put the same questions back on a future agenda, hold an open roll-call vote, and record each member's position. If the Board still has the same composition, that effectively rehabilitates the earlier action without invalidating decisions other parties have already relied on.
Q: What if the Board refuses to ratify?
A: A citizen could file an action under § 10005(b) in Superior Court (or the Court of Chancery for invalidation under § 10005(a)) within 60 days. The Court has authority the AG lacks. Practically, school boards usually accept the AG's recommendation rather than face litigation.
Q: Why didn't the AG address the point of order?
A: Section 10005(e) gives the AG authority to determine "whether a violation of [FOIA] has occurred." Parliamentary procedure (whether the chair correctly handled a point of order under Robert's Rules) is governed by the Board's own rules, not FOIA. The AG declined to expand its jurisdiction into procedural matters.
Q: Does a board member have a right to file a petition?
A: Yes. Section 10005(e) gives "[a]ny citizen" the right to petition. A board member who believes the Board has violated FOIA can use the same process. Practically, board members usually have the political and procedural avenues to address violations internally before resorting to a petition.
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. When the public body fails to respond at all, the AG generally finds a violation if the petition's allegations, taken as true, would establish one. The Christina Board's silence here was decisive. Filing a substantive Response with a sworn affidavit would have been the right move.
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