Recently, I became concerned regarding some technical aspects of 2 meetings held by our board. In total 3 items raised concerns to the level of compelling me to seek confirmation that our board acted within the law, both letter and spirit. For determination on the letter of the law, the Delaware AG office provides a complaint process that will answer an open question with regards to the letter of the law. I will summarize my concerns for the August 4th, 2015 executive session (that I was unable to attend due to a work meeting out of state) to discuss the “competencies and abilities” of the superintendent (2 concerns) and the September 17th meeting to approve the contract for the acting Superintendent (1 concern)
August 4th concerns:
First concern: A previous FOIA opinion here: http://opinions.attorneygeneral.delaware.gov/2015/06/12/15-ib01-061215-foia-opinion-letter-to-mr-weller-re-foia-complaint-concerning-the-appoquinimink-school-board/ appears to suggest that discussions of competencies and abilities are not completely shielded from the public thusly:
While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.” Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013). Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance. Id., at *18. Thus, we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent. Id.
To be certain CSD was protected here, I asked the AG to clarify the board acted properly by shielding the public on August 4th, and the AG opined that CSD had indeed acted properly here. Good news!
Second concern: the board held an illegal vote in executive session. Te AG opined that CSD did violate the FOIA statute. To be clear, it is illegal to vote in executive session.
On September 17th, the board held a public meeting with an agenda item to approve the contract for the acting Superintendent.
Concern: While I was confident the item was noticed properly, I grew concerned when the actual contract to be voted on was repeatedly modified in the hours (less than 6) before the meeting. While the agenda item was never modified, the actual contract was. My concern was that this could create a violation because the public, by virtue of these last minute manipulations would be unable to effectively know that we were voting on a $743/day contract ($193,180/year rate) for our acting superintendent. The AG opined that CSD did not violate FOIA here because the item was noticed properly despite the repeated contractual iterations being circulated to board members and the posted action item documents that continued to change up until approximately 3 hours before the meeting itself. This item is more bothersome to me. While I am thrilled that CSD receives legal insulation from the AG opinion here, I am not sure the spirit is intact or that the public wins. A Pyrrhic victory of sorts, in my opinion. I hope board leadership can better address this approach going forward and try to be more collaborative and transparent with our constituents.
Ultimately, the AG opined that CSD acted properly in 2 of 3 raised concerns which is good for the board legally, so that makes me happy from a legal standpoint. Ultimately, the overall impact of not being more forthright on the acting Superintendent’s contract is an issue that may have an impact in the future in my opinion despite the AG’s technical opinion and I hope that board leadership will share information in the future in a manner that could eliminate the need to ask the AG to rule on questionable behaviors.
Here is the entire opinion to my FOIA complaints:
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 15-IB10
December 1, 2015
John M. Young
Re: August 12 and September 18 FOIA Complaints Concerning the Christina School Board
Dear Mr. Young:
The Delaware Department of Justice (“DOJ”) received your emails alleging violations by the Christina School Board (“CSB”) of the open meetings provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”). We treat these emails jointly as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the “Petition”). 29 Del. C. § 10005(e). While we find that a violation has occurred with respect to the executive session of the August 4, 2015 meeting, the CSB meetings held on August 4, 2015 and September 17, 2015 otherwise complied with FOIA.
On August 4, 2015, the CSB held its regularly scheduled meeting. The only substantive topic noticed for discussion was: “B. Personnel Matters Include a Discussion of the Superintendent’s Competencies and Abilities [See 29 Del C 10004 (b)(9)].” According to the agenda and minutes of the meeting, the entirety of the CSB’s discussion was held in executive session. The CSB did not hold a vote regarding the discussion of the superintendent during the meeting. However, while in executive session, the CSB held a vote to “recommended that [the] Executive Session meeting not be recorded.”
On September 17, 2015, the CSB held its regularly scheduled meeting. The notice and agenda for the meeting were originally posted on September 10, 2015. The CSB President emailed the agenda to the Board members around 3:50 p.m. on the day of the meeting, which was scheduled for 6:30 p.m. Attached to the email message was a final revised version of the proposed contract for the superintendent position. The agenda itself was not revised prior to the meeting.
POSITION OF THE PARTIES
- The Petitions
We received your first Petition by email on or about August 10, 2015. Your August Petition requests that we determine whether the CSB violated FOIA when it discussed the superintendent’s competency and abilities in executive session. You also raise your concern that the CSB violated FOIA by holding a vote in executive session to prevent a board member from making an audio recording of the meeting.
We received your second Petition on or about September 18, 2015. Your September Petition requests that we determine whether the CSB violated FOIA by distributing a revised version of the superintendent’s contract less than six hours in advance of the CSB’s September meeting.
- The CSB’s Response
We received the CSB’s responses on or about August 20, 2015 and October 6, 2015, respectively. The CSB denies that it violated FOIA when it discussed the superintendent’s competency and abilities in executive session during the August meeting. According to the CSB, this practice is expressly permitted by 29 Del. C. §10004(b)(9). The CSB also confirmed that it only discussed the superintendent’s competencies and abilities during the executive session portion of the meeting. The CSB conceded that it voted on the recording issue during executive session and agreed to refrain from taking any votes in executive session in the future.
Regarding the September 17, 2015 meeting, the CSB denies that circulating a revised version of the superintendent’s contract within hours of the school board meeting violated FOIA. According to the CSB, the agenda was not altered and FOIA does not require the advance posting of documents to be voted upon.
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed [for a permitted reason].” Pursuant to 29 Del. C. § 10004(b), public bodies may “call for an executive session closed to the public” only for purposes permitted by the statute. For example, section 10004(b)(9) permits public bodies to meet in executive session to discuss “[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.” However, a public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.”
The Petitions require us to determine whether the CSB’s August and September meetings violated FOIA’s open meeting requirements.
- The August 4, 2015 Meeting
We reviewed the notice, agenda and minutes for the August 7, 2015 meeting and conclude that the CSB did not violate FOIA when it discussed the competency and abilities of the superintendent in executive session. Section 10004(b)(9) of FOIA permits a public body to meet in executive session to discuss the names, competency and abilities of individual employees. According to the CSB, the superintendent is considered an employee of the school district. Accordingly, the CSB’s discussion of the superintendent’s competency and abilities was a proper topic for an executive session discussion.
We do not agree that Attorney General Opinion 15-IB01 is controlling with respect to this matter. That opinion dealt with the narrow issue of whether a school board may discuss a superintendent’s competency and abilities in executive session where those matters are intertwined with the deliberations and vote to approve the renewal of that superintendent’s employment contract. The determination is limited to the unique factual circumstances of that case and our office will not find a FOIA violation has or is about to occur simply because a school board discusses a superintendent’s competency or abilities in executive session. School boards should be able to discuss the competencies and abilities of all of their employees, including superintendents, in executive session, and may do so within FOIA as long as those discussions are severed from express discussions regarding renewal of a superintendent’s contract.
However, we find that the CSB violated FOIA when it “recommended that [the] Executive Session meeting not be recorded” while in executive session. Pursuant to 29 Del. C. §10004(c), “all voting on public business must take place at a public meeting and the results of the vote made public” (emphasis supplied). “Public business” is broadly defined as “any matter over which the public body has supervision, control, jurisdiction or advisory power.” The CSB’s vote regarding its internal meeting procedures is “public business” because it relates to a matter over which the CSB has supervision, control, jurisdiction or advisory power. Accordingly, any vote regarding the manner in which the Executive Session was to be recorded should have been held during the public portion of the meeting.
- The September 17, 2015 Meeting
The Petition alleges that the CSB violated FOIA because the CSB president emailed a final revised version of the superintendent’s contract to board members less than six hours prior to the CSB’s September meeting. The Petition does not allege that the notice or agenda was revised less than six hours prior to the meeting and we find no evidence that this occurred.
We disagree that the CSB violated FOIA when it circulated a copy of the superintendent’s contract within hours of the September board meeting. The CSB posted a timely notice of the meeting and the agenda, which were sufficient to the public on notice of the CSB’s intention to discuss the superintendent’s contract. Nothing more was required.
We conclude that the CSB did not violate FOIA when it discussed the district superintendent’s competency and abilities in executive session at the August 2015 board meeting. The CSB did violate FOIA when it held a vote in executive session at the August meeting. However, we find that the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded. Therefore, no remediation is required. Finally, we conclude that the CSB did not violate FOIA’s meeting notice requirements when it circulated a copy of the superintendent’s contract less than six hours prior to the September 2015 board meeting.
Very truly yours,
/s/ Katisha D. Fortune
Katisha D. Fortune
Deputy Attorney General
/s/ Aaron R. Goldstein
Aaron R. Goldstein, State Solicitor
 Because of the fact-specific questions raised in the Petition, we briefly summarize our understanding of the relevant facts. Please note that we do not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body.
 29 Del. C. § 10004(a).
 29 Del. C. § 10004(c).
 See 29 Del. C. §10004(e)(2)-(5) (detailing notice requirements for public body meeting notices and public body meeting agendas); Del. Op. Att’y Gen. 12-IIB13 (Dec. 21, 2012) (“FOIA requires our public bodies to give ‘public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof.’ FOIA requires that any such ‘notice’ include an agenda notifying the public of important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.”) (internal citations omitted).