May 20, 1998 New Castle County - Civil Division Mr. D. Wood 330 Union Church Road Townsend, DE 19734 RE: Freedom of Information Act Complaint Against Appoquinimink School District Dear Mr. Wood: By letter dated April 14, 1998 (received by this Office on April 20, 1998), you alleged that the Appoquinimink School District ("the School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by holding a retreat workshop in executive session on April 4, 1998 where public business was discussed. By letter dated April 21, 1998, we asked the School District for its response to your complaint. By letter dated May 1, 1998, Superintendent Marchio confirmed that the Appoquinimink Board of Education held a retreat workshop on April 4, 1998 "to do creative thinking and planning for the school district." The minutes of the April 7, 1998 meeting of the School Board state that the following matters were discussed at the retreat: (1) the consequences of a failed referendum; (2) a year-round school schedule; (3) the need to develop a comprehensive vocational and career development program and tracking system; (4) reporting requirements for the human resource department; (5) raising standards for athletic participation; (6) recruitment; (7) electrical rates; (8) common terms for curriculum, instruction and policy; and (9) review of grants. Mr. Marchio states in his letter that "no official action was taken by the board" at the April 7, 1998 meeting on the basis of his report of the matters discussed at the April 4 retreat. He further stated: "The district did err, however, in how the workshop was posted in the newspaper. It should have been posted as a workshop open to the public. Instead, it was posted as a closed executive session." According to Mr. Marchio, "this was not done intentionally, and I can assure you that future workshops will be advertised correctly. . . . The posting and advertising of meetings is a responsibility of the district office administration not the board of education, and the error that has occurred here clearly belongs to me. I can assure you that this error will not be repeated." STATUTORY PROVISIONS Section 10004 of FOIA requires that every meeting of a public body "shall be open to the public except those closed" for a purpose authorized by statute for executive session. Although the notice FOIA authorizes a public body to go into executive session to discuss personnel matters (Section 10004(b)(9)), or to discuss pending or potential litigation (Section 10004(b)(4)), at the April 4, 1998 retreat the School Board did not in fact discuss legal and personnel issues but rather discussed other matters of public business.
OPINION The School District has admitted that it violated FOIA by giving improper notice of its April 4, 1998 retreat. By stating in the notice that the retreat would be "a closed executive session," the School District deprived the public of an opportunity to attend and speak out on matters of important public interest. It is irrelevant whether any "official action" was taken at the retreat. The open meeting law "applies to meetings called to discuss public business as well as to meetings called to take action on public business." The News Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977) (Brown, V.C.). Whether the error in the posting of the notice was the fault of the district office administration or the board of education is also irrelevant. The important point is that a public body held a meeting to discuss matters of important public interest; the public not only was not invited, but was discouraged from attending by noticing the meeting as an executive session. If the board relies on the district office administration to post notice, and that notice is defective, then the meeting of the board was in violation of law and may be deemed invalid. As for remediation of this violation of law, we do not believe that it would be appropriate, under the circumstances, to direct the School Board to meet again. As Mr. Marchio points out, the board members "gave up a Saturday of their own time to better fulfill their responsibilities as board members." Moreover, since the School District does not appear to have taken any action on the matters discussed at the retreat, presumably the public will have a further opportunity for input before the School District takes any action. If, however, the School District were to take action on any of the matters discussed at the retreat, the School District would have to give notice to the public and an opportunity to comment at a public meeting before taking action. Conclusion For the foregoing reasons, we determine that the School District violated FOIA by: (1) stating in the posted notice that the retreat workshop would be held in executive session, thereby conveying the message to the public that they could not attend; and (2) meeting in executive session for a purpose not authorized by law. We do not feel that any remediation is necessary, however, for two reasons. First, at the next meeting of the School District on April 7, 1998, Mr. Marchio reported on the matters discussed at the retreat workshop. Since that meeting was publicly noticed, the public had an opportunity to comment. Second, the School Board did not take any action based on what happened at the retreat workshop. While we agree with the School District that workshops can be "useful and productive," they should be noticed and open to the public unless the topic to be discussed falls within a statutorily authorized ground for executive session. The School District has represented "that future workshops will be advertised correctly." The School District is on notice that the requirements of the open meeting law must be strictly followed in the future. Very truly yours, W. Michael Tupman Deputy Attorney General APPROVED: __________________ Michael J. Rich State Solicitor cc: The Honorable M. Jane Brady, Attorney General Keith R. Brady, Chief Deputy Attorney General Tony J. Marchio, Superintendent Chrystyna Lafferty, Opinion Coordinator