October 6, 2003
Kent County - Civil Division (739-7641)
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
RE: Freedom of Information Act Complaint Against Woodbridge School District
Dear Mr. Kramer:
On August 18, 2003, we received your letter alleging that the Woodbridge School District ("the School District") violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), by not providing timely notice to the public that the School District would approve a change order to increase the cost of a construction contract.
By letter dated August 20, 2003, we asked the School District to respond to your complaint within ten days. We granted an extension of time to accommodate the vacation of the School District's counsel, and received the School District's response on September 15, 2003.
You allege that at the School District's August 5, 2003 meeting, the "Superintendent requested that another item be added" to the agenda: a modification to increase the cost (by $30,373) of the contract for the construction of a middle school addition. You further allege that the School District approved the change order " even though "Barry Cooper, Supervisor of Administrative Services, stated that item was not something that had to be rushed."
The School District responds that it did not became aware of the change order until the day of the August 5, 2003 meeting, when it received a change order request form signed by the architect and one of the subcontractors. The School District contends that it could not have deferred discussion about the change order until a later date because of the construction schedule. The School District acknowledges, however, that "the work could have been completed at a later date, even after the building was occupied" and that work covered by the change order did not begin until August 12, 2003 and "is still in progress as of the date of this response."
FOIA provides that a public body shall give notice to the public and post an agenda "at least 7 days in advance" of a public meeting but "the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body's meeting." 29 Del. C. § 10004(e)(2).
FOIA provides that "[w]hen the agenda is not available as of the time of the initial posting of the public notice it shall be added at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." Id. § 10004(e)(5).
FOIA provides two distinct methods to amend an agenda. First, FOIA allows a public body to change an agenda "to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body's meeting." 29 Del. C.§ 10004(e)(2). Second, FOIA allows a public body to amend an agenda when it "is not available as of the time of the initial posting of the public notice" so long as it is added "to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." Id. § 10004(e)(5).
In Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), we determined that the Cape Henlopen School District properly amended the agenda during a meeting to include a motion to hire locally funded teachers to reduce class size. It was apparent from the minutes of the meeting that the School District and the public engaged in a vigorous discussion of the agenda item, "Class Sizes and Enrollment," and the discussion progressed naturally into the related subject of teacher salaries. We cautioned that if "a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the item arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation." At some point, however, "the issues may so far depart from the issues noticed on the agenda that they are better reserved for the next meeting of the public body so that the public will have adequate notice."
The contract change order did not arise at the August 5, 2003 meeting of the School District as a natural extension of public discussion about a related matter noticed in the agenda. The School District contends that the change order issue "arose" at the meeting by way of a motion to add the issue to the agenda. By that circular logic, there would be no limits on what business can be discussed at the meeting of a public body, so long as the agenda provided that it was subject to change. We have previously cautioned that Section 1000(4)(e)(2) of FOIA must be construed narrowly "lest the exception swallow the rule." Att'y Gen. Op. 03-IB18 (July 31, 2003) (and earlier opinions cited therein).
FOIA contemplates that matters of public business may not be known at the time of the original posting of the agenda, and allows items to be added "at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." 29 Del. C. § 10004(e)(5). The School District may not have received notice of the change order until the day of the August 5, 2003 meeting, but it did not avail itself of this exception by posting an amended agenda six hours in advance. Compare with Att'y Gen. Op. 02-IB22 (Sept. 13, 2002) (the "Executive Committee sufficiently explained the reason for amending the agenda for the July 16, 2002 meeting and posted that agenda within the time permitted by FOIA"). (1)
FOIA also provides that the notice requirements of FOIA "shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, . . . ." 29 Del. C. § 10004(e)(1). There is nothing in the record to support a conclusion that any delay in the approval of the change order was of sufficient urgency to waive the notice requirements of FOIA. See Att'y Gen. Op. 97-IB18 (Sept. 2, 1997) (personnel dispute with the town police chief did not threaten the public peace, health or safety"). The School District admits that the work covered by the change order did not start until August 12, 2003 (seven days after the School District voted to approve the change order) and is still ongoing as of September 15, 2003.
"An agenda serves the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, and so that members of the public can decide whether to attend the meeting and voice their ideas or concerns." Att'y Gen. Op. 97-IB20 (Oct. 20, 1997). We do not believe that the legislature intended to allow public bodies to have the option to add any item of public business to the agenda at a meeting simply by stating in the agenda that it may be subject to change. We reject the School District's interpretation Section 10004(e)(2) of FOIA as contrary to the statutory scheme as a whole. Such an interpretation would render Section 10004(e)(5) of FOIA superfluous, contrary to well established rules of statutory construction. "In determining legislative intent in this case, we find it important to give effect to the whole statute, and leave no part superfluous." Keller v. Harford Mutual Insurance Co., Del. Supr., 672 A.2d 1012, 1016 (1996) (citing 2A Norman & Singer, Sutherland Statutory Construction § 46.06 (1995)).
For the foregoing reasons, we determine that the School District violated the open meeting requirements of FOIA by failing to give timely notice to the public that it would discuss a change order to a construction contract. We recognize that the business of government does not stop seven days before a public meeting, but FOIA provides flexibility for a public body to amend the agenda up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.
As remediation, we direct the School District to notice a meeting within thirty days of the date of this opinion -- in strict compliance with FOIA -- to consider the change order issue anew. We also ask the School District's counsel to report back to our office in writing within ten days after remediation is made.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
James B. Griffin, Esquire
Phillip G. Johnson
1. FOIA provides for 24 hours' notice for a special meeting, "defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special . . . meeting shall include an explanation as to why [the normal 7 days' notice] could not be given." 29 Del. C. § 10004(e)(3). The notice requirements for special meetings apply to the original posting of the agenda and not (as here) where the public body has already posted the agenda for a meeting within the seven-day rule. In the latter situation, the public body is amending a pre-existing agenda, and Section 10004(e)(5) governs.