Delaware Department of Justice
Attorney General
Kathy Jennings

95-IB37: RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Civil Division-New Castle County
March 8, 1995
Del. Op. Atty. Gen. 95-IB37 (Del.A.G.), 1995 WL 794514
(finding school board members’ attendance at informal “breakfast meeting” violated open meeting laws and warning school district that 2 board members who planned to attend an informal, administrative meeting with the superintendent and other administrators, while not a quorum of the 5-member board, may still constitute a quorum of a school board subcommittee if those 2 members expressly or impliedly make a recommendation to the full board)
Ms. Kathleen M. Morozowich
R.D. 2 Box 166
Bridgeville, DE 19933

RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Dear Ms. Morozowich:
This is the decision on the above referenced complaint.
In your complaint dated February 2, 1995 you stated that the Woodbridge Board of Education (“The Board”) “once again met in closed executive session for a breakfast meeting” at 7:00 a.m. Tuesday January 31, 1995 in violations of 29 Del. C. Chapter 100 (“The Act”.) You stated further that the closed session was held with invited guests of employees of the District for purposes of discussing “informally any concerns” each staff may have relative to “things happening in their building…”. Id. You stated that this meeting was therefore in violation of the Delaware Open Meeting Law 29, Del. C. Chapter 100, and attached thereto minutes of the January 31, 1995 Board Meeting.
Finally, you stated that “the breakfast meeting” began with the Board President announcing to all staff members present that you had previously filed an open meeting law complaint with the Attorney General’s Office and that the Board would nevertheless continue to hold these breakfast meetings.
In the Board’s response through counsel dated February 24, 1995 stated that it had not had the opportunity to review the Attorney General’s January 23, 1995 previous decision with Dr. Robert C. Sutton, Superintendent and bring the facts outlined in our January 23, 1995 opinion to his attention.
For the reasons stated below, we find that the Board violated the provisions of the Act for reasons outlined in our previous decision. Attached as exhibit “A” is the Attorney General’s January 23, 1995 decision which outlines that the Board’s practice of holding breakfast meetings under the terms outlined in your complaint violated the Act. On page three of the decision, the Attorney General’s decision set forth the statutory provisions that were violated. See e.g. 29 Del. C. § 10002(b) and (e). The findings of that decision of the Attorney General are incorporated herein by reference.
As a final note, the Board’s counsel indicated in the Board’s February 24, 1995 response that the “Board has decided not to host future breakfast meetings.” Counsel, however, indicated that if such breakfast meetings are held, the meetings will be chaired by the Superintendent and no more than 2 of the 5 Board Members will be present. Hence, the Board believes that having less than a quorum present that it will be in violation of the Act. The Board’s counsel further concluded that since there will not be a quorum of the members of the Board, it shall not be considered a public meeting under 29 Del C. § 10003(e).
This office offers the Board a word of caution. In the amended definition of “public body” as contained in 29 Del.C. § 10002(a), following the Supreme Courts decision in Delaware SolidWaste Authority v. News Journal Company, Del. Supr., 480 628(1984), the General Assembly made clear that the definition of a public body included “at hoc committees, special committees, temporary committee, advisory board committee, and sub-committee” and included such committees “established by anybody established by the General Assembly of the State of Delaware.” Id. If the Sub-committee of the Board which holds said breakfast meetings makes any formal and informal recommendation to the full district or board, under the provisions of 29 Del. C. § 10002(a) it may be considered a public body under the Act. Simply put, if a quorum of the “sub-committee” is present and expressly or impliedly makes a recommendation to the full board, it is a “public body” under the amended definition of 29 Del. C. § 10002(a).
Although we find the complaint founded, since the District agrees not to hold any future breakfast meetings, coupled with the above cautionary note, no further enforcement action is required pursuant to 29 Del. C. § 10005(e).
John K. Welch
Deputy Attorney General
Michael J. Rich, State Solicitor

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