Civil Division – New Castle County
November 2, 1995
Del. Op. Atty. Gen. 95-IB35 (Del.A.G.), 1995 WL 794509
(determining that school board violated FOIA by failing to give adequate notice of intent to interview candidates for high school principal in executive session where board’s agenda referenced only “Personnel”)
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
James D. Griffin, Esquire
Griffin & Hackett, P.A.
Mellon Bank Building, #200
P.O. Box 612
Georgetown, DE 19947
Re: Freedom of Information Act Complaint Woodbridge School District
Dear Mr. Morozowich and Mr. Griffin:
This is the Attorney General’s decision on the above referenced Complaint.
A formal Complaint was initiated by Milton Morozowich by letter dated August 4, 1995 and received by the Attorney General on August 14, 1995. The Complaint alleges several violations of the Freedom of Information Act (“FOIA”) by the Woodbridge Board of Education (the “Board”) in connection with a special meeting of the Board held on July 19, 1995. The Attorney General forwarded the Complaint to the Board on August 15, 1995 and requested that the
Board submit a response within 10 days. The Board’s response was received on August 31, 1995, and forwarded to Complainant for comment. Thereafter, the Attorney General received the Complainant’s reply to the Board’s response on September 20, 1995 and a second response from the Board on September 25, 1995. In answer to the Attorney General’s request for further information, a third response was submitted by the Board by letter dated October 10, 1995.
We have reviewed the above mentioned submissions along with a copy of the agenda for the July 19, 1995 special meeting, minutes of the special meeting and minutes of the executive session of the special meeting. For the reasons set forth below, we find that the Board violated FOIA in that it failed to give adequate notice of its intent to conduct interviews for the position of high school principal. As to all other allegations of the Complaint, we find no violations of FOIA.
1. Failure to list additions/modifications on agenda.
The Complaint first alleges that the agenda for the July 19, 1995 special meeting was deficient in that it did not include language indicating that additions or modifications could be made to it. The Complainant apparently believes that, in the absence of such language, the Board violated FOIA in making additions or modifications to the agenda at the time of the meeting.
The Board contends that FOIA does not require that an agenda include a provision regarding possible changes or additions.
We agree with the Board. FOIA expressly provides that where an agenda is posted with notice of a public meeting, as in this case, such 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 does not limit the ability to make changes to the agenda to cases where the agenda specifically states that it is subject to change. Id. In addition, FOIA defines an agenda as including a “general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor.” 29 Del. C. § 10002(f). Thus, the definition of agenda does not contemplate that an agenda include the language suggested by the Complainant.
Accordingly, we find that the Board did not violate FOIA by allowing changes to the agenda in the absence of language indicating that changes may be made.
2. Gathering in Superintendent’s office.
The Complaint next alleges that the Board violated the open meeting requirement of 29 Del. C. § 10004 in that four of its members met privately in the Superintendent’s office for
approximately 15-20 minutes prior to convening the public meeting. The Complaint does not allege that any particular topics were discussed at this gathering.
The Board does not deny that certain members gathered in the Superintendent’s office prior to the public meeting. The Board explained that members periodically arrive several minutes prior to the beginning of public meetings during which time they may gather in the Superintendent’s office. The Board contends, however, that there was no discussion of or action taken on public business at the gathering in question, and thus the gathering did not constitute a meeting under FOIA.
Given the opportunity to respond to this, the Complainant again does not specifically allege that any public business was discussed or acted upon. Rather, he argues that a meeting occurred simply because there was a “formal or informal gathering of a quorum of the members,” and “[a]ny discussion, or action, which may have occurred,” is in violation of FOIA (claimant’s reply at p. 1, ¶ 2) (emphasis added).
As the Board correctly states, in order to constitute a meeting under FOIA, a gathering of a quorum must be “for the purpose of discussing or taking action on public business.” 29 Del. C. § 10002(e). Based on the record before us, we cannot say that the gathering in question was for this purpose. As stated
above, the Complainant does not allege that any particular public business was discussed or acted upon. In addition, the Complainant does not allege, nor is there anything in the record to indicate, that any action was taken in the public meeting without sufficient discussion which might lead to an inference that such action was discussed prior to the meeting.
Accordingly, we find that there is insufficient evidence to establish that a private meeting of the Board occurred in violation of FOIA.1 However, the Board is advised to discontinue the practice of gathering in the Superintendent’s office prior to public meetings as such gatherings give the appearance that public
business is being conducted in a manner other than in an open and public forum. See, News-Journal co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977) (noting that one purpose of sunshine laws is to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance, and that rarely could there by any purpose to a non-public pre-meeting conference except to conduct some part of the decisional process behind closed doors). Such appearance should be avoided by the Board, particularly since the Board will always have the burden of proving that a gathering of a quorum of its members did not involve public business. 29 Del. C. § 10005(c). See also, Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler, V.C., (Oct. 1, 1990) (burden of establishing what was said or done at gathering asserted to be in violation of FOIA is on public body involved and not on person asserting violation).
3. Discussion of pending litigation in executive session.
The Complaint next alleges that the Board improperly discussed in executive session a lawsuit filed by Complainant against the Board of Education on the grounds that “Pending Litigation” was not listed as a topic on the agenda, nor was it properly added to the agenda at the time of the meeting. The Board contends that discussion of the lawsuit was added to the agenda at the beginning
of the meeting, and such addition was proper in that the Board had just been served with the lawsuit on the day of the meeting.
We need not decide whether it would have been proper to add the lawsuit to the agenda, as we find that there was no real discussion of the lawsuit in the executive session.
Specifically, Complainant alleges that while in executive session the Board’s President made a statement about the lawsuit and requested that Complainant advise the Board as to his intentions regarding the lawsuit. Complainant states that he advised the Board that the meeting was neither the time nor the place to discuss it. According to the record, the Board did not pursue discussion of the lawsuit after Complainant’s statement. Thus, even if the lawsuit was not properly added to the agenda, no discussion occurred in violation of FOIA.
4. Interviews for high school principal.
The Complaint next alleges that the Board did not give proper notice of its intent to conduct interviews in executive session for the position of high school principal. The Board contends that the interviews were covered under the agenda item “Personnel.” The Board argues that the inclusion of this item provided sufficient notice of the interviews in that FOIA “does not indicate, direct or require any particular specificity in respect to identifying individual items of business appearing on the agenda.” (Board’s
second response at p. 2, § 4.)
Contrary to the Board’s argument, when an item is to be discussed in executive session, as the interviews in question were, FOIA requires specificity in identifying the item. Specifically, FOIA requires that an agenda “include a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor under subsection (b) of § 10004 of this title.” 29 Del. C. § 10002(f) (emphasis added.)
Here, the agenda includes a statement of intent to hold an executive session to discuss personnel matters, but describes the personnel matters as matters “in which the names, competency, and ability of individual employees may be discussed.” While such personnel matters provide grounds for an executive session pursuant to subparagraph (9) of section 10004(b), we do not believe that subparagraph (9) encompasses interviews of prospective employees. Rather, such interviews are covered by subparagraph (1) of section 10004(b) which allows for an executive session to discuss “an individual citizen’s qualifications to hold a job.” Because the agenda makes no reference to section 10004(b)(1), we conclude that it did not give adequate notice of the Board’s intent to hold an executive session to conduct interviews for the position of high school principal.
Nevertheless, we find that no remedial action is necessary on the Complaint before us. Specifically, following the interview process, there was a public vote in which four of the five Board members voted to hire a particular candidate, with the Complainant casting the sole vote against hiring the candidate. While the Complainant stated that his vote was based in part on the lack of adequate notice of the interviews, when casting his vote, the Complainant also gave his substantive reasons for voting against hiring the candidate. Under these circumstances, there is no reason to require that the Board re-notice the interviews and conduct them again.2
5. Record of discussions in executive session.
Finally, Mr. Morozowich complains that “[t]he minutes of 7/19/95 do not reflect the ‘interviews’ held, or the Board’s questioning of my ‘lawsuit intentions'” (Complaint at p. 2, ¶ 6.)
(emphasis in original). Discussion of these topics, however, is reflected in the “Confidential Minutes” of the Executive Session, a copy of which was submitted with the Board’s third response on October 10, 1995. Accordingly, to the extent Mr. Morozowich alleges that the Board violated FOIA in not keeping minutes of the Executive Session, such allegation is without merit.
Please feel free to contact us if you have any further questions.
Very truly yours,
John K. Welch
Deputy Attorney General
Michele C. Gott
Deputy Attorney General
Michael J. Rich