April 15, 1996
Del. Op. Atty. Gen. 96-IB12 (Del.A.G.), 1996 WL 254865
(concluding that quorum of school board members discussed public business (use of school facilities) in violation of open meeting requirements, and that such violation was de minimus and did not result in harm to the public where issue discussed in private subsequently received a full public discussion, after which all board members voted in favor of allowing little league to use school facilities)
Civil Division – New Castle County
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 Complaints dated Jan. 29, 1996
Woodbridge School District
Dear Mr. Morozowich and Mr. Griffin:
This is the Attorney General’s decision on the above referenced complaints filed pursuant to 29 Del. C. § 10005(e).
The complaints were initiated by Milton Morozowich against the Woodbridge Board of Education (the “Board”) by two separate letters, each dated January 29, 1996 and received by the Attorney General on February 6, 1996. Mr. Morozowich is a member of the five member Board. He alleged that the Board violated the Freedom of Information Act (“FOIA”) in that the other four members conducted “closed meetings” of the Board on three occasions — before and after a special meeting of the Board on January 4, 1996, and before a regular meeting of the Board on January 24, 1996. In a January 29, 1996 cover letter accompanying his complaints, Mr. Morozowich requested that the Attorney General “invoke the most severe enforcement provision as outlined in 29 Del.C., and that injunctive action be immediately imposed upon the School District.” The Attorney General forwarded Mr. Morozowich’s complaints to the Board on February 8, 1996 and requested that the Board submit a response within 10 days. The Board’s response was received on March 13, 1996. We have reviewed the above mentioned submissions as required by 29 Del. C. § 10005(e), and for the reasons stated below, we find that the Board violated FOIA in connection with the gathering following the January 4, 1996 special meeting. We find, however, that no remedial action is warranted for this violation. As to all other allegations of the complaints, we find no violations of FOIA.
1. Gathering prior to January 4, 1996 special meeting.
Mr. Morozowich first alleged that a quorum of the Board met in closed session prior to a special meeting held on January 4, 1996. In support of this allegation, he stated as follows:
A ‘Special Meeting’ was called for 5:30 P.M. for the purpose of conducting a student hearing. When I arrived at the meeting, at approximately 5:20 P.M., I observed four board members and two administrators standing in group conference in the hallway adjacent the board room, and I heard them discussing “school facilities”. With my arrival, the discussion was quieted until I passed by. Moments prior to 5:30 P.M. the discussion ended and everyone entered the board room. The meeting was called to order at 5:30 P.M., and adjourned promptly at 6:04 P.M.
The Board admitted in its answer filed on March 13, 1996 that four members and two administrators were standing in the hallway prior to the start of the special meeting. The Board contended, however, that there was no “group conference” which would constitute a meeting under FOIA in that these individuals were merely “exchanging pleasantries” in several separate conversations while waiting for the meeting to begin (Board response at 2-4).
In support of this contention, counsel for the Board represented that he interviewed the Board members and administrators involved who reported that the following conversations took place during the time in question: Board President Parker asked Assistant Superintendent Kingery about the progress of construction on the junior/senior high school. Dr. Kingery responded that construction was going well, and invited President Parker to visit the project. Dr. Kingery reported that Mr. Morozowich passed them in the hallway during this conversation. Both President Parker and Dr. Kingery indicated that none of the other individuals present participated in this conversation. Superintendent Sutton and Board member Sheets reported that they were talking about the weather and were not aware of the conversation taking place between President Parker and Dr. Kingery. Board members Collison and Isaacs indicated they were involved in a separate conversation wherein Ms. Collison mentioned to Mr. Isaacs that she had received a phone call from a parent asking her to support an application previously submitted to the Administration by a local Little League seeking permission to use a school gym during cold weather. These Board members also stated they were not aware of the conversation between President Parker and Dr. Kingery.
We find that there is insufficient evidence to indicate that the above gathering constituted a “closed meeting” of the Board in violation of FOIA. Under FOIA, a meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.” 29 Del. C. § 10002(e). While four members of the five member Board constitute a quorum, based upon this record, we cannot say that the four members were gathered in the hallway “for the purpose of discussing or taking action on public business.” Id. The complainant did not allege that any particular public business was discussed or acted upon by the members present in the hallway. He merely stated that in passing by the members on his way to the meeting room, he heard “school facilities” mentioned. The Board’s response indicated that when Mr. Morozowich passed by, the Board members in the hallway were engaged in three separate conversations, two of which likely included references to school facilities. We are persuaded by the Board’s response, however, that none of these conversations involved a quorum of the Board discussing or acting upon public business.
In addition, the complainant didn’t allege, nor is there anything in the record to indicate that any action was taken in the January 4, 1996 meeting which might lead to an inference that such action was discussed prior to the meeting. As the complaint indicates, the purpose of the special meeting was to conduct a student hearing. The minutes of the special meeting (Board response at Exhibit 2) confirm that the special meeting dealt only with the hearing, and that at the conclusion of the hearing, all Board members, including complainant, voted to approve the Administration’s recommendations regarding the student.
To find that a quorum of the Board held a closed meeting in violation of FOIA based on the above circumstances, would basically require us to interpret FOIA as precluding Board members from speaking to each other at all prior to commencement of a meeting. Such an interpretation is unreasonable.
2. Gathering after January 4, 1996 special meeting.
Mr. Morozowich also alleged that a closed meeting of the Board occurred immediately following the January 4, 1996 meeting which adjourned at 6:04 p.m.. Specifically, he stated the following:
Upon immediately leaving the building and realizing that no one else had exited, I sat in my vehicle and waited until 6:28 p.m., when three Board members came out of the building. In order that my presence be made known, I turned on my vehicle interior light and logged the incident and time.
Based on the above, Mr. Morozowich concluded that “[i]t is obvious that a ‘closed meeting’, with a quorum of the board being present, took place” after the January 4, 1996 meeting.
The Board admitted in its answer that the members other than Mr. Morozowich “conducted a brief conversation in the area of the hallway outside the Board meeting room” regarding the Little League application referred to above (Board response at 5). Counsel for the Board represented that he interviewed the members regarding this conversation and all indicated they had discussed the fact that the Little League had made a request to the Administration for use of a school gym, and had been told by the Administration it would cost $1,440.00 to rent the gym. The Board contended that the discussion centered on possible sources of community or private funding to pay the rental charge. As a result of that discussion, Board member Collison telephoned Dr. Sutton on January 5, 1996 who offered to find out whether the rental charge could be paid by a private group. After determining that private funding was not available, Dr. Sutton decided to place the matter before the Board at its next regular meeting on January 24, 1996. By memo dated January 23, 1996 to all Board members, Dr. Sutton requested that the use of the school gym by outside groups be placed on the agenda for that meeting (Board response at Exhibit 3). The Board contended that the matter was placed on the agenda, fully discussed at the meeting, and all Board members, including Mr. Morozowich, voted to approve use of the school gym by certain outside groups.
The Board acknowledged that the conversation which took place after the January 4, 1996 meeting “arguably amounted to a discussion of public business by a quorum of the Board” (Board response at 7). We find that it did, and thus resulted in a violation of the open meeting requirements of FOIA.
Nevertheless, we find that no remedial action is warranted based on the complaint before us. Subsequent to the discussion in question, the Little League’s request was placed on the agenda for the next regular meeting of the Board. The minutes of that meeting (Board response at Exhibit 4) confirm that the matter received a full public discussion after which all Board members, including complainant, voted in favor of allowing the Little League and other groups to use school facilities. Thus, any violation of FOIA was de minimus and resulted in no real harm to the public. Under these circumstances, we find no reason to take the action requested by Mr. Morozowich. See, Beebe v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-010004, Terry, J., slip op. at 4-6 (June 30, 1995) (declining to invalidate action of public body based on violation of FOIA open meeting requirements where violation was de minimus since full public discussion occurred despite violation).
3. Gathering prior to January 24, 1996 meeting.
Finally, Mr. Morozowich alleged that, prior to the January 24, 1996 regular meeting of the Board, a quorum of the Board held a “closed meeting” for the purpose of “planning a strategy to ammend (sic) and control the meeting agenda…”. In support of this allegation, Mr. Morozowich stated that approximately ten minutes before the regular meeting began, he observed four Board members, along with the Board’s secretary and assistant secretary meeting in the Superintendent’s office. Mr. Morozowich alleged that when the regular meeting was called to order at 5:30 p.m., the Board discussed items placed on the agenda at Mr. Morozowich’s request and decided to remove such items from the agenda. Mr. Morozowich further alleged that, while in the Superintendent’s office for an executive session, he “observed written notes/comments on an easel pad, pertaining to the specific action which had earlier transpired, relative removing my requested discussion items from the agenda.”
In response, the Board admitted that four Board members were in the Superintendent’s office for a few minutes before the regular Board meeting. The Board explained that members typically arrive anywhere from 15 minutes prior to the meeting to just minutes before the meeting time, and that refreshments are provided for the Board members during this period since most members come to the meeting directly from work, and thus have not had time to eat dinner before the meeting.
Counsel for the Board represented that interviews of the Board members and administrators indicated that four of the Board members came into the Superintendent’s office at various intervals prior to the regular meeting time to either enjoy refreshments or engage in general conversation about matters “totally unrelated to school business or the subjects to be discussed at the meeting” (Board response at 10). Each of the Board members reported that while in the Superintendent’s office, no discussion occurred regarding agenda items or the easel pad referred to by Mr. Morozowich. Both Superintendent Sutton and Assistant Superintendent Kingery reported that the notes on the easel pad were made earlier in the day when the two of them met with other School District employees. They explained that, during the work day prior to a Board meeting, Dr. Sutton typically holds meetings with employees who function in an administrative capacity to review the agenda for that night’s meeting and obtain the employees views regarding agenda items. Both Drs. Sutton and Kingery reported there were no Board members present at the meeting with employees, and that the easel pad “was not used, referred to or mentioned” later in the evening when the Board members were present in the Superintendent’s office (Board response at 10).
Board member Collison reported that after the regular meeting was called to order, President Parker asked Mr. Morozowich to be more specific as to what he wanted to discuss regarding certain items on the agenda, and when Mr. Morozowich responded by listing a number of topics he wanted to discuss regarding each item, Board member Collison suggested tabling those items for discussion at a special meeting or a Board workshop. Her suggestion was adopted by a 4-1 vote.
It is clear from the Board’s response, that at least for a short time prior to the start of the regular meeting, a quorum of the Board was present in the Superintendent’s office. The Board has 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).
Based on the interviews of all persons present in the Superintendent’s office during the approximately 15 minutes prior to the January 24th meeting, we are persuaded that there was no discussion of agenda items by the Board members present. Thus, we find no FOIA violation in connection with the pre-meeting gathering in the Superintendent’s office. We also note that, even if a violation occurred, no remedial action would be justified. Specifically, the action complained of is that certain items were removed from the January 24, 1996 agenda. That action was discussed in the January 24th meeting, after which the Board voted 4-1 to merely table the items for full discussion at a separate meeting (see minutes of January 24th meeting attached as Exhibit 4 to Board’s response). Such meeting was scheduled for March 14 and 18, 1996. Thus, any violation would be de minimus.
However, as noted in our November 2, 1995 decision directed to the present parties,
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).
Atty Gen. Op. No. 95-IB35 at 5-6.(1)
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
APPROVED:
Michael J. Rich
State Solicitor
cc: Elizabeth Bacon, Opinion Coordinator
JKW/MCG/jb
1. As with the Complaint addressed by the November 2, 1995 decision, the Board also defended the January 24, 1996 pre-meeting gathering on the basis that all doors leading to the Superintendent’s office remained open, and that such doors lead to the hallway used by the public to attend the Board meetings (Board response at 8). As noted in Atty Gen. Op. No. 95-IB35, the Board is reminded that the fact that the Complainant or anyone else was not specifically excluded from the gathering does not necessarily constitute a defense to a complaint alleging a FOIA violation. See, Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler, V.C. (Oct. 1, 1990) (fact that some members of the public learned about unannounced meetings in time to attend is no defense to alleged FOIA violations since it “should not be incumbent upon the public to search out and discover meetings at which public business is to be considered”). See also, Atty Gen. Op. No. 93-IO06 (gathering of Town Council members and representatives of a developer immediately before a public Town Council meeting constituted FOIA violation even though gathering took place in the room which people might pass through on the way to the public meeting room).

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