Civil Division – New Castle County
August 1, 1996
Del. Op. Atty. Gen. 96-IB27 (Del.A.G.), 1996 WL 517437
(determining that school board did not violate FOIA’s open meeting requirements by discussing in executive session a dispute between a board member and a district employee and possible ethical violations by the board member, where agenda disclosed the board’s intent to discuss “personnel matters”)
Mr. Milton F. Morozowich
RD 2, Box 166
Bridgeville, DE 19933
Re: Freedom of Information Act Complaint
against Woodbridge Board of Education
Dear Mr. Morozowich:
Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred.
On June 13, 1996 we received your letter of complaint dated June 7, 1996. By letter dated June 24, 1996, we asked the Woodbridge Board of Education (“Board”) to respond to your allegation of a violation of FOIA. By letter dated July 11, 1996, the attorney for the Board responded, but our office did not receive that response until July 22, 1996.
Your complaint states that during the May 21, 1996 monthly meeting the Board went into executive session to discuss “personnel matters,” when in fact “the ‘closed session’ was used to criticize and berate my contacting the high school guidance and administrative staff, relative a parental concern I had with my daughter’s senior grade report and transcript.” You have previously
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August 1, 1996
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alleged another FOIA violation in connection with the May 26 meeting, in your letter dated May 30, 1996. That allegation will be addressed in a separate written determination by this office.
The response from the Board’s attorney denies your allegation that the Board went beyond discussion of personnel matters in executive session on May 26, 1996. The minutes show that the Board addressed a concern of Mr. Robert C. Sutton, Superintendent, about your conduct towards Ms. Terri Eifert, a guidance counselor at Woodbridge High School, and the school’s Principal, Patricia S. Oliphant. Specifically, Ms. Oliphant had addressed a memorandum to Mr. Sutton about your response to Ms. Eifert’s request that you obtain official transcripts from Delaware Technical and Community College to verify your daughter’s completion of course-work there; your questions about the TIP program; and your request for information about the “Adams Scholarship.” The Board takes the position that, since you are a member of the Board, these are “personnel” matters that were a proper subject for discussion in executive session. You, on the other hand, take the position that you were not acting in your capacity as a Board member, but rather as a concerned parent.
Pertinent Statutes
29 Del. C. Section 10002(a):
“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division of the State, including but not limited to, any board, bureau, commission, department. agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or
established by any body established by the General Assembly of the
State, or appointed by any body or public official of the State or
otherwise empowered by any state governmental entity, which: (1) Is
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August 1, 1996
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supported in whole or in part by any public funds; or (2) expends or
disburses any public funds, including grants, gifts or other similar
disbursals and distributions; or (3) is impliedly or specifically charged by
any other public official, body, or agency to advise or to make reports,
investigations or recommendations. Public body shall not include the
General Assembly of the State, nor any caucus thereof, or committee,
subcommittee, ad hoc committee, special committee or temporary committee.
29 Del. C. Section 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
. . .
(b) A public body at any meeting may call for an executive session
closed to the public pursuant to subsection (c) of this section for any
of the following purposes: . . .
. . .
(9) Personnel matters in which the names, competency, and abilities
of individual employees or students are discussed;
. . .
(e)(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, 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.
. . .
(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where the meetings of the public body are regularly held, and making a reasonable number of such notices available.
Mr. Milton F. Morozowich
August 1, 1996
Page 4
Opinion
Under FOIA, “to convene in executive session, the public body must satisfy several requirements:” (1) “publicly announce the purpose of the closed session in advance thereof”; (2) “approve holding such a session by a majority vote”; (3) “limit the agenda of the closed session to public business that falls within one of the nine purposes allowed for such meetings”; and (4) prepare “[m]inutes of any closed session” and make them “available as public records for public inspection.” Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 3 (Oct. 1, 1990) (Chandler, V.C.)
The documents show that the Board posted a public notice on May 14, 1996 with an agenda for the regularly scheduled monthly meeting of the Board on May 26, 1996. Item VIII. of the agenda stated that there would be an executive session to discusses personnel, pending litigation, and scholarships. In bold type at the bottom, the agenda further notified the public that: “THE BOARD OF EDUCATION INTENDS TO CALL FOR AN EXECUTIVE SESSION, CLOSED TO THE PUBLIC, . . . TO DISCUSS PERSONNEL MATTERS IN WHICH NAMES, COMPETENCY, AND ABILITY OF INDIVIDUAL EMPLOYEES MAY BE DISCUSSED; . . . .”
FOIA “simply requires public bodies to disclose the purpose of executive sessions in the agenda.” Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., 1995 WL 733401, at p. 4 (Dec. 5, 1995) (Balick, V.C.). “[I]t is not necessary to identify the personnel in convening an executive session to constitute personnel matters.” Nageotte v. Board of Supervisors of King George County, Va. Supr., 288 S.E.2d 423, 426 (1982).
Mr. Milton F. Morozowich
August 1, 1996
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The minutes of the public meeting on May 26, 1996 show that the Board voted, unanimously and in public, to go into executive session to discuss, among other things, personnel matters. The Board also prepared minutes of the executive session, in compliance with FOIA. The act “does not require the [school board] to specify what legal, personnel, or other subjects are discussed in executive sessions.” Red Clay, 1995 WL 733401, at p. 4.
The only legal issue that remains, therefore, is whether the Board “exceeded the statutory limits on executive sessions.” Red Clay, at p. 2. On the basis of the facts, we conclude that the Board did not exceed the statutory limitation on executive sessions to discuss certain matters involving you. In Yandell v. Havana Board of Education, Ark. Supr., 585 S.W.2d 927 (1979) (en banc), the state supreme court held that the school board had not violated the freedom of information act by going into executive session to consider complaints lodged against the school superintendent, because the matter clearly involved school “personnel.” 585 S.W.2d at 929. See also Johnson v. Freedom of Information Commission, Conn. Super., 1996 WL 383337 (may 20, 1996) (executive session proper to discuss performance of public employees); Marion County Sheriff’s Merit Board v. Peoples Broadcasting Corp., Ind. Supr., 547 N.E.2d 235 (1989) (executive session proper to
receive information regarding a public employee’s alleged misconduct); Commercial Printing Co. v. Rush, Ark. Supr., 549 S.W.2d 790 (1977) (en banc) (proper discussion in executive session of particular acts of a public employee whose conduct had been called into question).
Although you claim that you were only acting as a concerned parent, the fact remains that you are also a member of the Board, and any action you take vis-a-vis a school guidance counselor, the principal, or other school employee could be perceived as taken in your official capacity as a member of the Board. The Board’s counsel maintains that your “status as a Board Member obliges
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August 1, 1996
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[you] to act within the established policies of the Board and within the parameters of established Board Member ethics, which wisely require that direct employee administration and criticism be handled by the Board’s Chief Administrative Officer, the Superintendent.” It is beyond the jurisdiction of this office to get involved in any dispute between the Board and one of its members with regard to employee administration, or the National School Boards Association Code of Ethics. We have determined, however, that such matters constitute “personnel” matters for purposes of the exceptions to the open meeting requirements of FOIA.
Based on our review of your complaint, and the documents provided to us, we conclude that there has not been a violation of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
____________________
Michael J. Rich
State Solicitor
cc: James D. Griffin, Esquire
Elizabeth A. Bacon, Opinion Administrator

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