Delaware Department of Justice
Attorney General
Kathy Jennings

98-IB04: FOIA Complaint Against Appoquinimink School District

May 20, 1998
New Castle County – Civil Division
Mr. D. Wood
330 Union Church Road
Townsend, DE 19734
RE: Freedom of Information Act Complaint
Against Appoquinimink School District
Dear Mr. Wood:
By letter dated April 14, 1998 (received by this Office on April
20, 1998), you alleged that the Appoquinimink School District
(“the School District”) had violated the Delaware Freedom of
Information Act, 29 Del. C. Sections 10001-10005 (“FOIA”), by
holding a retreat workshop in executive session on April 4, 1998
where public business was discussed.
By letter dated April 21, 1998, we asked the School District for
its response to your complaint. By letter dated May 1, 1998,
Superintendent Marchio confirmed that the Appoquinimink Board of
Education held a retreat workshop on April 4, 1998 “to do
creative thinking and planning for the school district.” The
minutes of the April 7, 1998 meeting of the School Board state
that the following matters were discussed at the retreat: (1)
the consequences of a failed referendum; (2) a year-round school
schedule; (3) the need to develop a comprehensive vocational and
career development program and tracking system; (4) reporting
requirements for the human resource department; (5) raising
standards for athletic participation; (6) recruitment; (7)
electrical rates; (8) common terms for curriculum, instruction
and policy; and (9) review of grants.
Mr. Marchio states in his letter that “no official action was
taken by the board” at the April 7, 1998 meeting on the basis of
his report of the matters discussed at the April 4 retreat. He
further stated: “The district did err, however, in how the
workshop was posted in the newspaper. It should have been posted
as a workshop open to the public. Instead, it was posted as a
closed executive session.” According to Mr. Marchio, “this was
not done intentionally, and I can assure you that future
workshops will be advertised correctly. . . . The posting and
advertising of meetings is a responsibility of the district
office administration not the board of education, and the error
that has occurred here clearly belongs to me. I can assure you
that this error will not be repeated.”
Section 10004 of FOIA requires that every meeting of a public
body “shall be open to the public except those closed” for a
purpose authorized by statute for executive session. Although
the notice FOIA authorizes a public body to go into executive
session to discuss personnel matters (Section 10004(b)(9)), or
to discuss pending or potential litigation (Section
10004(b)(4)), at the April 4, 1998 retreat the School Board did
not in fact discuss legal and personnel issues but rather
discussed other matters of public business.
The School District has admitted that it violated FOIA by giving
improper notice of its April 4, 1998 retreat. By stating in the
notice that the retreat would be “a closed executive session,”
the School District deprived the public of an opportunity to
attend and speak out on matters of important public interest. It
is irrelevant whether any “official action” was taken at the
retreat. The open meeting law “applies to meetings called to
discuss public business as well as to meetings called to take
action on public business.” The News Journal Co. v. McLaughlin,
Del. Ch., 377 A.2d 358, 362 (1977) (Brown, V.C.).
Whether the error in the posting of the notice was the fault of
the district office administration or the board of education is
also irrelevant. The important point is that a public body held
a meeting to discuss matters of important public interest; the
public not only was not invited, but was discouraged from
attending by noticing the meeting as an executive session. If
the board relies on the district office administration to post
notice, and that notice is defective, then the meeting of the
board was in violation of law and may be deemed invalid.
As for remediation of this violation of law, we do not believe
that it would be appropriate, under the circumstances, to direct
the School Board to meet again. As Mr. Marchio points out, the
board members “gave up a Saturday of their own time to better
fulfill their responsibilities as board members.” Moreover,
since the School District does not appear to have taken any
action on the matters discussed at the retreat, presumably the
public will have a further opportunity for input before the
School District takes any action. If, however, the School
District were to take action on any of the matters discussed at
the retreat, the School District would have to give notice to
the public and an opportunity to comment at a public meeting
before taking action.
For the foregoing reasons, we determine that the School District
violated FOIA by: (1) stating in the posted notice that the
retreat workshop would be held in executive session, thereby
conveying the message to the public that they could not attend;
and (2) meeting in executive session for a purpose not
authorized by law. We do not feel that any remediation is
necessary, however, for two reasons. First, at the next meeting
of the School District on April 7, 1998, Mr. Marchio reported on
the matters discussed at the retreat workshop. Since that
meeting was publicly noticed, the public had an opportunity to
comment. Second, the School Board did not take any action based
on what happened at the retreat workshop.
While we agree with the School District that workshops can be
“useful and productive,” they should be noticed and open to the
public unless the topic to be discussed falls within a
statutorily authorized ground for executive session. The School
District has represented “that future workshops will be
advertised correctly.” The School District is on notice that the
requirements of the open meeting law must be strictly followed
in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
Tony J. Marchio, Superintendent
Chrystyna Lafferty, Opinion Coordinator

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