September 25, 1998
Civil Division – Kent County
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
RE: Freedom of Information Act Complaint
Against Woodbridge School District
Dear Mr. Morozowich:
This letter is our written determination in response to your
letter of July 29, 1998 (received by this Office on August 5,
1998) alleging that the Woodbridge School District (the “School
District”) violated the Freedom of Information Act, 29 Del. C.
Sections 10001-10005 (“FOIA”).
You claim that the School District discussed five matters in
executive session at a meeting on July 28, 1998 which are not
authorized by FOIA. Those matters were: (1) Secretarial – Central
Office; (2) WES Assistant Principal; (3) J.V. Football; (4)
Student Code of Conduct; and (5) Cafeteria.
By letter dated August 6, 1998, we asked the School District to
respond to your complaint within ten days. The School District
asked for an extension of time to respond, which we granted. By
letter dated August 28, 1998, the School District responded to
your allegations, denying any violation of FOIA. The School
District provided us with copies of a Memorandum dated July 28,
1998 from Dr. Kevin E. Carson to Dr. Robert C. Sutton (personnel
recommendations for the July 28, 1998 meeting), the agenda posted
for the meeting, and the minutes of that meeting and the
executive session.
The School District acknowledges that FOIA does not authorize a
public body to go into executive session to discuss a subject
like a student code of conduct. The School District points out,
however, that shortly after the subject came up, “Dr. Sutton
advised the Board that the topic was not appropriate for
executive session, at which time the discussion ended.”
As the Chancery Court has noted, “[t]here is always a risk that a
public body will drift into discussing matters beyond the proper
purpose of an executive session.” Common Cause of Delaware v. Red
Clay Consolidated School District, Del. Ch., 1995 WL 733401, at
p. 3 (Dec. 5, 1995) (Balick, V.C.). But there is no FOIA
violation if this is brought to the public body’s attention in
time, and “discussion of that subject would immediately cease.”
Id. We agree with the School Board that “a public body should be
encouraged, rather than punished, for attempting to curtail
inappropriate discussions in executive session.” We find no
violation of FOIA in the limited, immediately curtailed,
discussion of a student code of conduct.
Two of the matters discussed during the executive session on July
28, 1998 (“Secretarial-Central Office” and “WES Assistant
Principal”) fall within the “personnel” exception under FOIA, 29
Del. C. Section 10004(b)(9) (discussion of the “names, competency
and abilities of individual employees”). The reference to
“Cafeteria” was a discussion of contract negotiations for trash
removal. Labor negotiations are a proper subject for executive
session. See 29 Del. C. Sections 10004(b)(6) and 10002(d)(7)
(exemption records “involving labor negotiations or collective
bargaining”).
As for “J.V.Football,” it is not clear whether that subject fell
within the personnel exception since we do not know if the School
District was considering any specific coaches at the time. The
minutes of the meeting state that you made motion “to consider a
Contingency Budget for Junior Varsity Football and hire an
Assistant Coach with the guarantee of 50% salary if program does
not make; with an option to go to Varsity if programs does not
make.” If there were some discussion of this contingency budget
during executive session, then that may have violated FOIA. But
since you were the member of the School District who sponsored
the contingency budget, we do not think it appropriate at the
same time for you to challenge the validity of action you took.
Finally, you suggest in your complaint letter that the agenda
posted for the July 28, 1998 meeting failed to give proper notice
of the subjects for executive session. The agenda listed two
subjects: “Personnel” and “Negotiations.” Having reviewed the
minutes of the meeting, we find that the discussion during the
executive session on July 28 dealt with personnel matters and
contract negotiations. The notice provided, therefore, was not
deficient or misleading.
Conclusion
Based on your complaint, the School District’s response, and the
documents provided to us, we determine that the School District
did not commit any violation of FOIA in connection with the July
28, 1998 meeting.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Approved:
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Keith R. Brady, Esquire
Chief Deputy Attorney General
James D. Griffin, Esquire
Chrystyna L. Savitz
Opinion Coordinator

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