Delaware Department of Justice
Attorney General
Kathy Jennings

01-IB01: FOIA Complaint Against Indian River School District

January 16, 2001
Civil Division-Kent County
Mr. Joseph E. Carmean, Jr.
P.O. Box 37
Lewes, DE 19958
Re: Freedom of Information Act Complaint Against Indian River School District
Dear Mr. Carmean:
Our Office received your Freedom of Information Act (“FOIA”) complaint on December 11, 2000. You allege that the Indian River School District (“the School District”) violated the open meeting requirements of FOIA by going into executive session on July 25, 2000 for a purpose not authorized by law.
By letter dated December 15, 2000, we asked the School District to respond to your complaint within ten days. We granted the School District’s request for an extension of time in light of the winter school break, and received the City’s response on January 10, 2001.
The agenda for the July 25, 2000 meeting included an agenda item for the open session called “Boardsmanship” and also stated that the School District would go into executive session to discuss: “A. Personnel: To discuss matters pertaining to names, competencies and abilities of individual employees or students. B. Strategy Session: To discuss collective bargaining, pending or potential litigation. C. Hearing: To conduct a hearing regarding employee or student discipline or employee dismissal. D. Such other business as may properly be discussed in an executive sessions.”
The minutes of the executive session on July 25, 2001 show that the School District approved the minutes of previous executive sessions, and discussed personnel, student discipline, collective bargaining, and site acquisition matters, which are all authorized by FOIA for executive session. See 29 Del. C §§ 10004(b)(2), (6), (7), and (9). In that executive session, the School District also discussed the agenda item, “Boardsmanship.” It is a matter of public record that, at the executive session on July 25, 2000, the Board President asked one of the board members to resign.
In its response to the complaint, the School District agrees that “the term ‘Boardsmanship’ is not specifically listed within the 9 reasons for which a public body may call an executive session closed to the public (29 Del. C. § 10004)” but contends that it is akin to discussing “a citizen’s qualifications to hold a job.” The School District also states that “[t]he past practice of the Board had been to discuss Boardsmanship issues in executive session.”
Personal disagreements among the members of a public body do not fall within the FOIA exception to discuss “a citizen’s qualifications to hold a job.” That exception is limited to discussions whether to hire a new employee, such as a town manager or police chief. It does not apply to members of the public body itself.
As noted in your letter, several board members “brought this matter to the attention of the public during the district’s October 26 board meeting” and “read aloud an eight-page report detailing the alleged infraction.” No purpose would be served by directing the School District to re-notice the July 25. 2000 meeting to discuss “Boardsmanship” since the matter was fully aired in public at the October 26 meeting.
The School District, however, must cease and desist its practice of discussing “Boardsmanship” in executive session. Such issues go the very heart of the open meeting law: to allow the public the opportunity to be involved in debates among elected officials on matters of public interest.
For the foregoing reasons, we find that the School District violated the open meeting requirements of FOIA by going into executive session on July 25, 2000 to discuss “Boardsmanship.” We direct the School District to discontinue its practice of discussing such matters in executive session in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
State Solicitor
cc: James D. Griffin, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator

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