Delaware Department of Justice
Attorney General
Kathy Jennings

04-IB18: Re: Freedom of Information Act Complaint Against Cape Henlopen School Board

October 18, 2004
Kent County – Civil Division (739-7641)
Mr. Dean Dey
30738 Edgewater Drive
Lewes, DE 19958
RE: Freedom of Information Act Complaint
Against Cape Henlopen School Board
Dear Mr. Dey:
On July 23, 2004, we received your letter alleging that the Cape Henlopen School Board (“the School Board”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by holding a retreat over the course of July 20-22, 2004 at the Great Oaks Resort in Chestertown, Maryland. You allege that the Board discussed matters of public business which FOIA required to be open to the public at a meeting within the School District’s jurisdiction. You also allege that because the retreat was subject to FOIA, the School Board failed to post the required notice and agenda to inform the public about the meeting. As a remedy, you ask that the Board members “make restitution to the [School] District of monies expended for their attendance.”
By letter dated July 28, 2004, we asked the School Board to respond to your complaint within ten days. We received the School Board’s response on August 4, 2004. We received a supplemental response from the Board on August 10, 2004.
According to the School Board, there was only one Board member at the retreat on July 20, 2004 and during the day on July 21, 2004. A quorum of the Board was present at a dinner and social gathering that followed on the evening of July 21, 2004. The Board does not dispute that on the morning of July 22, 2004 a quorum of the Board discussed matters of public business regarding the Cape Henlopen School District with School District administrative staff members in violation of FOIA. The Board contends that we should not direct remediation because “the Board members made a good faith mistake by gathering on July 22, 2004 to discuss public business. The Board now fully understands its obligations to comply with all the requirements of [FOIA] anytime a quorum of the Board gathers to discuss public business, including situations such as the gathering on July 22, 2004 which the Board members understandably viewed as a meeting of administrative staff rather than a Board meeting.”
Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public” except those authorized by statute for executive session. 29 Del. C. §10004(a). FOIA also requires all public bodies to “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.” Id. §10004(e)(2)
FOIA imposes geographic limits where a public body can hold a meeting. “Every regularly scheduled meeting of a public body shall be held within the geographic jurisdiction of that public body. All such other meetings shall be held as follows: (1) A public body serving any political subdivision of the State, including, but not limited to, any city, town or school district, shall hold all such other meetings within its jurisdiction or the county in which its principal office is located; . . . .” 29 Del. C. §10004 (g).
Legal Analysis
Th School Board does not dispute that it violated FOIA by holding a meeting on the morning of July 22, 2004 to discuss matters of public business without the required notice to the public, and by holding that meeting outside Sussex County. The only remaining issue is whether we should require remediation for those violations.
While we do not doubt the good faith of the School Board members, the law is well established that the “application of the open meeting law does not turn on whether the [Board] took any ‘official action’ at the [retreat].” Att’y Gen. Op. 02-IB07 (Mar. 22, 2002). “‘The Chancery Court has held that FOIA applies, not only to gatherings where a public body takes formal action, but also to a “workshop” held at a local restaurant. Otherwise, ‘there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business so long as the Board reached no formal decision at that private meeting.’” Id. (quoting Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Sept. 11, 1989) (Chandler, V.C.)). “The open meeting law applies to ‘fact gathering, deliberations and discussions, all of which surely influence the public entity’s final decision.’” Id.
It is also well established that school boards must hold public meetings within the jurisdiction of the school district. In 1988, the General Assembly amended FOIA to impose geographic limits on where public bodies can meet. “The specific purpose of the 1988 amendment . . . was to prevent local school boards from circumventing the Act by holding meetings in locations that are inconvenient for their constituents. One local school board, for example, had been considering matters of extreme interest and importance to the board’s constituents at so-called workshops held at the opposite end of the state or in Pennsylvania.” Att’y Gen. Op. 89-IO14 (June 27, 1989). In that 1989 opinion, we cautioned that “out-of-district workshops . . . are suspect and in derogation of [FOIA]. They are ill advised because they will always be viewed with suspicion by the public, the media, and the courts.” Id.
In the circumstances of this case, we do not believe that any remediation is necessary for the School Board’s violations of the open meeting law. The School Board does not appear to have taken any action on the general matters discussed at the retreat (“positive and progressive direction” for the school district). We caution that if the Board “were to take any action on any of the matters discussed at the [July 20-22, 2004] retreat,” it must first give the required “notice to the public.” Att’y Gen. Op. 98-IB04 (May 20, 1998).
You also ask that “the Board should make restitution to the District of monies expended for their attendance” at the Chestertown retreat. FOIA authorizes the restitution of “all or part of the compensation of members of a board, commission, or other public body for any closed meeting which such board, commission, or other public body closed knowing that such action violated this chapter.” 29 Del. C. §10004(i). The statute makes clear that forfeiture is a remedy that “may only be ordered by the Court if the Court makes a specific factual finding that the board, commission or other public body had no good faith defense to believe that the meeting could be closed.” Id. In order to seek such a remedy, the Attorney General must apply to a court of competent jurisdiction for such relief. Under the circumstances, we decline to do so.
For the foregoing reasons, we determine that the School Board violated the open meeting requirements of FOIA by: (1) holding a meeting on July 22, 2004 where the Board discussed matters of public business without giving notice to the public; and (2) holding that meeting outside the School District or Sussex County. For the reasons previously explained, we do not believe that any remediation is necessary. We caution the School Board to comply strictly with the requirements of the open meeting law in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Lawrence W. Lewis, Esquire
Deputy Attorney General
David H. Williams, Esquire
Phillip G. Johnson
Opinion Coordinator
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