January 3, 2005
Kent County – Civil Division (739-7641)
05-IB01
Mr. Robert P. Reeder
131 Hiawatha Lane
Dover, DE 19904
RE: Freedom of Information Act Complaint Against Board of Education of the Capital  School District
Dear Mr. Reeder:
On August 10, 2003, we received your letter alleging that the Board of Education of the Capital School District (“the School Board”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), by restricting your speech at a public meeting on March 17, 2004.
By letter dated August 10, 2004, we asked the School Board to respond to your complaint within ten days. We received the School Board’s response on August 20, 2004. We then asked the School Board to provide us with copies of the agenda and minutes of the March 17, 2004 meeting, which we received on September 22, 2004. We then asked the Board to provide us with a copy of any tape-recording o the March 17, 2004 meeting, which we received on October 14, 2004.
You allege that at a meeting noticed to the public on March 17, 2004, the president of the School Board announced just before the time reserved for public comment that no one could “speak the name of any individual in a public meeting. . . . [M]y plan was to mention the name of two employees of the Capital School District both of whom gave me permission to do so. In fact, one of the individuals whose name I planned to mention (with her permission) was sitting next to me in the audience.” You allege that after you started to speak and mentioned the two employees’ names, “Board President Adams slammed his gavel down and warned me I was in violation of the Delaware Code . . . I was relegated to identifying them as Ms. Teacher X and Mr. X in order to continue with my presentation.”
The School Board makes three arguments. First, the School Board contends that our Office “has no jurisdiction to entertain [your] complaint” because you are “attempting to advance a First Amendment claim under the guise of lodging a FOIA complaint.” Second, the School Board contends that your speech at the March 17, 2004 meeting was not about a matter of “public concern” protected by the First Amendment because you were “attempting to express, on behalf of other employees, their respective complaints about working conditions.” Third, the School Board contends that the restrictions placed on your speech at the March 17, 2004 meeting were reasonable to protect “the privacy rights of employees” which “prohibit Board members from engaging in a discussion of any employee’s performance or qualifications.” Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session as authorized by statute. 29 Del. C. § 10004(a).
FOIA authorizes a public body to meet in executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.” Id. § 10004(b)(9).
Legal Analysis
1. Jurisdiction
Upon petition by a citizen, FOIA requires the Attorney General “to determine whether a violation of this chapter has occurred or is about to occur.” 29 Del. C. §10005(e). The School Board contends that the Attorney General’s authority under FOIA is limited to investigating such matters as whether a public body “failed to provide the required notice of the meeting, held the meeting in the incorrect location, improperly convened in executive session, unlawfully discussed items in executive session, of failed to maintain minutes of its meetings.” We do not agree that our jurisdiction under FOIA is so limited.
In two previous opinions, we have determined that there is a nexus between the procedural requirements of the open meeting laws, and the First Amendment right of free speech. In Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003), we first addressed the issue of whether FOIA compels a public body to allow citizens to comment at a public meeting. We determined that the statute did not, but “[i]f a public body chooses to allow public participation in a meeting” it cannot discriminate on the basis of the content of the speech. We wrote that First Amendment rights of free speech “inhere in the definition of an ‘open meeting’ under Delaware’s FOIA when a public body allows for a period of public participation.”
Recently, we again addressed the interplay between FOIA and the right of free speech in determining that a town council violated the open meeting requirements of FOIA when it barred three citizens from attending a public meeting. “When the state law requires meetings to be open to the public, they ‘are precisely the type of public proceeding to which the First Amendment guarantees a public right of access.’” Att’y Gen. Op. 04- IB15 (Sept. 10, 2004) (quoting Whiteland Woods L.P. v. Township of West Whiteland, 193 F.3d 177, 181 (3rd Cir. 1999)).
Under the proper circumstances, we believe our Office has authority to interpret the open meeting requirements of FOIA by taking into consideration a citizen’s First Amendment rights of free speech when a public body is required by the open meeting law to notice a meeting to the public thereby creating a limited public forum for discussion of matters of public business noticed in the agenda.
2. Protected Speech — Matters of Public Concern
The School Board cites Connick v. Myers, 461 U.S. 138 (1983), for the proposition that speech is protected by the First Amendment only when it relates “to issues of political, social or other concerns of the community, as opposed to issues which are limited in impact to a particular employee or employees.” The School Board contends that your speech at the March 17, 2004 meeting was not protected by the First Amendment because you were not speaking “as a citizen upon matters of public concern” but rather “as an employee upon matters of personal interest.” Connick 461 U.S. at 147.
The Connick line of cases is inapposite. They are concerned with the proper constitutional “balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education of Township High School, 391 U.S. 563, 568 (1968).
“The ‘public concern’ test was formulated by the Supreme Court in addressing speech restrictions placed by governmental entities on their own public employees.” Eichenlaub v. Township of Indiana, 2004 WL 2093439, at p.7 (3rd Cir., Sept. 21, 2004). “Nothing about the reasoning of Connick suggests that this public/private concern distinction has any role to play regarding speech outside the public employment setting. . . . The rationale for a public/private concern distinction that applies to public employees simply does not apply to citizens outside the employment context. By the same token, the decisions of the Supreme Court and of our court have not established a public concern threshold to the protection of citizen private speech.” Id. at 7, 8.
“When a school board holds open sessions of its meetings and is addressed by members of the public pursuant to the [state open meeting law], it is not functioning as an employer, but as a legislative body.” Baca v. Moreno Valley Unified School District, 936 F. Supp. 719, 732 n.13 (C.D. Cal. 1996). “In connection with adopting policies and making provisions for carrying out policies, one aspect of the legislative body’s function is to listen to public testimony, including public criticism of those persons implementing the policies, i.e., school district employees.” Id. See City of Madison Joint School District v. Wisconsin Employment Relations Commission, 429 U.S. 167, 176 (1976) (school board not acting as an employer “when the board sits in public meetings to conduct public business and hear the views of citizens”).
Rather than the Connick/Pickering balancing test, the controlling legal analysis is the framework for restricting speech in “a forum created by the government that is limited to certain groups or to discussion of certain topics.” Eichenlaub, 2004 WL 2093439, at p.4..
2. Limited Public Forum
Under the test “for reviewing limited forum restrictions, content-based restraints are permitted, so long as they are designed to confine the ‘forum to the limited and legitimate purposes for which it was created.’” Eichenlaub, 2004 WL 2093439, at p.4 (quoting Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 829 (1995)). “‘Plainly, public bodies may confine their meetings to specified subject matter.’”Eichenlaub, 2004 WL 2093439, at p.5 (quoting City of Madison Joint School District v. Wisconsin Employment Relations Commission, 429 U.S. 167, 174 (1976)). “Thus, matters presented at a citizen’s forum may be limited to issues germane to town government.” Eichenlaub, 2004 WL 2093439, at p.5. “Two limitations remain. Any restrictions on speech must be viewpoint neutral and must be reasonable in light of the purpose served by the forum.” Id. at p.4.
Our review of the case law in other jurisdictions did not find any decisions involving the direct enforcement of the open meeting laws to facts similar to those presented by your complaint. We discovered, however, a number of federal cases in which the public body cited the state open meeting law as a defense to a claim that the public body violated a citizen’s right of free speech under the First Amendment. We find those cases helpful to the analysis of the facts presented by your complaint.
In Mesa v. White, 197 F.3d 1041 (10th Cir. 1999), a former county commissioner (Mesa) was denied the opportunity to speak during the public comment period of a public meeting. Mesa intended to criticize the temporary hiring of a new county manager (Cardoza), whom Mesa (while still a commissioner) had voted to fire two years earlier. The commissioners justified their decision to restrict Mesa’s speech because they “were considering rehiring Cardoza on a permanent basis” and the matter fell under the “personnel” exception under the New Mexico open meeting law.
Because the county commission meeting was open to the public, “the Commission became bound by the same standards that apply in the case of a traditional public forum.” 197 F.3d at 1045. “The final step is to determine whether the justifications for prohibiting Mesa’s speech at the meeting . . . serve a significant government interest.” Id. The Tenth Circuit held that the county commission failed to establish a significant government interest under the First Amendment to limit the content of Mesa’s speech at the public meeting.
“The commissioners may well have an interest in discussing among themselves sensitive personnel matters,” and the personnel exception for executive session under the New Mexico open meeting law allows “them to do that in certain situations.” 197 F.3d at 1046. That does not translate, however, “into a significant interest in restricting the public’s ability to present its views on personnel . . . matters at a public meeting.” Id.
We do not read the Open Meetings Act to require the commissioners to discuss, or allow discussion of, such matters only at closed meetings. It does not require them to say or do anything in response to a public comment on such matters at an open meeting — they can just sit and listen and then discuss matters falling within the exceptions among themselves at a closed meeting. . . . In short, the Open Meetings Act seems irrelevant to the question of what interest is served by restricting the public’s right to speak on personnel . . . matters at a meeting open to the public.
147 F.3d at 1047.
In Baca v. Moreno Valley Unified School District, supra, the school board had a policy prohibiting any “oral or written presentation in open session” which included “charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name.” At a public meeting of the school board, during the time allotted for public comment, a parent (Victoria Braca) identified two district employees by name (a principal, and the superintendent) and alleged that numerous complaints had been brought against them by other parents and were ignored. The board president ruled Baca out of order, and when she again mentioned the employees’ names, the board president had two deputy sheriffs remove Baca from the meeting.
The federal district court held that the school board’s policy was unconstitutional and enjoined its further application. The court acknowledged that “when the state creates a limited public forum it properly may limit the subject matter to be discussed. . . . Thus, in White v. City of Norfolk, 900 F.2d 1421 (9th Cir. 1990), the court held that city officials could properly restrict public speakers to the subject matter at hand, i.e., the particular agenda item being discussed, and could stop speech which was unrelated to the subject matter and hence irrelevant.” 936 F. Supp. at 730. But “once the particular subject matter which may discussed in a particular limited forum has been designated, the government may not then also limit the views which may be expressed on that subject matter.” Id.
The district court in Baca rejected the school board’s argument that it had a compelling government interest to protect the privacy of individual employees. The “District’s interest in protecting its employees’ right of privacy is an interest it holds only as an employer, not as a government entity, e.g., a legislative body charged with permitting public comment at its meetings.” 936 F. Supp. at 732. “When a school board holds open sessions of its meetings and is addressed by members of the public pursuant to the [state open meeting law], it is not functioning as an employer, but as a legislative body.” Id. at 732 n.13. “Thus, its interest as an employer in protecting its employees’ right of privacy cannot be characterized as a compelling governmental interest.” Id. at 732.
In Levanthal v. Vista Unified School District, 973 F. Supp. 951 (S.D. Cal. 1997), a school board by-law prohibited complaints against any school district employee at an open meeting of the board. During the public comment portion of a meeting, a citizen attempted to address the qualifications and job performance of the district superintendent, and questioned whether the board had adequately investigated before hiring him. The school board president interrupted her and told her she could not continue to speak. Rather than suffer the indignity of removal, the citizen complied.
The school board argued that any First Amendment concerns were outweighed by the interest in protecting the privacy rights of district employees, citing the personnel exception for executive session in the California open meeting law. While the open meeting law “permits governing bodies to hold closed sessions about personnel matters, nowhere does it grant those bodies the exceedingly broader authority to silence public speech that may also touch upon related employment issues.” 973 F. Supp. at 958. “Thus, while the [open meeting law] authorizes a school board to discuss personnel matters in closed session, it does not preclude the public from raising such matters at open Board meetings. Once a matter has surfaced in public, the Board and the employee still may adjudicate the matter in closed session.” Id. at 959.
The agenda for the School Board’s March 17, 2004 meeting provided for a period of “Public Comment (Limited to 2 minutes per speaker).” We believe the limitation on time was a reasonable restriction under the First Amendment. We do not believe that the School Board could restrict the content of your speech for the stated reason (personnel matter) consistent with the First Amendment. The restriction on your speech was not “viewpoint neutral” and was not “reasonable in light of the purpose served by the forum.” Eichenlaub, 2004 WL 2093439, at p.4. Accordingly, we determine that the School Board violated FOIA when, after inviting the public to speak, it tried to restrict your speech based on its content.
We appreciate and are sensitive to the School Board’s concerns about protecting individual privacy and the potential disruption of the business of the Board. But “fear or apprehension of disturbance is not enough to overcome the right of freedom of expression.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969).
Conclusion
For the foregoing reasons, we determine that the School Board violated the open meeting requirements of FOIA by restricting the content of your speech during a public comment period at a public meeting on March 17, 2004. We do not believe that any remediation is necessary. The record does not show that the School Board took any action at the meeting based on selective viewpoints from citizens. Your concerns about school district working conditions appear to be ongoing, and you will have the opportunity to address them if public comment is invited at future meetings — subject to reasonable time, place, and manner restrictions that are content-neutral.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
__________________________
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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