September 11, 2006
Kent County – Civil Division (739-7641)
Mr. Robert P. Reeder
1302 Barksdale Road
Newark, DE 19711
RE:
Freedom of Information Act Complaint AgainstChristina School District Board of Education
Dear Mr. Reeder:
On July 13, 2006, our Office received your letter alleging that the Christina School District
Board of Education (“the School Board”) violated the open meeting requirements of the Freedom
of Information Act, 29
Del. C. Ch. 100 (“FOIA”), by meeting twice in private on July 10, 2006 todiscuss matters of public business without notice to the public.
By letter dated July 17, 2006, we asked the School Board to respond to your complaint by
July 28, 2006. We received the School Board’s response on July 28, 2006. We then made several
requests to the Board for additional information, which we received over the course of August 22-
29, 2006.
According to the School Board:
At 7:30 on July 10 the Superintendent and senior
administrators met with Board members Beverly
Howell and Gina Backus. The session lasted approximately
one hour. At noon on July 10 the Superintendent
and senior administrators met with Board
members Jimmy Durr and George Evans. Board
member John MacKenzie participated in a portion
of the meeting by telephone. This session lasted
about an hour and 30 minutes.
The School Board explains that “the purpose of each of these meetings was to brief Board
members on the reduction in force and the tax warrant recommendations the Superintendent would
make at the Board’s July 11, 2006 meeting.” The Board acknowledges that these two meetings
“went beyond the mere passive receipt of information to include, at least to some extent, the active
exchange of information and opinions.” According to the School Board, “All of the information
presented to Board members at the July 10, 2006 meetings was presented at the Board’s open session
on July 11, 2006, with the exception of identifying the names of employees affected by the reduction
in force.” The School Board acknowledges that it did not post public notice for the two discussions
on July 10, 2006 between the Superintendent and Board members.
On June 30, 2006, the School Board posted notice of a public meeting for July 11, 2006 at
7:30 p.m. preceded by an executive session at 6:00 p.m. to discuss personnel and legal matters. The
agenda listed among other items for public discussion: “Approval of 2006-2007 Tax Warrant and
Resolution”; and “Personnel Recommendations.”
The minutes of the July 11, 2006 public meeting reflect that all seven members of the Board
attended (Backus, Scherer, Resler, Mackenzie, Evans, Howell, and Durr). The minutes show that
“Kathy Dick-Frederick presented the 2006-2007 Tax Warrant Resolution and answered questions.
It was moved by Mr. Evans, seconded by Dr. Mackenzie, and unanimously carried that the Christina
Board of Education approve the Fiscal Year 2007 Tax Warrant and Resolution.”
The minutes of the July 11, 2006 meeting show that “Ed Bosco presented the
recommendation for reductions in force for paraprofessionals and security associates.” Five
members of the School Board (two abstained) voted to terminate nine security associates and 71
paraprofessionals effective August 14, 2006.
RELEVANT STATUTES
FOIA requires that “[e]very meeting of all public bodies shall be open to the public execpt
those closed for” executive session as authorized by law. 29
Del. C. §10004(a).FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members
of any public body for the purpose of discussing or taking action on public business.”
Id. §10001(e).FOIA requires all public bodies to “give 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. The notice shall
include the agenda, . . . .”
Id. §10004(e)(2).LEGAL ANALYSIS
A. July 10, 2006 Meetings
Our Office has previously determined that a public body may achieve a quorum for purposes
of FOIA through serial discussions which allow members of a public body “to receive and comment
on other members’ opinions and thoughts, and reach a consensus on action to take.”
Att’y Gen. Op. 03-IB11 (May 19, 2003) (exchange of e-mails between the three members of a nominating
committee over a two-day period). For serial discussions to amount to a constructive quorum, there
must be “an active exchange of information and opinions” as opposed to “the mere passive receipt
of information.”
Id. “It is the nature, timing, and substance of the communications which together may turn serial
discussions into a constructive quorum.”
Att’y Gen. Op. 06-ID16 (Aug. 7, 2006). Serial discussionsmay amount “to a constructive quorum of the public body when there was an active exchange of
thoughts and opinions and members were asked to vote or adopt a particular point of view or reach
a consensus on what action to take.”
Id. In
Att’y Gen. Op. 04-IB10 (Oct. 18, 2004), a member of the county council drafted amemorandum proposing to allocate $15 million to the City of Wilmington for law enforcement and
then circulated a copy of the proposal to the other six members of the council. Four members of the
council signed the proposal which stated it “represents a consensus” based on telephone
conversations among members of the council. Our Office determined “that those serial telephone
calls amounted to a meeting of a quorum of the council in violation of [FOIA].”
In
Att’y Gen. Op. 05-IB03 (Feb. 3, 2005), a member of the town council drafted a lettercritical of another member of the council and circulated it to three members of the five-member
council, following up with telephone or face-to-face conversations to see if they agreed with her
position. Our Office determined that “these contacts were more than the passive receipt of
information” and “the sum of these communications amounted to a meeting of a public body covered
by FOIA.”
The School Board has seven members and four members constitute a quorum. The record
shows that, collectively, five Board members participated in the two meetings with the
Superintendent on July 10, 2006 to discuss reductions in force and tax warrants. We believe that
these two meetings amounted to a constructive quorum for purposes of FOIA. The meetings were
scheduled only a few hours apart, the subjects discussed were the same, and the School Board
acknowledges that the meetings “went beyond the mere passive receipt of information.”
The Board originally intended to hold a single meeting with the Superintendent on July 10,
2006 and provided us with a copy of a “posting” for that meeting. The posting stated the purpose
of the meeting was “to review and receive materials for the July 11, 2006 Board of Education
meeting. This meeting is being posted because a quorum may be present. The Board may go into
Executive Session to discuss Personnel and Legal Matters.”
The Board never posted that notice to the public, apparently because not all members could
make the meeting at noon, so a first meeting was held at 7:30 a.m. between the Superintendent and
two Board members and a second meeting at noon between the Superintendent and three other Board
members. Under these circumstances, we believe that the two back-to-back meetings amounted to
In Att’y Gen. Op. 06-ID16 (Aug. 7, 2006), our Office suggested that serial
We determine that the School Board violated the public notice requirements of FOIA by
failing to post a notice and agenda for the two meetings on July 10, 2006 with the Superintendent
which involved a quorum (five members) of the Board.
C. Remediation
We do not believe that any remediation is necessary for these violations of the open meting
law. The School Board could have met privately on July 10, 2006 with the Superintendent to discuss
reductions in force under FOIA’s personnel exemption for executive session.
See Att’y Gen. Op. 06-IB15 (July 24, 2006) (no remediation directed because “the Board could have lawfully met in
executive session to discuss the qualifications of job applicants for the position of superintendent”).
FOIA did not authorize the School Board to meet in executive session to discuss tax warrant
resolution. We do not believe that remediation is necessary, however, because the Board noticed the
tax warrant resolution for the July 11, 2006 public meeting and there was public discussion of the
resolution before the Board voted to approve.
See Att’y Gen. Op. 06-IB12 (June 19, 2006) (“thecouncil noticed the issue for discussion [at a public meeting] and voted in public”);
Att’y Gen. Op.06-IB05 (Mar. 27, 2006) (city council cured the FOIA violation by a “thorough public airing of the
issue before the Council voted”).
CONCLUSION
For the foregoing reasons, we determine that the School Board violated FOIA when a
constructive quorum of the Board met with the Superintendent on July 11, 2006 to discuss reductions
in force and tax warrants without notice to the public.
We do not direct any remediation for this violation because: (1) the Board could have met
privately on July 10, 2006 to discuss the reductions in force under FOIA’s personnel exemption for
executive session; and (2) the tax warrant resolution was on the agenda for the July 11, 2006 public
meeting, and the public had a right to review the resolution and ask questions before the Board voted
to approve.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
________________________
Lawrence W. Lewis, Esquire
State Solicitor
Mr. Robert P. Reeder
September 11, 2006
Page 8
cc: The Honorable Carl C. Danberg
Attorney General
Malcolm S. Cobin, Esquire
Chief Deputy Attorney General
Keith R. Brady, Esquire
Assistant State Solicitor
David H. Williams, Esquire
Phillip G. Johnson
Opinion Coordinator
I:\TUPMAN\FILES\foia.christina.reeder.wpd
discussions in groups of less than a quorum might violate FOIA if they were a deliberate attempt
to circumvent the open meeting law. In determining whether serial meetings are lawful under
FOIA, we will from now on use a constructive quorum analysis based on objective factors rather
than delving into the subjective issue of intent. That is not to say, however, that a deliberate
attempt to avoid the open meeting law may not be relevant to the issue of remediation.
a constructive quorum of the Board.
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