Delaware is under a State of Emergency. Here are answers to frequently asked questions about what this means for you. More Info

Delaware.gov logo

Delaware Department of Justice
Attorney General
Kathy Jennings


13-IB01 03/26/13 FOIA Opinion Letter to Mr. Daniel J. Kramer re: FOIA Complaint Against Woodbridge School Board


OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 13-IB01
March 26, 2013
VIA EMAIL AND REGULAR MAIL
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE  19950
djmjkramer@gmail.com
Re:    FOIA Complaint Against Woodbridge School Board
Dear Mr. Kramer:
We hereby respond to your petition to the Attorney General for a written determination regarding the Board of Education (the “Board”) for the Woodbridge School District (the “District”) and, specifically, the Board’s compliance with the “open meeting” requirements set forth in Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).1 For the reasons discussed below, and based on our review of the record provided to us, we conclude that the Board’s conduct related to two meetings in July 2012 fell well below what is expected and required of public bodies under FOIA.2 We believe that various forms of remediation — including invalidation of the Board’s July 24, 2012 votes to accept the resignation of the District superintendent and to hire a new District superintendent, as well as mandatory FOIA training — are appropriate and necessary to address these violations and to ensure the Board’s compliance with FOIA’s open meeting requirements in the future.
I. INTRODUCTION
The petition in this case requires us to address the Board’s compliance with the open meeting provisions of FOIA in connection with two public meetings held in July 2012 — one regularly scheduled Board meeting and one specially scheduled meeting to address the “abrupt” resignation of Dr. Phyllis Kohel, the District’s former superintendent.  The petition raises a number of open meeting concerns with respect to the July 2012 meetings, including:
• whether the meeting notices prepared by the Board violated FOIA by reflecting two start times — one for the initial closed “executive session” and another for the beginning of the public “open session”;
• whether the Board violated FOIA by failing to post meeting notices at the meeting place, as the Board had done in the past;
• whether the Board violated FOIA by posting an amended agenda for the regularly scheduled meeting that added three new action items — two bus route transfer approvals and an overnight field trip request;
• whether the Board violated FOIA by failing to disclose on the specially scheduled meeting agenda anticipated public discussions and votes on Dr. Kohel’s resignation letter and the hiring of a new District superintendent; and
• whether the Board violated FOIA by discussing, while in a closed executive session, among other things, Dr. Kohel’s resignation letter, its options with respect to filling the position and the competency and abilities of the then-assistant superintendent, Mr. Heath Chasanov, to replace Dr. Kohel.
Most of the concerns raised by the petition are valid.  Our investigation revealed multiple violations of FOIA’s open meeting requirements in connection with and at the July 2012 meetings.
We are most concerned with the non-public manner in which the Board dealt with the resignation of Dr. Kohel and the selection and hiring of Mr. Chasanov as the new District superintendent.  The public did not receive notice that the Board would take action on those matters at the special July 24th meeting and had little or no ability to observe or monitor the Board’s performance in respect of those important issues.  It appears that all of the Board’s decisions with respect to Dr. Kohel and Mr. Chasanov were reached behind closed doors.  As far as we can tell, the Board did not even disclose to the public the economic terms on which Mr. Chasanov was hired to replace Dr. Kohel.
We believe that various forms of remediation are required to address the myriad FOIA violations we have identified, as well as the Board’s lack of commitment to the openness and transparency that FOIA requires.  First, because the Board’s votes approving the resignation of Dr. Kohel and hiring a new District superintendent were invalid, we urge the Board to revisit those matters at a properly noticed and conducted public meeting.  We think the Board members, at a minimum, have a duty to disclose and discuss publicly the factors supporting their decisions on those important issues.  Second, we request that the Board, in consultation with counsel, prepare a FOIA training and compliance plan to ensure that future meetings are noticed and conducted in accordance with FOIA.
II. BACKGROUND
A. The July 10, 2012 Agenda and Meeting
The Board timely posted an agenda (the “July 10th Agenda”) for the regularly scheduled meeting it convened on July 10, 2012 (the “July 10th Meeting”) at the Phillis Wheatley Middle School (the “School”).3 The Board posted the July 10th Agenda at the central office for the District, on the District’s official website and in all other school buildings within the District other than the School, where the Board’s public meetings traditionally have been held.  Prior to the July 10th Meeting, the Board had posted meeting agendas at or in all of the buildings within the District, including the School.  The Board has not explained why it did not post the July 10th Agenda at the School, as it had done in the past.
The July 10th Agenda lists different start times for the private and public sessions that the Board intended to conduct during the July 10th Meeting.  Specifically, the July 10th Agenda states:
Executive Session:  6:00 pm
Open Session:  7:00 pm
The first item on the July 10th Agenda is “CALL TO ORDER,” under which is a reference to “Motion to Move into Executive Session.”  (July 10th Agenda, p. 1.)  The second item on the July 10th Agenda is “EXECUTIVE SESSION,” with generic references to “Personnel” and “Legal Issues.”  (July 10th Agenda, p. 1.)  The third item on the July 10th Agenda is “OPEN SESSION (Approx. 7:00 pm).”  (July 10th Agenda, p. 1.)  The July 10th Agenda thereafter references a number of reports and informational presentations, as well as a list of action items that the Board expected to address at the July 10th Meeting.  (July 10th Agenda, pp. 2-3.)  Neither the bus route transfers, nor the overnight field trip, was referenced on the original July 10th Agenda.
At 12:55 p.m. on July 10, 2012, the Board posted a revised agenda for the July 10th Meeting (the “Amended July 10th Agenda”).  The Amended July 10th Agenda discloses the reasons for the new posting as follows:
REVISION TO INCLUDE AN OVERNIGHT FIELD TRIP REQUEST BY THE JROTC AND BUS ROUTES [SIC] REQUESTS WERE ADDED UNDER AGENDA ACTION.
(Am. July 10th Agenda, p. 1.)  Consistent with that disclosure, the Amended July 10th Agenda contains new action items for:
Bus Route Transfer:  Regina Warnick to Garrett Johnson (Route 22);
Bus Route Transfer:  Marjorie Chambers to Carolyn Pearson (Route 9); and
JROTC Overnight Field Trip Request — Killen’s Pond, Delaware, Cadet Platoon Leadership Camp — August 2-4, 2012 and August 9-11, 2012.
(Am. July 10th Agenda, p. 3.)
According to the minutes of the July 10th Meeting (the “July 10th Minutes”), the District’s then-superintendent, Dr. Kohel, called the July 10th Meeting to order at 6:03 p.m.4 Thereafter the Board, accompanied by Dr. Kohel and Mr. Chasanov, convened in executive session until the open session began at 7:00 p.m.  (July 10th Minutes, p. 1.)  While in open session, Dr. John Marinucci, the District’s director of administrative services, made a presentation to the Board concerning the transfer of the two bus routes.  Dr. Marinucci explained that both proposed transfers met all State and District requirements, including insurance and license requirements, and recommended that the Board approve the proposed bus route transfers.  (July 10th Minutes, p. 4.)  Dr. Kohel reported to the Board with respect to the overnight field trip to Killen’s Pond.  Dr. Kohel informed the Board that all of the necessary paperwork had been received and was in order and recommended that the Board approve the field trip.  (July 10th Minutes, p. 4.)  The Board unanimously approved the bus route transfers and the overnight field trip.  (July 10th Minutes, p. 5.)
B. The July 24, 2012 Agenda and Meeting
On July 17, 2012, the Board timely posted an agenda (the “July 24th Agenda, and together with the July 10th Agenda, the “July Agendas”) for the meeting it convened at the School on July 24, 2012 (the “July 24th Meeting,” and together with the July 10th Meeting, the “July Meetings”).  The primary purpose of the July 24th Meeting was to deal with the “sudden” resignation of Dr. Kohel from her position as District superintendent.5 As with the July 10th Agenda, the Board posted the July 24th Agenda at the District’s central office, on the District’s official website and in all school buildings within the District other than the School.  The Board has not explained why it did not post the July 24th Agenda at the School.
Like the July 10th Agenda, the July 24th Agenda lists different start times for the open and closed sessions.  The July 24th Agenda states:
Executive Session:  6:30 pm
Open Session:  7:00 pm
(July 24th Agenda, p. 1.)  The first item on the July 24th Agenda is “CALL TO ORDER,” under which is a reference to “Motion to Move into Executive Session.”  (July 24th Agenda, p. 1.)  The third item on the July 24th Agenda is “EXECUTIVE SESSION,” with subsequent references to matters the Board expected to discuss in private:
A. Personnel — To include:  (1) Superintendent Resignation Letter; [and] (2) Superintendent Position
B. Legal Issues
(July 24th Agenda, p. 1.)  The fourth item on the July 24th Agenda is “OPEN SESSION (Approx. 7:00 pm).”  (July 24th Agenda, p. 1.)  The July 24th Agenda lists the matters that the Board expected to address and take action on at the July 24th Meeting.  (July 24th Agenda, pp. 1-2.)  That list does not include or reference in any way matters related to Dr. Kohel’s resignation or the hiring of a new District superintendent.
According to the (public) minutes of the July 24th Meeting (the “July 24th Minutes”), the Board’s president, Mr. Michael Breeding, called the meeting to order at 6:30 p.m.  Immediately thereafter, the Board unanimously agreed to and did convene its first executive session of the evening (the “1st July 24th Executive Session”).  The alleged “confidential” minutes of the 1st July 24th Executive Session, which also cover another executive session convened later that evening (the “July 24th ES Minutes”), reflect that Dr. Kohel and Mr. Chasanov both attended the 1st July 24th Executive Session, or at least parts of it.6
During the 1st July 24th Executive Session, which, in its entirety, lasted less than 30 minutes, the Board purportedly discussed a number of “Personnel” issues.  Mr. Chasanov began the closed session by discussing a “personnel memo” unrelated to the matters addressed herein.  (July 24th ES Minutes, p. 1.)  Next, Dr. Kohel was excused by the Board while the Board members discussed her letter of resignation.  (July 24th ES Minutes, p. 1.)  Mr. Chasanov then addressed the Board regarding his interest in moving up and into the District superintendent position.  (July 24th ES Minutes, p. 1.)  During that discussion, Mr. Chasanov conveyed the terms on which he would be willing to serve as District superintendent.  Mr. Chasanov apparently requested a 2-year “rollover” contract, effective August 1, 2012, with a salary of $135,000, plus a 3% “Administrative Fringe” for tuition reimbursement so that Mr. Chasanov could obtain a doctorate degree.  (July 24th ES Minutes, p. 2.)  Finally, the July 24th ES Minutes reflect that the Board “discussed Mr. Chasanov’s contract requests” and determined that Mr. Chasanov’s proposal would be put to a vote if Dr. Kohel’s resignation was accepted.  (July 24th ES Minutes, p. 2.)  It is unclear whether Mr. Chasanov was present for those discussions, as the July 24th ES Minutes do not reflect that Mr. Chasanov was ever excused from 1st July 24th Executive Session.
The initial public portion of the July 24th Meeting began at 7:05 p.m. (the “1st July 24th Open Session”).  After a number of preliminary matters, the Board permitted “Public Commentary.”  (July 24th Minutes, p. 2.)  Several members of the public, including the petitioner, attended the July 24th Meeting and expressed displeasure with Dr. Kohel’s resignation.  One resident, Mr. William Atwood, addressed the Board:
Mr. Atwood:  I thought Dr. Kohel signed a two-year contract?  She came to the Bridgeville Commission and said how excited she was and discussed everything she was going to do for the District.  If she signed a contract, then how can she decide to leave us in a bind again?  Enlighten me, if you can.
(July 24th Minutes, p. 3.)  Mr. Breeding responded and the following dialogue ensued:
Mr. Breeding:  We did select Dr. Kohel for the [s]uperintendent position last year and she did sign a two-year contract.  Our Board policy is six-month notice, but the Board has the right to waive the notice requirement.  Dr. Kohel has been upfront with us since she applied for the position; she notified us every step through the process.  We, the Board, have the right to let her out of her contract; it does not hold her here. . . .  [W]e could fight her with an attorney, but that would be very costly to the District.  We have discussed this matter and will vote this evening. . . .
Mr. Atwood:  Was there an understanding when the contract was signed that she would stay here for two years?
Mr. Breeding:  Absolutely; but again, my personal opinion, contracts are good for one purpose — the “employee”; not the employer.  If they don’t want to be here we’re not going to hold teachers, administrators, etc.
Mr. Atwood:  The burden is now the added expense of finding another superintendent.
Mr. Breeding:  There will not be a lot of expense involved; mostly our time.  We are not hiring an agency to conduct the search for us.
(July 24th Minutes, p. 3.)
At the end of the 1st July 24th Open Session, though not identified as action items on the July 24th Agenda, the Board addressed Dr. Kohel’s resignation letter and the superintendent vacancy.  The July 24th Minutes reflect that Board member Mr. Willie Savage, II made a motion to accept Dr. Kohel’s resignation letter and to waive the six-month notice requirement, effective as of August 1, 2012.  (July 24th Minutes, p. 5.)  That motion passed by a vote of 3-2.  (July 24th Minutes, p. 5.)  Board members Mr. John Barr and Mr. Walter Gilefski voted against the motion.  (July 24th Minutes, p. 5.)  The Board next addressed the superintendent vacancy.  According to the July 24th Minutes, Mr. Gilefski made a motion to employ Mr. Chasanov as the new District superintendent “on a two year rollover contract with salary and fringe administrative benefits, beginning August 1, 2012, as discussed in Executive Session.”  (July 24th Minutes, p. 5.)  The Board unanimously approved the motion by a vote of 5-0.  (July 24th Minutes, p. 5.)
After voting to accept Dr. Kohel’s resignation letter and hiring Mr. Chasanov to replace her, the Board voted unanimously to go back into executive session.  At 8:10 p.m., the Board reconvened in executive session (the “2nd July 24th Executive Session,” and together with the 1st July 24th Executive Session, the “July 24th Executive Sessions”) to discuss the resulting vacancy in the assistant superintendent position.  The 2nd July 24th Executive Session lasted until 8:38 p.m.  Upon return to open session (the “2nd July 24th Open Session”), the Board, by vote of 5-0, unanimously agreed to “post the position of [a]ssistant [s]uperintendent for three weeks.”  The Board adjourned the July 24th Meeting at 8:40 p.m.
With the limited exception of the dialogue between Mr. Atwood and Mr. Breeding, we see no evidence whatever that the Board members, at any time, ever openly:
• discussed or debated issues related to Dr. Kohel’s resignation letter or her job performance;
• disclosed the reasons supporting their votes on the motion to approve Dr. Kohel’s resignation;
• discussed or debated options with respect to filling the superintendent vacancy;
• discussed or debated the education, training, experience and other qualifications a candidate would need or should have to serve as District superintendent;
• discussed or debated the education, training, experience and other qualifications of Mr. Chasanov to serve as District superintendent;
• discussed or debated the terms of, or potential counterproposals to, Mr. Chasanov’s contract demands;
• disclosed the economic terms on which Mr. Chasanov was hired as the new District superintendent;
• disclosed the reasons supporting their votes on the motion to employ Mr. Chasanov as the new District superintendent;
• discussed or debated options with respect to filling the assistant superintendent vacancy; or
• disclosed the reasons supporting their votes on the motion to post the position of assistant superintendent for three weeks.
C. The FOIA Petition and the Board’s Responses
On August 28, 2012, we received the Petition, in which you assert that the Board violated FOIA’s open meeting requirements with respect to the July Meetings.  Specifically, you raise the following FOIA concerns:
• The July Agendas, by listing separate start times for closed and open sessions, may discourage members of the public from exercising rights under FOIA;
• The July Agendas were not posted at the Board’s regular meeting location (the School), as they had been in the past;
• The July 10th Agenda was revised and reposted on the day of the meeting without an explanation as to why the new action items could not have been included in the original posting;
• The July 24th Agenda did not indicate that a District superintendent would be hired at the July 24th Meeting, or that the Board intended to discuss, in open and executive sessions, options with respect to the hiring of a new assistant superintendent; and
• The Board privately discussed and may have reached consensus on important matters during the July 24th Executive Sessions, including Dr. Kohel’s resignation and the Board’s options with respect to the search for and hiring of Dr. Kohel’s replacement and a new assistant superintendent.
On or about October 4, 2012, we received the Board’s response (the “Board Response”).  By letters dated November 9, 2012 and December 26, 2012, we requested that the Board provide us with additional information and documents in connection with our investigation of this matter.  By letters dated December 21, 2012 (the “2nd Board Response”) and January 25, 2013, we received the Board’s responses to our supplemental requests.  The matter is now ripe for decision.
III. DISCUSSION
FOIA contains various open meeting provisions that “recognize and promote our citizens’ rights to observe and monitor the performance of our public officials.”  Att’y Gen. Op. 12-IIB12 (Nov. 21, 2012).  The petition requires us to address a number of essential open meeting provisions, starting with the general format and posting requirements for notices and agendas required under FOIA § 10004(e)(2).  These provisions are designed to ensure that the public receives adequate advance notice of public meetings, absent which the public’s rights under FOIA are essentially meaningless.  We do not believe the Board violated FOIA’s format and posting requirements, but we do have a few concerns.
We next address whether the Board complied with all applicable agenda disclosure requirements, including the requirements for adding action items to a previously filed agenda notice.  We also consider whether the July 24th Agenda provided the public with adequate disclosure of all “major issues” expected to be discussed at the July 24th Meeting, as required by FOIA §§ 10002(a) and 10004(e)(2).  The foregoing agenda disclosure requirements are necessary to ensure that the public receives adequate advance notice of all important matters that will be discussed and possibly voted upon at a public meeting.  Without adequate disclosure, members of the public are unable to make informed decisions as to whether (or not) to attend particular public meetings to observe and monitor a public body’s performance on matters of interest to them.  The Board did not comply with any of FOIA’s agenda disclosure requirements.
Finally, we must determine whether the Board violated FOIA § 10004(a) by improperly discussing public business in executive session.  For sound policy reasons, FOIA permits, but does not require, public bodies to discuss certain matters in private.  Public bodies are not permitted to vote or reach consensus while in closed executive session.  We believe that the Board, while outside of public view, improperly discussed and reached consensus on matters of critical import to residents and other members of the public.
We have serious concerns with respect to the violations we have identified and believe that various forms of remediation are necessary and appropriate to ensure that the Board adheres to FOIA’s open meeting requirements going forward.
A. The Board’s Notice And Agenda Format, While Not Technically Violative of FOIA, May Dissuade Members Of The Public From Exercising Rights Under FOIA And Should Be Changed In The Future.
The petition asserts that the Board’s combined notice and agenda format, as evidenced by the July Agendas, improperly reflects the existence of two separate meetings on each scheduled meeting date — one private meeting and one public meeting.  We interpret this argument as suggesting that the July Agendas violate FOIA because the two start times may discourage members of the public from exercising their rights under FOIA to observe and monitor the Board members’ (public) votes on the question of holding executive sessions.  We do not believe that the July Agendas violate FOIA merely because they contain multiple start times.  We do, however, urge the Board to revise its agenda format so as not to discourage members of the public from exercising rights under FOIA.
The primary purpose of an agenda notice is to alert the public to important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.  See Att’y Gen. Op. 12-IIB13 (Dec. 21, 2012).  To that end, FOIA requires public bodies to provide the public with, among other things, advance notice of the time, date and place of every public meeting.  See 29 Del. C. § 10004(e)(2).7 FOIA does not expressly address the precise issue before us — namely, whether agenda notices may indicate separate start times for the closed and public sessions to be convened at a public meeting.
The Board contends that both of the July Agendas contain start times for the initial executive sessions and thus satisfy the “time” requirement of FOIA § 10004(e)(2).  The Board also points out that FOIA § 10004(e)(2) does not expressly prohibit the posting of agendas with multiple start times.  Finally, the Board submits that members of the public were free to attend and observe the performance of the Board members at the beginning of the July Meetings, until such time as motions to enter executive session were both made and approved.
We think that the July Agendas arguably do satisfy the “time” requirement of FOIA § 10004(e)(2) because the July Agendas indicate when the July Meetings were to be called to order and thus officially started.  We also agree that nothing in FOIA § 10004(e)(2) prohibited the Board from posting estimated start times for the private and open sessions expected to be convened during the July Meetings.  Thus, in our view, the July Agendas did not violate FOIA merely because they contained multiple start times.  We do have concerns, however, about the possible chilling effect that the Board’s agenda format may have on meeting attendance during the initial stages of the Board’s public meetings.
Members of the public have a right to attend the beginning of all Board meetings.  The public is entitled to be present when the meetings are called to order and are permitted to observe and monitor the Board members’ votes with respect to whether to convene in executive session.  See 29 Del. C. § 10004(c) (“The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public.”); see also Att’y Gen. Op. 11-IB01 (Feb. 14, 2011) (“A public body may go into executive session only on a vote held at a public meeting.”).  We think that an agenda format, such as the one used by the Board, treads dangerously close to violating the spirit of FOIA by suggesting to potential attendees that they need not or cannot exercise such rights.
The Board contends and we believe that the Board routinely lists two start times as a convenience to the public.  We understand that many potential attendees may have no interest in monitoring the Board’s votes with respect to entering executive session, and that the Board’s agenda format provides potential attendees with a good estimate of when they should attend to observe the Board’s discussions and decisions with respect to substantive matters.  In this respect, we agree that the Board’s agenda format serves a laudable purpose, but we think there are ways of accomplishing that goal without discouraging or potentially discouraging the public from exercising rights under FOIA.
Going forward, we think the Board should revise its agenda format to make clear that the public has a right to observe and monitor the initial stages of every Board meeting, up to and including the Board’s vote with respect to any motion to enter executive session.
B. The Board Provided Adequate Notice of the July Meetings.
The petition asserts that the Board violated FOIA § 10004(e)(4) by failing to post the July Agendas at the Board’s regular meeting location.  We do not believe that the Board’s failure to post the July Agendas at the School, as it had done in the past, violated FOIA absent evidence that the Board, in fact, frustrated the public’s right to attend the July Meetings.  We see no proof of that in the record before us.
The Board, as a public body, is required to provide the public with advance notice of its public meetings.  FOIA § 10004(e)(4) governs the manner in which public bodies are required to provide notice of an upcoming public meeting.  FOIA § 10004(e)(4), in relevant part, provides:
Public notice required by [FOIA] shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.
29 Del. C. § 10004(e)(4).8
FOIA § 10004(e)(4) establishes two minimum notice requirements:  (1) that the public body post a meeting notice at the public body’s principal office, or, if no such office exists, at the regular meeting place; and (2) that the public body make a reasonable number of such notices available.  See Ianni v. Dep’t of Elections of New Castle County, 1986 WL 9610, at *5 (Del. Ch. Aug. 29, 1986) (“Subsection 10004(e)(4) required that in addition to a public posting, the public body shall make a ‘reasonable number of such notices available.’”).  The Board satisfied FOIA § 10004(e)(4).9
The Board posted notices at the location required by FOIA § 10004(e)(4) — the District’s principal office.  The Board is not statutorily required to post meeting notices at the School.  A public body is required to post a notice at the meeting place only if no principal office exists.  See Att’y Gen. Op. 06-IB09 (Apr. 25, 2006) (“FOIA would require the Town to post notice at the Fire Hall only if it did not have a principal office.”).  The Board is not subject to different rules merely because the Board previously posted meeting notices at both its principal office and the meeting place.
Generally speaking, we believe a public body, having provided the public with meeting notices beyond what is statutorily prescribed, may, in the exercise of its discretion, stop posting or publishing non-mandatory notices for any reason, or for no reason at all.  We caution, however, that a public body may not, intentionally or unintentionally, frustrate the public’s right to monitor and observe a public meeting, which conceivably could happen if a public body abruptly ceases to provide notice in a particular place or manner that members of the public have grown accustomed to relying upon.  Those circumstances are not present here.10 The Board provided adequate notice of the July Meetings.
C. The Board Violated FOIA’s Agenda Amendment Provisions By, Among Other Things, Failing To List The Bus Route Transfers And The Overnight Field Trip On Timely Agenda Notices.
The petition asserts that the Board violated FOIA § 10004(e)(5) because it filed the Amended July 10th Agenda less than 6 hours prior to the July 10th Meeting without any explanation as to why the new information could not have been included in the original July 10th Agenda.  For these and other reasons discussed below, we agree.
FOIA requires public bodies to provide notice to the public of, and post an agenda for, an upcoming meeting “at least 7 days in advance” of the meeting.  29 Del. C. § 10004(e)(2).  We have permitted public bodies to amend timely posted agendas to include new action or discussion items, but only when certain conditions are met.  First, public bodies must publish an amended agenda describing adequately the new items “at least 6 hours in advance of the meeting.”  29 Del. C. § 10004(e)(5).  Second, public bodies must include in the amended agenda a brief statement describing the reasons for the delay in providing notice of any new agenda items.  See id.  Finally, if, as in the instant matter, an amended agenda is filed less than 7 days in advance of the meeting, we have required public bodies to make an additional showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention.  See Att’y Gen. Op. 12-IIB09 (July 13, 2012); Att’y Gen. Op. 07-IB16 (July 10, 2007).  The Board failed to satisfy these requirements with respect to the bus route transfers and the overnight field trip.
1. The Amended July 10th Agenda was not timely filed.
The Board failed to comply with the 6-hour notice requirement for the bus route transfers and the overnight field trip.  The Amended July 10th Agenda added three new action items.  The Board was required by FOIA § 10004(e)(5) to provide the public with at least 6 hours advance notice of its intent to address those matters.  The Board failed to do so.
The Board posted the Amended July 10th Agenda at 12:55 p.m. on July 10, 2012, less than 6 hours in advance of the announced 6:00 p.m. start time for the July 10th Meeting.  The Amended July 10th Agenda should have been filed no later than 12:00 p.m. on July 10, 2012.11 The Board violated FOIA § 10004(e)(5) by failing to provide the public with adequate advance notice of the Board’s consideration of the bus route transfers and the overnight field trip.
2. The Amended July 10th Agenda does not reflect the reasons for the delay in providing notice of the new agenda items.
In addition to being untimely, the Amended July 10th Agenda does not state the reasons why the new matters were omitted from the July 10th Agenda, as required by FOIA § 10004(e)(5).  The Board has admitted that it violated FOIA § 10004(e)(5) with respect to the bus route transfers and the overnight field trip and has assured us that it will comply with this requirement in the future.  We appreciate the Board’s candor, but we are skeptical about the Board’s promise of future compliance.  This particular Board has on at least two prior occasions failed to comply with the requirements of FOIA § 10004(e)(5).  See Att’y Gen. Op. 04-IB06 (Feb. 23, 2004) (determining that the District violated FOIA § 10004(e)(5) by not providing an explanation for the delay in adding the Board election date to the agenda); Att’y Gen. Op. 00-IB07 (Apr. 28, 2000) (“Since there was no explanation on the amended agenda as to why the referendum issue could not have been included on the original agenda as required by Section 10004(e)(5), the amended notice did not provide the requisite public notice of the business to be transacted.”).
3. The transfer of Route 22 did not arise unexpectedly and did not require immediate attention.
The Board could have included the transfer of Route 22 on the original July 10th Agenda.  The District was informed of Ms. Warnick’s intent to sell Route 22 to Mr. Johnson on or around May 1, 2012, when the District received Ms. Warnick’s formal written transfer request.  The Board claims that it could not approve the transfer request until the District completed the due diligence necessary to ensure that that Mr. Johnson had the financial wherewithal to finance a bus purchase and otherwise service Route 22 in accordance with the Delaware Department of Education’s bus regulations.  (Bd. Resp., p. 3.)  The Board asserts that the District did not complete its due diligence until after the July 10th Agenda was posted.  (Bd. Resp., p. 3.)  We do not view this explanation as a valid excuse.
The Board did not need to complete its due diligence with respect to the transfer of Route 22 prior to scheduling the matter for consideration.  The Board could have listed the transfer as a potential action item on the original July 10th Agenda, with final approval contingent on the outcome of the District’s due diligence.12
Further, we do not believe that the transfer of Route 22 was so important that it required attention at the July 10th Meeting.  The Board could have delayed consideration of the matter until the next regularly scheduled Board meeting, which was set for and held on August 21, 2012.  Alternatively, if the transfer of Route 22 truly was time sensitive, we see no reason why the Board could not have reconvened prior to August 21, 2012 and considered the matter at a properly noticed meeting.13
4. The Board has not established to our satisfaction that the Route 9 transfer came up unexpectedly, or that the matter needed to be addressed at the July 10th Meeting.
The Board suggests that the transfer of Route 9 arose unexpectedly because the District did not receive a formal written request for the transfer of Route 9 from Ms. Pearson, as buyer, until July 8, 2012, well after the original July 10th Agenda was filed.  The Board also acknowledges, however, that the District received “verbal notice” of the proposed transfer at some point prior to July 8, 2012.  (Bd. Resp., pp. 3-4.)  For whatever reason, the record does not reflect when that communication took place.  Under the circumstances, we do not believe the Board has satisfied its burden of showing that the transfer of Route 9 arose “unexpectedly” and could not have been included on the original July 10th Agenda.
We also are not convinced that the Board needed to take action on the Route 9 transfer at the July 10th Meeting.  The record reflects that the transfer of Route 9 was between family members and did not involve the purchase of a new bus.  Moreover, the proposed transferee, Ms. Pearson, apparently already had been acting as the driver and was using her mother’s bus to service the route.  Under the circumstances, we think the Board could have delayed consideration of the Route 9 transfer to a later date.
5. The overnight field trip arguably came up unexpectedly but consideration of the matter could have been deferred.
As far as we can tell, the Board did not receive notice of the overnight field trip until the day prior to the July 10th Meeting, when the District received the official field trip request form.  While this may explain why the overnight field trip was excluded from the original July 10th Agenda, we do not understand why the Board felt it necessary to consider and vote on the field trip request at the July 10th Meeting.  The overnight field trip, at $300.00 per student, required the use of between $4,500.00 to $6,300.00 of taxpayer money and was not scheduled to begin until August 2, 2012.  The Board had more than three weeks to schedule the matter for consideration at a subsequent public meeting that would have provided at least seven days’ prior notice to the public.  Based on the current record, we are not convinced that the Board had to take immediate action on the overnight field trip.14
D. The Board Failed To Provide Notice Of Anticipated Action On Dr. Kohel’s Resignation Letter And The Hiring Of A New District Superintendent.
The Board violated FOIA §§ 10002(a) and 10004(e)(2) by failing to provide the public with adequate notice of two major issues that the Board expected to take action on at the July 24th Meeting — namely, Dr. Kohel’s resignation letter and Dr. Kohel’s successor.  For reasons that have not been explained, the Board failed to indicate in the July 24th Agenda that it would (or even may) discuss and vote on those important matters at the July 24th Meeting.  The Board’s votes with respect to those matters were not cast at a meeting held in compliance with FOIA and are therefore invalid.
As previously noted, FOIA requires public bodies to provide the public with notice of their public meetings “at least 7 days in advance thereof.”  29 Del. C. § 10004(e)(2).  FOIA further requires that any such notice contain an agenda that includes “a general statement of the major issues to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor.”  29 Del. C. § 10002(a).  Again, an agenda notice must alert the public to important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.  See Att’y Gen. Op. 12-IIB13.
The July 24th Agenda falls far short of what is expected and required under FOIA.  The Board scheduled and convened the July 24th Meeting to deal primarily with two critical issues:  (1) whether to accept Dr. Kohel’s resignation letter and thereby release Dr. Kohel from her 2-year employment contract, effective as of August 1, 2012; and (2) who to hire as Dr. Kohel’s successor in the event the Board voted to accept Dr. Kohel’s resignation.  The Board’s disclosure with respect to these issues was limited to a statement of its intent to hold an executive session with respect to the “Resignation Letter” and the “Superintendent’s Position.”  (July 24th Agenda, p. 1.)  The Board failed to list these important topics as potential action items on the July 24th Agenda.
We are troubled by these omissions.  The Board members knew or at the very least should have known that they would need to discuss and potentially vote on these important matters at the July 24th Hearing.  Dr. Kohel was seeking to be released from her employment contract by August 1, 2012 to enable her to accept a pending offer to become the next superintendent of the Milford School District.  Given the friendly relationship between the Board and Dr. Kohel, we find it difficult to believe that Board members did not anticipate the need for formal Board action during the public portion of the July 24th Meeting.  The Board members also knew or should have known that issues related to the selection and employment of top District officials are critical action items requiring advance notice to the public.  See, e.g., Att’y Gen. Op. 12-IIB13 (concluding that school board violated FOIA by frustrating the public’s right to observe the board’s vote on a two-year contract extension for the district superintendent); Att’y Gen. Op. 02-IB17 (Aug. 6, 2002) (determining that school board violated the open meeting requirements of FOIA by failing to give notice to the public of various meetings held by the board, during which board members interviewed 6 potential candidates for the superintendent position).
The Board’s omissions, whether intentional or not, violated FOIA and frustrated the public’s right to observe and monitor the Board’s performance with respect to the resignation and selection of the District’s top official.  The Board’s votes accepting Dr. Kohel’s resignation letter and approving the employment of Mr. Chasanov (on terms that apparently were never disclosed publicly) are invalid.
E. The Board Improperly Discussed And Reached Consensus On Important Public Business While In Executive Session.
Subject to certain statutory exemptions, FOIA requires that meetings of a quorum of a public body be open to the public.  See 29 Del. C. § 10004(a).  FOIA expressly recognizes a number of important policy-based exemptions that permit a public body to convene in private to discuss certain sensitive matters.  See 29 Del. C. § 10004(b).  Two of those exemptions are implicated here — namely, the “personnel” and “strategy session” exemptions.  Because the propriety of the July 24th Executive Sessions has been challenged, the Board bears the burden of justifying its invocation of these exemptions.  See Att’y Gen. Op. 97-IB14 (July 29, 1997).
The petition asserts that the Board violated FOIA § 10004(b) because it convened in executive session for improper purposes.  We agree and have identified no less than five examples of where the Board improperly discussed and, in most cases, reached consensus on important public business in private.  They are:  (1) Dr. Kohel’s resignation letter; (2) the Board’s options with respect to “filling the vacancy” created by the acceptance of Dr. Kohel’s resignation letter; (3) the competency and abilities of the assistant superintendent, Mr. Chasanov, to replace Dr. Kohel; (4) the compensation, benefits and other terms on which Mr. Chasanov would be hired as the new District superintendent; and (5) the Board’s options with respect to the search for and hiring of a new assistant superintendent.  The Board has failed to satisfy its burden of showing that its use of FOIA’s open meeting exemptions was justified.
1. The Board had no basis for discussing Dr. Kohel’s resignation letter in closed session.
The Board relies on the “personnel” and “strategy session” exemptions to justify the Board members’ private discussions concerning Dr. Kohel’s resignation letter.  The “personnel” exemption, found at FOIA § 10004(b)(9), permits public bodies to discuss personnel matters involving the “names, competency and abilities of individual employees.”  29 Del. C. § 10004(b)(9).  The “strategy session” exemption, in turn, permits public bodies to meet in private, with or without an attorney, to discuss collective bargaining or pending or potential litigation, “but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.”  29 Del. C. § 10004(b)(4).  The record does not support the Board’s use of either exemption to discuss Dr. Kohel’s resignation letter in private.
The Board’s reliance on FOIA § 10004(b)(9) is misplaced.  As far as we can tell, the Board’s discussion of Dr. Kohel’s resignation letter during the 1st July 24th Executive Session had nothing to do with Dr. Kohel’s competency or abilities as District superintendent.  The July 24th ES Minutes reflect only that “Dr. Kohel was excused by the Board while they discussed her letter of resignation and filling the vacancy, if the Board approved her resignation request.”  (July 24th ES Minutes, p. 1.)  Based on our review of the July 24th Minutes, it appears that the Board’s discussion with respect to Dr. Kohel’s resignation letter focused entirely on whether the Board would waive the six-month notice requirement in Dr. Kohel’s employment contract.15 We see no evidence that the Board members considered Dr. Kohel’s competency or abilities in connection with that determination.  Cf. Att’y Gen. Op. 06-IB02 (Jan. 9, 2006) (approving private “personnel” session concerning circumstances leading to town administrator’s resignation where discussion involved “the names, competency and abilities of individual employees”).
The Board’s reliance on FOIA § 10004(b)(4) also lacks support in the record.  Dr. Kohel’s resignation letter did not involve collective bargaining and was not the subject of a lawsuit.  Nor do we believe that the resignation letter was the subject of “potential litigation,” as we have interpreted that phrase.  For the potential litigation exception to apply there must be a “realistic and tangible threat of litigation” based on “objective factors.”  See Att’y Gen. Op. 02-IB12 (May 21, 2002).  Such indicia may include a written demand letter, notice of intent to sue, or previous or ongoing litigation between the parties.  See id. We see no evidence that a lawsuit actually was threatened in this case and do not believe that the Board ever seriously considered pursuing equitable or legal rights against Dr. Kohel.
The July 24th ES Minutes reflect only that the Board “discussed [the] letter of resignation.”  (July 24th ES Minutes, p. 1.)  There is no mention in the July 24th ES Minutes, or anywhere else, of claims the District may have against Dr. Kohel for injunctive relief or breach of contact.  The record does not reflect that the Board members ever discussed the pros and cons of pursuing any such claims, and we see no indication that the Board ever retained or consulted with counsel concerning Dr. Kohel’s resignation.  We note that the Board’s counsel was not in attendance during the 1st July 24th Executive Session.
Based on these observations, as well as comments Mr. Breeding made during the 1st July 24th Open Session, we are confident that the Board had no intention of instituting a lawsuit against Dr. Kohel.16 In response to a resident’s concerns about the resignation letter, Mr. Breeding publicly stated, in no uncertain terms, that, if administrators want to leave, the Board would release them from their employment contracts.  (July 24th Minutes, p. 3.)  According to Mr. Breeding, employment contracts are “good for one purpose” — protecting “the ‘employee’; not the employer.”  (July 24th Minutes, p. 3.)  Moreover, the relationship of the parties does not appear to have been adversarial.  Mr. Breeding made clear that Dr. Kohel had been upfront with the Board “since she applied for the position,” and that she notified the Board at “every step through[out] the process.”  (July 24th Minutes, p. 3.)
We conclude that FIOA § 10004(b)(4) does not apply because the prospect of litigation involving Dr. Kohel’s resignation was remote, at best.  See Att’y Gen. Op. 02-IB12 (“The exception should not be construed to apply . . . where the possibility of litigation is still remote.”).  Even if the Board did discuss legal options vis-à-vis Dr. Kohel during the 1st July 24th Executive Session, which we doubt, the Board has not alleged, much less proved, that an open discussion with respect to Dr. Kohel’s resignation letter would have had an adverse effect on the District’s “bargaining or litigation position,” as required by FIOA § 10004(b)(4).  The Board violated FOIA by discussing Dr. Kohel’s resignation letter during the 1st July 24th Executive Session.
2. The Board, outside of public view, improperly discussed and reached consensus on the superintendent selection process, including the identity of the lone candidate.
The petition raises the issue of whether the Board violated FOIA by privately discussing and reaching agreement on its options for filling the District superintendent position.  We think it did.  Our prior determinations make clear that the public has a right under FOIA to observe discussions and decisions relating to the process to be employed in selecting a new superintendent.  For reasons that are not entirely clear, the Board shielded the entire (albeit brief) superintendent selection process from public view, up to and including the Board’s decision to select Mr. Chasanov as the sole candidate to replace Dr. Kohel.
We previously determined, and it now should be well settled, that school boards may not discuss issues bearing on the superintendent selection process in private.  See, e.g., Att’y Gen. Op. 02-IB17 (determining that school board violated FOIA by discussing in executive session the mechanics of the superintendent selection process); Att’y Gen. Op. 03-IB23 (Oct. 20, 2003) (determining that school board violated FOIA by discussing in executive session matters relating to the search for a new superintendent).  The “selection process” includes discussions, deliberations and decisions about whether (or not) to hire a professional search firm, the professional, educational and other criteria that will be used by the school board to select a new superintendent, and the selection of the final applicants to be considered for a superintendent position.  See Att’y Gen. Op. 02-IB17.
It is equally well settled that public bodies may not conduct “straw polling” or otherwise reach “consensus votes” during executive session which they later seek to ratify through a subsequent “public” vote.  Att’y Gen. Op. 05-IB29 (Oct. 13, 2005); Att’y Gen. Op. 96-IB15 (May 10, 1996).  FOIA plainly states that “all voting on public business must take place at a public meeting.”  29 Del. C. § 10004(c).
We think the record shows that the Board members, either prior to or during the 1st July 24th Executive Session, privately discussed and reached consensus on virtually every aspect of the superintendent selection process.  The Board members clearly agreed, outside of public view, that the Board would not hire a professional search firm to locate a replacement for Dr. Kohel.  Mr. Breeding acknowledged and confirmed that agreement during the 1st July 24th Open Session.  We also think the Board members agreed, whether tacitly or expressly, that the Board would take no action on its own to advertise or conduct a search for Dr. Kohel’s replacement.  Notably, the Board admits that it did not solicit or receive a single application for the District superintendent position (Bd. Resp., p. 4), notwithstanding that the Board knew for several months that Dr. Kohel had applied for and desired to accept the superintendent position with the Milford School District (July 24th Minutes, p. 3).  Finally, we believe that the Board members, either prior to or during the 1st July 24th Executive Session, reached a private understanding that the position of District superintendent would be offered to just one candidate, Mr. Chasanov.  The Board has admitted that its purported discussion about options “focus[ed] on a specific employee” — namely, Mr. Chasanov.  (2nd Bd. Resp., p. 2.)  We see no evidence that the Board ever considered any other “options.”
Based on the record provided to us, we conclude that the Board violated FOIA by agreeing to a superintendent selection process and identifying a consensus candidate outside of public view.  The Board’s subsequent (unanimous) public vote to approve Mr. Chasanov as the new District superintendent was fait accompli and invalid.  See Att’y Gen. Op. 06-IB12 (June 19, 2006) (determining that city council violated FOIA by reaching a consensus vote in executive session (6-3) in favor of one of the two finalists for the director of planning and inspections).
3. The Board violated FOIA to the extent its members discussed in private the competency and ability of Mr. Chasanov to replace Dr. Kohel as District superintendent.
The Board argues that it was permitted to discuss in executive session the competency and abilities of Mr. Chasanov to replace Dr. Kohel as District superintendent.  We acknowledge that the personnel exemption normally permits public bodies to discuss privately matters involving the “names, competency and abilities of individual employees.”  29 Del. C. § 10004(b)(9).  We are not convinced, however, that the Board members actually discussed or debated Mr. Chasanov’s competency and abilities during the 1st July 24th Executive Session.  Even if they did, we do not believe that the Board was justified in using the personnel exemption to discuss the merits of Mr. Chasanov’s candidacy in private.
Initially, we note that, in order to justify the use of FOIA § 10004(b)(9), a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.  See Att’y Gen. Op. 02-IB12 (“Council discussed police salaries and the emergency situation caused by the resignation of several police officers.  These are not the type of “personnel matters” authorized by FOIA for discussion in executive session.”).  Based on our review of the record provided to us, it does not appear that the Board members discussed or debated Mr. Chasanov’s competency and abilities to serve as the new District superintendent during the 1st July 24th Executive Session.  We see no evidence that the Board members interviewed Mr. Chasanov or considered his professional qualifications and other abilities.  The record does not reflect whether the Board reviewed Mr. Chasanov’s performance as assistant superintendent.  Nor does it reflect whether Mr. Chasanov has all the necessary certifications to hold the position of District superintendent.  See 14 Del. C. § 1220(a); 14 Del. Admin. C. §§ 1505, 1593.
Even if the Board did directly discuss or debate, however briefly, Mr. Chasanov’s competency and abilities to serve as the new District superintendent during the 1st July 24th Executive Session, which we doubt, we do not believe the Board was justified in shielding those discussions from public view.  Under the unique facts of this case, we conclude that the public was entitled to monitor and observe the Board’s discussion of the competency and abilities of Mr. Chasanov to replace Dr. Kohel.  Cf. Att’y Gen. Op. 98-IB09 (Sept. 25 1998) (determining that this Board did not violate FOIA by discussing, in closed session, the name, competency and abilities of an assistant principal).
The personnel exemption set forth in FOIA § 10004(b)(9) reflects the General Assembly’s judgment as to the appropriate balance between the public interest in open discussion of public business and the rights of individual employees to have their work performance considered in private (to avoid embarrassment and reputational injury).  See Att’y Gen. Op. 02-IB12.  In most instances, the application of the personnel exemption is not controversial because the private discussion or evaluation of a particular employee’s job performance will not significantly impair the public’s knowledge or understanding of the people’s business.  Id. We do not believe the General Assembly intended for FOIA § 10004(b)(9) to apply in circumstances where, as here, the usual balance between the public interest in open discussions and the privacy rights of an individual employee is skewed heavily if not exclusively in favor transparency.
Mr. Chasanov, as the sole candidate under consideration, did not have a legitimate expectation of privacy with respect to his performance as assistant superintendent, or any other matters bearing on his ability to serve as Dr. Kohel’s replacement.  During the 1st July 24th Executive Session, Mr. Chasanov indicated to the Board, allegedly for the first time, his desire to succeed Dr. Kohel as District superintendent.  Having thrown his hat in an empty ring, Mr. Chasanov was no longer a typical employee with potentially legitimate privacy concerns about his work performance.  He was, as of that point in time, as a willing participant and candidate — indeed, the only candidate — in the Board’s “search” for a new District superintendent.  We do not believe that Mr. Chasanov, as the sole candidate under consideration for the District’s top position, had a reasonable belief that his work performance and academic credentials would be discussed and vetted exclusively in private.  See Att’y Gen. Op. 02-IB17 (observing that any superintendent candidate must expect that when he or she proceeds to the later stages of the selection process, there will be open and public consideration of professional competence).
In stark contrast, the public had a substantial interest in Mr. Chasanov’s job performance during his tenure as assistant superintendent, as well as Mr. Chasanov’s academic and other credentials and qualifications, which matters bears directly on Mr. Chasanov’s competency and abilities to serve as the District superintendent.
We think, under the circumstances presented in this case, members of the public were entitled to monitor and observe the Board members’ discussions about the competency and abilities of Mr. Chasanov to replace Dr. Kohel.  The Board frustrated those rights and has not established that its use of FOIA § 10004(b)(9) was justified.
4. The Board violated FOIA by excluding the public from its alleged “strategy session” concerning the compensation, benefits and other terms on which Mr. Chasanov would be hired as District superintendent.
We next address whether the Board was permitted to discuss, during the 1st July 24th Executive Session, the compensation, benefits and other terms to be included in Mr. Chasanov’s employment contract.  Under the unique circumstances presented here, we conclude that the Board has failed to justify its use of FOIA § 10004(b)(4) to discuss, in closed session, the terms on which Mr. Chasanov would be employed as District superintendent.
As noted, the strategy session exemption permits public bodies to meet in closed session, with or without an attorney, to discuss issues related to collective bargaining or pending or potential litigation when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.  See 29 Del. C. § 10004(b)(4).  On its face, FOIA does not permit public bodies to engage in private strategy sessions regarding employment-related contracts outside of a collective bargaining or litigation context.  Given that the General Assembly has seen fit to permit non-public strategy sessions only in limited and specifically identified circumstances, the General Assembly, by negative implication, arguably intended for the terms of all other contracts (i.e., those not involving collective bargaining or subject to pending or potential litigation) to be discussed in full view of the public, unless covered by another exemption.
Nonetheless, in several prior opinions, we effectively expanded the reach of FOIA § 10004(b)(4) by permitting public bodies to discuss and strategize about ongoing employment contract negotiations.  See, e.g., Att’y Gen. Op. 10-IB03 (Mar. 10, 2010) (determining that town properly entered executive session to discuss strategy related to the negotiation of a new employment contract for the chief of police); Att’y Gen. Op. 06-IB15 (July 24, 2006) (determining that FOIA permitted school board to discuss in private the salary for a new superintendent).  Cf. Att’y Gen. Op. 01-IB03 (Feb. 16, 2001) (FOIA authorized the school board to discuss in executive session contents of records reflecting “labor negotiations”).  The rationale for those opinions is fairly straight-forward:  A public body should not be forced to formulate publicly its strategy for negotiating employment contracts because doing so would impair the public body’s ability to obtain the most favorable terms.  See Att’y Gen. Op. 10-IB03; Att’y Gen. Op. 06-IB15.
While our prior determinations appear to make logical sense, we are not bound by and are hesitant to follow them.  First, our prior decisions arguably run contrary to the express intention of the General Assembly, as noted above.  Second, they do not address and appear to disregard binding precedent in this jurisdiction concerning the manner in which FOIA is to be interpreted.  We have been instructed by the Delaware Supreme Court to strictly construe FOIA exemptions in favor of transparency.  See Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984) (“[O]pen meeting laws are liberally construed, and closed session exceptions within these statutes are strictly interpreted to limit nonpublic meetings.”).  We are hesitant to interpret FOIA § 10004(b)(4) in a manner that may contravene the General Assembly’s intent or the Delaware Supreme Court’s teachings.
Even if we were inclined, generally, to liberally construe and expand the “strategy session” exemption to cover discussions related to the negotiation of an employment contract, we do not think it appropriate to do so in this case.  To begin with, the record before us does not establish that an open meeting would have had an adverse impact on the Board’s bargaining position.  During the 1st July 24th Executive Session, Mr. Chasanov privately disclosed to the Board, allegedly for the first time, his interest in moving into the District superintendent position and made certain “contract requests.”  (July 24th ES Minutes, pp. 1-2.)  It appears to us that, after hearing Mr. Chasanov’s demands, the Board simply agreed to put Mr. Chasanov’s requests to a vote.  (July 24th ES Minutes, p. 2.)  We see no evidence that the Board members attempted to formulate a counterproposal or otherwise strategized about ways to obtain better terms from Mr. Chasanov.  We are not even sure whether Mr. Chasanov was ever excused from the 1st July 24th Executive Session.  In light of the record before us, we are not convinced that public disclosure of the Board members’ purported “strategy session” would have compromised the Board’s ability to negotiate more favorable terms with Mr. Chasanov.17
Further, our prior decisions in Att’y Gen. Op. 10-IB03 and Att’y Gen. Op. 06-IB15 are readily distinguishable from this case.  Our decision in Att’y Gen. Op. 10-IB03 involved ongoing, active negotiations between a town council and the town’s chief of police.  In that case, we determined that council did not violate FOIA when it entered executive session to discuss the terms of the police chief’s new contract.  During those discussions, the town considered the terms of the police chief’s current contract, the parties’ demands and positions, the police chief’s performance evaluations and the town’s negotiation strategy.  See id.
In Att’y Gen. Op. 06-IB15, we permitted the school board to discuss in executive session the salary the board might be willing to pay a new superintendent.  The board’s discussion, which included representatives from a professional search firm, was part of a broader, formal effort on the part of the board to select and retain the most qualified candidate to serve as the district superintendent.  In that case, we concluded that premature disclosure of the salary the board was willing to pay would unjustly prejudice the board and impair its ability to negotiate favorable terms with the top candidates, once identified.  See id.
Our determinations in Att’y Gen. Op. 10-IB03 and Att’y Gen. Op. 06-IB15 involved either ongoing or prospective contract negotiations.  Both of those determinations hinged on our belief that premature, public disclosure of the terms those public bodies were willing to accept would have compromised their competitive positions, to the detriment of tax payers.  The present case, in contrast, does not involve ongoing or prospective contract negotiations.  The record here reflects only Mr. Chasanov’s “contract requests” and the Board’s apparent willingness to put the requested terms to a vote.  As far as we can tell, there was no negotiation concerning the terms on which Mr. Chasanov would be hired as District superintendent.
5. The Board improperly discussed and reached consensus on its options for filling the assistant superintendent position.
Finally, we address whether the Board violated FOIA during the 2nd July 24th Executive Session by discussing and reaching consensus on the Board’s options for filling the assistant superintendent position.  We believe it did.
As discussed above, school boards are not permitted to discuss or reach consensus on the mechanics of the superintendent selection process outside of public view.  See Att’y Gen. Op. 02-IB17; Att’y Gen. Op. 03-IB23; Att’y Gen. Op. 05-IB29; Att’y Gen. Op. 96-IB15.  The same rules apply to the selection process for an assistant superintendent.  The Board disregarded them.
The Board has admitted, as it should, that its members should not have discussed “options for filling the position of assistant superintendent” during the 2nd July 24th Executive Session.  (2nd Bd. Resp., p. 2.)  The Board has not admitted or otherwise addressed whether its members privately reached consensus on which “option” to pursue.  We think the record shows that they did.
The Board returned from the 2nd July 24th Executive Session at 8:38 p.m.  Thereafter, the Board, by unanimous vote of 5-0, agreed to post the position of assistant superintendent for three weeks.  (July 24th Minutes, p. 6.)  The 2nd July 24th Open Session concluded at 8:40 p.m., just two minutes after it began.  (July 24th Minutes, p. 6.)  We see nothing in the record suggesting that the Board members publicly discussed or debated, in that two-minute window, any of the “options” that the Board allegedly explored during the 2nd July 24th Executive Session.  Under the circumstances, we can only assume that the Board members, while in the 2nd July 24th Executive Session, reached some kind of an understanding with respect to the process by which the assistant superintendent position would be filled.  We think the Board’s vote reflects that understanding.
IV. REMEDIATION
During the course of our investigation, we identified a host of open meeting violations, some of them serious, with respect to the July Meetings.  We are deeply concerned that the Board does not fully understand or appreciate its obligations under FOIA, or the salutary policies that FOIA was designed to further.  After viewing the violations collectively, and giving due consideration to the nature of the violations, we think the Board is, at best, indifferent with respect to its obligations under FOIA.  The July Meetings are rife with examples of where the Board frustrated rather than promoted the public’s right to observe and monitor the Board’s performance.
Our gravest concerns relate to the non-public manner in which the Board dealt with the resignation of Dr. Kohel and the selection and hiring of Mr. Chasanov as the new District superintendent.  The Board, in contravention of FOIA’s open meeting requirements, failed to provide residents and other members of the public with any notice, much less reasonable notice, that the Board anticipated taking action on those critical issues at the July 24th Meeting.  The Board compounded the problem and committed additional FOIA violations by discussing and reaching consensus on these and other important topics outside of public view.  The public had no ability whatever to observe or monitor the Board’s discussions and decisions related to Dr. Kohel’s resignation or the selection of her replacement.  The Board even believed it appropriate to withhold from the public the amount of taxpayer money it agreed to pay Mr. Chasanov in the form of salary and other benefits.  We do not believe that the Board has embraced the concept of transparency.
We need to address this situation and have a number of options available to us, most notably, the threat of invalidation as contemplated in FOIA § 10005(a).  We generally view the threat of invalidation as a serious sanction that ought not to be employed unless “substantial public rights” have been affected and the circumstances permit the crafting of remediation that protects other legitimate public interests.  See Ianni, 1986 WL 9610, at *7; Att’y Gen. Op. 02-IB17.
The Board’s conduct in this case negatively affected substantial public rights.  We have previously determined that a school board may violate substantial public rights by deciding who to hire as the new superintendent outside of public view.  See Att’y Gen. Op. 02-IB17.  The specific rights implicated are the rights of students, parents, teachers, and other concerned citizens in the district to be involved in the selection of a new superintendent.  Id. This case involves important decisions about the outgoing and incoming District superintendent and implicates virtually identical rights.
We think invalidation is appropriate under the circumstances presented here.  Our prior decision in Att’y Gen. Op. 02-IB17 is instructive on this point.  In that case, we determined that invalidation of the Board’s vote to hire a new district superintendent was inappropriate, in part, because the school year was about to begin.  Invalidation posed a significant risk of disruption to students, teachers and school administrators.  Finally, we found it relevant in that case that interested citizens had been provided with an opportunity to meet and evaluate the three finalists and were permitted to voice their concerns with respect to the selection of a new superintendent.  The situation here is much different.
The District has an acting superintendent, Mr. Chasanov, and the end of the school year is fast approaching.  The risk of disruption in this case is substantially less.  Further, unlike the situation in Att’y Gen. Op. 02-IB17, where the latter portion of the selection process was open to the public, the students, parents, teachers, and other concerned citizens in this District had little or no ability to observe or monitor the Board’s discussions and decisions concerning the District’s top official.  They were completely shut out of the process.
We think invalidation is entirely appropriate with respect to the Board’s votes to approve the resignation of Dr. Kohel and to hire Mr. Chasanov as the new District superintendent.  We strongly urge the Board to revisit those votes at a properly noticed and conducted public meeting.  Even if the outcome of those votes is unlikely to change, we think the Board members, at a minimum, have a duty to disclose and discuss publicly the factors supporting their decisions on those important issues.  See Att’y Gen. Op. 98-IB01 (Jan. 21, 1998) (directing ethics board to hold a new hearing on charges against city councilman and requiring board to “deliberate in public as required by law”).
We do not believe invalidation is a fitting remedy with respect to other FOIA violations we have identified.  We nonetheless feel that some form of additional remediation is appropriate and necessary to address those violations and ensure the Board’s compliance with FOIA’s open meeting requirements in the future.  To that end, we recommend that the Board, in consultation with its counsel, prepare and approve a FOIA training and compliance plan.  Any such plan should include mandatory FOIA educational programs for Board members and District employees with FOIA-related responsibilities, as well as written rules and procedures governing the disclosures required for, and the conduct of, all future Board meetings.
We are hereby requesting that, no later than 30 days from the issuance of this determination, the Board’s counsel confirm the Board’s agreement to our recommendations and provide us with a status update regarding the Board’s efforts to implement same.  We reserve the right to institute appropriate legal proceedings to compel compliance with FOIA’s open meeting requirements and for other appropriate relief should the Board fail to comply.  The Board’s counsel should contact us with any questions concerning the foregoing.
V.    CONCLUSION
For the reasons discussed above, we conclude that the Board committed multiple violations of FOIA’s open meeting requirements at or in connection with the July Meetings.  As remediation, we urge the Board to revisit its votes concerning Dr. Kohel and Mr. Chasanov and recommend that the Board take certain other actions to ensure the Board’s compliance with FOIA’s open meeting requirements going forward.
Very truly yours,
Jason W. Staib
Deputy Attorney General
Approved:
/s/ Allison E. Reardon
Allison E. Reardon
State Solicitor
cc:    James D. Griffin, Esq. (via email and regular mail)
FOOTNOTES
1 The Board is a “public body” within the meaning of FOIA.  See 29 Del. C. § 10002(h).  As such, the Board is subject to the “open meeting” requirements of FOIA.  See 29 Del. C. § 10004.
2 The petition also raises issues with respect to a meeting conducted in August 2012.  Those issues are identical to certain concerns raised with respect to the July 2012 meetings and are not specifically addressed herein.
3 The record does not disclose the date on which the Board first posted the July 10th Agenda.  Given that no issue has been raised with respect to the timeliness of the original July 10th Agenda, we assume it was filed seven days prior to the July 10th Meeting, as required by FOIA § 10004(e)(2).
4 By statute, Dr. Kohel, in her capacity as then-District superintendent, served as executive secretary to the Board.  See 14 Del. C. § 1091.
5 Based on public statements made by the Board’s president during the July 24th Meeting, Dr. Kohel’s resignation did not come as a surprise to the Board.  As noted below, the Board knew that Dr. Kohel had applied for the superintendent position with the Milford School District and, by its own admission, was kept apprised of the situation every step of the way.
6 We do not believe that the July 24th ES Minutes contain confidential or other sensitive information.  All of the information contained in the July 24th ES Minutes either is or should be a matter of public record.  The economic terms on which Mr. Chasanov was hired to replace Dr. Kohel clearly are not confidential and should have been disclosed publicly at the July 24th Meeting.  It is well settled that citizens have a right to know how their public servants are compensated with taxpayer monies, in whatever the form that compensation might take.  See, e.g., Att’y Gen. Op. 12-IIB10 (July 27, 2012); Att’y Gen. Op. 06-IB14 (July 12, 2006).
7 FOIA also imposes on public bodies certain disclosure requirements with respect to the subject matters to be dealt with at public meetings.  See 29 Del. C. § 10002(a) (requiring agendas to contain “a general statement of the major issues to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor”); 29 Del. C. § 10004(c) (“The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in [FOIA § 10004(b)].”).  We address below whether the July Agendas satisfy FOIA’s disclosure requirements.
8 The second and third sentences of FOIA § 10004(e)(4) contain electronic notice requirements for certain state instrumentalities.  They do not apply to the Board.
9 The petition does not assert that the Board failed to make a reasonable number of notices available to the public.  We therefore assume that the Board satisfied that requirement.
10 We note that you were present at both of the July Meetings, notwithstanding the Board’s failure to post the July Agendas at the School.
11 The Board apparently used 7:00 p.m., the posted start time of the public session, as the reference point for judging the timeliness of the Amended July 10th Agenda under FOIA § 10004(e)(5).  In our view, public meetings unquestionably start when they are called to order, which, in this case, was 6:00 p.m.
12 The Board apparently approved the transfer of Route 9 on a contingent basis because the District had not received the seller’s transfer request by the time of the July 10th Meeting.
13 The Board convened two “special” Board meetings between July 10, 2012 and August 21, 2012 — one on July 24, 2012 and the other on August 14, 2012.
14 The record in this case contains no evidence about the difficulty the Board would or may have faced in trying to gather a quorum and otherwise arrange for a specially scheduled meeting in less than a month’s time.  Further, as already noted, the Board, in fact, was able to and did convene a “special” Board meeting on July 24, 2012.
15 Mr. Chasanov, after making a presentation to the Board about unrelated personnel matters, remained and was present for the Board’s discussion about Dr. Kohel’s resignation letter during the 1st July 24th Executive Session.  As part of the Board’s remediation efforts, which we recommend below, we urge the Board to visit and assess the propriety of its practice of inviting non-members to attend executive sessions.  See Att’y Gen. Op. 05-IB26 (Aug. 29, 2005) (public body cannot invite non-members as observers or to participate in discussion of matters not authorized for executive session); Att’y Gen. Op. 02-IB17 (same).
16 We acknowledge that two of the Board members voted against releasing Dr. Kohel from her employment contract.  The fact that two Board members were unwilling to waive rights against Dr. Kohel to enable her to take a new position does not establish that those same Board members, or any other Board members, considered filing suit to enjoin Dr. Kohel from taking the superintendent position with the Milford School District or pursuing potential claims against Dr. Kohel for breach of contract.
17 We also observe that most of the compensation payable to a superintendent in Delaware appears to be payable from state funds and is for the most part set by uniform rate schedules.  See generally 14 Del. C. §§ 1303-1306.  The record does not reflect whether or to what extent Mr. Chasanov’s compensation exceeds the uniform rate, or whether any additional amounts are being paid from local funds, as permitted by 14 Del. C. § 1304.
 


<< Back



+