OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB01
June 12, 2015
VIA EMAIL
William W. Weller
216 Oak Drive
Middletown, DE 19709
Williamweller1@verizon.net
Re: FOIA Complaint Concerning the Appoquinimink School Board
Dear Mr. Weller:
On January 9, 2015, the Delaware Department of Justice (“DOJ”) received your petition (the “Petition”) requesting our determination pursuant to the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), of whether the Appoquinimink School Board (the “Board”) violated the FOIA open meeting requirements in its consideration and renewal of the district superintendant’s contract of employment (the “Contract”). Pursuant to our normal process in responding to petitions for determination under FOIA, we invited the Board to submit a written response to your Petition. We received the Board’s response (the “Response”) on March 6, 2015.1
FACTUAL BACKGROUND2
I. June 10, 2014 Board Meeting
On June 10, 2014, the Board held a monthly school board meeting. The notice and agenda for the public meeting were posted on the District website at least seven days in advance of the meeting per the requirements of FOIA. The agenda also indicated that the Board would meet in executive session, and included a separate attachment for the “executive session agenda.” The executive session agenda noted that the Board would discuss (i) Administrative Position Interview; (ii) Student 14-04; (iii) Student 14-05; (iv) Legal and Personnel Issues; and (v) Miscellaneous and Other.
The public meeting agenda indicated that the Board planned to take action with respect to each of the items discussed in executive session during the public meeting. Thus, the minutes of the June 10, 2014 meeting note that “[a] motion was made by Mr. Forsten and seconded by Mrs. Johnson . . . to approve a three (3) year contract extension for the Superintendent as discussed in Executive Session. Vote unanimous. Motion carried.”
At some point after the June 10, 2014 meeting, the Board posted an amended agenda for the June meeting to the District website. The amended agenda included a newly added reference to the Contract, but did not mention that the discussion of the Contract occurred in executive session. Additionally, the executive session agenda itself was not amended to specifically include the topic of the superintendent’s Contract.
The Petition states that Mr. Weller contacted the superintendent to inquire “as to who authorized the agenda to be updated post-meeting with respect to the Contract” and that Mr. Weller informed the superintendant that “it would be appropriate to re-notice the Contract for an upcoming Board Meeting, so that the public would have adequate notice and can monitor the Board’s decision with respect to the Contract.”
II. November 18, 2014 Board Meeting
The superintendent’s Contract was included as a topic for discussion during the public session of the Board’s November 18, 2014 meeting.3 Specifically, agenda item 9.5 referenced the “Approval to Renew the Contract of the Superintendent.” The minutes of that meeting indicate that “[a] motion was made by Mr. Forsten and seconded by Mr. Abrams to approve the contract for the Superintendent with a three year extension. Vote unanimous Motion carried.” The minutes do not indicate whether the Board engaged in any substantive discussion regarding the terms of the Contract during its public meeting. However, Mr. Weller attended the meeting “and stated that [he] thought it would be appropriate for the Board to indicate the general parameters of the differences between the prior contracts and new contract, and the reasons that each Board Member” approved or did not approve the renewal of the contract. At first, the Board declined to engage in further discussion of the contract, but later in the meeting the Board agreed to discuss the terms of the Contract at the meeting. The Contract itself was made available to Mr. Weller at some prior to the November meeting.
III. December 9, 2014 Board Meeting
Mr. Weller asked to be entered as a delegation4 at the December 9, 2014 Board Meeting. Although further discussion of the Contract was not included as an agenda item, Mr. Weller discussed his concerns about the Board’s discussion and approval of the Contract to Board Member Forsten prior to the December meeting. Mr. Weller also states that he prepared a presentation to the Board on the Contract and expressed his ongoing concern that the Board misinterpreted the terms of the contracts, the differences between the contracts, and failed to advise the public of the correct contract terms.
According to the minutes of the December Board meeting, “[a] motion was made by Mrs. Johnson and seconded by Mrs. Edelin to approve the personnel action with the change of correcting the Superintendent’s Contract by adding the $4,000 moving expense as discussed in Executive Session. Vote unanimous. Motion carried.” However, the agenda for the December meeting did not indicate the Board planned to take further action on the Contract.
ALLEGED VIOLATIONS
The Petition alleges that the Board’s consideration of the Contract violated FOIA for several reasons:
1. The Board considered and voted on the Contract at its June 2014 meeting in executive session without indicating that the matter would be discussed in the June 2014 meeting agenda, or that the matter would be discussed by the Board in executive session;
2. The executive session agenda for the June 2014 Board Meeting failed to mention the proposed discussion of the superintendent’s Contract, and the Board improperly considered and approved the Contract in executive session because it did not provide public notice of the Contract in the agenda;
3. The agenda was updated post-meeting to include the Contract on the June 2014 Board Meeting agenda;5
4. At the November Board Meeting, Board Member Forsten indicated that the Contract was approved in Executive Session in June;
5. Two Board Members discussed incorrect terms of the new Contract to the public at the November 2014 meeting and approved the Contract despite the discussion of incorrect terms;
6. The Board failed to include notice of further discussion of the Contract on the Board’s December 2014 meeting agenda;
7. The Board failed to notify the public that its discussion of the terms of the Contract at the November 2014 meeting were inaccurate; and
8. The Board failed to adequately advise the public of the correct terms of the Superintendent’s new Contract.6
RELEVANT STATUTE
“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].” 29 Del. C. § 10004(a). “Public body” includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making “reports, investigations or recommendations” to a public body. 29 Del. C. § 10002(c).
A public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.” 29 Del. C. § 10004(c). Sections 10004(e) and (f) of Title 29 set out the requirements for meeting notices, agendas and minutes.
LEGAL ANALYSIS
I. Did the Public and Executive Session Agendas for the June 2014 Meeting Provide the Public with Adequate Notice of its Consideration of the Superintendent’s Contract?
FOIA requires public bodies to publish, in advance of a public meeting, a meeting agenda identifying important matters that a public body expects to discuss or take action on at a public meeting. See 29 Del. C. § 10002(a) (requiring that agendas include “a general statement of the major issues expected to be discussed at a public meeting”). FOIA further requires public bodies to disclose in their agendas when they intend to convene in executive session and the statutory basis or bases for discussing public business in closed session. See id. (requiring that agendas include “a statement of intent to hold an executive session and the specific ground or grounds therefor”). See also 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)].”).
The Board argues that the June 2014 executive session agenda was sufficient to notify the public that it would discuss the Contract because the agenda indicated that the Board would discuss “Legal and Personnel Issues.” We disagree, and find that neither the executive session nor the public meeting agendas for the June 2014 Board Meeting were sufficient to put the public on notice of the Board’s intent to discuss and take action on the Contract.
a. The Discussion of the Superintendent’s Contract in Executive Session Is Not Authorized by FOIA
As an initial matter, we find that the Board violated FOIA by discussing the Contract in executive session, which is not a permissible executive session discussion under FOIA. While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.” Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013). Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance. Id., at *18. Thus, we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent. Id.
Even if we find that the Board properly discussed Mr. Burrow’s competency and abilities in executive session, there is insufficient support in the record for the Board’s contention that it only discussed the competency or abilities of the superintendent in executive session. Rather, the Board also discussed the renewal of the Contract and the terms of that Contract. “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.” Id.
In short, any exceptions to the open meeting requirements are to be construed narrowly. 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.”). Thus, we find that under the circumstances of this case, the Board violated FOIA when it discussed the renewal of the Contract in executive session.
b. The Public and Executive Session Agendas did not Comply with FOIA
The Board’s June 2014 meeting agendas violated FOIA because the agendas did not provide notice of the Board’s intention to discuss and vote on the superintendent’s employment Contract. “FOIA requires that any such ‘notice’ include an agenda notifying the public of 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.” Del. Op. Atty. Gen. 12-IIB13, 2012 WL 6858961, at *4 (Dec. 21, 2012). As noted by the Court of Chancery:
While the statute requires only a ‘general statement’ of the subject to be addressed by the public body, when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of the Freedom of Information Act to state the subject in such broad generalities as to fail to draw the public’s attention to the fact that specific important subject will be treated.
Ianni v. Department of Elections of New Castle County, 1986 WL 9610, at *6 (Aug. 29, 1986) (Allen, C.). Here, the public had no way of knowing that the superintendent’s Contract would be considered and voted upon by the Board at its June meeting. The post-meeting revision to the June agenda did not remediate this violation. No member of the public could decide whether or not to attend the June meeting based on the agenda provided, and by the time the amended agenda was posted, it was too late. Therefore, we find that the Board did not comply with FOIA’s notice requirements with respect to its discussion of the superintendent’s employment Contract at the June, 2014 Board meeting.
c. The Vote to Approve the Superintendent’s Contract at the June Meeting did not Violate FOIA
The Petition alleges that the Board improperly voted on the superintendent’s Contract in executive session. However, there is insufficient evidence in the record reviewed by our office to suggest that the Board voted on the approval of the Contract in executive session. Indeed, the minutes from the June Board meeting indicate that the vote was held during the Board’s public session. We find that the record lacks sufficient evidence to conclude that there was a separate violation of FOIA regarding the procedure utilized by the Board to approve the Contract at the June Meeting.
II. Did the Board Violate FOIA when it Failed to Include Notice of its Intent to Discuss a Correction to the Contract during its December 2014 Meeting?
The Petition alleges that the Board discussed the Contract at the December 2014 meeting but did not place the matter on the agenda. The Board does not deny that this discussion constituted a violation of FOIA.
We find that the Board violated FOIA’s notice requirements when it failed to include notice of its intention to discuss and take action regarding the Contract at the December meeting on the December meeting agenda. However, we conclude that this constituted a technical violation of FOIA for which no remediation is required because no substantial rights were affected. The discussion at the December meeting merely acknowledged a misstatement about the Contract at the November meeting, and the subsequent vote was not to approve a material change to the Contract itself, but to correct the record of the November meeting.
REMEDIATION
We find that Executive Session and Public Meeting Agendas for the June 2014 Board Meeting violated FOIA and affected substantial public rights. In a similar case, we determined that the school board violated substantial public rights “by deciding who to hire as the new [District] superintendent outside of public view.” Del. Op. Att’y Gen. 02-IB17, 2002 WL 31031224, at *8 (Aug. 6, 2002). In that case, the “specific rights at issue . . . were the rights of students, parents, teachers, and other concerned citizens in the District to be involved in the selection of a new superintendent.” Id. However, we declined to invalidate the school board’s approval of the new superintendent for equitable reasons. See id., at *10.
Similarly, although we find that the Board’s June 2014 Meeting and related agendas violated FOIA, we decline to determine that the approval of the Contract is invalid for violation of the open meeting law.7 The record indicates that after Mr. Weller raised his concerns about the adequacy of the Board’s June 2014 meeting agendas, the Board placed the matter on its November agenda, engaged in a public discussion about the Contract at the November meeting, and voted on the Contract at the November meeting. The Board also completed FOIA training in a public session in November 2014 in order to gain additional understanding of FOIA’s public meetings laws. Therefore, we find that the Board has already taken action to cure the June 2014 violations of the open meetings laws. Under the circumstances, no additional remediation is required.
CONCLUSION
We find that the Board violated FOIA’s open meetings requirements when it (i) discussed the Contract in executive session at the June 2014 Board meeting for purposes not authorized by FOIA; (ii) failed to specifically list the consideration of the Contract in the June 2014 Meeting agendas; and (iii) failed to specifically list the discussion of the Contract in the December 2014 Meeting agenda. We do not find remediation to be necessary or appropriate because the Board took action on the Contract in a manner that complied with FOIA at the November 2014 meeting. Finally, the December 2014 violation was technical in nature because the violation did not affect substantive rights. Therefore, no remediation regarding the December 2014 violation is required.
Very truly yours,
/s/ Katisha D. Fortune
Katisha D. Fortune
Deputy Attorney General
CC (via email): Lauren Russell, Esq., Counsel for Appoquinimink School Board
Approved:
/s/ Meredith S. Tweedie
Meredith Tweedie, State Solicitor
cc: Danielle Gibbs, Chief Deputy Attorney General
FOOTNOTES
1 Our office sent a letter to the Board’s superintendent, Matthew L. Burrows, on January 14, 2015. That letter notified Mr. Burrows of the Petition and requested a response from the Board within fifteen (15) business days. We sent a follow-up letter to Mr. Burrows on February 13, 2015 that informed him that our office had yet to receive a response from the Board, and that requested a response within ten (10) business days. Lauren Russell, counsel for the Board, responded by email on February 16, 2015, and indicated that the Board would submit its response to the Petition on or before February 26, 2015. On March 6, 2015, we received the Board’s response.
2 The Factual Background Section of this Opinion refers to your communications as communications made by “Mr. Weller” for ease of future reference by third parties, notwithstanding the fact that normally we would refer to “you” as the Addressee of this Opinion.
3 See Agenda for Appoquinimink School District Board, November 18, 2014, available at http://www.boarddocs.com/de/asd/Board.nsf/Public. The minutes of the Board’s November 18, 2014 meeting are available at http://www.boarddocs.com/de/.
4 According to the Appoquinimink School District website, “[d]elegations from the public can request time on the agenda to discuss matters pertaining to the district and its educational policies.” available at http://apposchooldistrict.com/apps/pages/index.jsp?uREC_ID=174396&type=d&termREC_ID=&pREC_ID=359457.
5 Allegations 3, 4, 5, 7, and 8 above do not state FOIA violations. With respect to allegation 3 above, posting a revised agenda after a public meeting does not, standing alone, violate any specific section of FOIA. With respect to allegation 4 above, it appears that Mr. Forsten made this comment in passing. This does not violate any specific section of FOIA. With respect to allegations 5, 7, and 8, the sufficiency of a Board’s public deliberations on a given matter is not appropriate for redress under FOIA unless there is an allegation that any such deliberations were not held during a properly noticed public meeting. Finally, any other violation alleged in the Petition but not discussed herein is omitted as duplicative of the matters addressed above.
6 We do not agree that this states a FOIA violation. We find that the inaccurate discussion of the terms of the Contract at the November 2014 meeting by two Board Members, if true, was inadvertent and not intended to deceive the public. The FOIA statute does not contemplate violations of other statutes governing the deliberative process of a public body, or the sufficiency of a public body’s decision as long as the public body’s discussion otherwise complied with FOIA. Moreover, any member of the public may presumably obtain a copy of the superintendent’s Contract upon request to the District. For example, Mr. Weller enclosed a copy of the Contract with his Petition for our office’s review. We assume Mr. Weller was able to obtain the Contract upon request to the District. We find no evidence that the Board deliberately attempted to deceive the public about the terms of the Contract.
7 Cf Del. Op. Att’y Gen. 12-IIB13, 2012 WL 6858961 (Dec. 21, 2012), where we determined that it was appropriate to invalidate the school board’s approval of the extension of the superintendent’s contract where (i) the Board’s approval of the contract violated FOIA’s open meetings laws; (ii) the school district had an acting superintendent; and (iii) the risk of disruption to students, teachers and school administrators was low because the vote occurred during the middle rather than the beginning of the school year. We concluded that “invalidation is an appropriate remedy and recommend[ed] that the Board reschedule the contract extension for further discussion and vote at a subsequent public hearing.” Id., at *6. As noted above, we find that the Board has already taken similar steps to remediate the June 2014 FOIA violation regarding the approval of the Contract at that meeting.
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