If a Delaware board's own bylaws set a lower quorum than what a later change in the enabling statute requires, which one controls?

Official title

07-IB04 RE: Freedom of Information Act Complaint Against Delaware State University

Plain-English summary

Two Common Cause representatives complained that Delaware State University's Board of Trustees violated the open meeting law by gathering for dinner at a private club without public notice. The university's president submitted a sworn affidavit confirming the dinner happened, but said only seven board members were present, along with two university vice presidents who aren't board members at all. The board's own bylaws said six members made a quorum, so on paper the university argued no quorum, and therefore no "meeting" under FOIA, had occurred.

The AG found the bylaws were simply out of date. Delaware State University's board is a creature of state statute, and that statute, not the board's internal bylaws, fixes what counts as a quorum: a majority of the members appointed by the Governor and elected by the board itself (not counting two ex officio members, the Governor and university president, who sit on the board by virtue of their office but aren't counted toward a quorum). When the legislature expanded the board from eleven to fifteen appointed and elected seats in 2005, it didn't bother to update the separate quorum statute, but the opinion held that didn't matter: because that statute defines a quorum as a majority of the board's appointed and elected members, expanding the board's size automatically raised the quorum from six to eight, whether or not anyone updated the bylaws to say so. Since only seven members were at the dinner, one short of the new eight-member quorum, the AG found no meeting requiring public notice occurred at all, regardless of what was actually discussed at the table.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If a Delaware public board's bylaws set a specific quorum number, does that number always control?

No, according to this opinion. The AG found that when a board is created by state statute, the statute's own quorum formula controls over an outdated bylaw, especially where the statute defines quorum as a percentage or majority of the board's authorized size rather than a fixed number.

Are a board's ex officio members, like a governor or university president who sit on a board by virtue of their office, counted toward a quorum?

Not automatically, according to this opinion. The AG found that Delaware State University's enabling statute counts only the appointed and elected members toward a quorum, excluding the two ex officio members even though they can vote at meetings.

If the legislature enlarges a public board without updating its quorum rule, does the quorum number change automatically?

Yes, according to this opinion, when the quorum is defined as a majority (or similar fraction) of the board's authorized membership rather than a fixed number. Enlarging the board's size automatically raises the number of members needed for a quorum as a matter of law.

Background and statutory framework

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for authorized executive session, 29 Del. C. § 10004(a), and defines a "meeting" as "the formal or informal gathering of a quorum of the members of any public body," id. § 10002(b), a definition that specifically applies to "each meeting of the full Board of Trustees" of Delaware State University, id. § 10002(d). Because FOIA itself doesn't define "quorum," the Delaware Supreme Court's Delaware Solid Waste Authority v. The News-Journal Co. directs that courts look to "the statutory or other regulations governing the agency in question."

Delaware State University's enabling statute originally set the board at eleven appointed and elected members plus two ex officio members (the Governor and university president), 14 Del. C. § 6504(a), with a quorum defined as "[a] majority of all those members appointed by the Governor and those members elected by the Board," id. § 6505, a formula that excludes the ex officio members from the quorum count. When the General Assembly enlarged the board to fifteen appointed and elected members in 2005 without amending the quorum statute, the AG held the quorum rose automatically from six to eight, drawing on the Delaware Court of Chancery's Licht v. Storage Technology Corp. for the principle that corporate bylaws yield to a controlling statute, the Alabama Supreme Court's Baldwin County Electric Membership Corp. v. Lee and the Kentucky Court of Appeals' Louisville & Jefferson County Planning & Zoning Commission v. Ogden for the rule that even a private organization's bylaws cannot override a conflicting statutory requirement, and the Alabama Supreme Court's Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Board for the common-law rule (not applicable here by contrast) that ex officio members normally do count toward a quorum absent a specific statute saying otherwise. The AG also applied the Delaware Supreme Court's Opinion of the Justices, holding that a quorum is measured against the number of seats authorized by law, not the number actually filled, so vacant board seats don't lower the quorum threshold either.

Citations

• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public except authorized executive sessions)
• 29 Del. C. § 10002(b) (defining "meeting" as a gathering of a quorum for public business)
• 29 Del. C. § 10002(d) (each meeting of the full Delaware State University Board of Trustees is a "meeting" under FOIA)
• 7 Del. C. § 6403(c) (Delaware Solid Waste Authority's enabling statute fixing a specific quorum number, cited for comparison)
• 14 Del. C. § 6504(a) (Delaware State University Board of Trustees composition, including ex officio members)
• 14 Del. C. § 6505 (quorum defined as a majority of appointed and elected Board members)
• Delaware Solid Waste Authority v. The News-Journal Co., 480 A.2d 628, 634 (Del. 1984) (Delaware state court; FOIA does not define "quorum," so the entity's own enabling statute governs)
• Licht v. Storage Technology Corp., C.A. No. 524-N, 2005 WL 1252355 (Del. Ch., May 13, 2005) (Delaware state court; corporate bylaws establish quorum rules absent a controlling statute)
• Baldwin County Electric Membership Corp. v. Lee, 804 So.2d 1087, 1090 (Ala. 2001) (Alabama state court; where bylaws conflict with a governing statute, the statute controls)
• Louisville & Jefferson County Planning & Zoning Commission v. Ogden, 210 S.W.2d 771, 774 (Ky. App. 1948) (Kentucky state court; a statutory quorum requirement supersedes a conflicting bylaw)
• Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Board, 156 So.2d 351, 357 (Ala. 1963) (Alabama state court; at common law, ex officio members generally count toward a quorum)
• Opinion of the Justices, 251 A.2d 827 (Del. 1969) (Delaware state court; a quorum is measured against the number of seats authorized by law, irrespective of vacancies)

Source

• Landing page: https://attorneygeneral.delaware.gov/2007/03/13/07-ib04-re-freedom-of-information-act-complaint-against-delaware-state-university/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 07-IB04 (Del.A.G.), 2007 WL 4732787

Office of the Attorney General

State of Delaware

Opinion No. 07-IB04

March 13, 2007

RE: Freedom of Information Act Complaint Against Delaware State University

*1 Mr. Robert P. Reeder

Director

Common Cause of Delaware

1302 Barksdale Road

Newark, DE 19711

Mr. Syl Woolford

71 New London Road

Newark, DE 19711

Dear Mr. Reeder and Mr. Woolford:

On January 18 and 23, 2007, our Office received your complaints alleging that the Delaware State University Board of Trustees ("the Board of Trustees" or "the Board") violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), by meeting on January 10, 2007 without notice to the public.

By letter dated January 23, 2007, our Office asked the Board of Trustees to respond to your FOIA complaints in writing by February 5, 2007. We granted the Board's request for a two-week extension of time to respond, and received the Board's response by facsimile on February 19, 2007. On February 20 and 21, 2007 our Office asked the Board of Trustees for additional information which we received on February 23, 2007.

In its response to your FOIA complaint, the Board of Trustees provided us with the By-Laws of the Board of Trustees (adopted 8/28/03, revised 11/11/03). Section HID of those By-Laws provides: "Six members of the Board of Trustees shall constitute a quorum."

The Board also provided us with a sworn affidavit from Dr. Allen Sessoms, the President of Delaware State University, which states: "On January 10, 2007, Marvin Lawrence, Richelle Vible, Charles McDowell, John Land, Wesley Perkins, Rick Barros, Jose Escheverri, Donald Henry and Caroline Curry accompanied me for dinner at the University and Whist club in Wilmington, Delaware. At no point were more than seven members of the Board of Trustees of Delaware State University present at the dinner." 1

According to the Board of Trustees, there are fifteen members of the Board and eight members constitute a quorum. The Board contends that the open meeting requirements of FOIA did not apply to the January 10, 2007 dinner because only seven members of the Board attended and therefore "there was not a quorum of Board members present at the subject dinner."

RELEVANT STATUTES

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for executive session as authorized by statute. 29 Del. C. § 10004(a).

FOIA defines a "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purposes of discussing or taking action on public business." Id. § 10002(b).

FOIA provides that a "'meeting' … shall not include activities of … Delaware State University, except that … each meeting of the full Board of Trustees [of Delaware State University] shall be a 'meeting.'" Id. 10002(d).

LEGAL ANALYSIS

*2 The threshold legal issue for our determination is whether a quorum of the Board of Trustees gathered on January 10, 2007 so as to trigger the open meeting requirements of FOIA.

"The term 'quorum' is not defined in [FOIA] and reference must be made to the statutory or other regulations governing the agency in question." Delaware Solid Waste Authority v. The News-Journal Co., 480 A.2d 628, 634 (Del. 1984) (the Authority's enabling statute, 7 Del. C. § 6403(c), provides that "'[f]or purposes of conducting business of the Authority, 5 directors shall constitute a quorum.'").

The Board's By-Laws in effect on January 10, 2007 provided that "Six members of the Board of Trustees shall constitute a quorum." That provision was consistent with Delaware State University's enabling statute which, prior to 2005, provided that the "Board of Trustees of the University shall consist of 11 members whose appointment or election is provided for in subsections (b) and (c) hereof and the Governor of the State and the President of the University, both of whom shall be members, ex officio." 14 Del. C. § 6504(a). "Six of the trustees shall be appointed and commissioned by the Governor" and "[f]ive of the trustees shall be elected by a majority of the whole Board as constituted." Id. § 6504(b), (c).

Section 6505 of the University's enabling statute provides: "A majority of all those members appointed by the Governor and those members elected by the Board shall constitute a quorum." 14 Del. C. § 6505. Prior to 2005, the Board of Trustees had eleven appointed and elected members and by statute a majority of those members (six) constituted a quorum. The statute does not include, for purposes of counting a quorum, the Board's two ex officio members (the Governor and the University President). 2

On June 30, 2005, the General Assembly amended Section 6504 to increase the appointed and elected members of the Board of Trustees from eleven to fifteen (eight appointed by the Governor, and seven elected by the whole Board). See 75 Del. Laws c.82. The General Assembly, however, did not change Section 6505 so that a quorum is still a majority of the members appointed by the Governor or elected by the whole board (excluding ex officio members). When the General Assembly increased the number of appointed and elected members of the Board of Trustees, by operation of law a quorum of the Board increased from six to eight, notwithstanding any contrary provision in the Board's by-laws providing for a quorum of six. 3

"Absent specific statutory requirements, Delaware corporations, through provisions in their certificates of incorporation or bylaws, are able to establish their standards for determining a quorum and the required vote for approval of any matter." Licht v. Storage Technology Corp., C.A. No. 524-N, 2005 WL 1252355, at p.3 (Del. Ch., May 13, 2005) (Noble, V.C.). Delaware corporations, like Delaware State University, are creatures of statute. "Provisions governing corporate operations include not only a corporation's articles of incorporation and bylaws, but also relevant sections of the statutory scheme under which the corporation exists." Baldwin County Electric Membership Corp. v. Lee, 804 So.2d 1087, 1090 (Ala. 2001) (citing 1 C. Keating & G. O'Gradney, Fletcher Cyclopedia of the Law of Private Corporations, § 365 at p.226 (1990)). "Thus, where articles of incorporation or the bylaws conflict with the statute, the statute controls." Baldwin, 804 So.2d at 1090.

*3 In Baldwin, ten percent of a corporation's members made a demand for a special meeting, as provided in the by-laws. They did not comply with a state statute requiring the demand to be dated to determine "the benchmark on which to identify those shareholders entitled to demand the special meeting in the first place." 804 So.2d at 1091. The Alabama Supreme Court held that the special meeting was invalid. "The bylaws, which do not require that a written demand for a special meeting be dated, conflict with [the state statute], which does so require. [Baldwin] is correct, therefore, in its contention that [the state statute] controls." Id.

In Louisville & Jefferson County Planning & Zoning Commission, supra, the Commission consisted of ten members. The Commission by-laws provided that a quorum shall consist of five members. That by-law conflicted with a state statute defining a quorum as "a majority of such officers or other persons." 210 S.W.2d at 774 (quoting Ky.Rev.Stat. § 446.050). The Court of Appeals of Kentucky held that the statute superseded the Commission's by-law and the Commission could only take valid action when six members (a majority) were present. "Even a private banking corporation may not adopt a by-law that is inconsistent with a statute." Id. at 774.

In 2005, the General Assembly amended Section 6504 of Delaware State University's enabling statute to increase the number of appointed and elected members of the Board of Trustees from eleven to fifteen. The General Assembly did not amend Section 6505 which provides that a quorum of the Board is a majority of its appointed and elected members. By operation of law, when the legislature increased the number of appointed and elected Trustees, it also increased the number for a quorum: from six (a majority of eleven appointed and elected members) to eight (a majority of fifteen appointed and elected members). Therefore, even though the Board's by-laws still provided that a quorum is six members, the specific statutory requirement for a quorum of the Board controls as a matter of law.

We determine that the open meeting requirements of FOIA did not apply to the gathering of seven appointed and elected members of the Board of Trustees at a private club on January 10, 2007 because at the time a quorum of the appointed and elected members of the Board (eight members) was not present. 4 Consequently, it is legally irrelevant whether the dinner was a purely social occasion or whether the Board discussed matters of public business as defined by FOIA.

CONCLUSION

For the foregoing reasons, we determine that the Board of Trustees did not violate the open meeting requirements of FOIA when seven appointed and elected members of the Board (less than a quorum) gathered for dinner at a private club on January 10, 2007.

Very truly yours,

W. Michael Tupman

*4 Deputy Attorney General

Approved:

Lawrence W. Lewis, Esquire

State Solicitor

Footnotes

1
Dr. Sessoms' affidavit lists ten persons (including himself) who attended the dinner on January 10, 2007. According to the Board of Trustees, Donald L. Henry, and Caroline S. Curry are not members of the Board; Mr. Henry is the University's Vice President for Business and Finance and Ms. Curry is the University's Vice President for University Relations. Dr. Sessoms is an ex officio member of the Board but by statute ex officio members are not counted towards a quorum. See Note 2 infra.

2
A person is an ex officio member "by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office." Black's Law Dictionary 661 (rev. 4th ed. 1968). At common law, "'ex officio members of a public body are members for all purposes and must be counted in determining the presence of a quorum.'" Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Board, 156 So.2d 351, 357 (Ala. 1963) (quoting Louisville & Jefferson County Planning & Zoning Commission v. Ogden, 210 S.W.2d 771, 774 (Ky. App. 1948)). By statute, the Governor and the President of Delaware State University are ex officio members of the Board of Trustees. Section III.E. of the Board's by-laws provide that ex officio members "shall be entitled to vote at all meetings." By statute, however, the Governor and the President are not counted for quorum purposes. The statute only counts for quorum purposes "those members appointed by the Governor and those members elected by the Board," 14 Del. C. § 6505, but does not count ex officio members like the Governor and the University President towards a quorum. It should be noted that if ex officio members could be counted towards a quorum, a quorum of the full Board of Trustees would be nine members.

3
According to the Board of Trustees, there are currently two vacant positions on the Board. We agree with the Board of Trustees that, for purposes of counting a quorum, the baseline is the number of appointed and elected members authorized by law, not the number of actual sitting members. See Opinion of the Justices, 251 A.2d 827 (Del. 1969) ("a quorum necessary to be present in order for a House of the General Assembly to act in a valid and effective manner is a majority of the number of members of that House prescribed by law, irrespective of whether or not one or more vacancies have occurred by reason of death, resignation, or otherwise.").

4
In several opinions our Office determined that a public body might achieve a "constructive quorum" through serial meetings of less-than-a-quorum of the public body. See, e.g., Att'y Gen. Op. 03-IB11 (May 19, 2003); Att'y Gen. Op. 04-IB10 (Oct. 18, 2004); Att'y Gen. Op. 05-IB03 (Feb. 3, 2005); Att'y Gen. Op. 06-ID20 (Sept. 11, 2006). "All of our previous opinions which found serial discussions to have violated FOIA had one factor in common. In each case the discussions involved enough members of the public body that would have constituted a quorum had the discussions all occurred at the same time and place." Att'y Gen. Op. 06-ID18 (Sept. 5, 2006). See Att'y Gen. Op. 06-IB03 (Jan. 23, 2006). In this case, there was only one gathering of less-than-a-quorum of the Board of Trustees so the "constructive quorum" analysis does not apply. See Att'y Gen. Op. 06-IB03 ("there is no evidence in the record that the Town Council met in a series of subquorum groups to avoid the application of Delaware's FOIA").

Del. Op. Atty. Gen. 07-IB04 (Del.A.G.), 2007 WL 4732787