Does Delaware's open meetings law give the public a right to speak at a school board meeting?

Official title

08-IB01 1/28/2008 Holmes v. Colonial

Plain-English summary

An aunt wanted to speak at a Colonial School District Board of Education meeting about her nephew's expulsion, a matter the board had already discussed and voted on earlier that evening in a closed executive session. During the public comment period, the board's president let her speak on other topics and even invited her to do so twice, but stopped her once she tried to raise the specific student discipline case, citing privacy concerns.

The AG found no FOIA violation, for a reason broader than the privacy issue itself: FOIA's open meeting law doesn't actually require a public body to accept public comment at all. Citing the Delaware Court of Chancery's decision in Reeder v. Delaware Department of Insurance, affirmed by the Delaware Supreme Court, the AG explained that nothing in the statute's declaration of policy or its open meeting provisions creates a right for the public to speak or participate at a meeting. FOIA guarantees citizens the opportunity to observe government proceedings and monitor decisions, not a right to be heard. Because the School Board was never obligated to allow public comment in the first place, it could not have violated FOIA by permitting comment on some topics while declining to open the floor to a specific student's discipline case, a subject FOIA itself designates as one a school board may properly handle in executive session.

Currency note

This opinion was issued in 2008. 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

Did Delaware's public meetings law require government boards to let people speak during meetings?

No, according to this opinion. FOIA's declaration of policy and open meeting provisions guaranteed the public's right to observe government proceedings and monitor decisions, not a right to speak or otherwise participate in a meeting.

Could a school board limit what topics a person could raise during a public comment period?

Yes, based on this opinion. Because FOIA did not require public comment at all, a board that chose to offer it could structure or limit it, including declining to open the floor to discussion of a specific student's discipline case.

Was a student's expulsion hearing something a Delaware school board could discuss behind closed doors?

Yes, according to this opinion. FOIA specifically authorized executive session for the "hearing of student disciplinary cases unless the student requests a public session."

Background and statutory framework

FOIA's "Declaration of Policy" stated that "citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made," 29 Del. C. §10001, and required that "[e]very meeting of all public bodies shall be open to the public except those closed" for authorized executive session, id. §10004(a). Executive session was specifically authorized for the "hearing of student disciplinary cases unless the student requests a public session." Id. §10004(b)(7).

The AG rested its conclusion on the Delaware Court of Chancery's holding in Reeder v. Delaware Department of Insurance, affirmed by the Delaware Supreme Court, that "[t]here is nothing in the text of the declaration of policy or in the open meeting provision requiring public comment or guaranteeing the public the right to participate." Because that principle meant the School Board had no FOIA obligation to accept any public comment at all, the AG did not need to separately evaluate whether the board's privacy rationale for limiting comment on the expulsion case was independently sound; the board's broader discretion to decline public comment on that topic disposed of the complaint.

Citations

• 29 Del. C. §10001 (FOIA's declaration of policy: citizens have the opportunity to observe public officials and monitor government decisions)
• 29 Del. C. §10004(a) (meetings of public bodies must be open to the public except authorized executive sessions)
• 29 Del. C. §10004(b)(7) (executive session authorized for hearing student disciplinary cases unless the student requests a public session)
• Reeder v. Delaware Department of Insurance, 2006 WL 510067 (Del.Ch. 2006), aff'd, 931 A.2d 1007 (Del. 2006) (Delaware state court; FOIA's text does not require public comment or guarantee a right to participate at a public meeting)

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/01/28/08-ib01-1282008-holmes-v-colonial/
• Original PDF: not linked from landing page

Original opinion text

January 28, 2008

Ms. Pamela Holmes

150 Karlyn Drive

New Castle, DE 19720

RE: Freedom of Information Act Complaint Against

Colonial School District Board of Education

Dear Ms. Holmes:

On November 8, 2007, the Delaware Department of Justice (“DDOJ”) received

your complaint alleging that the Colonial School District Board of Education (“the

School Board”) violated the open meeting requirements of the Freedom of Information

Act, 29 Del. C. Ch. 100 (“FOIA”), by not allowing you to speak at a public meeting on

October 9, 2007 about your nephew’s expulsion by the School Board.

By letter dated November 29, 2007, the DDOJ asked the School Board to respond

to your complaint in writing by December 10, 2007. We received the School Board’s

response by facsimile on December 10, 2007. We asked the School Board for additional

information, which we received by December 19, 2007.

According to the School Board, “Ms. Holmes attempted to speak [at the School

Board’s October 9, 2007 public meeting] concerning the expulsion of her [nephew]. She

was free to speak at the meeting regarding other subjects, and was invited to do so twice.

Ms. Holmes was not, however, permitted to address the pending expulsion of her

[nephew]. The pending expulsion was not a matter of public concern which would have

required the expulsion to be placed on the agenda”.

On October 2, 2007, the School Board posted notice of a meeting to be held on

October 9, 2007. The notice listed an executive session (closed to the public) starting at

5:30 p.m. to discuss “Student Discipline, Specific Personnel Matters, and Legal issues”

followed by a special workshop session (open to the public) and a regular session (open

to the public) starting at 7:00 p.m.

The agenda for the October 9, 2007 public session listed for discussion “X. Public

Comment. This is an opportunity for members of the public to talk to the Board of

Education about items on the agenda or other matters of general interest to the district.

Those who wish to make comments are asked to complete a Public Comment Form. The

Board welcomes comments but will not respond at the meeting. Staff will be directed to

gather information and follow-up with the presenter as necessary. Comments will be

recorded in the process”.

The minutes of the public session of the October 9, 2007 meeting reflect that the

“Board considered the recommendations of the hearing officers regarding the expulsion

of Students #08-101 and #08-102, who were discussed in Executive Session.” The Board

then voted on the disciplinary actions. The minutes reflect that later in the public session

the Board heard public comments from three citizens.

The Board provided the DDOJ with a transcript of the public comment period

from the October 9, 2007 meeting. The transcript shows that the Board did not allow you

to speak about your nephew’s expulsion.

Dr. Meney then called on Ms. Holmes, who responded.

Dr. Meney asked if he could ask her a question, “Is this

related to an individual child?’ Mrs. Holmes responded

in the affirmative. “Did you read the back of this [the public

comment form]? She responded that she didn’t. “We will

not enter into discussions about specific students because

of privacy rights. The Board will not enter into a discussion

related to a particular child …. The Board will not accept

anything related to a discipline case…Mrs. Holmes “So I

can’t talk to you about anything that” Dr. Meney: :You cannot

talk to us about a discipline case. The appeal process that

you might use will be explained to you, but we cannot do that”.

RELEVANT STATUTES

FOIA’s “Declaration of Policy”, 29 Del. C. §10001, provides that “citizens shall

have the opportunity to observe the performance of public officials and to monitor the

decisions that are made….” (emphasis added). To that end 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). Executive session is authorized for

the “hearing of student disciplinary cases unless the student requests a public session”. 29

Del. C. §10004(b)(7).

LEGAL ANAYLSIS

FOIA does not require a public body to allow members of the public to speak

during a public meeting. “There is nothing in the text of the declaration of policy or in the

open meeting provision requiring public comment or guaranteeing the public the right to

participate[.]” Reeder v. Delaware Department of Insurance, 2006 WL 510067, *12

(Del.Ch. 2006), aff'd, 931 A.2d 1007 (Del. 2006).

CONCLUSION

For the foregoing reasons, the DDOJ determines that the School Board did

not violate the open meeting requirements of FOIA by denying you the opportunity to

speak about your nephew’s expulsion during a public comment period at the October 9,

2007 meeting.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

APPROVED

Lawrence W. Lewis

State Solicitor

cc: The Honorable Joseph R. Biden, III

Attorney General

Richard G. Andrews

Acting Chief Deputy Attorney General

Jennifer Oliva

Deputy State Solicitor

David H. Williams, Esquire

Sarah Murray

Opinion Coordinator