Did a Delaware public university's board violate open meetings law by holding an entire board meeting over the phone?

Official title

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

Plain-English summary

Delaware State University's Board of Trustees held its June 28, 2007 meeting entirely by teleconference. No trustee was physically present in the board room, though the university president and other administrators were, and the board's own bylaws allowed members to participate and count toward a quorum by phone as long as everyone could hear one another. A speakerphone in the board room let anyone who showed up in person listen in. At that meeting, the board approved the university's FY 2008 budget, which took effect July 1, 2007, and the university had been operating under it ever since.

A citizen complained more than six months later that the meeting violated FOIA. The AG found two separate issues. The notice itself was posted in time, about two weeks ahead, well past the seven days FOIA requires, but it said only that the meeting would be "by teleconference" without stating where the public could actually go to attend, which FOIA's notice requirement demands. On the harder question, whether a meeting conducted entirely by phone even counts as an open "meeting" under FOIA at all, the AG found no Delaware case directly on point and noted that other states had split on similar language. Because the board's own bylaws expressly authorized teleconference participation and the public could physically show up at the board room and hear everything over the speakerphone, the AG concluded this particular meeting was open as FOIA required, notice defect aside.

Even having found the notice technically incomplete, the AG declined to take any action. FOIA barred anyone from asking the Court of Chancery to invalidate a meeting more than six months after it happened, and the citizen's complaint reached the AG's office after that window had already closed. Given the elapsed time and the university's reliance on the budget passed at that meeting, the AG concluded a court would be unlikely to unwind either the meeting or the budget even if asked, and chose not to pursue the matter further.

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

Could a Delaware public board hold an entire meeting by teleconference with no member physically present?

According to this opinion, yes, as long as the board's own bylaws authorized remote participation for quorum purposes and the public could still attend and listen at a physical location, such as by speakerphone in the board's regular meeting room.

Did a meeting notice satisfy FOIA if it only said the meeting would be held "by teleconference" without naming a location?

No, according to this opinion. FOIA required the notice to state the place where the meeting would be held, and simply saying "teleconference" left the public unsure whether or where they could go to attend.

Was there a deadline for challenging a Delaware open-meetings violation in court?

Yes, according to this opinion. FOIA barred any Court of Chancery action over a violation more than six months after it occurred, and the AG treated that same practical reality as a reason not to pursue remediation once that window had already passed.

Background and statutory framework

FOIA's declaration of policy, 29 Del. C. § 10001, gave citizens "the opportunity to observe the performance of public officials and to monitor the decisions that are made," 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). A "meeting" was defined as a "gathering of a quorum for the purpose of discussing or taking action on public business," id. § 10002(b), and regular meetings required seven days' public notice stating the place where the meeting would be held, id. § 10004(e)(2), while special meetings allowed shorter notice under id. § 10004(e)(3).

Because Delaware had no case law addressing whether a fully telephonic gathering counted as a "meeting," the AG surveyed other states' divided approaches: Illinois's Freedom Oil Co. v. Illinois Pollution Control Board held that a "gathering" did not require physical presence, while Kansas's State v. Board of County Commissioners of Seward County held that "gathering" meant physical assembly. The AG resolved the question by reasoning that because the DSU Board's bylaws authorized teleconference participation and the public could physically attend and listen at the board room, the June 28, 2007 meeting was open within FOIA's meaning regardless of which general rule Delaware might eventually adopt.

On remediation, the AG applied 29 Del. C. § 10005(a)'s six-month bar on Court of Chancery actions to challenge a FOIA violation, citing Reeder v. Delaware Department of Insurance for that limitations period, and Wilmington Federation of Teachers v. Howell for the principle that a court would be reluctant to invalidate governmental action, like an adopted budget, that an agency had already relied on for an extended period.

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. § 10002(b) (defining "meeting" as a gathering of a quorum to discuss or act on public business)
• 29 Del. C. § 10004(e)(2) (regular meetings require seven days' public notice stating the place where the meeting will be held)
• 29 Del. C. § 10004(e)(3) (special meetings may be noticed with as little as 24 hours' notice)
• 29 Del. C. § 10005(a) (bars a Court of Chancery action to challenge a FOIA violation more than six months after it occurred)
• Freedom Oil Co. v. Illinois Pollution Control Board, 655 N.E.2d 1184 (Ill. App. 1995) (Illinois state court; a statutory "gathering" did not require physical presence of members)
• State v. Board of County Commissioners of Seward County, 866 P.2d 1024 (Kan. 1994) (Kansas state court; a statutory "gathering" means physical assembly)
• Reeder v. Delaware Department of Insurance, 2006 WL 510067 (Del. Ch. 2006), aff'd, 931 A.2d 1007 (Del. 2006) (Delaware state court; cited for FOIA's six-month bar on court challenges)
• Wilmington Federation of Teachers v. Howell, 374 A.2d 832, 836 (Del. 1977) (Delaware state court; courts are reluctant to invalidate governmental action long relied upon)

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/02/20/08-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. 08-IB04 (Del.A.G.), 2008 WL 1727612

Office of the Attorney General

State of Delaware

Opinion No. 08-IB04

February 20, 2008

RE: Freedom of Information Act Complaint Against Delaware State University

*1 Mr. Robert P. Reeder

1302 Barksdale Road

Newark, DE 19711

Dear Mr. Reeder:

On January 11, 2008, the Delaware Department of Justice (“DDOJ”) received your complaint alleging that the Delaware State University (“DSU”) violated the Freedom of Information Act, 29 Del. C. Ch. 100 (“ FOIA ”) in noticing and in conducting by teleconference the June 28, 2007 meeting of its Board of Trustees (“the Board”). By letter dated January 22, 2008, the DDOJ asked DSU to respond to your complaint in writing by February 1, 2008. On January 29, 2008 we granted DSU’s request for an extension of time in which to respond, and we asked that we receive their response by Wednesday, February 6, 2008. We received DSU’s response by facsimile on that date.

RELEVANT FACTS

According to DSU the June 28, 2007 meeting of the Board was noticed on or about June 15, 2007 by placing a notice on the bulletin board outside of the Board room; the notice stated that the meeting would be by teleconference. DSU’s response states that “As with regular board meetings, the June 28 th meeting took place in the Board room. [which was] accessible to the public [through] a speaker phone in the board room that provides the participants the ability to hear and be heard throughout the room.” Article VIII, sec. 4 of the Board’s by-laws permit members to participate by teleconference and to be counted towards a quorum if all participants can hear one another. On June 28, 2007, no Board member was physically present in the room, but the DSU President and other DSU administrators were there. There is no dispute that a quorum participated in the call. The Board approved the FY08 budget for DSU, and that budget took effect on July 1, 2007. DSU has been conducting its operations based on that budget since that date.

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 …” 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) . A meeting is defined as a “gathering of a quorum for the purpose of discussing or taking action on public business.” 29 Del. C. § 10002(b) . 29 Del. C. § 10004(e)(2) requires public bodies to give a 7 day public notice of regular meetings. Special meetings, which are defined as those “held less than 7 days after the scheduling decision is made,” need to be noticed “as soon as reasonably possible, but. no later than 24 hours before such meeting.” 29 Del. C. § 10004(e)(3) . Notices must include the place where the meeting will be held. 29 Del. C. § 10004(e)(2) .

LEGAL ANAYLSIS

*2 The notice of the Board meeting of June 28 was made on or about June 15—more than 7 days before the scheduled meeting—and thus was timely. However, in stating only that the meeting would be by teleconference, the notice did not state the place where the meeting would be held, as required by 29 Del. C. § 10004(e)(2) . The notice could reasonably have been interpreted to mean that the public would be excluded. Had the notice indicated that the public would be accommodated in the Board room, the public would have been on notice to come to the Board room to attend the meeting.

As to whether the meeting by teleconference was an open meeting, there are no Delaware cases that address the issue. Other states with statutory language similar to Delaware’s are divided in how they view teleconferences. Compare Freedom Oil Co. v. Illinois Pollution Control Board , Ill. App., 655 N.E.2d 1184 (1995) (“gathering” did not require physical presence), with State v. Board of County Commissioners of Seward County , Kan., 866 P.2d 1024 (1994) ( “gathering” means physical assembly). It is clear that the purpose of the General Assembly in enacting FOIA was to open to the public any convening of a quorum of a public body to discuss or take action on public business. The Board by-laws permit the Board to convene by teleconference. Under those circumstances a teleconference is a meeting within the meaning of FOIA . The June 28, 2007 meeting was open to the public as required by FOIA , in that the public was permitted to attend at the Board room.

CONCLUSION

For the foregoing reasons, the DDOJ determines that DSU did not meet the requirements of FOIA when it noticed the June 28, 20007 Board meeting, but did not violate FOIA’s open meeting requirements. As you know, 29 Del. C. § 10005(a) bars the public from bringing any action in the Court of Chancery for violation of FOIA when more than six months have elapsed since the violation occurred. Reeder v. Delaware Department of Insurance , Del. Ch., 2002 WL 510067, aff’d 931 A.2d 1007 . In fact, your complaint to this office was made more than six months after the triggering event. Because of the lapse of time, and DSU’s reliance on the budget passed at the June 28, 2007 meeting, the Attorney General would undoubtedly be unable to obtain a court order invalidating the DSU FY08 budget. Wilmington Federation of Teachers v. Howell , Del., 374 A.2d 832, 836 (1977) . For that reason, the Attorney General will not take any action to invalidate the June 28, 2007 meeting of the Board of Trustees of Delaware State University.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 08-IB04 (Del.A.G.), 2008 WL 1727612