Can a school board vote in executive session to stop a board member from recording the meeting?

Official title

15-IB10 12/1/2015 FOIA Opinion Letter to Mr. John Young re: FOIA Complaints Concerning the Christina School Board

Plain-English summary

A resident filed two FOIA complaints against the Christina School Board (CSB). The first concerned an August 2015 meeting where the entire discussion of "Personnel Matters Include a Discussion of the Superintendent's Competencies and Abilities" happened in executive session, and where the Board, still in executive session, voted to recommend that the session not be recorded. The second concerned a September 2015 meeting where the Board's president emailed board members a final revised version of the superintendent's proposed contract less than six hours before the meeting, even though the public agenda itself was posted well in advance and was not changed.

The AG found the August discussion of the superintendent's competency and abilities in executive session was proper, since FOIA's personnel-matters exception covers exactly that kind of discussion for any employee, including a superintendent, as long as it stays separate from actually negotiating or voting on a contract renewal. The AG specifically distinguished this from a prior 2015 opinion involving a different school board, which addressed the narrower situation where competency discussion was intertwined with contract-renewal deliberations. But the AG found the Board did violate FOIA by voting, while still behind closed doors, on whether to record the executive session, since any vote on public business, including how the Board handles its own internal procedures, must happen in a public meeting. The AG called this a harmless violation, since no law actually requires executive sessions to be recorded, and ordered no remedy. On the September meeting, the AG found no violation at all: FOIA requires timely notice of the meeting and its agenda, not advance posting of the documents a board plans to discuss or vote on.

Currency note

This opinion was issued in 2015. 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

Can a school board discuss a superintendent's job performance in a closed executive session?

Yes, according to this opinion, as long as the discussion is limited to the superintendent's competency and abilities and does not bleed into deliberating or voting on the superintendent's contract renewal. FOIA's personnel-matters exception covers this kind of discussion for any employee, including a superintendent.

Does every discussion of a superintendent in executive session risk violating FOIA?

No. The opinion is careful to explain that an earlier ruling finding a FOIA violation involved a different situation, where competency discussion was mixed together with actual contract-renewal deliberations. Simply discussing an employee's competency and abilities in executive session, on its own, does not violate FOIA.

Can a public body vote, while in executive session, on how it will handle its own meeting procedures, like whether to record the session?

No. This opinion holds that any vote on "public business," a broadly defined term covering anything the public body has authority over, including its own internal procedures, must happen during the public portion of a meeting, not behind closed doors.

Does a public body have to circulate documents it plans to discuss or vote on well before the meeting?

No, according to this opinion. FOIA requires timely notice of the meeting itself and its agenda, but does not require a public body to distribute the actual documents (like a proposed contract) to be discussed or voted on any particular amount of time in advance, as long as the notice and agenda are posted on time.

Background and statutory framework

FOIA requires every meeting of a public body to be open to the public except for permitted closed sessions, 29 Del. C. § 10004(a), and lets a public body call an executive session only for purposes the statute lists, 29 Del. C. § 10004(b), including to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open," 29 Del. C. § 10004(b)(9). Regardless of what happens in executive session, "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), with "public business" broadly defined to include any matter over which the public body has supervision, control, jurisdiction, or advisory power. Meeting notice and agenda requirements are set out separately, 29 Del. C. §10004(e)(2)-(5).

Applying this framework, the opinion distinguished its own earlier ruling in Attorney General Opinion 15-IB01, which found a different school board violated FOIA by discussing a superintendent's contract renewal in executive session under the guise of a personnel-matters discussion. The opinion clarified that 15-IB01 was limited to that narrower fact pattern, where competency discussion was actually intertwined with contract-renewal deliberations and a vote, and that school boards remain free to discuss any employee's, including a superintendent's, competency and abilities in executive session so long as that discussion is kept separate from express contract-renewal deliberations. On the recording vote, the opinion applied Section 10004(c)'s broad "public business" definition to conclude that a vote on internal meeting procedure, here whether to record an executive session, still had to happen in public, even though the underlying substantive discussion was properly closed. On the September meeting's notice question, the opinion relies on Del. Op. Att'y Gen. 12-IIB13 for the rule that FOIA requires timely public notice of a meeting and an agenda describing the major issues to be discussed, but does not separately require advance circulation of the specific documents that will be discussed or voted upon.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10005(e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)
• 29 Del. C. § 10004(b) (permitted purposes for executive session)
• 29 Del. C. § 10004(b)(9) (personnel-matters exception covering an employee's or student's competency and abilities)
• 29 Del. C. § 10004(c) (all votes on public business must occur at a public meeting)
• 29 Del. C. §10004(e)(2)-(5) (meeting notice and agenda requirements)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2015/12/01/15-ib10-1212015-foia-opinion-letter-to-mr-john-young-re-foia-complaints-concerning-the-christina-school-board/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 15-IB10

December 1, 2015

VIA EMAIL

John M. Young

109 Cypress Drive

Newark, DE 19713

[email protected]

Re: August 12 and September 18 FOIA Complaints Concerning the

Christina School Board

Dear Mr. Young:

The Delaware Department of Justice ("DOJ") received your emails alleging violations by the Christina School Board ("CSB") of the open meetings provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 ("FOIA"). We treat these emails jointly as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the "Petition"). 29 Del. C. § 10005(e). While we find that a violation has occurred with respect to the executive session of the August 4, 2015 meeting, the CSB meetings held on August 4, 2015 and September 17, 2015 otherwise complied with FOIA.

FACTS[1]

On August 4, 2015, the CSB held its regularly scheduled meeting. The only substantive topic noticed for discussion was: "B. Personnel Matters Include a Discussion of the Superintendent's Competencies and Abilities [See 29 Del C 10004 (b)(9)]." According to the agenda and minutes of the meeting, the entirety of the CSB's discussion was held in executive session. The CSB did not hold a vote regarding the discussion of the superintendent during the meeting. However, while in executive session, the CSB held a vote to "recommended that [the] Executive Session meeting not be recorded."

On September 17, 2015, the CSB held its regularly scheduled meeting. The notice and agenda for the meeting were originally posted on September 10, 2015. The CSB President emailed the agenda to the Board members around 3:50 p.m. on the day of the meeting, which was scheduled for 6:30 p.m. Attached to the email message was a final revised version of the proposed contract for the superintendent position. The agenda itself was not revised prior to the meeting.

POSITION OF THE PARTIES

The Petitions

We received your first Petition by email on or about August 10, 2015. Your August Petition requests that we determine whether the CSB violated FOIA when it discussed the superintendent's competency and abilities in executive session. You also raise your concern that the CSB violated FOIA by holding a vote in executive session to prevent a board member from making an audio recording of the meeting.

We received your second Petition on or about September 18, 2015. Your September Petition requests that we determine whether the CSB violated FOIA by distributing a revised version of the superintendent's contract less than six hours in advance of the CSB's September meeting.

The CSB's Response

We received the CSB's responses on or about August 20, 2015 and October 6, 2015, respectively. The CSB denies that it violated FOIA when it discussed the superintendent's competency and abilities in executive session during the August meeting. According to the CSB, this practice is expressly permitted by 29 Del. C. §10004(b)(9). The CSB also confirmed that it only discussed the superintendent's competencies and abilities during the executive session portion of the meeting. The CSB conceded that it voted on the recording issue during executive session and agreed to refrain from taking any votes in executive session in the future.

Regarding the September 17, 2015 meeting, the CSB denies that circulating a revised version of the superintendent's contract within hours of the school board meeting violated FOIA. According to the CSB, the agenda was not altered and FOIA does not require the advance posting of documents to be voted upon.

RELEVANT LAW

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed [for a permitted reason]."[2] Pursuant to 29 Del. C. § 10004(b), public bodies may "call for an executive session closed to the public" only for purposes permitted by the statute. For example, section 10004(b)(9) permits public bodies to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." However, 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."[3]

LEGAL DISCUSSION

The Petitions require us to determine whether the CSB's August and September meetings violated FOIA's open meeting requirements.

The August 4, 2015 Meeting

We reviewed the notice, agenda and minutes for the August 7, 2015 meeting and conclude that the CSB did not violate FOIA when it discussed the competency and abilities of the superintendent in executive session. Section 10004(b)(9) of FOIA permits a public body to meet in executive session to discuss the names, competency and abilities of individual employees. According to the CSB, the superintendent is considered an employee of the school district. Accordingly, the CSB's discussion of the superintendent's competency and abilities was a proper topic for an executive session discussion.

We do not agree that Attorney General Opinion 15-IB01 is controlling with respect to this matter. That opinion dealt with the narrow issue of whether a school board may discuss a superintendent's competency and abilities in executive session where those matters are intertwined with the deliberations and vote to approve the renewal of that superintendent's employment contract. The determination is limited to the unique factual circumstances of that case and our office will not find a FOIA violation has or is about to occur simply because a school board discusses a superintendent's competency or abilities in executive session. School boards should be able to discuss the competencies and abilities of all of their employees, including superintendents, in executive session, and may do so within FOIA as long as those discussions are severed from express discussions regarding renewal of a superintendent's contract.

However, we find that the CSB violated FOIA when it "recommended that [the] Executive Session meeting not be recorded" while in executive session. Pursuant to 29 Del. C. §10004(c), "all voting on public business must take place at a public meeting and the results of the vote made public" (emphasis supplied). "Public business" is broadly defined as "any matter over which the public body has supervision, control, jurisdiction or advisory power." The CSB's vote regarding its internal meeting procedures is "public business" because it relates to a matter over which the CSB has supervision, control, jurisdiction or advisory power. Accordingly, any vote regarding the manner in which the Executive Session was to be recorded should have been held during the public portion of the meeting.

The September 17, 2015 Meeting

The Petition alleges that the CSB violated FOIA because the CSB president emailed a final revised version of the superintendent's contract to board members less than six hours prior to the CSB's September meeting. The Petition does not allege that the notice or agenda was revised less than six hours prior to the meeting and we find no evidence that this occurred.

We disagree that the CSB violated FOIA when it circulated a copy of the superintendent's contract within hours of the September board meeting. The CSB posted a timely notice of the meeting and the agenda, which were sufficient to the public on notice of the CSB's intention to discuss the superintendent's contract. Nothing more was required.[4]

CONCLUSION

We conclude that the CSB did not violate FOIA when it discussed the district superintendent's competency and abilities in executive session at the August 2015 board meeting. The CSB did violate FOIA when it held a vote in executive session at the August meeting. However, we find that the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded. Therefore, no remediation is required. Finally, we conclude that the CSB did not violate FOIA's meeting notice requirements when it circulated a copy of the superintendent's contract less than six hours prior to the September 2015 board meeting.

Very truly yours,

/s/ Katisha D. Fortune

Katisha D. Fortune

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, State Solicitor

[1] Because of the fact-specific questions raised in the Petition, we briefly summarize our understanding of the relevant facts. Please note that we do not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body.

[2] 29 Del. C. § 10004(a).

[3] 29 Del. C. § 10004(c).

[4] See 29 Del. C. §10004(e)(2)-(5) (detailing notice requirements for public body meeting notices and public body meeting agendas); Del. Op. Att'y Gen. 12-IIB13 (Dec. 21, 2012) ("FOIA requires our public bodies to give 'public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof.' 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.") (internal citations omitted).