Does a public board violate open-meetings law if its president has a quiet side conversation with counsel or staff during a meeting?

Official title

16-IB05 3/11/2016 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning the Delaware State Board of Education

Plain-English summary

Representative Kim Williams complained that the State Board of Education violated FOIA's open meeting requirements during a January 2016 meeting on the Wilmington Education Improvement Commission plan. She alleged that Board President Teri Quinn Gray asked the Executive Director to "sidebar" with Board counsel about whether the Board could waive its no-public-comment rule, and that Gray separately went to counsel's table during the meeting to ask questions about the vote and a draft order. Williams also raised concerns about the Board's amended "yes" vote and about the Executive Director speaking at the meeting while the public could not.

The AG concluded there was no FOIA violation. A "public meeting" under FOIA requires a gathering of a quorum of the board's members, and the two conversations at issue involved, at most, the Board president alone with counsel and a staff member, not a quorum. The opinion also declined to address the substantive validity of the vote or the Board's decision not to permit public comment, since those questions fall outside what FOIA covers.

Currency note

This opinion was issued in 2016. 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

Q: Does a public board violate open-meetings law when its president talks quietly with the board's attorney during a meeting?
A: Under this opinion, no, as long as the conversation doesn't involve a quorum of the board's members. FOIA's open-meeting requirement applies to gatherings of a quorum discussing or acting on public business, not to a single member's conversation with counsel or staff.

Q: What if a board member asks a staff person to double-check something with counsel mid-meeting?
A: The opinion treated this the same way: a conversation between counsel and a single staff member, at the direction of the board president, was not a "meeting" of a quorum and so did not trigger FOIA's open-meeting rules.

Q: Can this office decide whether a board's vote (like an amended "yes") was procedurally valid?
A: No. The opinion states plainly that the substantive validity of a board's vote, and the validity of its procedural rules or a decision to waive them, are not matters covered by FOIA and were not addressed.

Q: Does FOIA require that a public body allow public comment at its meetings?
A: According to this opinion, no. FOIA does not mandate public comment at every public meeting; the AG noted it encourages public bodies to permit it when possible but found no FOIA violation where a board elected not to.

Background and statutory framework

Delaware's FOIA requires that "every meeting of all public bodies shall be open to the public" except for permitted closed sessions, 29 Del. C. § 10004(a), and defines "public body" to include board subcommittees, 29 Del. C. § 10002(c). A "public meeting" is defined as the formal or informal gathering of a quorum of a public body's members to discuss or take action on public business, 29 Del. C. § 10002(g). The opinion applied its own prior precedent, Del. Op. Att'y Gen. 10-IB12 (2010), for the principle that conversations among staff or with each other do not need to be public unless they include a quorum of the members, and that absent evidence members are knowingly avoiding public monitoring, no FOIA violation can be found.

Citations and references

Statutes:

• 29 Del. C. §10005(e), petition process for a FOIA violation determination
• 29 Del. C. § 10004(a), requirement that public body meetings be open
• 29 Del. C. § 10002(c), definition of "public body"
• 29 Del. C. § 10004(c), requirement that votes on public business happen at a public meeting
• 29 Del. C. § 10002(g), definition of "public meeting" as a gathering of a quorum

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/03/11/16-ib05-3112016-foia-opinion-letter-to-rep-kim-williams-re-foia-complaint-concerning-the-delaware-state-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2016/03/Attorney-General-Opinion-16-IB05.pdf

Original opinion text

DEPARTMENT OF JUSTICE

MATTHEW P. DENN
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 16-IB05
March 11, 2016

VIA EMAIL
Representative Kim Williams
411 Legislative Avenue
Dover, DE 199013
Via Email: [email protected]
Re:

FOIA Complaint Concerning the State Board of Education

Dear Representative Williams:
On January 24, 2016, the Delaware Department of Justice (“DOJ”) received your email
complaint requesting our determination pursuant to the Freedom of Information Act, 29 Del. C.
Ch. 100 (“FOIA”), of whether the State Board of Education violated the FOIA open meeting
requirements. We treat your email as a petition for a determination of whether a violation of FOIA
has occurred or is about to occur. 29 Del. C. §10005(e). Our determination is set forth herein.
FACTUAL BACKGROUND1
On January 21, 2016, a State Board of Education (“Board”) meeting was held in Dover.
Representative Williams attended the meeting along with other members of the public. During that
meeting, the Board entertained a motion to approve the Wilmington Education Improvement
Commission (“WEIC”) Plan. A member of the audience asked if a member of the WEIC would
be able to speak before the motion was voted on. Board President, Dr. Teri Quinn Gray, noted that
she did not think there was going to be any public comment or presentations but asked for
clarification. Board Counsel, Ilona Kirshon, stated that the Board had the ability to waive the nocomment rule. Dr. Gray noted that they would “hold that” and asked Executive Director of the
Board, Donna Johnson, to discuss with Ms. Kirshon at “sidebar.”
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The Factual Background Section of this Opinion refers to your communications as made by
“Representative Williams” for ease of future reference by third parties.
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ALLEGED VIOLATIONS
Representative Williams alleges that during the meeting, Dr. Gray “instructed someone to
have a side bar conversation.” Representative Williams also alleges that she later witnessed “Dr.
Gray coming over to the attorney’s table and asked the attorney questions about WEIC and what
had taken place with the vote and the amendment.” Representative Williams’ argues that the Board
violated FOIA’s open meeting requirements by conducting conversations off the record.
Representative Williams also contends that the Board’s vote on the WEIC plan was
improper because “[t]hey voted yes with an amendment.” Representative Williams argues that
the Board was required to vote “yes or no.”
THE BOARD’S RESPONSE TO THE ALLEGATIONS
The Board, through counsel Ilona Kirshon, responded to Representative Williams’
allegations by letter dated February 2, 2016. Regarding Representative Williams’ first allegation,
that Dr. Gray asked the Executive Director of the Board, Donna Johnson, to confirm with counsel
the statement counsel had made on the record, Ms. Kirshon argues that the “conversation between
counsel to the Board and administrative staff did not constitute a violation of the Open Meetings
section of FOIA as it was not part of the public body’s conduct of ‘public business’ as defined in
29 Del. C. § 10002(h) and (j).” Regarding Representative Williams’ second allegation, Ms.
Kirshon responded that, “[t]he conversation between a single individual, Dr. Gray, and SBE
counsel did not constitute action by or even discussion by the Board, as a single member cannot
speak for the Board.”
REPRESENTATIVE WILLIAMS’ RESPONSE
Upon receipt of the Board’s response, Representative Williams provided a follow-up
response. In that response, Representative Williams questioned whether the Board President had
authority to deny an attendee’s right to speak/present at the meeting: “The entire board should have
had discussion and then voted on whether or not [the individuals] could have addressed the State
Board since the law allows for the SBE to waive the rules.” Representative Williams also noted
that “[w]hen the public is present, all questions and any clarifications should be made public so
the public can have a better understanding of what is actually happening.” Finally, Representative
Williams raised concerns surrounding Board Executive Director Donna Johnson’s participation in
the meetings: “why is Ms. Johnson allowed to speak openly during SBE meetings yet the public
cannot? Ms. Johnson is not an appointed board member, she is the executive director.”
APPLICABLE LAW
“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).

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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).
LEGAL ANALYSIS
The Board did not violate FOIA when the President of the Board asked a staff
member to confirm advice with Counsel.
During the January meeting, Dr. Gray asked whether there was to be public comment
regarding the WEIC plan, as this was contrary to Board rules. Ms. Kirshon, as counsel to the Board,
stated on the record that the Board has authority to waive its procedural rules. Dr. Gray then
instructed someone, who Representative Williams identifies as Executive Director Donna
Johnson, to “sidebar” with Ms. Kirshon about this advice. Representative Williams alleges that
this side conversation between Ms. Kirshon and Ms. Johnson is a FOIA violation. We disagree.
A public meeting is defined as “the formal or informal gathering of a quorum of the
members of any public body for the purpose of discussing or taking action on public business
either in person or by video-conferencing.” 29 Del. C. § 10002(g). A discussion between Ms.
Kirshon and Ms. Johnson was not a discussion by a quorum of the members of any public body.
We have previously held, “as a general matter, conversations with each other or with staff do not
need to be public unless they include a quorum of the members.” Del. Op. Att’y Gen. 10-IB12
(2010). Therefore, the side conversation between the Board’s attorney and Board staff did not
violate FOIA.
The Board did not violate FOIA when the President of the Board consulted with the
Board’s Counsel.
Representative Williams states that Dr. Gray approached counsel’s table to discuss the
WEIC vote during the meeting. This exchange was not recorded but counsel for the Board confirms
that she had a discussion with Dr. Gray about the vote and the timing of a draft order. The
discussion between the President of the Board and the Board’s counsel was not a discussion by a
quorum. As noted above, “conversations with each other or with staff do not need to be public
unless they include a quorum of the members.” Del. Op. Att’y Gen. 10-IB12 (2010). In addition,
it is clear that Representative Williams was able to hear what Dr. Gray and counsel discussed. We
cannot find a FOIA violation because “absent some evidence that the members knowingly avoid
public monitoring of the deliberations of the quorum, there is no basis on which to find that FOIA
has been violated.” Id.
REMAINING ISSUES
Representative Williams raises concerns about the Board’s failure to vote “yes or no,” the
Board’s refusal to allow a representative from WEIC to speak at the meeting and fact that Board
Executive Director, Donna Johnson was permitted to speak at the meeting, whereas the public was
not. The substantive validity of the Board’s vote is not a matter covered by the Freedom of
Information Act and cannot be determined here. The validity of the Board’s procedural rules, or
of its decision to waive those rules, is also not a matter covered by FOIA. Ms. Johnson is a member
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of the Board’s staff, and, as such, she is permitted to speak a public meeting of the Board. FOIA
does not, however, mandate that public comment be permitted at every public meeting. We often
encourage public bodies to permit public comment whenever possible, but when they elect not to
do so, we cannot find that the choice violates FOIA.

CONCLUSION
We conclude that the aforementioned conduct did not violate FOIA.
This decision is directed solely to the parties identified herein. It is based on the facts
relevant to this matter. It does not constitute precedent and should not be cited as such by future
parties.
Very truly yours,

Danielle Gibbs
Chief Deputy Attorney General

cc: Ilona Kirshon, Deputy State Solicitor, Delaware Department of Justice (via email)

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