If Delaware school board members meet with fewer than a quorum present, can that still violate the state's open meeting law?

Official title

95-IB37: RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Plain-English summary

The same complainant who successfully challenged the Woodbridge School District's monthly "breakfast meetings" in a January 1995 opinion came back a few weeks later reporting that the Board had held another closed breakfast session on January 31, 1995, this time opening with the Board President telling staff that the prior FOIA complaint would not change the District's practice. The Attorney General found this new breakfast violated the Act for the same reasons already laid out in the January 23, 1995 decision (95-IB04): a quorum of the Board was present, and staff were discussing matters within the District's supervision or control.

The District's counsel represented that the Board had since decided to stop holding the breakfast meetings altogether, and if it resumed them, only two of the five Board members would attend, with the Superintendent chairing rather than the Board. Because the District agreed to stop, and because two of five members is not a quorum of the full Board, this office took no further enforcement action, but added a caution: under FOIA's definition of "public body," a subcommittee, ad hoc committee, or similarly informal grouping "established by any body established by the General Assembly" can itself be a public body. If the two attending Board members made any recommendation, express or implied, to the full Board based on what happened at these smaller gatherings, that smaller group could be treated as a subcommittee subject to the Act, even without a quorum of the full five-member Board.

Currency note

This opinion was issued in 1995. 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 body have to have a full quorum present to trigger Delaware's open meeting law?
A: Not necessarily, per this opinion's caution. A smaller group, like two of five school board members, could itself be treated as a "subcommittee" public body under the Act's definition if that group made a recommendation, formal or informal, express or implied, to the full board.

Q: What made the January 1995 breakfast a repeat violation rather than a new issue?
A: The opinion found the same facts and legal analysis from its January 23, 1995 decision applied: a quorum of the full Board attended, and staff discussed matters within the District's jurisdiction, which the Act treats as "public business" regardless of how informal the gathering felt.

Q: Why wasn't the District penalized if the Attorney General found a violation?
A: Because the District represented that it would stop holding the breakfast meetings going forward. The opinion found the complaint "founded" but concluded no further enforcement action was required given that commitment, combined with the caution about future subcommittee-style gatherings.

Background and statutory framework

FOIA's "public body" definition, amended after Delaware Solid Waste Authority v. News Journal Company (1984), expressly reaches "ad hoc committees, special committees, temporary committees, advisory board and committees, and subcommittees" established by any body the General Assembly itself established, 29 Del. C. § 10002(a). The January 23, 1995 opinion (95-IB04) had already held that the District's breakfast meetings, attended by a quorum of the Board, involved "public business" under 29 Del. C. § 10002(b) and (e) because invited staff used the gatherings to offer suggestions for the school system in their official capacity. This opinion extended that reasoning: even a non-quorum subgroup of the Board could fall within the Act's reach as a "subcommittee," so the size of the group attending isn't the only variable that matters, whether that group functions as a recommending body to the full Board is. The Attorney General's enforcement authority over such complaints comes from 29 Del. C. § 10005(e).

Citations and references

Statutes:

• 29 Del. C. Chapter 100, Delaware's Freedom of Information Act
• 29 Del. C. § 10002(b) and (e), definitions of "public business" and "meeting" applied in the District's prior January 23, 1995 violation
• 29 Del. C. § 10002(a), "public body" definition, including subcommittees and ad hoc committees
• 29 Del. C. § 10005(e), FOIA complaint and enforcement procedure

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/03/08/95-ib37-re-freedom-of-information-act-complaint-29-del-c-§-10005e/
• Original PDF: not linked from landing page

Original opinion text

Civil Division-New Castle County

March 8, 1995

Del. Op. Atty. Gen. 95-IB37 (Del.A.G.), 1995 WL 794514

( finding school board members’ attendance at informal “breakfast meeting” violated open meeting laws and warning school district that 2 board members who planned to attend an informal, administrative meeting with the superintendent and other administrators, while not a quorum of the 5-member board, may still constitute a quorum of a school board subcommittee if those 2 members expressly or impliedly make a recommendation to the full board )

Ms. Kathleen M. Morozowich

R.D. 2 Box 166

Bridgeville, DE 19933

RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Dear Ms. Morozowich:

This is the decision on the above referenced complaint.

In your complaint dated February 2, 1995 you stated that the Woodbridge Board of Education (“The Board”) “once again met in closed executive session for a breakfast meeting” at 7:00 a.m. Tuesday January 31, 1995 in violations of 29 Del. C. Chapter 100 (“The Act”.) You stated further that the closed session was held with invited guests of employees of the District for purposes of discussing “informally any concerns” each staff may have relative to “things happening in their building…”. Id. You stated that this meeting was therefore in violation of the Delaware Open Meeting Law 29, Del. C. Chapter 100, and attached thereto minutes of the January 31, 1995 Board Meeting.

Finally, you stated that “the breakfast meeting” began with the Board President announcing to all staff members present that you had previously filed an open meeting law complaint with the Attorney General’s Office and that the Board would nevertheless continue to hold these breakfast meetings.

In the Board’s response through counsel dated February 24, 1995 stated that it had not had the opportunity to review the Attorney General’s January 23, 1995 previous decision with Dr. Robert C. Sutton, Superintendent and bring the facts outlined in our January 23, 1995 opinion to his attention.

For the reasons stated below, we find that the Board violated the provisions of the Act for reasons outlined in our previous decision. Attached as exhibit “A” is the Attorney General’s January 23, 1995 decision which outlines that the Board’s practice of holding breakfast meetings under the terms outlined in your complaint violated the Act. On page three of the decision, the Attorney General’s decision set forth the statutory provisions that were violated. See e.g. 29 Del. C. § 10002(b) and (e). The findings of that decision of the Attorney General are incorporated herein by reference.

As a final note, the Board’s counsel indicated in the Board’s February 24, 1995 response that the “Board has decided not to host future breakfast meetings.” Counsel, however, indicated that if such breakfast meetings are held, the meetings will be chaired by the Superintendent and no more than 2 of the 5 Board Members will be present. Hence, the Board believes that having less than a quorum present that it will be in violation of the Act. The Board’s counsel further concluded that since there will not be a quorum of the members of the Board, it shall not be considered a public meeting under 29 Del C. § 10003(e).

This office offers the Board a word of caution. In the amended definition of “public body” as contained in 29 Del. C. § 10002(a), following the Supreme Courts decision in Delaware Solid Waste Authority v. News Journal Company , Del. Supr., 480 628(1984), the General Assembly made clear that the definition of a public body included “at hoc committees, special committees, temporary committee, advisory board committee, and sub-committee” and included such committees “established by anybody established by the General Assembly of the State of Delaware.” Id. If the Sub-committee of the Board which holds said breakfast meetings makes any formal and informal recommendation to the full district or board, under the provisions of 29 Del. C. § 10002(a) it may be considered a public body under the Act. Simply put, if a quorum of the “sub-committee” is present and expressly or impliedly makes a recommendation to the full board, it is a “public body” under the amended definition of 29 Del. C. § 10002(a).

Although we find the complaint founded, since the District agrees not to hold any future breakfast meetings, coupled with the above cautionary note, no further enforcement action is required pursuant to 29 Del. C. § 10005(e).

Sincerely,

John K. Welch

Deputy Attorney General

Approved

Michael J. Rich, State Solicitor

JKW/lw