If only two of five school board members attend an informal staff meeting, does that violate Delaware's open meeting law?

Official title

95-IB20: Re: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Plain-English summary

The same Woodbridge School District complainant who twice successfully challenged the District's Board "breakfast meetings" in earlier 1995 opinions filed a third complaint, alleging the District again held closed sessions in February and March 1995. This time the District's counsel represented that these were "administrative-staff meetings" called by the Superintendent, not Board meetings, attended by only two of the five Board members (one pair in February, a different pair in March), that no Board member presided, no public notice was posted, and no minutes were taken because the district considered them purely administrative.

The Attorney General agreed there was no violation on this record. Because only two of five Board members attended each session, no quorum of the full Board was present, and nothing in the record showed those two members had been designated as an ad hoc committee, special committee, or subcommittee, or that they had made any formal or informal recommendation to the full Board based on what happened at the meetings. Still, the opinion repeated a caution from its prior decisions: if a smaller group of Board members functions as a subcommittee, by making recommendations to the full Board, that group could itself become a public body subject to the Act's notice requirements, even without a full quorum present. The District was urged to keep reviewing the Attorney General's January 23, 1995 opinion so it would not run afoul of the Act again.

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 Delaware school board violate the open meeting law just by having a couple of board members attend an informal staff meeting?
A: Not by itself, according to this opinion. The Attorney General found no violation where only two of five Board members attended, no quorum was present, and there was no evidence those members acted as a designated subcommittee or made a recommendation to the full Board.

Q: What would have made this "administrative-staff meeting" into an open-meeting violation?
A: If the two attending Board members had been designated as, or functioned as, an ad hoc committee or subcommittee, and had made any formal or informal recommendation to the full Board based on the meeting, the opinion indicates that smaller group could itself be treated as a public body subject to the Act's notice and recordkeeping rules.

Q: Why did the Attorney General still caution the District after finding no violation?
A: Because this was the third related complaint against the same District's meeting practices in under six months, and the opinion wanted to flag that simply keeping attendance below a full quorum would not automatically insulate the District if the smaller group started functioning as a recommending subcommittee.

Background and statutory framework

This was the third in a series of 1995 opinions addressing the Woodbridge School District's staff breakfast and administrative meetings under Delaware's open meeting law. The first, issued January 23, 1995 (95-IB04), found that a quorum of the Board discussing school-system suggestions with staff at a breakfast meeting was a "meeting" under 29 Del. C. § 10002(e). A follow-up opinion in March 1995 found a repeat violation on similar facts but noted the District's commitment to stop the practice. Here, the District had replaced the breakfast meetings with smaller administrative-staff meetings limited to two Board members at a time, falling below the quorum needed to trigger the Act's meeting definition on its own. The opinion analyzed whether that smaller group could still be a "public body" under 29 Del. C. § 10002(a), which reaches ad hoc committees, special committees, and subcommittees established by a body the General Assembly established, but found no factual basis in this record for treating the two attending members as such a subcommittee. The Attorney General's authority to resolve the complaint came from 29 Del. C. § 10005(e), and the opinion referenced the notice provisions of 29 Del. C. § 10004(f) that would apply if a quorum were ever present.

Citations and references

Statutes:

• 29 Del. C. § 10005(e), FOIA complaint and enforcement procedure
• 29 Del. C. § 10002(a), "public body" definition, including subcommittees and ad hoc committees
• 29 Del. C. § 10002(e), definition of "meeting" as a gathering of a quorum
• 29 Del. C. § 10004(f), notice provisions that would apply if a quorum of the Board were present

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/06/15/95-ib20-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

Del. Op. Atty. Gen. 95-IB20 (Del.A.G.), 1995 WL 794552

( warning school district that 2 board members who planned to attend an informal, administrative meeting with the superintendent, 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 )

June 15, 1995

Ms. Kathleen 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 by the Attorney General on the above-referenced complaint.

On April 21, 1995, you filed a complaint pursuant to 29 Del . C . § 10005(e), the Freedom of Information Act (the “Act”) with the Attorney General alleging, inter alia , that Woodbridge School District (the “District”) again met in closed “Breakfast Meeting Sessions” in February and March, 1995. We incorporate by reference herein the details of those allegations.

The Attorney General served your complaint on James D. Griffin, Esquire, counsel for the District on April 3, 1995.

After a short extension, Mr. Griffin filed the District’s response to the complaint on April 21, 1995.

1

Mr. Griffin represented that contrary to the allegations contained in your complaint, the District did not hold a public meeting in February or March, 1995. He stated that the District had previously discontinued the practice of holding such monthly breakfast meetings following the Attorney General’s written decision dated January 23, 1995 ( Atty Gen. Op . No. 95-IB04, attached) holding such meetings were in violation of the Act. He stated, inter alia , that the two breakfast meetings held since his letter of February 24, 1995 were “administrative-staff meetings” called by the Superintendent. He stated that no more than two of the five Board Members attended the February and March, 1995 “administrative-staff meetings.” He stated that the meetings were held on February 28, 1995 and attended by Board Members Eddy Parker and Joanne Collision. The March meeting was held on March 28, 1995 and attended by Board Members Eddy Parker and Ruth Isaacs. He stated that any attendance by these Board Members was entirely voluntary.

The District also argued in its response that the Board Members who attended the breakfast administrative meetings “were not appointed or designated as an ad hoc committee, special committee, temporary committee, advisory board committee or subcommittee” and have not thereafter, made an informal or formal, express or implied recommendation to the full Board. See 29 Del . C . § 10002(a). The District argued further that neither of the Board Members presided at either of the administrative-staff meetings. Mr. Griffin stated that no public notices were posted and no minutes were taken or executive session held because the meetings were administrative in nature. The District also stated there was no call to order by any Member of the Board.

The District asserted that this office should reject the conclusion of Ms. Morozowich that the Board, its counsel, and central administrative staff intend to continually disregard previous Opinions by the Attorney General. Mr. Griffin stated he believed the complaint has no merit in that no Board meeting occurred.

On May 1, 1995 the Attorney General forwarded a copy of the District’s April 21, 1995 response to Ms. Morozowich and requested her comments.

2

The Law

§ 10002. Definitions.

(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.

(e) “Meeting” means 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.

Decision and Order

The sole issue presented by this complaint is whether the re-constituted “administrative staff meetings” by the District constitutes a public body within 29 Del . C . § 10002(a). Based upon this record, we conclude that such meetings were not public meetings within the Act. However, we caution the Board to comply carefully with the Act and specifically the notice provisions in § 10004(f) if a quorum of the Board is present. Although counsel for the Board was careful to set forth facts that the two Board Members in attendance were not appointed or designated as an ad hoc committee, special committee, advisory committee or subcommittee, the fact that Board Members were attending administrative-staff meetings could be interpreted as a subcommittee of public body falling within 29 Del . C . § 10002(a). This would be the case if any Board Members Parker and Collison subsequently made any formal or informal, express or implied recommendations to the full Board based upon any action proposed at the “administrative-staff meetings.” 24 Del . C . § 10002. Based upon the record here, however, we decline to make such a??? ruling for the the reasons enumerated above. We urge the District to review our January 23, 1995 Opinion detailing the parameters of the public meeting provisions of the Act so that future violations of the Act may be avoided. For the above reasons, however, we find no violation of the Act has occurred.Very truly yours,

John K. Welch

Deputy Attorney General

JKW/jb

Enclosures

cc:
Dr. Robert C. Sutton

Woodbridge School DistrictJames D. Griffin, Esquire

APPROVED:

Michael J. Rich

State Solicitor