Can a school board discuss a dispute between a board member and a district employee in closed executive session under Delaware's open-meetings law?

Official title

96-IB27: FOIA-Woodbridge Board of Education

Plain-English summary

A Woodbridge Board of Education member complained that the board misused its May 1996 executive session, held to discuss "personnel matters," to instead "criticize and berate" him over how he had approached a high school guidance counselor and principal about his own daughter's transcript and course records. He argued this was really about him acting as a concerned parent, not board business.

The Attorney General disagreed. The posted agenda specifically disclosed, in bold type, that the board intended to discuss personnel matters involving the names, competency, and ability of individual employees, which is exactly what the Act requires, disclosing the purpose, not naming names or spelling out every detail in advance. The board voted publicly to enter the session and kept minutes of it. On the substance, the opinion held that a board member's interactions with school staff can reasonably be treated as a personnel matter even if the member frames his own conduct as a parent's concern, because he remains a board member whose contact with employees carries that dual character. The opinion noted it had no jurisdiction to referee the underlying ethics dispute between the board and its member, but found the FOIA question itself was straightforward: discussing his conduct toward staff in executive session was a proper personnel matter.

Currency note

This opinion was issued in 1996. 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 board have to name specific employees on the agenda before discussing them in a closed personnel session?
A: No. The opinion held that FOIA only requires disclosing the purpose of an executive session, such as "personnel matters," on the agenda, not identifying the individuals or every topic that will come up.

Q: If a board member says he was acting as a parent, not as a board member, does that take the discussion out of the personnel exemption?
A: Not under this opinion. The AG found that because the complainant was also a sitting board member, his contact with school staff could reasonably be treated as a personnel matter regardless of the capacity he believed he was acting in.

Q: Will the Attorney General decide an ethics dispute between a school board and one of its own members?
A: No. The opinion made clear that disputes over whether a board member violated board ethics policies or a professional code of conduct are outside the Attorney General's FOIA jurisdiction.

Background and statutory framework

The May 14, 1996 public notice and agenda for the board's May 26, 1996 meeting disclosed, in bold type, an intent to hold an executive session to discuss "personnel matters in which names, competency, and ability of individual employees may be discussed," satisfying 29 Del. C. Section 10004(e)(2) and (e)(4). Applying the four-part test from Levy v. Board of Education of the Cape Henlopen School District (public announcement of purpose, majority vote, staying within one of the Act's nine allowed purposes, and preparing minutes) and Common Cause of Delaware v. Red Clay Consolidated School District Board of Education's holding that the Act "simply requires public bodies to disclose the purpose of executive sessions," the AG found the board's notice, vote, and minutes satisfied 29 Del. C. Section 10004(a) and (b). Citing out-of-state authority including Nageotte v. Board of Supervisors of King George County, Yandell v. Havana Board of Education, Johnson v. Freedom of Information Commission, Marion County Sheriff's Merit Board v. Peoples Broadcasting Corp., and Commercial Printing Co. v. Rush, the opinion concluded that discussing a board member's conduct toward school employees fell within the personnel exemption in 29 Del. C. Section 10004(b)(9), regardless of whether the member characterized his own actions as those of a parent rather than a board official.

Citations and references

Statutes:

• 29 Del. C. Section 10002(a), definition of "public body"
• 29 Del. C. Section 10004(a), general open-meetings requirement
• 29 Del. C. Section 10004(b), permissible purposes for executive sessions, including personnel matters
• 29 Del. C. Section 10004(e)(2), notice and agenda disclosure requirements for executive sessions
• 29 Del. C. Section 10004(e)(4), posting-location requirements for public notice

Cases:

• Levy v. Board of Education of the Cape Henlopen School District, 1990 WL 154147 (Del. Ch. Oct. 1, 1990), setting out the four requirements for a valid executive session
• Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, 1995 WL 733401 (Del. Ch. Dec. 5, 1995), on disclosing only the purpose of an executive session
• Nageotte v. Board of Supervisors of King George County, 288 S.E.2d 423, 426 (Va. 1982), on not needing to identify personnel to invoke the personnel exemption
• Yandell v. Havana Board of Education, 585 S.W.2d 927 (Ark. 1979), on discussing complaints against school personnel in executive session
• Johnson v. Freedom of Information Commission, 1996 WL 383337 (Conn. Super. May 20, 1996), on discussing public employee performance in executive session
• Marion County Sheriff's Merit Board v. Peoples Broadcasting Corp., 547 N.E.2d 235 (Ind. 1989), on receiving information about employee misconduct in executive session
• Commercial Printing Co. v. Rush, 549 S.W.2d 790 (Ark. 1977), on discussing a public employee's conduct in executive session

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/08/01/96-ib27-foia-woodbridge-board-of-education/

Original opinion text

Civil Division – New Castle County

August 1, 1996

Del. Op. Atty. Gen. 96-IB27 (Del.A.G.), 1996 WL 517437

( determining that school board did not violate FOIA’s open meeting requirements by discussing in executive session a dispute between a board member and a district employee and possible ethical violations by the board member, where agenda disclosed the board’s intent to discuss “personnel matters” )

Mr. Milton F. Morozowich

RD 2, Box 166

Bridgeville, DE 19933

Re: Freedom of Information Act Complaint

against Woodbridge Board of Education

Dear Mr. Morozowich:

Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred.

On June 13, 1996 we received your letter of complaint dated June 7, 1996. By letter dated June 24, 1996, we asked the Woodbridge Board of Education (“Board”) to respond to your allegation of a violation of FOIA. By letter dated July 11, 1996, the attorney for the Board responded, but our office did not receive that response until July 22, 1996.

Your complaint states that during the May 21, 1996 monthly meeting the Board went into executive session to discuss “personnel matters,” when in fact “the ‘closed session’ was used to criticize and berate my contacting the high school guidance and administrative staff, relative a parental concern I had with my daughter’s senior grade report and transcript.” You have previously

Mr. Milton F. Morozowich

August 1, 1996

Page 2

alleged another FOIA violation in connection with the May 26 meeting, in your letter dated May 30, 1996. That allegation will be addressed in a separate written determination by this office.

The response from the Board’s attorney denies your allegation that the Board went beyond discussion of personnel matters in executive session on May 26, 1996. The minutes show that the Board addressed a concern of Mr. Robert C. Sutton, Superintendent, about your conduct towards Ms. Terri Eifert, a guidance counselor at Woodbridge High School, and the school’s Principal, Patricia S. Oliphant. Specifically, Ms. Oliphant had addressed a memorandum to Mr. Sutton about your response to Ms. Eifert’s request that you obtain official transcripts from Delaware Technical and Community College to verify your daughter’s completion of course-work there; your questions about the TIP program; and your request for information about the “Adams Scholarship.” The Board takes the position that, since you are a member of the Board, these are “personnel” matters that were a proper subject for discussion in executive session. You, on the other hand, take the position that you were not acting in your capacity as a Board member, but rather as a concerned parent.

Pertinent Statutes

29 Del. C. Section 10002(a):

“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division 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

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August 1, 1996

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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.

29 Del. C. Section 10004. Open meetings.

(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.

. . .

(b) A public body at any meeting may call for an executive session

closed to the public pursuant to subsection (c) of this section for any

of the following purposes: . . .

. . .

(9) Personnel matters in which the names, competency, and abilities

of individual employees or students are discussed;

. . .

(e)(2) All public bodies shall 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. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

. . .

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where the meetings of the public body are regularly held, and making a reasonable number of such notices available.

Mr. Milton F. Morozowich

August 1, 1996

Page 4

Opinion

Under FOIA, “to convene in executive session, the public body must satisfy several requirements:” (1) “publicly announce the purpose of the closed session in advance thereof”; (2) “approve holding such a session by a majority vote”; (3) “limit the agenda of the closed session to public business that falls within one of the nine purposes allowed for such meetings”; and (4) prepare “[m]inutes of any closed session” and make them “available as public records for public inspection.” Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 3 (Oct. 1, 1990) (Chandler, V.C.)

The documents show that the Board posted a public notice on May 14, 1996 with an agenda for the regularly scheduled monthly meeting of the Board on May 26, 1996. Item VIII. of the agenda stated that there would be an executive session to discusses personnel, pending litigation, and scholarships. In bold type at the bottom, the agenda further notified the public that: “THE BOARD OF EDUCATION INTENDS TO CALL FOR AN EXECUTIVE SESSION, CLOSED TO THE PUBLIC, . . . TO DISCUSS PERSONNEL MATTERS IN WHICH NAMES, COMPETENCY, AND ABILITY OF INDIVIDUAL EMPLOYEES MAY BE DISCUSSED; . . . .”

FOIA “simply requires public bodies to disclose the purpose of executive sessions in the agenda.” Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., 1995 WL 733401, at p. 4 (Dec. 5, 1995) (Balick, V.C.). “[I]t is not necessary to identify the personnel in convening an executive session to constitute personnel matters.” Nageotte v. Board of Supervisors of King George County, Va. Supr., 288 S.E.2d 423, 426 (1982).

Mr. Milton F. Morozowich

August 1, 1996

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The minutes of the public meeting on May 26, 1996 show that the Board voted, unanimously and in public, to go into executive session to discuss, among other things, personnel matters. The Board also prepared minutes of the executive session, in compliance with FOIA. The act “does not require the [school board] to specify what legal, personnel, or other subjects are discussed in executive sessions.” Red Clay, 1995 WL 733401, at p. 4.

The only legal issue that remains, therefore, is whether the Board “exceeded the statutory limits on executive sessions.” Red Clay, at p. 2. On the basis of the facts, we conclude that the Board did not exceed the statutory limitation on executive sessions to discuss certain matters involving you. In Yandell v. Havana Board of Education, Ark. Supr., 585 S.W.2d 927 (1979) (en banc), the state supreme court held that the school board had not violated the freedom of information act by going into executive session to consider complaints lodged against the school superintendent, because the matter clearly involved school “personnel.” 585 S.W.2d at 929. See also Johnson v. Freedom of Information Commission, Conn. Super., 1996 WL 383337 (may 20, 1996) (executive session proper to discuss performance of public employees); Marion County Sheriff’s Merit Board v. Peoples Broadcasting Corp., Ind. Supr., 547 N.E.2d 235 (1989) (executive session proper to

receive information regarding a public employee’s alleged misconduct); Commercial Printing Co. v. Rush, Ark. Supr., 549 S.W.2d 790 (1977) (en banc) (proper discussion in executive session of particular acts of a public employee whose conduct had been called into question).

Although you claim that you were only acting as a concerned parent, the fact remains that you are also a member of the Board, and any action you take vis-a-vis a school guidance counselor, the principal, or other school employee could be perceived as taken in your official capacity as a member of the Board. The Board’s counsel maintains that your “status as a Board Member obliges

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August 1, 1996

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[you] to act within the established policies of the Board and within the parameters of established Board Member ethics, which wisely require that direct employee administration and criticism be handled by the Board’s Chief Administrative Officer, the Superintendent.” It is beyond the jurisdiction of this office to get involved in any dispute between the Board and one of its members with regard to employee administration, or the National School Boards Association Code of Ethics. We have determined, however, that such matters constitute “personnel” matters for purposes of the exceptions to the open meeting requirements of FOIA.

Based on our review of your complaint, and the documents provided to us, we conclude that there has not been a violation of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: James D. Griffin, Esquire

Elizabeth A. Bacon, Opinion Administrator