Can a school board approve new hires by having an administrator call each board member individually for their views, instead of voting at an open meeting?

Official title

97-IB03: FOIA Complaint Dated September 19, 1996-Woodbridge School District Board of Education

Plain-English summary

A Woodbridge school board member complained that when the superintendent presented a list of recommended new hires at an August 1996 workshop, the assistant superintendent then called board members individually to line up a "consensus vote" before the hires were announced as approved, all without a public board meeting. The board countered that this was just an informal check for objections, and that the hires were ultimately voted on, unanimously and in the open, at the board's next regular meeting a week later.

The Attorney General found the phone calls did amount to an improper consensus vote outside a public meeting, a practice the board had been warned about before. Even so, no remedy was required this time, because the same hiring decisions were properly placed on the agenda and voted on in open session at that subsequent meeting; the board was simply told to stop calling members individually to gauge their views before a matter reaches a vote. What makes this opinion notable is the AG's growing frustration: it was the fourth time in about two years that the Attorney General's office had found the Woodbridge board violated FOIA's open-meeting requirements, on top of separate warnings about gathering informally before meetings. The AG made clear that while a later public vote can sometimes cure an earlier private one, that grace has limits, and that further violations that look deliberate or part of an ongoing pattern could lead to a lawsuit seeking a permanent injunction and other remedies.

Currency note

This opinion was issued in 1997. 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 calling each board member by phone to check for objections count as a "vote" under Delaware's open-meetings law?
A: Yes, according to this opinion. The AG found that individually polling board members to build a consensus before a matter is announced as approved is the kind of vote the Act requires to happen in a public meeting, not over the phone.

Q: If a board takes an improper private vote but later re-votes in public, is that always enough to fix the problem?
A: Not always. The opinion found no remedy was needed here because the same decision was properly re-noticed and voted on in open session soon after, but warned that a later public vote won't necessarily cure a violation that appears deliberate or part of a repeated pattern.

Q: What happens if a board keeps violating Delaware's open-meetings law even after repeated warnings?
A: The opinion warned that a documented pattern of violations, this was the board's fourth in about two years, could lead the Attorney General to seek a permanent injunction and other remedies in the Court of Chancery.

Background and statutory framework

The complaint concerned the Woodbridge Board of Education's handling of new-hire recommendations presented at an August 20, 1996 workshop, followed by phone calls from the assistant superintendent to individual board members and a premature letter telling the new hires they were "officially approved," before the board's regular August 28, 1996 meeting where the hires were unanimously approved in open session. Citing its own prior opinion (96-IB32) and Levy v. Board of Education of Cape Henlopen School District for the principle that FOIA exists "to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance," the AG found the phone-based consensus violated the Act, but declined a remedy under 29 Del. C. § 10005(e) because the matter was properly re-noticed and voted on in public shortly after. The opinion cataloged a documented pattern of prior Woodbridge violations (Attorney General Opinions 94-IO33, 95-IB04, 95-IB37, and 96-IB12) and prior cautions against pre-meeting gatherings (95-IB35, 95-IB20), warning that continued violations appearing deliberate or part of an ongoing pattern could support a petition to the Court of Chancery for injunctive relief.

Citations and references

Statutes:

• 29 Del. C. § 10005(e), Attorney General's investigation and enforcement authority, including the option to seek Court of Chancery relief for deliberate or repeated violations

Cases:

• Levy v. Board of Education of Cape Henlopen School District, C.A. No. 1447 (Del. Ch. Oct. 1, 1990), on FOIA's purpose of preventing secret decisions reached outside public meetings

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/02/27/97-ib03-foia-complaint-dated-september-19-1996-woodbridge-school-district-board-of-education/

Original opinion text

February 27, 1997

Civil Division – New Castle County

Mr. Milton F. Morozowich

R.D. 2, Box 166

Bridgeville, DE 19933

James D. Griffin, Esquire

Griffin & Hackett, P.A.

Mellon Bank Building, #200

P.O. Box 612

Georgetown, DE 19947

Re: Freedom of Information Act Complaint dated Sept. 19, 1996

Woodbridge School District Board of Education

Dear Mr. Morozowich and Mr. Griffin:

This is the Attorney General’s written decision on the above

referenced complaint pursuant to 29 Del. C. § 10005(e).

By letter dated September 19, 1996, Mr. Morozowich alleges that

the Woodbridge School District Board of Education (the “Board”)

violated the Freedom of Information Act (“FOIA”) in connection

with the hiring of personnel for the 1996 – 1997 school year.(1)

Specifically, Mr. Morozowich alleges that, at an August 20, 1996

Board workshop, the School District Superintendent presented the

Board with a “list of recommended ‘new hires,'” and advised the

Board that the Assistant Superintendent would call Board members

the next day for a consensus vote on the recommendations. Mr.

Morozowich contends that the Assistant Superintendent tried to

call him on August 21 and August 22, 1996. Mr. Morozowich further

contends that, by letter dated August 22, 1996, the persons on

the list of new hires were advised that the Board had

“‘officially approved their appointment on August 20, 1996.” Mr.

Morozowich complains that the consensus vote was improper, and

that the discussion of “new hires” should have been done at a

Board meeting open to the public.

Our office forwarded Mr. Morozowich’s complaint to the Board on

December 24, 1996 and requested a response within ten days. We

received the Board’s response on January 13, 1997.

In its response, the Board states that the Assistant

Superintendent called individual Board members on August 21, 1996

to inquire whether “they had any problems with the

recommendations” for new employees. The Board explains that, if

there were no problems, the recommendations were to be placed on

the agenda for the next regular Board meeting scheduled for

August 28, 1996. The notice and minutes for that meeting confirm

that the Board reviewed and unanimously approved the recommended

new hires.

The Board also explains that the August 22 letter advising new

employees that they were approved on August 20, 1996 was a

mistake, and that a subsequent letter dated August 27, 1996

advised such employees that they “had only been tentatively

approved and that their names would be officially presented to

the Board” for hiring approval at the August 28 meeting.

Subsequent letters dated August 29, 1996 advised the new

employees that they had been officially approved at the August 28

meeting. The Board contends that “no violation of FOIA occurred

based on the fact that the Board of Education approved the

questioned personnel actions in open public session at its August

28, 1996 meeting.”

We find that the Assistant Superintendent’s phone calls to

individual Board members amounted to a consensus vote on the

recommendations. As the Board has been advised in the past,

consensus votes conducted outside of open meetings are in

violation of FOIA. See Att’y Gen. Op. No. 96-IB32. See  also Levy

v. Board of Education of Cape Henlopen School District, Del. Ch.,

C.A. No. 1447, Chandler, V.C. (October 1, 1990) (recognizing that

one of the purposes of FOIA is “to prevent at non-public meetings

the crystallization of secret decisions to a point just short of

ceremonial acceptance”). We find, however, that no remedial

action is required for this violation since the subject matter of

the consensus vote was properly noticed for the August 28, 1996

public Board meeting, and properly voted on at that time. The

Board is cautioned, however, to discontinue the practice of

calling individual Board members to obtain their views on matters

which are to be put to Board vote.

The Attorney General’s Office is increasingly concerned about

what appears to be a pattern of violations of the open meeting

laws by the Board. This is the fourth time in the last two years

that this Office has determined that the Board violated the open

meeting provisions of FOIA. See Att’y. Gen. Op. No. 94-I033 (Nov.

28, 1994) (“the Board has violated the public notice requirements

of the Act”); Att’y. Gen. Op. No. 95-IB04 (Jan. 23, 1995)

(breakfast meetings); Att’y. Gen. Op. No. 95-IB37 (Mar. 8, 1995)

(same); Att’y. Gen. Op. No. 96-IB12 (Apr. 15, 1996) (discussion

of public business after close of public meeting). In addition,

this Office has advised the Board to discontinue practices, such

as gathering in the Superintendent’s office prior to public

meetings, which “give the appearance that public business is

being conducted in a manner other than in an open and public

forum.” Att’y. Gen. Op. No. 95-IB35 (Nov. 2, 1995). See also

Att’y. Gen. Op. 95-IB20 (June 15, 1995) (“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.”).

Although we decline to direct remedial action in this case, the

Board is advised that a later public meeting may not always

validate a prior private meeting, particularly where the FOIA

violation appears “deliberate” or involves “an ongoing pattern of

infractions.” Levy, supra. Further violations which appear

deliberate or part of an ongoing patter of infractions may prompt

a petition to the Court of Chancery for permanent injunctive

relief and such other damages and fees as may be permissible

under FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Michele C. Gott

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: Elizabeth Bacon, Opinion Coordinator

The Honorable M. Jane Brady

Attorney General

Keith R. Brady

Chief Deputy Attorney General

1. The Attorney General’s Office received that letter on

September 23, 1996. Unfortunately, due to an internal error in

case processing, the complaint did not come to the attention of

the unit that handles FOIA matters until mid-December, 1996. We

have made every effort since then to respond to the complaint as

quickly as possible.