Can a Delaware charter-school board hold a meeting in a locked building, and can it go into executive session without putting that on the agenda?

Plain-English summary

State Representative Kimberly Williams petitioned the AG over the Odyssey Charter School Board's process for selecting new Board members. Two procedural concerns:

1. The Nominating Committee scheduled fourteen executive sessions (one per day from Nov. 6 to Nov. 20, 2019) for "discussion regarding qualifications for job or personnel matters" under §§ 10004(b)(1) and (9). Then on December 3, 2019, the full Board held a public meeting that included an unnoticed executive session.
2. The December 3, 2019 meeting was held in a different location than usual (Building 22, First Floor Conference Room), and the building was locked at meeting time.

The AG ruled:

1. The unnoticed executive session was a violation. FOIA requires the agenda to include "a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor." The Board did not put its executive session on the agenda. Violation found.
2. The locked-building issue was not a violation in these circumstances. The Board provided an affidavit from a school employee stationed at the main office (next to Building 22) from 4:15 to 6:00 PM, available to admit any member of the public. No one asked. The opinion restated the underlying rule: FOIA is silent on meeting locations, but as a matter of "good governmental practice" public bodies should pick locations that are "readily accessible." The Board could have done better, but it did not "thwart" the public's right to attend.

The Board agreed to remediate by redoing the candidate evaluation in a public Nominating Committee meeting and re-voting on the Board members in open session. The AG accepted that and recommended no further steps.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Delaware's open-meeting law uses three different concepts to police access, which this opinion applied in combination:

1. Meetings must be open. A meeting, other than an executive session or other exception, must be open so citizens can observe the public body conducting its business.
2. The agenda must list everything. It must include the major issues to be discussed, plus the intent to hold an executive session and the specific ground for it.
3. An executive session must fit a listed exception. The Board invoked the job-qualifications exception, § 10004(b)(1), and the personnel exception, § 10004(b)(9).

The combined effect: a public body cannot have a private discussion of a specific topic unless the discussion fits an exception AND the agenda warns the public that the executive session is coming and what exception is being invoked. The Board's executive session may have fit an exception, but the agenda never warned of it, so the AG found a violation.

On the locked building, the opinion applied a soft "good governmental practice" gloss for meeting locations: pick places that are readily accessible. That gloss does not make every inconvenient location a FOIA violation; it only matters when the inaccessibility actually thwarts the public's right to attend, which the staffed main office prevented here.

Common questions

Q: What does the agenda have to say about an executive session?
A: Two things. (1) The intent to hold an executive session ("the Board may go into executive session at this meeting"), and (2) the specific exception in § 10004(b) being invoked ("for personnel matters under § 10004(b)(9)"). Both are required.

Q: Is "we forgot to put it on the agenda" a defense?
A: No. The Board here acknowledged the omission was inadvertent. The AG still found a violation, but accepted remediation in lieu of further sanctions.

Q: How does the Board "remediate" an open-meetings violation?
A: Typically by re-doing the action in a properly noticed public meeting. Public discussion (or as much as the exception allows), public vote. The AG cannot invalidate the original action; courts can but rarely do.

Q: Is § 10004(b)(1) (job qualifications) different from § 10004(b)(9) (personnel)?
A: They are separate exceptions. § 10004(b)(1) covers the "qualifications" of an applicant for a position; § 10004(b)(9) covers personnel matters. The Board's notices cited both for its candidate discussions. The opinion did not need to decide which one fit, because the violation it found was the missing agenda notice, not the choice of exception.

Q: What if no one shows up to a public meeting?
A: That does not retroactively justify procedural violations. Here, no member of the public asked to attend, but the AG still treated the agenda and location requirements as binding. The Board's burden is to make the meeting open, not to attract attendance.

Q: Are charter school boards subject to FOIA?
A: Yes. The opinion treated the Odyssey Charter School Board of Directors as a public body and applied FOIA's open-meeting and agenda requirements to it without question.

Q: Can I petition the AG over a school-board open-meeting violation?
A: Yes. The State Representative did so here. The AG treats such correspondence as a petition under § 10005 and encourages a fresh petition "within the allowable timeframes" if the body fails to comply.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10004(b)(1), (b)(9) (executive session exceptions)
• 29 Del. C. § 10005 (enforcement)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/01/03/20-ib02-1-3-2020-foia-opinion-letter-to-rep-kim-williams-re-foia-complaint-concerning-the-delaware-prosperity-partnership-is-locked-20-ib01-1-3-2020-foia-opinion-letter-to-rep-john-kowalk/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/01/Attorney-General-Opinion-No.-20-IB02.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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. 20-IB02
January 3, 2020

VIA EMAIL
The Honorable Kimberly Williams
State Representative, 19th District
[email protected]

RE: FOIA Petition Regarding the Odyssey Charter School

Dear Representative Williams:

We write in response to your correspondence alleging that the Odyssey Charter School Board of Directors ("Board") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Board violated FOIA by conducting an executive session at its December 3, 2019 meeting. The Board committed to remediate this violation by discussing the qualifications of the candidates and taking a vote in open session at a future public meeting; therefore, we recommend no additional steps. If the Board does not take steps to comply with FOIA, you are encouraged to file a new petition with our Office within the allowable timeframes.

BACKGROUND

The Board is in the process of selecting new Board members, and the Board's Nominating Committee was tasked with evaluating potential candidates and making recommendations. The Board's Nominating Committee issued notice it would hold fourteen executive sessions, one each day from November 6, 2019 to November 20, 2019 for "discussion regarding qualifications for job or personnel matters – 29 Del. C. §§ 10004(b)(1) & (9)." The Board of Directors also noticed a public meeting for December 3, 2019 to discuss the item, "Nominating Committee Report and Recommendation for Review" in open session. This meeting was scheduled to take place in the Intermediate School Building 22, First Floor Conference Room, which was locked at the meeting time and a different location from where Board meetings are typically held. The Board also held an executive session at this meeting which was not noticed on the agenda. No member of the public requested access or was denied entry to the December 3, 2019 meeting. You then filed this Petition, challenging the Board's use of executive sessions to select new Board members outside of public view and the public's lack of access to the building where the December 3, 2019 meeting was held.

The Board President responded to your Petition on December 12, 2019 ("Response"). At the outset, the Board acknowledges its inadvertent error in failing to notice the December 3, 2019 executive session. To remediate this conduct and address your concerns, the Board commits to discuss the candidates in a future open session and re-do its vote selecting the Board members. The Board further commits to have the Nominating Committee hold a public meeting to "re-do its evaluation of candidates and recommendation to the Board."

In addition, the Board states that a scheduling conflict required it to hold the December 3, 2019 meeting in a different location than usual, and although the building was locked, the Board arranged to have staff available to allow members of the public access to the meeting. The Board provided an affidavit from the school employee who was stationed at the main office, which is located next to Building 22, who was available from 4:15 to 6:00pm to allow members of the public access to the building for the 5:00pm meeting. In the affidavit, the employee attests to knowing in advance about the meeting and being prepared to allow entrance to any who asked; the employee attested no member of public asked to attend the meeting that night.

Regarding the executive sessions, the Board asserts that the Nominating Committee did not actually meet in executive session at any of the fourteen noticed meetings, but it did hold an executive session discussion at the December 3, 2019 meeting. The Board contends that it was appropriate for the Board to meet in executive session to discuss the candidates. The Board argues that a public discussion of the candidates' qualifications would have a chilling effect on those who would want to apply and would prevent a "candid conversation about the negative characteristics of a potential candidate, arguably compromising a board member's fiduciary duty to the school." Finally, the Board asserts, based on the plain language of the FOIA statute, it properly discussed an individual's qualifications to hold a job under 29 Del. C. § 10004(b)(1); thus both the Board's discussions in executive session at the December 13, 2019 and the Nominating Committee's discussions, if it had held any such discussions, were proper under FOIA.

DISCUSSION

The Petition raises two issues for our consideration: 1) whether the Board's provision of access to its December 3, 2019 meeting violated FOIA; and 2) whether the Board's executive session at its December 3, 2019 meeting violated FOIA.

First, we consider whether the Board violated FOIA by holding a meeting in a locked building that is not the Board's typical location. A meeting, other than an executive session or other exception, must be open to the public to allow citizens to observe the public body as it conducts its public business. "FOIA is silent as to the locations and times of public meetings," but this Office has found that as a matter of "good governmental practice," public bodies should "attempt to schedule their meetings at times that are convenient to the greatest number of citizens and at locations that are not only readily accessible but that can also accommodate all who may want to attend." A public body may violate FOIA's mandate to hold an open meeting, if the public's right to attend is thwarted. Here, the Board properly noticed the location of the meeting and provided an affidavit from the employee who was stationed at the main office next to the building where the meeting was held to allow members of the public to enter the building. Accordingly, although the Board could have provided a more readily accessible location and is encouraged to do so in the future, we find that the Board did not thwart the public's right to attend the December 3, 2019 meeting in these circumstances.

Second, we determine whether the Board violated FOIA by conducting an executive session on December 3, 2019. FOIA mandates that an agenda be posted in advance of a meeting. An agenda must include "a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor." In this case, the Board's agenda did not provide notice of its executive session on December 3rd as FOIA requires. Accordingly, we find that the Board violated FOIA by conducting an executive session at this meeting. The Board committed to discuss the qualifications of the candidates and take a vote selecting the Board members in open session at a future public meeting; therefore, we recommend no additional steps for remediation.

CONCLUSION

Based on the above, we conclude that the Board violated FOIA by conducting an executive session at the December 3, 2019 meeting. The Board committed to discuss the qualifications of the candidates and take a vote in open session at a future public meeting; therefore, we recommend no additional steps for remediation.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: Josiah Wolcott, Esq., Odyssey Charter School Board President