Can a school board add a last-minute construction change order to its meeting agenda by just voting to amend the agenda that day?

Official title

03-IB22: RE: Freedom of Information Act Complaint Against Woodbridge School District

Plain-English summary

A resident complained that Woodbridge School District approved a $30,373 increase to a middle-school construction contract after the superintendent asked, on the day of the meeting, to add the change order to the agenda. The district argued it only learned about the change order that morning from the architect and a subcontractor, and that the construction schedule required immediate action, even though its own staff acknowledged the work wasn't urgent and didn't actually start until a week later. The AG rejected the district's theory that simply voting to add an item makes it something that "arose at the meeting," reasoning that letting any agenda item in just because the body votes to add it would make the seven-day notice requirement meaningless. FOIA does have a real escape valve for genuinely last-minute business: a public body can add an item as late as six hours before a meeting, as long as it explains in the amended notice why the item wasn't ready sooner. The district never used that option. And nothing in the record suggested a true health-or-safety emergency justifying skipping notice altogether. Because the change order didn't grow naturally out of anything already on the agenda and the district bypassed FOIA's own six-hour fix, the AG found a violation and ordered a new, properly noticed vote within thirty days.

Currency note

This opinion was issued in 2003. 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: Can a public body add a brand-new item to its meeting agenda just by voting to amend the agenda that day?
A: No, according to this opinion. The AG rejected that reasoning as circular, since it would let any topic onto any agenda regardless of notice, and found FOIA's exception for items "arising at the meeting" only covers things that naturally grow out of a topic already noticed, not items introduced fresh by a same-day motion.

Q: What's the right way for a public body to add a genuinely last-minute item to its agenda?
A: FOIA allows posting an amended agenda as little as six hours before the meeting, according to this opinion, as long as the notice briefly explains why the item wasn't available when the original agenda was posted; the public body here never used that mechanism.

Q: Does needing to keep a construction project on schedule count as an emergency that skips FOIA's notice rules entirely?
A: Not on this record, according to this opinion. The AG found nothing showing an immediate threat to public peace, health, or safety, especially since the district's own staff said the item wasn't urgent and the work didn't start for another week.

Q: What happens when a public body approves something under an improperly noticed agenda item?
A: In this case, the AG ordered the district to hold a new meeting, properly noticed under FOIA, to reconsider the change order from scratch.

Background and statutory framework

The complaint concerned Woodbridge School District's approval of a construction change order added to its August 5, 2003 meeting agenda the same day, without following either of FOIA's two agenda-amendment paths. Applying 29 Del. C. § 10004(e)(2)'s exception for items "arising at the meeting," and reading it narrowly per its own prior opinions, including Att'y Gen. Op. 97-IB20 and Att'y Gen. Op. 03-IB18, the AG rejected the district's position that voting to add an item makes it one that "arose" at the meeting, since that would render 29 Del. C. § 10004(e)(5)'s six-hour amendment procedure, which Att'y Gen. Op. 02-IB22 showed a different public body using correctly, superfluous under the statutory-construction principle from Keller v. Harford Mutual Insurance Co. The AG also found no basis for the emergency exception in 29 Del. C. § 10004(e)(1), applying Att'y Gen. Op. 97-IB18's standard that a genuine threat to public peace, health, or safety is required, distinguishing the shortened-notice option for a properly declared special meeting under § 10004(e)(3). Finding the district used neither valid path, the AG ordered a new, properly noticed vote.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), seven-day notice requirement and narrow exception for items arising at the meeting
• 29 Del. C. § 10004(e)(5), six-hour agenda amendment procedure with a required delay explanation
• 29 Del. C. § 10004(e)(1), emergency-meeting exception for immediate preservation of public peace, health, or safety
• 29 Del. C. § 10004(e)(3), 24-hour notice option for properly declared special meetings

Cases:

• Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), a natural extension of a noticed agenda item may be discussed, but not an unrelated new topic
• Att'y Gen. Op. 03-IB18 (July 31, 2003), the "arises at the meeting" exception must be read narrowly to avoid swallowing the notice rule
• Att'y Gen. Op. 02-IB22 (Sept. 13, 2002), a properly explained same-day agenda amendment satisfied FOIA
• Att'y Gen. Op. 97-IB18 (Sept. 2, 1997), a personnel dispute did not threaten public peace, health, or safety
• Keller v. Harford Mutual Insurance Co., 672 A.2d 1012, 1016 (Del. 1996), statutes must be read to give effect to every part and leave no provision superfluous

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/10/06/03-ib22-re-freedom-of-information-act-complaint-against-woodbridge-school-district/
• Original PDF: not linked from landing page

Original opinion text

October 6, 2003

Kent County – Civil Division (739-7641)

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

RE: Freedom of Information Act Complaint Against Woodbridge School District

Dear Mr. Kramer:

On August 18, 2003, we received your letter alleging that the Woodbridge School District ("the School District") violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), by not providing timely notice to the public that the School District would approve a change order to increase the cost of a construction contract.

By letter dated August 20, 2003, we asked the School District to respond to your complaint within ten days. We granted an extension of time to accommodate the vacation of the School District's counsel, and received the School District's response on September 15, 2003.

You allege that at the School District's August 5, 2003 meeting, the "Superintendent requested that another item be added" to the agenda: a modification to increase the cost (by $30,373) of the contract for the construction of a middle school addition. You further allege that the School District approved the change order " even though "Barry Cooper, Supervisor of Administrative Services, stated that item was not something that had to be rushed."

The School District responds that it did not became aware of the change order until the day of the August 5, 2003 meeting, when it received a change order request form signed by the architect and one of the subcontractors. The School District contends that it could not have deferred discussion about the change order until a later date because of the construction schedule. The School District acknowledges, however, that "the work could have been completed at a later date, even after the building was occupied" and that work covered by the change order did not begin until August 12, 2003 and "is still in progress as of the date of this response."

Relevant Statutes

FOIA provides that a public body shall give notice to the public and post an agenda "at least 7 days in advance" of a public meeting but "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." 29 Del. C. § 10004(e)(2).

FOIA provides that "[w]hen the agenda is not available as of the time of the initial posting of the public notice it shall be added at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." Id. § 10004(e)(5).

Legal Analysis

FOIA provides two distinct methods to amend an agenda. First, FOIA allows a public body to change an agenda "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." 29 Del. C.§ 10004(e)(2). Second, FOIA allows a public body to amend an agenda when it "is not available as of the time of the initial posting of the public notice" so long as it is added "to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." Id. § 10004(e)(5).

In Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), we determined that the Cape Henlopen School District properly amended the agenda during a meeting to include a motion to hire locally funded teachers to reduce class size. It was apparent from the minutes of the meeting that the School District and the public engaged in a vigorous discussion of the agenda item, "Class Sizes and Enrollment," and the discussion progressed naturally into the related subject of teacher salaries. We cautioned that if "a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the item arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation." At some point, however, "the issues may so far depart from the issues noticed on the agenda that they are better reserved for the next meeting of the public body so that the public will have adequate notice."

The contract change order did not arise at the August 5, 2003 meeting of the School District as a natural extension of public discussion about a related matter noticed in the agenda. The School District contends that the change order issue "arose" at the meeting by way of a motion to add the issue to the agenda. By that circular logic, there would be no limits on what business can be discussed at the meeting of a public body, so long as the agenda provided that it was subject to change. We have previously cautioned that Section 1000(4)(e)(2) of FOIA must be construed narrowly "lest the exception swallow the rule." Att'y Gen. Op. 03-IB18 (July 31, 2003) (and earlier opinions cited therein).

FOIA contemplates that matters of public business may not be known at the time of the original posting of the agenda, and allows items to be added "at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." 29 Del. C. § 10004(e)(5). The School District may not have received notice of the change order until the day of the August 5, 2003 meeting, but it did not avail itself of this exception by posting an amended agenda six hours in advance. Compare with Att'y Gen. Op. 02-IB22 (Sept. 13, 2002) (the "Executive Committee sufficiently explained the reason for amending the agenda for the July 16, 2002 meeting and posted that agenda within the time permitted by FOIA"). (1)

FOIA also provides that the notice requirements of FOIA "shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, . . . ." 29 Del. C. § 10004(e)(1). There is nothing in the record to support a conclusion that any delay in the approval of the change order was of sufficient urgency to waive the notice requirements of FOIA. See Att'y Gen. Op. 97-IB18 (Sept. 2, 1997) (personnel dispute with the town police chief did not threaten the public peace, health or safety"). The School District admits that the work covered by the change order did not start until August 12, 2003 (seven days after the School District voted to approve the change order) and is still ongoing as of September 15, 2003.

"An agenda serves the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, and so that members of the public can decide whether to attend the meeting and voice their ideas or concerns." Att'y Gen. Op. 97-IB20 (Oct. 20, 1997). We do not believe that the legislature intended to allow public bodies to have the option to add any item of public business to the agenda at a meeting simply by stating in the agenda that it may be subject to change. We reject the School District's interpretation Section 10004(e)(2) of FOIA as contrary to the statutory scheme as a whole. Such an interpretation would render Section 10004(e)(5) of FOIA superfluous, contrary to well established rules of statutory construction. "In determining legislative intent in this case, we find it important to give effect to the whole statute, and leave no part superfluous." Keller v. Harford Mutual Insurance Co., Del. Supr., 672 A.2d 1012, 1016 (1996) (citing 2A Norman & Singer, Sutherland Statutory Construction § 46.06 (1995)).

Conclusion

For the foregoing reasons, we determine that the School District violated the open meeting requirements of FOIA by failing to give timely notice to the public that it would discuss a change order to a construction contract. We recognize that the business of government does not stop seven days before a public meeting, but FOIA provides flexibility for a public body to amend the agenda up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.

As remediation, we direct the School District to notice a meeting within thirty days of the date of this opinion — in strict compliance with FOIA — to consider the change order issue anew. We also ask the School District's counsel to report back to our office in writing within ten days after remediation is made.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

James B. Griffin, Esquire

Phillip G. Johnson

Opinion Coordinator

I:\Phil\AG-OPN\2003\03-IB22

1. FOIA provides for 24 hours' notice for a special meeting, "defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special . . . meeting shall include an explanation as to why [the normal 7 days' notice] could not be given." 29 Del. C. § 10004(e)(3). The notice requirements for special meetings apply to the original posting of the agenda and not (as here) where the public body has already posted the agenda for a meeting within the seven-day rule. In the latter situation, the public body is amending a pre-existing agenda, and Section 10004(e)(5) governs.