If a school board adjourns its meeting and later reconvenes in executive session, does it need a fresh public vote to go back into closed session?

Official title

03-IB23: Re: F.O.I.A. Complaint Against Sussex Technical School District Board of Education

Plain-English summary

A resident complained about a Sussex Technical School District board meeting that started with an executive session, moved to public session, then supposedly "adjourned," only for the board to reconvene in executive session twenty minutes later without any public announcement or vote. The AG first clarified a procedural point: FOIA doesn't require fresh notice every time a meeting takes a recess, since that would be an unworkable burden, so a genuine mid-meeting break isn't the same as ending the meeting. But the label the board used, "adjourned," matters if the board actually treats it that way: here, unlike an earlier case where a board's vote to go back into session happened immediately and in plain public view, this board gave no advance word it intended to return, took a real twenty-minute gap, and never held the required public vote to re-enter executive session. That violated FOIA's procedural rules regardless of how the recess-versus-adjournment line gets drawn. On top of that, when the AG privately reviewed what was actually discussed, it found the board strayed outside its personnel exemption by hashing out the mechanics of the superintendent search (setting an application deadline, not evaluating any actual candidate), and failed to prove that discussing a pending lawsuit qualified as protected litigation strategy, especially since the board's own attorney wasn't even in the room. Because the superintendent search was still ongoing and the public had a strong interest in it moving forward, the AG skipped ordering a redo of anything already done, but required the board to report every future notice, agenda, and set of minutes until the search concluded.

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: Does a public body have to give new public notice every time it takes a short recess during a meeting?
A: No, according to this opinion. The AG found requiring fresh notice for every recess would be an unworkable burden that does little to serve the open meeting law's purpose, since the public couldn't realistically be notified in time anyway.

Q: If a board announces it's "adjourning" but comes right back to vote on something in public view, is that a FOIA violation?
A: Not necessarily, based on this opinion's discussion of an earlier case where the vote to resume happened immediately and in full public view; the label used matters less than whether the public actually saw the body go back into session.

Q: Can a school board discuss the mechanics of a superintendent search, like application deadlines, in executive session?
A: No, according to this opinion. The AG found the personnel exemption only covers discussion of the names, competency, and abilities of individual employees, and a search process's logistics, or an applicant who isn't yet an employee, fall outside that exemption.

Q: Who has to prove that an executive session about pending litigation was really necessary?
A: The public body does, according to this opinion. The AG found the school board failed to carry that burden here because its minutes were too cursory and no attorney was present to give the kind of legal-strategy advice the litigation exemption is meant to protect.

Background and statutory framework

The complaint concerned a Sussex Technical School District Board of Education meeting on August 11, 2003 that adjourned, then reconvened in executive session twenty minutes later without a public vote, and covered both a superintendent search and a pending lawsuit. On the recess-versus-adjournment question, the AG distinguished a genuine intermission from a true adjournment under 29 Del. C § 10004(c)'s requirement that the vote to enter executive session happen at an open meeting, contrasting Att'y Gen. Op. 94-IO08, where the vote to resume followed immediately and in public view, with this case, where the board gave no advance notice of its intent to return and never held a public vote. On the substance of the session, applying 29 Del. C. § 10004(b)(9) and § 10004(b)(1) and its own Att'y Gen. Op. 02-IB17 involving a different district's superintendent search, the AG found discussion of search-process mechanics, rather than an individual applicant's qualifications, fell outside both personnel-related exemptions. On the litigation portion, applying 29 Del. C. § 10004(b)(4), the AG held the board failed to carry its burden of showing the discussion was genuine litigation strategy, particularly given the absence of counsel and the thinness of the minutes.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), seven-day meeting notice requirement, including notice of intent to hold executive session
• 29 Del. C. § 10004(b)(9), personnel-matters exception limited to individual employees' names, competency, and abilities
• 29 Del. C. § 10004(b)(1), separate exemption for an individual's qualifications to hold a job
• 29 Del. C. § 10004(b)(4), litigation-strategy exception for executive session
• 29 Del. C § 10004(c), requirement that the vote to enter executive session occur at an open meeting

Cases:

• Att'y Gen. Op. 94-IO08 (Feb. 25, 1994), a vote to resume in executive session taken immediately and in public view did not violate FOIA
• Att'y Gen. Op. 02-IB17 (Aug. 6, 2002), discussing the mechanics of a superintendent selection process exceeds the personnel exemption

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/10/20/03-ib23-re-f-o-i-a-complaint-against-sussex-technical-school-district-board-of-education/
• Original PDF: not linked from landing page

Original opinion text

October 20, 2003

Civil Division-Kent County (739-7641)

Mr. Wayne A. Dukes

6494 Earle Lane

Seaford, DE 19973

Re: Freedom of Information Act Complaint Against

Sussex Technical School District Board of Education

Dear Mr. Dukes:

On August 18, 2003 we received your complaint alleging that the Sussex Technical School District Board of Education ("the School Board") violated the Freedom of Information Act ("FOIA"), 29 Delaware Code Chapter 100, by meeting in executive session on August 11, 2003 without the required notice to the public.

By letter dated August 20, 2003, we asked for the School Board's response to your complaint, which we received on September 11, 2003. On September 22, 2003, we asked the School Board for copies of the notice and agenda and minutes of the August 11, 2003 meeting. We received those documents on September 29, 2003. On October 2, 2003, we asked the School Board for copies of the notice and agenda and minutes of the School Board's September 18, 2003 meeting, which we received on October 3, 2003.

According to the School Board, the "Board noticed and held an executive session commencing at 4:30 p.m. on August 11, 2003. Because the Board did not complete this discussion of executive session items prior to 5:00 p.m., the Board left the executive session in order to convene the public session at 5:00 p.m. The Board did so with the intent of returning to executive session following the public session."

The School Board does not dispute that during the public session "the Board did not announce its intent to return to executive session." The Board states that during the reconvened executive session it "made a decision concerning the process for selecting the superintendent (i.e. establishing the deadline for submitting applications)."

Relevant Statutes

FOIA provides that "[a]ll public bodies shall give 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, . . . ." 29 Del. C. § 10004(e)(2).

FOIA allows a public body to meet in executive session to discuss "[p]ersonnel matters in

which the names, competency and abilities of individual employees . . . are discussed, unless the employee . . . requests that such a meeting be open." Id. § 10004(b)(9). FOIA also allows a public body to meet in executive session to discuss "an individual's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open." 29 Del. C.

§ 10004(b)(1).

FOIA allows for executive session to discuss "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to . . . pending or potential litigation, but only when an open meeting would have an adverse effect on the . . . litigation position of the public body." 29 Del. C. § 10004(b)(4).

Legal Authority

A. Notice of Executive Session

The agenda for the School Board's August 11, 2003 meeting stated the meeting would start in the District Office Board Room at 4:30 p.m. with the call to order, and then the Board would go into "Executive Session To Discuss Legal/Personnel Matters." The agenda then stated the meeting would move to the cafeteria at 5:00 p.m. for public session The last item on the agenda was "Adjournment."

The minutes of the August 11, 2003 meeting show that the School Board "adjourned" the meeting at 6:10 p.m. and then "reconvened in executive session at 6:30 p.m. to discuss legal and personnel matters related to the superintendent search." Your complaint raises the issue whether the second executive session was a new meeting requiring separate notice to the public, or a continuation of the same meeting already noticed to the public. Stated another way, did the School Board recess the public session of the meeting to go into executive session, or did the Board adjourn and hold a new meeting, which required new notice to the public?

"A recess is an intermission in the day's proceedings, as for meals or for counting the ballots when much time is required; or in the case of meetings like conventions lasting several days, a recess is sometimes taken over an entire day." Robert's Rules of Order, Section 18, at p. 65.

In contrast, an "adjournment" is "the act of a court, legislative body, public meeting, or officer, by which the session or assembly is dissolved, either temporarily or finally, and the business in hand dismissed from consideration, either definitely or for an interval." Black's Law Dictionary 63 (4th rev. ed. 1968). A recess denotes a shorter break or temporary suspension of proceedings, while an adjournment is the putting off until another day and time or place.

We do not believe that FOIA requires additional notice in the case of a meeting re-convened after a recess. To require public notice each time a meeting is recessed in the course of a day would impose an onerous duty on the public body and do little to serve the purposes of the open meeting law, for notice could not be conveyed to the public in time to make it effective.

We determine that the School Board recessed its August 11, 2003 meeting at 6:10 p.m., and then re-convened and continued to discuss matters properly noticed for that meeting when it went into executive session at 6:30 p.m. The Board did not hold two separate meetings, but rather one continuous meeting for which FOIA required only one notice.

The problem here is not sufficient notice, but rather compliance with the procedures under FOIA for going into executive session. In Att'y Gen. Op. 94-IO08 (Feb. 25, 1994), the city council voted to adjourn a meeting and then went into executive session to discuss personnel matters authorized by FOIA. The complainant contended that after the council members adjourned, they violated FOIA because their vote to go into executive session did not "take place at a meeting of the public body which shall be open to the public." 29 Del. C § 10004(c). We determined that, in substance, the council did not adjourn but rather recessed because "the adoption of the first motion to adjourn and the subsequent executive session followed immediately upon the other. The transaction of business was uninterrupted." The public was still in attendance when the city council announced " that an executive session would be held at the close of the regular business of the meeting to discuss personnel matters. The vote to go into executive session was taken in plain view of the public."

In this case, the School Board voted to adjourn the August 11, 2003 meeting at 6:10 p.m. Twenty minutes later, the School Board voted to go back into executive session to discuss legal and personnel matters, but did not do so at a public meeting. The School Board violated FOIA because citizens have a right "to see that the public body follows the required procedures for going into executive session, and to observe the discussion of any public business that follows." Att'y Gen. Op. 02-IB17 (Aug. 6, 2002).

We distinguish this case from Att'y Gen. Op. 94-IO08 because: (1) the School Board did not announce its intention to go back into executive session after the public session of the August 11, 2003 meeting; (2) the vote to go into executive session did not immediately follow the motion to adjourn; and (3) the vote was not taken in plain view of the public.

For these reasons, we determine that the School Board did not comply with the procedural requirements of FOIA when it went into executive session for the second time at the meeting on August 11, 2003. We appreciate that many public bodies try to schedule their executive sessions at the front or back of the public portion of their meetings, so that citizens can choose to attend only the public portion. But either way, FOIA requires a public body to vote to go into executive session in public view.

B. Matters Discussed In Executive Session

Although your complaint did not raise the issue directly, our in camera review of the minutes of the School Board's executive sessions on August 11, 2003 requires us to consider whether the Board met in executive session for a purpose authorized by law.

1. Personnel Matters

Based on our in camera review of the executive session minutes, we are satisfied that

FOIA authorized discussion in private of three of the subjects discussed because they were personnel matters involving the "names, competency and abilities of individual employees." 29 Del. C. § 10004(b)(9). We determine that FOIA did not authorize the School Board to meet in executive session to discuss "personnel matters related to the superintendent." In its response to the complaint, the School Board further elaborated that it discussed "the process for selecting the superintendent" such as "establishing the deadline for submitting applications."

In Att'y Gen. Op. 02-IB17 (Aug 6, 2003), we determined that the school board violated FOIA by discussing in executive session "the mechanics of the [superintendent] selection process." The personnel exemption "on which the Board relied is limited to discussion of the names, competency, and abilities of individual employees." A job applicant is not yet an "employee" of a public body.

At some point in the selection process, the School Board might rely on Section 10004(b)(1) of FOIA (discussion "of an individual citizen's qualifications to hold a job"). But the record does not show that the School Board discussed the qualifications of individual applicants for the superintendent position during executive session on August 11, 2003. Indeed, it was not until its September 8, 2003 meeting that the Board established a deadline of September 18, 2003 to receive applications for the position.

We determine that the School Board violated FOIA by meeting in executive session on August 11, 2003 to discuss matters relating to the search for a new superintendent which were not authorized by statute.

2. Litigation

The School Board confirms that its legal counsel did not attend the August 11, 2003 meeting, and that the Board discussed in executive session a civil rights lawsuit filed by Acting Superintendent Carol Schreffler which is pending in federal district court.

The School Board has failed to meet its burden of proving that its discussion of the Schreppler lawsuit in executive session on August 11, 2003 was a "[s]trategy session[]" about "pending litigation" the disclosure of which "would have an adverse effect on the . . . litigation position of the public body." 29 Del. C. § 10004(b)(4). For all we know, the Board could have discussed the status of the litigation, the filing of an answer, notices of depositions, and other matters which did not amount to a strategy session, particularly since legal counsel was not present. In our investigations and determinations under Section 10005(e) of FOIA, we must hold public bodies to their burden of proof to justify going into executive session for a purpose authorized by statute. If the minutes of the executive session (as here) are cursory, and the public body does not provide use with affidavits from those in attendance specifying in more detail the matters discussed, then the public body may not meet its burden of proof, as in this case..

Conclusion

For the foregoing reasons, we determine that the School Board violated the open meeting requirements of FOIA by: (1) failing to follow the proper procedures for going into executive session at the end of the public session of its meeting on August 11, 2003; and (2) meeting in executive session to discuss two matters (the superintendent search and pending litigation) for which they were not authorized by law.

We are sensitive that the superintendent search is ongoing and that the public has a vital interest in the timely selection of a new superintendent. Therefore, we are not directing any retrospective remediation for the School Board's FOIA violations. On the other hand, we are concerned that the School Board may not be fully aware of the guidelines set forth in our opinion last year in a similar case involving the Capital School District's search for a new superintendent. See Att'y Gen. Op. 02-IB17 (Aug. 6, 2002). To make sure that there are no further FOIA problems as the superintendent search unfolds, we are directing the School Board to provide our office with copies of the notices and agendas and minutes (both public and executive sessions) as

soon as practicable following their posting or occurrence until the superintendent search is concluded.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady

David H. Williams, Esquire

Phillip G. Johnson, Opinion Coordinator

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