If a school district calls a special meeting without explaining why it skipped the normal notice period, can re-voting at a later regular meeting fix the problem?

Official title

05-IB21: RE: F.O.I.A. Complaint Against Woodbridge School District

Plain-English summary

A resident complained that Woodbridge School District held a June 13, 2005 special meeting without explaining in the notice why it couldn't give the normal seven days' advance notice. The district admitted the mistake outright. At that meeting, the board approved four personnel actions and picked a bidder for an in-town bleacher project. Rather than wait to be told to fix anything, the district re-posted the same personnel matters on the agenda for its next regular meeting on June 21, seven days ahead as required, and unanimously re-approved them there. The bleacher project took a bit longer to sort out: it was added to the June 21 agenda too, but concerns from the district's lawyer led the board to hold off on actually voting until a properly noticed meeting on July 5, where it approved the same bid. The AG found the June 13 notice was a technical FOIA violation, but concluded no further remedy was needed since the district had already cured it by redoing both matters through fully compliant, separately noticed meetings. The AG did caution the district, noting a similar notice slip in an earlier opinion involving the same district, to be more careful about the notice requirements going forward.

Currency note

This opinion was issued in 2005. 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: What does a Delaware public body have to include in the notice of a special meeting called on short notice?
A: According to this opinion, the notice must explain why the normal seven-day notice period couldn't be met; leaving that explanation out is a technical violation of FOIA even if the underlying reason for the rush was legitimate.

Q: Can re-voting on the same matters at a later, properly noticed meeting fix an earlier notice violation?
A: Yes, according to this opinion, when the public body re-notices the same matters and takes a new vote at meetings that comply with FOIA, the AG found that cures the earlier defect without requiring further remediation.

Q: Does a public body get any credit for fixing its own FOIA mistake before being told to?
A: Yes, based on this opinion and the prior opinions it cites; the AG has repeatedly declined to order remediation, and has commended public bodies, when they proactively re-notice and redo flawed votes on their own initiative.

Background and statutory framework

The complaint concerned a June 13, 2005 Woodbridge School District special meeting noticed without an explanation for skipping the normal seven-day notice, followed by the district re-noticing the same personnel and bleacher-project matters at meetings on June 21 and July 5, 2005. Applying the special-meeting notice requirements of 29 Del. C. §10004(e)(2) and (e)(3) and the agenda-amendment procedure at §10004(e)(5), and drawing on its own opinions finding technical violations cured by subsequent proper action (Att'y Gen. Op. 04-IB01, Att'y Gen. Op. 01-IB02) and commending the same district for a prior self-correction (Att'y Gen. Op. 04-IB05), the AG found a technical violation but no need for further remediation.

Citations and references

Statutes:

• 29 Del. C. §10004(e)(2), regular meetings require at least seven days' public notice including the agenda
• 29 Del. C. §10004(e)(3), a special meeting notice must explain why the normal seven-day notice couldn't be given
• 29 Del. C. §10004(e)(5), an agenda not ready at initial posting may be amended with reasons for the delay stated

Cases:

• Att'y Gen. Op. 04-IB01 (Jan. 28, 2004), no remediation was required for a defective special-meeting notice once the underlying action was later reversed at a proper meeting
• Att'y Gen. Op. 01-IB02 (Jan. 30, 2001), a town cured a defective special-meeting notice by ratifying the same action at a later properly noticed meeting
• Att'y Gen. Op. 04-IB05 (Feb. 24, 2004), the same school district was commended for curing an earlier agenda-amendment violation before being instructed to do so

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/08/01/05-ib21-re-f-o-i-a-complaint-against-woodbridge-school-district/
• Original PDF: not linked from landing page

Original opinion text

August 1, 2005

Civil Division-Kent County (739-7641)

05-IB21

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 June 20, 2005, our Office received your complaint under the Freedom of Information

Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that the Woodbridge School District (“the School

District”) violated FOIA by holding a special meeting on June 13, 2005 without explaining in the

agenda why the School District could not give the normal seven days notice.

By letter dated June 23, 2005, we asked the School District to respond to your complaint

within ten days. We granted the School District’s request for a brief extension of time to

accommodate the vacation plans of the School District’s counsel. We received the School District’s

response on July 15, 2005.

According to the School District, the notice and agenda for the June 13, 2005 special meeting

was posted five days in advance on June 8, 2005. The School District acknowledges that

the notice “did not contain an explanation as to why the meeting was being held with less than 7

days notice” as required by FOIA.

There were two categories of public business on the agenda for the June 13, 2005 special

meeting: (1) the bid results and bid recommendation for an in-town bleacher project; and (2)

personnel (initially discussed in executive session, and then voted on in public session). The

minutes of the June 13, 2005 special meeting show that the School District unanimously approved

four personnel actions, *1 and unanimously voted “[t]o recommend the Southern Bleacher Company

for the bleacher project at $229,100.”

The School District contends that it has voluntarily remediated any FOIA violation

associated with the June 13, 2005 special meeting by re-noticing those matters of public business

for discussion and approval at later meetings.

On June 14, 2005, the School District posted the notice and agenda for a regular meeting to

be held on June 21, 2005, seven days in advance as required by FOIA. The agenda listed for

“Action” under Item X. “Personnel.” The minutes of the June 21, 2005 meeting show that the

School District reconsidered the four personnel matters which it had approved at the special meeting

on June 13, 2005 and unanimously voted to approve them.

The agenda originally posted for the June 21, 2005 meeting did not mention the bleacher

project. The minutes show that the School District amended the agenda during the June 21, 2005

meeting to add two new matters for public discussion: “Bid Results – In Town Bleacher Project”;

and “Approval – In Town Bleachers.” *2 The minutes state that “[t]he low bid from Southern

Bleacher Company in the amount of $229,100 was received. We are recommending formal approval

of this contract from the Board.”

Apparently because of concerns raised by the School District’s counsel, the School District

did not vote to award the bleacher project contract at the June 21, 2005 meeting, but deferred that

vote until the next meeting of the School District.

On June 28, 2005, the School District noticed a meeting to be held on July 5, 2005 seven

days in advance as required by FOIA. The agenda for the July 5, 2005 meeting listed for action “Bid

Approval for the In Town Bleacher project.” The minutes of the July 5, 2005 meeting show that the

School District voted unanimously “[t]o approve the Souther Bleacher Company in the amount of

$229,100 for the in-town bleacher project.”

Relevant Statutes

FOIA requires that “[a]ll 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.”

29 Del. C. §10004(e)(2). For a special meeting, FOIA allows for notice to be given “as soon as

reasonably possible, but in any event not later than 24 hours of such meeting.” Id. §10004(e)(3).

“The public notice of a special . . . meeting shall include an explanation as to why the notice

required by paragraph (1) of this subsection [seven days] could not be given.” 29 Del. C.

§10004(e)(3).

Legal Analysis

The School District acknowledges that the notice for the June 13, 2005 “special meeting

did not state an explanation why seven-days’ notice could not be given. We find therefore that a

technical violation of FOIA occurred.” Att’y Gen. Op . 04-IB01 (Jan. 28, 2004). The issue then is

whether to require remediation.

In Att’y Gen. Op . 04-IB01, we determined that the city council violated FOIA because “the

notice of the November 20, 2003 special meeting did not state an explanation why seven-days’

notice could not be given.” But we did “not believe that any remediation is required because the

City Council met on December 22, 2003 and lifted the moratorium adopted at the special meeting

on November 20, 2003. . . . Under the circumstances, remediation would not serve any purpose at

this time.”

In Att’y Gen. Op . 01-IB02 (Jan. 30, 2001), we determined that the town council violated

FOIA by not including in the public notice of a special meeting an explanation why seven days’

notice could not be given. We did not direct remediation because “[w]e find that the Town cured

that defect by ratifying the action taken on December 23, 2003 at the meeting of the Town Council

on January 4, 2001.”

We believe that the School District remediated the agenda violation for the June 13, 2005

special meeting by re-noticing the matters of public business approved at the June 13, 2005 meeting

for discussion and approval at meetings on June 21 and July 5, 2005, both of which meetings were

noticed to the public in accordance with FOIA. We do not believe that any further remediation is

required for the initial FOIA violation.

We note, however, that in Att’y Gen. Op . 04-IB05 (Feb. 24, 2004), the School District

committed a similar violation by amending the agenda prior to a meeting but not stating “the reasons

for the delay in posting.” 29 Del. C . §10004(e)(5). In that case, we commended “the School District

for taking steps to cure a FOIA violation before being instructed by this Office to do so.” While we

continue to appreciate the School District’s recognition of its obligations under FOIA and its

responsible action in addressing this matter promptly, we caution the School District to comply with

the public notice requirements of FOIA in the future.

Conclusion

For the foregoing reasons, we determine that the School District violated the open meeting

requirements of FOIA by not giving an explanation in the agenda for the special meeting on June

13, 2005 why seven days’ notice could not be given to the public. Because the School District has

already cured that violation, we do not believe that any further remediation is necessary.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

James D. Griffin, Esquire

Lawrence W. Lewis, Esquire

Deputy Attorney General

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 The School District approved the employment of Lee Olmstead as Business

Education Teacher; approved extra days for six individuals; approved the employment of Sara

Carson as Part-Time Temporary Clerk; and approved the employment of Tim Capone as Assistant

Principal.

*2 FOIA authorizes a public body to amend the 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.” 9 Del. C. §10004(e)(2). Arguably, the matter of the bleacher

project “arose” at the time of the June 21, 2005 meeting – as reflected in the minutes – in response

to “correspondence from our attorney concerning a Freedom of Information Act (FOIA) complaint

regarding the June 13, 2005 agenda.”