If two extra Delaware school board members show up at a board committee meeting and a quorum is suddenly present, do they have to cancel the meeting?

Official title

21-IB35 12/17/2021 FOIA Opinion Letter to Jose Matthews and Adriana Leela Bohm, Ph.D. re: FOIA Complaint Concerning the Red Clay Consolidated School District Board of Education

Plain-English summary

The Red Clay Consolidated School District Board of Education has seven members. Four constitute a quorum of the full Board. The Board Policy Review Committee, a standing committee, has three Board members plus the Deputy Superintendent and several teachers' union representatives. Three Board members on the Committee plus two non-Committee Board members would total five Board members, which is more than the four-member quorum.

On October 27, 2021, the Committee scheduled a virtual public meeting. The notice and agenda said it was open to the public and provided for public comment. Board members Jose Matthews and Adriana Leela Bohm attended virtually. At the start, when the Committee Chair (the Deputy Superintendent) realized that two non-Committee Board members were present, the Committee adjourned the meeting because a quorum of the full Board was now simultaneously present, and the meeting had not been publicly noticed as a full Board meeting.

Matthews and Bohm filed a FOIA petition. They contended (1) the Committee's adjournment was improper, (2) the Board's failure to post committee meeting minutes online violated FOIA, (3) the Board's omission of certain discussions in committee minutes violated FOIA, and (4) committee meetings are not recorded.

The Board's response, with the Committee Chair's affidavit, explained that the adjournment was a precaution against improperly conducting a Board meeting that had not been noticed.

The AG ruled for the Board on the substance, but with a clarifying note. Delaware FOIA defines a "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." The mere physical (or virtual) presence of a quorum is not enough; the quorum must gather "for the purpose of discussing or taking action on public business." Matthews and Bohm intended to silently observe the Committee meeting as members of the public. Their silent presence would not have transformed the Committee meeting into a full Board meeting. The Committee's adjournment was a cautious choice but, in the AG's words, "FOIA does not mandate the Committee's immediate cancellation upon the mere presence of a quorum."

On the other claims:

• FOIA does not require committee meetings to be audio-recorded. The opinion notes that another statute, 14 Del. C. § 208, requires the Board to digitally record its own public meetings, but the AG held it is "not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA."
• FOIA does not require the Board to post its meeting minutes online.
• The Board stated the Petition did not specify which minutes were missing, and the AG made no finding of a violation on that claim.

The Board voluntarily maintains committee meeting minutes on its website and offered to fix any missing minutes; the AG encouraged it to continue this practice.

What this means for you

For Delaware school boards and other multi-tiered public bodies. The opinion holds that the inadvertent presence of a quorum of the parent Board at a committee meeting does not, by itself, convert the committee meeting into a Board meeting. Because a "meeting" requires a quorum gathered "for the purpose of discussing or taking action on public business," and the two non-committee members were present only to silently observe as members of the public, FOIA did not require the committee to adjourn. The adjournment was permissible but not mandated.

For Delaware school boards and the recording question. The opinion holds that FOIA does not require committee meetings to be audio-recorded. It notes that 14 Del. C. § 208 requires the Board to digitally record its own public meetings, but the AG expressly declined to decide compliance with that statute, holding it is outside FOIA and outside the AG's authority in a FOIA petition.

For citizens interested in committee-level transparency. The opinion holds that FOIA does not require the Board to post its meeting minutes online. The Board voluntarily maintains committee minutes on its website and offered to correct any omissions, and the AG encouraged it to continue that practice.

For Board members deciding whether to attend another committee's meeting. The opinion's reasoning turns on purpose: the two members' silent observation did not make the gathering a "meeting" of the Board, because the definition requires a quorum to gather to discuss or act on public business. The opinion does not address what would follow if non-committee members participated in the committee's discussion rather than observing.

Common questions

What's a "meeting" under Delaware FOIA?
The opinion quotes the definition: "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." Both elements matter, a quorum and the purpose of discussing or acting on public business. Because the two extra members were present only to observe, that purpose was missing.

Why did the Committee adjourn?
The Committee Chair's affidavit explained that the committee adjourned because five of the seven Board members were present at once, and the chair feared it was improperly holding a Board meeting that had not been publicly noticed. The AG found that caution permissible, while holding FOIA did not require the cancellation.

Does 14 Del. C. § 208 require school boards to record committee meetings?
The opinion states only that § 208 requires the Board to digitally record its own public meetings. It does not decide whether § 208 reaches committee meetings, because the AG held that adherence to a statute other than FOIA is outside its authority in a FOIA petition.

What about the missing-minutes claim?
The Board stated that the Petition did not specify which committee minutes were missing, and identified specific committee minutes that had been or would be posted. The AG made no finding of a violation and encouraged the Board to continue timely, complete postings.

Background and statutory framework

Delaware FOIA defines "meeting" as the gathering of a quorum for the purpose of discussing or taking action on public business. The opinion treats that two-part definition as the controlling rule: a quorum alone is not a meeting unless it gathers for that purpose.

The Board carried the burden of proof to demonstrate its compliance with FOIA. The opinion also holds that FOIA does not require audio recordings of meetings and does not require the Board to post its minutes online.

Under 29 Del. C. § 10005(e), the AG's role on a petition is to determine whether a FOIA violation has occurred. The opinion holds that it is "not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA," so the 14 Del. C. § 208 recording requirement was outside the AG's reach in this proceeding.

The "purpose" element of the meeting definition is the key to the silent-observer point. The silent presence of two extra Board members did not constitute a gathering "for the purpose of discussing or taking action on public business" because the two members' purpose was to observe, not to deliberate.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005(e): citizen petition to the Attorney General
• 14 Del. C. § 208: school board digital recording requirement (noted as outside FOIA jurisdiction)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/12/17/21-ib35-12-17-2021-foia-opinion-letter-to-jose-matthews-and-adriana-leela-bohm-ph-d-re-foia-complaint-concerning-the-red-clay-consolidated-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/12/Attorney-General-Opinion-No.-21-IB35.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 21-IB35
December 17, 2021
VIA EMAIL
Jose Matthews
Red Clay Consolidated School District Board Member
[email protected]
Adriana Leela Bohm, Ph.D.
Red Clay Consolidated School District Board Member
[email protected]

RE: FOIA Petition Regarding the Red Clay Consolidated School District Board of Education

Dear Board Members Matthews and Bohm:
We write in response to your correspondence alleging that the Board of Education of the Red Clay Consolidated School District ("Board") violated the Delaware 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(e) regarding whether a violation of FOIA's open meeting requirements has occurred. As set forth below, we conclude that the Board has not violated FOIA as alleged.

BACKGROUND
A standing committee of the Board, the Board Policy Review Committee ("Committee"), scheduled a virtual public meeting for October 27, 2021. The meeting notice and agenda indicated the meeting was open to the public and provided for a public comment period. You both attended the meeting virtually, but at the outset of the meeting, upon learning of your presence, the Committee members adjourned the meeting because a quorum of the full Board was suddenly, unexpectedly present and the meeting notice and agenda did not provide public notice that a full Board meeting would take place. The Petition alleges that the Committee members decided to reschedule the meeting for a later date. This Petition from you, the two Board members not on the Committee, followed.

The Petition questions whether the Committee's actions at this meeting complied with FOIA, and whether the Board's failure to post committee meeting minutes online and the Board's omission of certain discussions that pertain to the purview of the Board committees were proper. The Petition also alleges that the Board's committee meetings are not recorded. The Petition asks this Office to determine whether these omissions impede the public's rights under FOIA.

The Board, through its counsel, submitted a response to your Petition ("Response"). The Board included the affidavit of the Committee Chair, the District's Deputy Superintendent. The Chair attests that the Board consists of seven members, and four members constitute a quorum. The Committee consists of three members of the Board, the Deputy Superintendent, and several teachers' union representatives. At the October 27, 2021 meeting of the Committee, the Chair attests that the three Board committee members were in attendance and you two Board members attended the Committee meeting as members of the public. Because five members of the seven-member Board were present at the Committee meeting simultaneously, the Committee immediately adjourned the Committee meeting, fearing it was improperly holding a Board meeting that had not been publicly noticed as such, because a quorum of Board members were now present in the Committee meeting at the same time.

With regard to your allegations of the Board's failure to record its committee meetings, the Board maintains that there is no requirement in FOIA for the committee meetings to be recorded; instead, another statute, 14 Del. C. § 208, only requires the Board to digitally record its own public meetings. Regarding your allegation of missing minutes, the Board states that the Petition does not specify which meeting minutes are missing from the website, but the November 9, 2021 Community Financial Review Committee meeting minutes will be posted after they are approved at the next meeting; the October 26, 2021 Diversity Committee meeting minutes and the October 28, 2021 Student Code of Conduct Committee meeting minutes have already been posted. Copies of those minutes were attached to the Board's Response.

DISCUSSION
The Board has the burden of proof to demonstrate its compliance with FOIA. A meeting is defined as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." The Board consists of seven members, and four members constitute a quorum. In this case, two Board members who were not Committee members attended a Committee meeting, inadvertently resulting in the presence of a quorum of the Board being present at the Committee meeting. The Committee immediately adjourned the meeting to avoid improperly conducting a Board meeting without public notice. Although cancelling a meeting for this reason does not run afoul of FOIA, FOIA does not mandate the Committee's immediate cancellation upon the mere presence of a quorum, as the silent observation of two Board members in the audience would not transform this Committee meeting into a Board meeting. A "meeting" under FOIA requires a quorum of members to gather for the purpose of discussing or taking action on public business, but the two members in this case intended to silently observe the meeting as members of the public.

We likewise find no violation of FOIA with respect to the remaining issues in the Petition. FOIA does not require audio recordings of meetings, and to the extent another statutory requirement exists, it is not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA. In addition, the Board is not mandated by FOIA to post its meeting minutes online. As the Board voluntarily maintains its committee meeting minutes on its website and offered to rectify the omission of any committee meeting minutes, we encourage the Board to do so and to continue to make timely and complete postings of those minutes on its website.

CONCLUSION
For the reasons set forth above, we conclude that the Board has not violated FOIA as alleged.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

APPROVED BY:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: Michael P. Stafford, Attorney for the Red Clay Consolidated School District Board of Education