If a Delaware school board agenda just says 'executive session' and 'personnel report,' is that enough notice when the board uses the meeting to retire and replace the superintendent?

Official title

23-IB12 04/18/2023 FOIA Opinion Letter to A. Nicole Mezick re: FOIA Complaint Concerning the Delmar School District Board of Education

Plain-English summary

At its December 13, 2022 monthly Board meeting, the Delmar School District Board of Education unanimously approved three motions about its superintendent: (1) accept the superintendent's retirement effective July 1, 2023; (2) place the superintendent on administrative leave until her retirement date; and (3) after an executive session, appoint an interim superintendent.

Five days earlier, on December 8, 2022, the Board had held a special meeting whose two substantive agenda items were "Executive Session" (with no stated reason) and "V. Business Items – 1. Monthly Personnel Report."

A. Nicole Mezick, the Board's Recording Secretary, filed a FOIA petition. She alleged: (1) the December 13 motion placing the superintendent on leave was a "surprise" item not noticed; (2) she had prepared the personnel report for the December 13 meeting and was aware that a Board member had amended it before the meeting to add the leave and interim items; (3) at a January 17, 2023 Board meeting, she learned the Board President had asked on the morning of December 13 for the superintendent's State system access to be deactivated; and (4) either the Board members had private discussions about deactivation and personnel-report changes before the meeting (which would violate FOIA), or the Board President acted unilaterally (which would violate her authority).

The Board's counsel responded with the Board President's affidavit. The Board acknowledged its past practice of "scant agenda descriptions" did not necessarily comply with FOIA. The Board explained that the superintendent issues arose suddenly hours before the meeting; the superintendent announced her retirement on the eve of the December 13 meeting; the Board could not defer because Delaware Code requires nonrenewal notice by December 30th; and there was no available date for another meeting before December 30. The Board ratified a "personnel report" with the two superintendent items at its March 21, 2023 meeting (an attempted cure). The Board's counsel said he would provide FOIA training. The Board President swore she did not have any conversations with fellow Board members about amending the personnel report or deactivating access prior to those actions.

The AG split the result.

On the agenda claims, the AG found violations on both meetings. FOIA requires that the purpose of executive sessions "shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b)." Both agendas just said "Executive Session" with no purpose. That violated the rule. On the open sessions, "personnel report" alone was inadequate to alert the public that the Board would be discussing and acting on the superintendent's employment. The opinion applied the standard that an agenda must "alert members of the public with an intense interest in the matter that the subject will be taken up," while noting FOIA does not require notice "to provide every alternative that may take place."

On the secret-meeting claim, the AG denied. The petitioner had to make a prima facie case of a private quorum gathering, then the burden shifted to the Board. The Board President's sworn statement that she had no pre-meeting conversations with fellow Board members about the deactivation or personnel-report amendment was sufficient to rebut. The AG made no FOIA finding here.

For remediation, the AG recommended ratifying the superintendent-related votes in open session at a future Board meeting after providing appropriate agenda notice. The interim superintendent had been in place for several months; invalidation would have been disruptive.

What this means for you

For Delaware school boards making superintendent decisions. The opinion holds two things. First, an executive-session agenda must set forth the purpose of the session, limited to the statutory grounds; "Executive Session" with no stated purpose violated FOIA on both the December 8 and December 13 agendas. Second, an open-session agenda item of "personnel report" did not let the public discern that the Board "planned to discuss and undertake the significant actions related to the superintendent's employment," so it too violated FOIA.

For Delaware school district solicitors. The opinion notes the Board acknowledged its past practice of "scant agenda descriptions" did not necessarily align with FOIA, and that the Board's counsel planned to provide FOIA training to the interim superintendent, the Board, and the Board Secretary. The opinion treats selecting superintendents outside public view as a matter that "impact[s] substantial public rights."

For the public watching school board meetings in Delaware. The opinion holds that a "personnel report" label on the agenda was insufficient notice for action on the superintendent's retirement, leave, and replacement. The standard it applies is whether the agenda would "alert members of the public with an intense interest in the matter that the subject will be taken up."

For petitioners alleging secret meetings. The opinion describes a burden-shifting framework: the petitioner first makes a prima facie case, with "substantive proof of a secret meeting rather than mere speculation," and sufficiently specific allegations; the burden then shifts to the public body to show no violation. Here the Board President's sworn statement that she had no conversations with fellow Board members before amending the personnel report or deactivating access rebutted the claim, so the AG found no violation.

For school boards facing a December 30 nonrenewal deadline. The opinion records the Board's explanation that Delaware Code requires a notice of nonrenewal by December 30 of the year before the contract expires, and that it had no availability to schedule another meeting before then. The AG did not treat that timing pressure as excusing the notice deficiency; it still found the agendas violated FOIA.

Common questions

What was the December 30 deadline the Board cited?
The opinion records the Board's explanation that Delaware Code requires a notice of nonrenewal be provided to the superintendent by December 30 in the year before the contract expires, and that the Board had no availability to schedule another meeting before December 30, 2022. The AG did not treat this as excusing the inadequate agenda notice.

What agenda standard did the AG apply?
The opinion states an agenda must include a "general statement of the major issues" in "plain and comprehensible language," and "should, at least, 'alert members of the public with an intense interest in' the matter that the subject will be taken up." It also notes FOIA does not require notice "to provide every alternative that may take place with respect to a specific subject under consideration."

What's the burden-shifting framework for secret-meeting claims?
The opinion describes it this way: the petitioner first carries the burden of a prima facie case that a meeting occurred, with "substantive proof of a secret meeting rather than mere speculation" and "sufficiently specific" allegations. Once that is made, the burden shifts to the public body to prove no violation occurred, which avoids forcing the body to "prove a negative."

Why was the Board President's affidavit sufficient here?
She attested under oath that she "did not have any conversations with other board members regarding the deactivation of the access or amending the personnel report prior to undertaking those actions." The opinion found that, although the Petition gave "a basis to suspect" a private meeting, this sworn statement met the Board's burden, so there was no violation on that claim.

What cure did the Board attempt?
The opinion notes the Board stated it ratified a "personnel report" with the two superintendent items (accepting the retirement and appointing the interim) at its March 21, 2023 meeting. The AG's recommended remediation was to ratify the superintendent votes in open session at a future Board meeting after providing appropriate agenda notice.

Could the superintendent decisions be invalidated?
The opinion states the authority to invalidate a public body's action or impose other relief is reserved for the courts. It notes invalidation is "a serious sanction" that should not be employed unless substantial public rights are affected and a specific remedy can be crafted, and that courts weigh "adverse consequences upon innocent parties." With the interim superintendent in place for several months, the AG recommended re-notice and ratification rather than invalidation.

Background and statutory framework

This opinion arises under Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007, and was issued on a petition under 29 Del. C. § 10005. The reproduced opinion text quotes the governing standards without citing the underlying section numbers or supporting cases (the official PDF carries those in footnotes).

Executive-session agendas. The opinion quotes FOIA's rule that the "purpose of . . . executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b)." Because both the December 8 and December 13 agendas said only "Executive Session," the AG found a violation on each.

Open-session agendas. An agenda must include a "general statement of the major issues" in "plain and comprehensible language," and "should, at least, 'alert members of the public with an intense interest in' the matter that the subject will be taken up." A "personnel report" item did not alert the public that the Board would act on the superintendent's employment.

Secret-meeting burden shifting. The petitioner must first make a prima facie case with "substantive proof of a secret meeting rather than mere speculation"; the burden then shifts to the public body to show no violation. The Board President's sworn statement met that burden here.

Remediation. Invalidation is "a serious sanction" reserved for cases affecting substantial public rights where a specific remedy can be crafted, and courts weigh "adverse consequences upon innocent parties." The AG recommended re-notice and ratification rather than invalidation.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination

Note: the official PDF cites additional statutes, Delaware cases, and prior AG opinions in footnotes that are not captured in the reproduced text below. See the linked PDF for the complete citations.

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/04/18/23-ib12-04-18-2023-foia-opinion-letter-to-a-nicole-mezick-re-foia-complaint-concerning-the-delmar-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/04/Attorney-General-Opinion-No.-23-IB12.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 23-IB12

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 23-IB12

April 18, 2023

VIA EMAIL

Nicole Mezick
[email protected]

RE: FOIA Petition Regarding the Delmar School District Board of Education

Dear Ms. Mezick:

We write in response to your correspondence, alleging that the Delmar School District Board of Education violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this 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 giving insufficient notice on its December 8 and 13, 2022 meeting agendas of the executive sessions and the superintendent matters intended to be addressed in open session at these meetings. However, we find that the Board met its burden to demonstrate that it did not violate FOIA by meeting privately prior to the December 13, 2022 meeting to discuss deactivating the superintendent's access and making changes to the personnel report presented at the December 13, 2022 meeting.

BACKGROUND

At its December 13, 2022 monthly Board meeting, the Board unanimously approved motions to accept the retirement of its superintendent effective July 1, 2023, to place the superintendent on administrative leave until her retirement date, and after convening an intervening executive session, to appoint an interim superintendent. Five days prior to this meeting, the Board held a special meeting, in which the two substantive agenda items were an executive session without a stated reason and "V. Business Items – 1. Monthly Personnel Report." This Petition followed.

The Petition alleges that the December 13, 2022 motion placing the superintendent on leave was a "surprise" item and "never publicly presented or discussed." As the Board's Recording Secretary, you prepared the personnel report before this meeting pursuant to your duties, but you believe a board member amended it prior to the meeting to add placing the superintendent on leave and appointing the selected individual as the interim superintendent. You allege that the Board did not provide proper notice of its intention to make these changes to the superintendent position in the December 8 and 13, 2022 meeting agendas for the open and executive sessions. As the December 8, 2022 special meeting minutes also did not include any mention of the superintendent, you maintain that the public would have no reason to expect that the superintendent would be replaced at the December 13, 2022 meeting. In addition, at the January 17, 2023 Board meeting, you learned that the Board President had asked on the morning of December 13, 2022 for the superintendent's access to State systems to be deactivated. You state that either the Board members had private discussions about its plans to deactivate the access and change the personnel report before the meeting in violation of FOIA, or the Board President acted unilaterally, which you believe is a violation of her authority as a board member.

The Board's counsel replied to the Petition on March 28, 2023 ("Response"). The Board acknowledges that its past practice of "scant agenda descriptions" in its meeting agendas do not necessarily align with FOIA, but the issues with the superintendent arose suddenly, only a few hours before the meeting. The Board asserts that it could not defer action to a later meeting; Delaware Code requires a notice of nonrenewal be provided to the superintendent by December 30th in the year prior to the contract expiration, and the Board did not have availability before December 30, 2022 to schedule another meeting. The Board states that the December 8, 2022 executive session concerned one or more administrators' contracts, and the superintendent then announced retirement on the eve of the December 13, 2022 meeting. To cure any potential deficiencies, the Board states that it ratified a "personnel report" with the two items of accepting the superintendent's retirement and the appointment of an interim superintendent at its March 21, 2023 Board meeting. The Board's counsel noted that he plans to provide the interim superintendent, the Board, and the Board Secretary with relevant FOIA training. Regarding the claim alleging a private meeting, the Response included the sworn affidavit of the Board President, who attests that "[p]rior to amending the personnel report for the December 13, 2022 meeting and directing that a certain school employee's network access be deactivated, I did not have any conversations with fellow Board members about these actions."

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden. For the Petition's first claim, we determine that the December 8 and 13, 2022 meeting agendas for the executive and open sessions failed to give proper notice of the items related to the superintendent position. FOIA requires that the "purpose of . . . executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section." Both agendas for the December 8 and 13, 2022 executive sessions merely state "Executive Session" and lack any mention of the purpose of the executive session. Accordingly, we find a violation of FOIA for both the December 8 and 13, 2022 executive session agendas.

Regarding the open sessions of the December 8 and 13, 2022 meetings, an agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss and must be worded in "plain and comprehensible language." Delaware courts have opined an agenda "should, at least, 'alert members of the public with an intense interest in' the matter that the subject will be taken up by the [public body]." "In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration." Further, "nothing in FOIA, and importantly nothing in a common-sense reading of the statute in light of its purpose, requires public notice to provide every alternative that may take place with respect to a specific subject under consideration."

In this case, the agendas both referred to personnel "reports" under the section called "Business Items" in open session. The December 8, 2022 agenda refers to the "monthly personnel report," while the December 13, 2022 agenda includes an item merely identified as "personnel report." The public could not review these agendas citing to a personnel report and discern that the Board planned to discuss and undertake the significant actions related to the superintendent's employment. We find that the Board violated FOIA by insufficiently notifying the public in its agenda of the open session items related to the superintendent position at the December 8 and 13, 2023 meetings.

The Petition's second claim is that the Board must have met privately prior to the December 13, 2022 meeting to discuss the superintendent position in relation to the deactivation of the superintendent's access and the pre-meeting changes to the personnel report for the December 13, 2022 meeting. A meeting under FOIA is "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." When a petitioner makes a claim of a secret meeting between public body members, the petitioner carries the initial burden of making a prima facie case that a meeting occurred. "A plaintiff must show substantive proof of a secret meeting rather than mere speculation in order to shift the burden of proof going forward." The allegations must be sufficiently specific to allow consideration. "Once a plaintiff has made a prima facie case that a quorum of a public body has met in private for the purpose of deciding on or deliberating toward a decision on any matter," the burden then shifts to the public body to prove that no violation of the open meeting requirements occurred. This burden-shifting occurs to avoid requiring a public body from having to "prove a negative," i.e., prove that a meeting did not occur. In this case, although the Petition has offered a basis to suspect that the Board may have met privately in violation of FOIA, the Board President attests that she did not have any conversations with other board members regarding the deactivation of the access or amending the personnel report prior to undertaking those actions. Accordingly, we find that the Board did not violate FOIA by holding these discussions outside a duly noticed public meeting.

Having found that the Board violated FOIA by failing to provide adequate notice of its executive and open session items related to the superintendent position, we must determine whether any remediation is appropriate to recommend. The authority to invalidate a public body's action or impose other relief is reserved for the courts. The Delaware Court of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." When a decision is reached primarily outside of public view, that factor is also weighed heavily in determining whether remediation is appropriate. Selecting superintendents outside of public view has been previously determined to impact substantial public rights. The deficiencies in these December meeting agendas means that the public could not discern that the superintendent position would be a topic of action at the meetings, and therefore, interested members of the public could not attend these meetings. The interim superintendent has been in place for several months. As such, we recommend that the Board ratify the votes related to the superintendent in open session at a future Board meeting, after providing appropriate notice of the superintendent items on its agenda. The Board is further cautioned to include the purpose of any executive sessions in its meeting agendas in the future.

CONCLUSION

For the reasons set forth above, we conclude that the Board violated FOIA by giving insufficient notice on its December 8 and 13, 2022 meeting agendas of the executive sessions and the superintendent matters intended to be addressed in open session at these meetings. However, we find that the Board met its burden to demonstrate that it did not violate FOIA by meeting privately prior to the December 13, 2022 meeting to discuss deactivating the superintendent's access and making changes to the personnel report presented at the December 13, 2022 meeting.

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: James H. McMackin, III, Esq., Counsel to the Delmar School District Board of Education