Can a Delaware school board hold an executive session without saying what it is about, then come back and vote on a 'monthly personnel report' that quietly includes the superintendent?

Plain-English summary

The Delmar School District Board of Education held its regular meeting on March 21, 2023. The agenda listed an "Executive Session" with no purpose stated, and a "Monthly Personnel Report" under Business Items. During the meeting, the Board reached the executive-session item early but skipped past it without comment. The Board then read the personnel-report item, said nothing about its content, and moved on. Near the end of the meeting, the Board President delivered remarks that sounded like closing comments. The Board then voted to enter executive session and, more than an hour later, returned to open session to vote on the personnel report. The vote turned out to cover personnel items including matters concerning the superintendent.

A petition argued that this combination of moves violated FOIA. The AG agreed on two of the three claims:

1. Executive session notice. Section 10004(c) requires the agenda to state the purpose of any executive session and to limit it to the grounds listed in subsection (b). "Executive Session" alone is not a purpose. Violation found.
2. Agenda reordering. A board can reorder its agenda. But here, the order, the closing-style comments, and the unannounced movement of the personnel vote to after a long executive session deprived the public of a fair chance to observe the vote. People who attended the meeting reasonably believed it was ending. That manner of reordering, in these specific circumstances, violated FOIA's open-government purposes in 29 Del. C. § 10001. Violation found.
3. Personnel-vote details. The petitioner argued the personnel vote should have identified the specific items and the people involved. The AG declined to revisit this claim because a related earlier opinion, 23-IB12, had already found a notice violation about the superintendent items and recommended ratification at a future meeting.

The Board's counsel acknowledged the agenda issue and said additional FOIA training would be provided. The AG repeated the 23-IB12 recommendation that the Board ratify the superintendent-related votes at a future, properly noticed meeting.

What this means for you

If you serve on a Delaware school board or municipal board

The opinion holds two things. First, an agenda that lists only "Executive Session" violates § 10004(c), which requires that the "purpose of such executive sessions . . . be set forth in the agenda and . . . be limited to the purposes listed in subsection (b) of this section." A bare label is not a purpose. Second, while "FOIA does not require that the items addressed by a public body in a meeting be discussed in the order in which they are listed in the agenda," a board "may not" reorder in a way that impedes citizens' "opportunity to observe the performance of public officials." On these facts (a vote moved to after closing-style remarks and an hour-long executive session, with no announcement of the change), the manner of reordering violated FOIA.

The opinion did not hold the consent-agenda or "Monthly Personnel Report" format unlawful in itself. The violations it found were the missing executive-session purpose and the unannounced reordering that left attendees without notice that the superintendent personnel vote would occur after the executive session.

If you are a parent or community member who attends school board meetings

The opinion holds that the public was deprived of a fair "opportunity to observe" the personnel vote because the Board President gave remarks "that meeting attendees may have interpreted as meeting closing remarks" and then voted to enter executive session "without indicating that the vote on the monthly personnel report would occur after." It treats the meeting's audio recording as the evidentiary record for that timing. The opinion arises from a § 10005 petition, the mechanism by which a citizen asks the AG to determine whether a FOIA violation occurred.

If you are a school district attorney

The opinion notes that the Board's counsel acknowledged the agenda did not state the executive-session purpose and said he intended to provide additional FOIA training. On reordering, the opinion's standard is fact-specific: it does not prohibit taking items out of order, but asks whether the manner of reordering impeded the public's opportunity to observe. Here the combination of an approved agenda, a skipped executive session, closing-style remarks, and an unannounced post-session vote crossed that line.

If you are a journalist covering school board meetings

The opinion turns on the gap between the posted agenda (a bare "Executive Session" entry and a "Monthly Personnel Report" line) and what happened at the meeting (the executive session moved to the end, after remarks that sounded like closing comments, with the personnel vote, including superintendent items, taken more than an hour later). The AG relied on the Board's published audio recording to establish that sequence.

Common questions

Q: What does Delaware law require an agenda to say about an executive session?
A: Section 10004(c): "The purpose of such executive sessions . . . be set forth in the agenda and . . . be limited to the purposes listed in subsection (b) of this section." Subsection (b) lists the permitted grounds (personnel, litigation, contract negotiations, etc.). The agenda needs to state the purpose, not just the label.

Q: Can a public body hold a personnel discussion in executive session?
A: The opinion accepts that the Board could discuss personnel items in executive session; the problem was that the agenda did not state the executive session's purpose as § 10004(c) requires. It also notes the Board's own argument that "FOIA does not require the discussion of executive session items in open session, as that would defeat the purpose of the executive session." The opinion does not catalog every permitted executive-session ground.

Q: Is it legal to reorder the agenda mid-meeting?
A: Yes, in principle. Op. 03-IB20 (Sept. 3, 2003) holds that "FOIA does not require that the items addressed by a public body in a meeting be discussed in the order in which they are listed in the agenda." The constraint is the open-government purpose in § 10001: reordering must not "impede Delaware citizens' opportunity to observe the performance of public officials." Announcing the reordering on the record is the simplest way to comply.

Q: What is a 'consent agenda' for personnel and is it allowed?
A: A consent agenda is a list of items voted on in a single batch. The Board argued that using a personnel report or similar consent agenda "to handle all personnel matters, involving those from rank-and-file employees to the superintendent, is appropriate," and the opinion did not hold that format unlawful. The violations it found were the missing executive-session purpose and the unannounced reordering, not the use of a personnel-report line itself.

Q: What does it mean for the AG to recommend that a Board 'ratify' an earlier vote?
A: A re-vote at a properly noticed meeting. The Board adds the items to a future agenda with adequate detail, holds the discussion in open session, and votes again. That gives the public the chance to observe and comment. The earlier vote is not legally invalidated (only the Court of Chancery can do that), but the ratification provides the public participation that was missing the first time.

Q: Can I attend an executive session?
A: No. Executive sessions are closed to the public by design. The transparency requirement is that the public know the purpose and that the actual decisions (votes) happen in open session afterward.

Background and statutory framework

Delaware FOIA's policy statement, 29 Del. C. § 10001, declares that "public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." That sentence does substantial work. The AG and Court of Chancery use it as the touchstone when meeting practices arguably comply with the statutory text but undercut the policy.

Two specific provisions matter here:

• Section 10004(c) requires that the purpose of any executive session "be set forth in the agenda . . . and . . . be limited to the purposes listed in subsection (b) of this section." The opinion holds a bare "Executive Session" label is insufficient.
• Section 10004(b) lists the permitted grounds for executive session. This matter involved personnel items; the opinion does not enumerate the other grounds.

The reordering analysis traces back to Op. 03-IB20 (2003), which permitted out-of-order discussion as a default. The AG has layered on a transparency requirement: reordering is acceptable, but covertly moving a substantive vote past a closing-style transition is not.

The remediation path here, ratification at a future meeting, is the AG's standard remedy when a procedural violation has occurred but a court would likely decline to invalidate the underlying action under § 10005(a). The Board has to redo the vote, in open session, with proper notice. That gives the public the participation right that was missed.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA policy statement)
• 29 Del. C. § 10004 (Open meetings, executive sessions, agendas)
• 29 Del. C. § 10005 (Enforcement)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:

• Del. Op. Att'y Gen. 03-IB20 (Sept. 3, 2003) (reordering agenda generally permitted)
• Del. Op. Att'y Gen. 23-IB12 (Mar. 28, 2023) (related Delmar superintendent notice violation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/04/21/23-ib14-04-21-2023-foia-opinion-letter-to-joshua-f-vincent-esq-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-IB14.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB14
April 21, 2023

VIA EMAIL
Joshua F. Vincent, Esq.
[email protected]

RE:

FOIA Petition Regarding the Delmar School District Board of Education

Dear Mr. Vincent:
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 failing to provide proper notice of its
executive session in its March 21, 2023 meeting agenda and by the manner in which the Board
reordered its agenda without notice to the attendees in these particular circumstances.

BACKGROUND
The Delmar School District Board of Education held a regular meeting on March 21, 2023.
The agenda for this meeting had thirteen sections. The fourth section on the agenda was an
"Executive Session" that did not state the purpose of the executive session. 1 Under the ninth
section for "Business Items," the first item was "Monthly Personnel Report." 2

1

Petition.

2

Id.
1

This Petition alleges that immediately before the conclusion of the March 21, 2023
meeting, the Board entered into executive session without a stated purpose, and after about an
hour, re-emerged into open session and held a vote to approve various personnel items without
further discussion of the items or indication as to what those items were. An executive session,
without a stated purpose, appeared earlier in the posted agenda, but when the Board reached that
executive session, the Board did not hold an executive session. Instead, the Petition asserts after
the Board President delivered her closing address, the Board voted to move into executive session,
without explanation. Following the executive session, the Board went back into open session and
voted on personnel items in a batch. The Petition alleges that the actions of the Board violated the
spirit and letter of FOIA.
The Board's counsel replied to the Petition on April 3, 2023 on behalf of the Board
("Response"). The Board acknowledges that the agenda did not provide a purpose for the
executive session, and the Board's counsel states that he intends to provide additional FOIA
training to the Board. In addition, the Board argues that its use of a personnel report, or a similar
type of consent agenda, to handle all personnel matters, involving those from rank-and-file
employees to the superintendent, is appropriate. The Response further provides that the executive
session involved the discussion of personnel items and the vote "simply ratified actions taken
previously at the December 13, 2022 Board meeting to cure issues arising in" a different FOIA
petition,,3 which resulted in the recent Attorney General Opinion No. 23-IB12. The Board argues
that FOIA does not require the discussion of executive session items in open session, as that would
defeat the purpose of the executive session. The Board contends that its actions at the meeting did
not deprive the public of notice or the ability to participate and observe the process. The Board
maintains that nothing in FOIA prohibits reordering the agenda, and it did not result in the public
being misled or prevent any interested person from attending the meeting.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 4 In certain
circumstances, a sworn affidavit may be required to meet that burden. 5 The Petition provides the
basis for three claims: 1) the executive session for the March 21, 2023 meeting was not
appropriately noticed; 2) the agenda items were considered out of order in violation of FOIA; and
3) the vote on the personnel items was improper under FOIA because it did not identify the specific
items that were subject to the vote. We consider each issue in turn.
For the Petition's first claim, we agree that the March 21, 2023 meeting agenda for the
executive session did not comply with FOIA, because the agenda failed to state the purpose of the
executive session. FOIA requires that the "purpose of such executive sessions . . . be set forth in
3

Response, p. 4.

4

29 Del. C. § 10005(c).

5

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
2

the agenda and . . . be limited to the purposes listed in subsection (b) of this section." 6 The agenda
merely states "Executive Session." 7 Accordingly, we find the Board violated FOIA by failing to
state the purpose of the executive session in the March 21, 2023 meeting agenda.
With regard to the second issue, the Board listed an executive session early on its agenda,
but instead of voting on a reordered agenda or announcing any changes to the order in which the
Board was going to discuss items on the agenda, the Board voted to approve the agenda, without
amendment or any other comments, at the outset of the meeting. 8 When the Board reached the
executive session item, the Board skipped to the next agenda item without explaining it was
reordering the agenda. 9 When the Board reached the item for the "monthly personnel report," the
Board member simply read the name of the item but said nothing else, moving to the next item on
the agenda. 10 At the end of the regular business items on the agenda, the Board President gave
comments that meeting attendees may have interpreted as meeting closing remarks and then voted
to enter executive session, without indicating that the vote on the monthly personnel report would
occur after this executive session. 11 Over an hour later, the Board returned to open session and
voted on the personnel report. 12 "FOIA does not require that the items addressed by a public body
in a meeting be discussed in the order in which they are listed in the agenda." 13 However, when a
public body reorders its agenda, it may not do so in such a way that results in impeding Delaware
citizens' "opportunity to observe the performance of public officials and to monitor the decisions
that are made by such officials in formulating and executing public policy." 14 In these specific
circumstances, we find that the Board's actions, coupled with its lack of communication about
these changes to the agenda, failed to give the members of the public attending this meeting notice
of the opportunity to observe this vote on the personnel report.

6

29 Del. C. § 10004(c).

7

Petition.

8

"Mar.
21,
2023
Board
Meeting
Audio
Recording,"
https://delmar.k12.de.us/Recordings//Recordings_2022-2023/DBOE%203_21_23%20Reg_%20
Session.mp3 (last visited Apr. 13, 2023).
9

Id.

10

Id.

11

Id.

12

Id.

13

Del. Op. Att'y Gen. 03-IB20, 2003 WL 22669565, *1 (Sept. 3, 2003).

14

29 Del. C. § 10001.
3

For third claim, you object to the fact that the personnel items, which were the same items
regarding the superintendent addressed at the December 13, 2022 meeting 15 and were the subject
of the Attorney General Opinion No. 23-IB12, were not addressed individually at the time of the
vote. In Attorney General Opinion No. 23-IB12, it was determined that the Board violated FOIA
by giving insufficient notice on its December 8 and 13, 2022 meeting agendas of the matters
intended to be addressed in open session at these meetings and recommended ratification of the
votes at a future meeting. As this Office has already found a violation with respect to providing
notice to the public of the superintendent items and recommended ratification of those votes, we
need not revisit this claim.
Having found that the Board violated FOIA by failing to provide adequate notice of its
executive session and by reordering its agenda without notice to the attendees that an item of
particular public interest, a personnel matter involving the superintendent, would be voted on after
an hour-long executive session that was held after general remarks by the Board President, we
must determine whether any remediation is appropriate to recommend. As noted above, the items
considered in this executive session and the vote are the same items for which remediation was
recommended in the Attorney General Opinion No. 23-IB12. Accordingly, we reiterate this same
recommendation 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.
In addition, the Board is again 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 failing to
provide proper notice of its executive session in its March 21, 2023 meeting agenda and by the
manner in which the Board reordered its agenda without notice to the attendees in these particular
circumstances.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

15

Response, p. 4.
4

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

5