Attorney General's Seal
Attorney General's Opinions

Attorney General Kathy Jennings

Facebook  Twitter  Instagram  Youtube


97-IB03: FOIA Complaint Dated September 19, 1996-Woodbridge School District Board of Education

Written on: February 27th, 1997 in 10001 Declaration of Policy

February 27, 1997

Civil Division – New Castle County

Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933

James D. Griffin, Esquire
Griffin & Hackett, P.A.
Mellon Bank Building, #200
P.O. Box 612
Georgetown, DE 19947

Re: Freedom of Information Act Complaint dated Sept. 19, 1996
Woodbridge School District Board of Education

Dear Mr. Morozowich and Mr. Griffin:

This is the Attorney General’s written decision on the above
referenced complaint pursuant to 29 Del. C. § 10005(e).

By letter dated September 19, 1996, Mr. Morozowich alleges that
the Woodbridge School District Board of Education (the “Board”)
violated the Freedom of Information Act (“FOIA”) in connection
with the hiring of personnel for the 1996 – 1997 school year.(1)
Specifically, Mr. Morozowich alleges that, at an August 20, 1996
Board workshop, the School District Superintendent presented the
Board with a “list of recommended ‘new hires,'” and advised the
Board that the Assistant Superintendent would call Board members
the next day for a consensus vote on the recommendations. Mr.
Morozowich contends that the Assistant Superintendent tried to
call him on August 21 and August 22, 1996. Mr. Morozowich further
contends that, by letter dated August 22, 1996, the persons on
the list of new hires were advised that the Board had
“‘officially approved their appointment on August 20, 1996.” Mr.
Morozowich complains that the consensus vote was improper, and
that the discussion of “new hires” should have been done at a
Board meeting open to the public.

Our office forwarded Mr. Morozowich’s complaint to the Board on
December 24, 1996 and requested a response within ten days. We
received the Board’s response on January 13, 1997.

In its response, the Board states that the Assistant
Superintendent called individual Board members on August 21, 1996
to inquire whether “they had any problems with the
recommendations” for new employees. The Board explains that, if
there were no problems, the recommendations were to be placed on
the agenda for the next regular Board meeting scheduled for
August 28, 1996. The notice and minutes for that meeting confirm
that the Board reviewed and unanimously approved the recommended
new hires.

The Board also explains that the August 22 letter advising new
employees that they were approved on August 20, 1996 was a
mistake, and that a subsequent letter dated August 27, 1996
advised such employees that they “had only been tentatively
approved and that their names would be officially presented to
the Board” for hiring approval at the August 28 meeting.
Subsequent letters dated August 29, 1996 advised the new
employees that they had been officially approved at the August 28
meeting. The Board contends that “no violation of FOIA occurred
based on the fact that the Board of Education approved the
questioned personnel actions in open public session at its August
28, 1996 meeting.”

We find that the Assistant Superintendent’s phone calls to
individual Board members amounted to a consensus vote on the
recommendations. As the Board has been advised in the past,
consensus votes conducted outside of open meetings are in
violation of FOIA. See Att’y Gen. Op. No. 96-IB32. See  also Levy
v. Board of Education of Cape Henlopen School District, Del. Ch.,
C.A. No. 1447, Chandler, V.C. (October 1, 1990) (recognizing that
one of the purposes of FOIA is “to prevent at non-public meetings
the crystallization of secret decisions to a point just short of
ceremonial acceptance”). We find, however, that no remedial
action is required for this violation since the subject matter of
the consensus vote was properly noticed for the August 28, 1996
public Board meeting, and properly voted on at that time. The
Board is cautioned, however, to discontinue the practice of
calling individual Board members to obtain their views on matters
which are to be put to Board vote.

The Attorney General’s Office is increasingly concerned about
what appears to be a pattern of violations of the open meeting
laws by the Board. This is the fourth time in the last two years
that this Office has determined that the Board violated the open
meeting provisions of FOIA. See Att’y. Gen. Op. No. 94-I033 (Nov.
28, 1994) (“the Board has violated the public notice requirements
of the Act”); Att’y. Gen. Op. No. 95-IB04 (Jan. 23, 1995)
(breakfast meetings); Att’y. Gen. Op. No. 95-IB37 (Mar. 8, 1995)
(same); Att’y. Gen. Op. No. 96-IB12 (Apr. 15, 1996) (discussion
of public business after close of public meeting). In addition,
this Office has advised the Board to discontinue practices, such
as gathering in the Superintendent’s office prior to public
meetings, which “give the appearance that public business is
being conducted in a manner other than in an open and public
forum.” Att’y. Gen. Op. No. 95-IB35 (Nov. 2, 1995). See also
Att’y. Gen. Op. 95-IB20 (June 15, 1995) (“We urge the District to
review our January 23, 1995 Opinion detailing the parameters of
the public meeting provisions of the Act so that future
violations of the Act may be avoided.”).

Although we decline to direct remedial action in this case, the
Board is advised that a later public meeting may not always
validate a prior private meeting, particularly where the FOIA
violation appears “deliberate” or involves “an ongoing pattern of
infractions.” Levy, supra. Further violations which appear
deliberate or part of an ongoing patter of infractions may prompt
a petition to the Court of Chancery for permanent injunctive
relief and such other damages and fees as may be permissible
under FOIA.

Very truly yours,
W. Michael Tupman
Deputy Attorney General

Michele C. Gott
Deputy Attorney General

Michael J. Rich
State Solicitor

cc: Elizabeth Bacon, Opinion Coordinator

The Honorable M. Jane Brady
Attorney General

Keith R. Brady
Chief Deputy Attorney General
1. The Attorney General’s Office received that letter on
September 23, 1996. Unfortunately, due to an internal error in
case processing, the complaint did not come to the attention of
the unit that handles FOIA matters until mid-December, 1996. We
have made every effort since then to respond to the complaint as
quickly as possible.