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10001-declarations

98-IB05: FOIA Complaint: Appoquinimink School Board

Written on: July 6th, 1998 in 10001 Declaration of Policy

July 6, 1998

New Castle County – Civil Division

Mr. Donald R. Wood
330 Union Church Road
Townsend, DE 19734

RE: Freedom of Information Act Complaint
Against Appoquinimink School District

Dear Mr. Wood:

By letter dated June 4, 1998 (received by this Office on June 8,
1998), you alleged that the Appoquinimink School District (“the
School District”) had violated the Delaware Freedom of
Information Act, 29 Del. C. Sections 10001-10005 (“FOIA”), by
failing to post notice of a meeting held on June 2, 1998 at
least seven days in advance.

By letter dated June 12, 1998, we asked the School District for
its response to your complaint. By letter dated June 16, 1998
(received by our Office on June 24), Superintendent Marchio
responded. According to the School District, the meeting on June
2, 1998 was a “special meeting,” for which only 24 hours’ notice
is required. The School District states that notice of that
meeting was “posted in every one of our schools, including the
school in which our meetings are normally held.” In addition, a
copy of the notice was faxed to the Middletown Transcript. A
reporter attended the meeting, and an article about the new
teachers’ contract appeared in the newspaper on June 4, 1998.

The School District contends that it had to call a special
meeting with less than seven-days of notice because “the purpose
of the meeting was to take action on a contract settlement
between the district and the teacher’s union. Agreement was
reached with the union late on Friday, May 29, 1998, which
changed the dental benefits of the teachers from the present
self-insured system to a dental plan offered by the state of
Delaware.” The deadline “for enrolling employees in the state
dental plan was Friday, June 5, 1998. As it turned out, the
district was rushed to enroll all employees into the plan in
three days and could not wait until the June 9th [regularly
scheduled] meeting.”

STATUTORY PROVISIONS

Section 10004(e)(2) of FOIA requires all public bodies to “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.” Subsection (3) allows public bodies to give
notice of a special meeting “no later than 24 hours before such
meeting.” A “special” meting is defined “as one held less than 7
days after the scheduling decision is made.” Notice of a special
meeting “shall include an explanation” as to why the normal
seven-day notice “could not be given.”

“Public notice” includes, but is not limited to, “conspicuous
posting of said notice at the principal office of the public
body holding the meeting, or if no such office exists at the
place where meetings of the public body are regularly held, and
making a reasonable number of such notices available.” 29 Del.
C. Section 10004(e)(4).

OPINION

Your complaint suggests that the School District should have
given notice to The News Journal rather than the Middletown
Transcript, which is not a daily newspaper and would not have
published notice in time to inform the public of the meeting on
June 2, 1998. FOIA only requires a public body to post official
notice of any meeting at its principal office or where its
meetings are regularly held. However, in the interest of wider
public dissemination, a public body is not restricted in the
manner it chooses to provide additional notice beyond the
statutory minimum. The School District has confirmed that notice
of the June 2, 1998 meeting was posted at “the school in which
our meetings are normally held.” The School District’s attempt
to provide notice through the local newspaper goes beyond the
statutory minimum and is commendable for that reason.

The notice states that the School District would hold a meeting
on June 2, 1998 at Middletown High School in “Closed Executive
Session” for the purpose of discussing “personnel and legal
matters.” We are satisfied that the need to consider the new
teachers’ contract warranted the School District’s calling a
special meeting with only 24 hours’ notice. As the School
District has explained, it had only a matter of days to enroll
employees in a state dental plan.

More troubling is the failure to explain in the notice why the
normal seven days’ notice could not be given, as required by
Section 10004(e)(3) of FOIA. In Opinion 94-IO37 (July 26, 1994),
this Office observed that FOIA “requires only a reason, not a
specific detailed factual basis, why the seven-day requirement
could not be met.” But we have consistently found a FOIA
violation where the notice failed “to provide any explanation
whatsoever concerning the reason why the normal seven day notice
could not be given.” Id. Accord Opinion 96-IB15 (May 10, 1996);
Opinion 97-IB18 (Sept. 2, 1997). We find therefore that the
School District violated the public notice requirements of FOIA
by failing to provide some explanation in the notice posted why
the normal seven-day notice could not be given. The question
then is the proper remedy. We bear in mind that in a recent
opinion our Office also found that the School District had
violated the requirements of the open meeting law, and put the
School District “on notice that the requirements of the open
meeting law must be strictly followed in the future.” Opinion
98-IB04 (May 20, 1998).

In addition to the notice issue, we find that the School
District violated the public meeting requirements of the Act by
conducting its discussion of the new teachers’ contract in
executive session. While the complaint did not raise this issue
directly, the complaint questioned why the contract issue was
not publicly discussed. At the June 2, 1998 meeting, the School
District discussed the matter in executive session in the
apparent belief that it was a “personnel” matter, 29 Del. C.
Section 10004(b)(9). The personnel exception for executive
session was intended to protect the personal privacy of
individual employees, and applies only when the discussion
reflects on an individual’s “competence or ability.” Opinion
93-IO03 (Feb. 10, 1993). The discussion of the contract was an
item of general business and the public is entitled to have the
general business of the School District conducted in an open
forum. While there is no reason to believe that the School
District intended to violate FOIA by regarding general contract
issues as personnel matters, the distinction is an important
legal one and the School District that it should, in the future,
consult with its legal counsel when such issues arise.

Conclusion

For the foregoing reasons, we determine that the School District
violated FOIA in two respects: (a) by failing to explain in the
notice of the June 2, 1998 meeting why the normal seven-days’
notice could not be given and (b) by the improper use of an
executive session for a purpose not permitted by 29 Del. C. §
10004(b). Under the circumstances, no purpose would be served to
void the action taken by the School District at that meeting.
However, to the extent the School District took action in
executive session on June 2, 1998, the School District must
provide a public summary of its discussion and vote as an agenda
item at a regular meeting or at a special meeting properly
noticed according to law and conducted for that purpose. The
remedial action must be taken within thirty days of receipt of
this letter. The district shall notify this Office promptly when
the FOIA violation has been remedied.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED:

___________________
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
Tony J. Marchio, Superintendent
Chrystyna Lafferty, Opinion Coordinator





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