Written on: April 28th, 2000 in 10001 Declaration of Policy
Del. Op. Atty. Gen. 00-IB07 (Del.A.G.), 2000 WL 1092968
Office of the Attorney General
State of Delaware
Opinion No. 00-IB07
April 28, 2000
Re: Freedom of Information Act Complaints Against Woodbridge School District
*1 Ms. Elizabeth Harris
Rt. 2 Box 235
Greenwood, DE 19950
Ms. Regina Warnick
22745 South DuPont Highway
Greenwood, DE 19950
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
Mr. Daniel J. Kramer
RD # 2 Box 275
Greenwood, DE 19950
On March 21, 2000, our Office received a complaint from Ms. Harris and Ms. Warnick alleging that a committee of the Woodbridge Board of Education (the “Board”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”) when the committee met on March 14, 2000 to discuss a referendum without notice to the public. On March 28, 2000, our Office received a complaint from Mr. Kramer alleging that the Board violated FOIA when it amended the agenda for its meeting on March 21, 2000 to include the referendum. On April 10, 2000, our Office received a FOIA complaint from Mr. Morozowich also alleging FOIA violations with respect to the March 14 and 21 meetings.
By letters dated March 23 and 29, 2000, our Office asked the Board to respond to the complaints. We received the Board’s response, together with supporting documentation, on April 11, 2000.
Ms. Harris and Ms. Warnick allege that three members (a quorum) of the Board attended a meeting of the “Raider Committee” on March 14, 2000, where there was discussion about a recently failed referendum and whether to hold a second referendum. They claim this was a meeting of a “public body” covered by the open meeting law, yet it was not noticed to the public as required by FOIA. On a somewhat different theory, Mr. Morozowich alleges that the Raider Committee is a public body because it is a committee “authorized” by the Board, yet “[o] nly committee members are/have been notified of scheduled meetings.”
Mr. Kramer’s complaint alleges that the Board failed to include the referendum issue in the agenda for the March 21, 2000 meeting. Mr. Morozowich further alleges that the Board violated FOIA by amending the agenda during the meeting itself to include the referendum.
The Board does not dispute that the Raider Committee is a “public body” for purposes of FOIA since it “was originally appointed by the Board” and three of the Raider Committee members are also members (and constitute a quorum) of the Board. The Board takes the position, however, that the March 14 meeting of the Raider Committee was not a “public meeting” as defined by FOIA because the Committee “had no authority to approve the holding of a second referendum.” The committee is subject to the notice and agenda requirements of FOIA irrespective of its authority to advise or vote on matters which affect the public. See 29 Del. C. Section 10002(a) which makes FOIA applicable to a public body and any committee created by the public body.
*2 The Board also takes the position that the Raider Committee does not have to give seven-days’ notice of its meetings because it does not meet “regularly.” The Board contends that the Raider Committee is only subject to the notice provisions for “special” meetings, which can be posted twenty-four hours before the meeting. According to the Board, the Chair of the Raider Committee (Mr. Harold A. Sheets, Jr.) sent a memorandum dated March 8, 2000 to other committee members informing them of the meeting on March 14, 2000 to discuss “several options that may be helpful to us for future action.” In addition, according to the Board’s response, “an article appeared in the local media, approximately one week prior to the meeting, indicating that a meeting would be held.” The Board did not provide our Office with a copy of that article.
In response to Mr. Kramer’s complaint, the Board takes the position that FOIA permits a public body to amend the agenda to include additional items “which arise at the time of the public body’s meeting.” The minutes of the March 21, 2000 meeting reflect that a motion was made to amend the agenda to add “Referendum Sanctioning” to the public business to be discussed.
On April 26, 2000, James D. Griffin, Esquire, attorney for the Board, sent a letter to this office providing copies of a two documents. The first was an Amended Tentative Agenda, posted on April 17, 2000 at 9:00 a.m. for a regular meeting of the Board to be held on April 17, 2000 at 6:00 p.m. The notice did not contain an explanation of why there was a delay in posting the additions to the agenda as required by 29 Del. C. Section 10004(e)(5). Mr. Griffin’s letter of April 26, 2000 included the following language:
I enclose a copy of the Agenda for the April 17 meeting that was posted on April 7th and amended on April 17 to add the item relating to the referendum under IX.G. As you are aware, Under Section 10004(e)(2) “the agenda shall be subject to change to include additional items … which arise at the time of the public body’s meeting.” Since this was a regular meeting of the Board, I believe the Board could have amended the Agenda at the beginning of the meeting and was not strictly required to amend the Agenda that had been posted on April 7, 2000.
The second inclusion was an abstract of the final minutes from the meting of March 21, 2000 reflecting the decision to proceed with a referendum relating to the issuance of school bonds and an increase in the tax rate for the district. The minutes abstract included a statement in opposition to the referendum motion by Mr. Morozowich, a member of the Board.
On April 27, 2000, Mr. Griffin provided, by telefax, a notice from the Board dated April 27, 2000 at 12:00 Noon for a Special Board Meeting to be held on May 4, 2000 at 5:00 p.m. The single item of business in the notice is an “Action to re-approve Referendum.”
*3 The complaints raise four legal issues for determination by our Office: First, whether the meeting of the Raider Committee on March 14 was a “public meeting” to discuss “public business,” as defined by FOIA; Second, whether the form of notice used for the March 14 and April 17 meetings satisfied the public notice requirements of FOIA; Third, whether the Board properly amended the agenda at its March 21, 2000 meeting to include the referendum issue; Fourth, whether the notice of a meeting for May 4, 2000 sufficiently cures any violations with respect to the prior notices or meetings for which complaints have been filed.
1. March 14, 2000 Meeting – Public Business
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.” 29 Del. C. Section 1000(2)(e). The statute defines “public business” as “any matter over which the public body has supervision, control, jurisdiction or advisory power.” Id. Section 10002(b).
The Board characterizes the Raider Committee as a “community-based advisory committee to the Board which has considered various issues pertaining to the Woodbridge School District and has made recommendations to the Board concerning those issues.” According to the Board, “[o]n March 14, the Raider Committee was considering what changes should be made in the referendum proposal in order to improve the chance of successful passage of a second referendum.” If the Committee reached a consensus, as it did, the Committee would then “conve[y] its thoughts to the Board in the form of a recommendation.” The Raider Committee had “advisory power” to make a recommendation to the School District about a second referendum. The meeting of the Committee on March 14, 2000 therefore involved the discussion of “public business” and triggered the public notice requirements of FOIA.
The Board suggests that FOIA does not apply so long as the public body does not take any formal action. The Chancery Court, however, “has rejected the notion that the open meetings requirements of FOIA apply only ‘to meetings where formal action’ is taken.” The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977) as cited by the this office in Att’y Gen. Op. 97-IB22 (Nov. 24, 1997). Otherwise, “there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business so long as the Board reached no formal decision at that private meeting.” Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Oct. 1, 1990) (Chandler, V.C.). The open meeting laws cover “factfinding, deliberations and discussions, all of which surely influence the public entity’s final decision.” Id. FOIA “recognizes that policy decisions by public entities cannot realistically be understood as isolated instances of collective choice, but are best understood as a decisional process based on inquiry, deliberation and consensus building.” Id.
*4 By letter dated March 15, 2000, the Superintendent, Dr. Carson wrote: “Pending Board approval on Tuesday, March 21, 2000, the Woodbridge School District will be requesting another Referendum to be scheduled on May 6, 2000.” The documents submitted as a result of this complaint lead to the conclusion that the Board vote on March 21, 2000 was a mere formality since a majority of the Board had already decided to vote in favor of a second referendum at the Raider meeting held on March 14, 2000.
We find that the Raider Committee is a “public body” for purposes of FOIA, and that it discussed “public business” at its meeting on March 14, 2000. We now turn to whether the Committee gave the notice required by law for that meeting.
2. March 14, 2000 Meeting – Public Notice
FOIA provides that “[a]ll public bodies shall 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.” 29 Del. C. Section 10004 (e). The Board contends that the seven-day notice requirement only applies to “regular” meetings of a public body, and that the “Raider Committee does not hold regular meetings, but meets on the call of the Chair, who is Harold Sheets, Jr.” We disagree with this construction of the term “regular” in the open meeting law.
Like the open meeting laws in other states, Delaware’s FOIA has different notice requirements for regular and special meetings. “Regular meetings are those which are held at prescheduled intervals. Such meetings would include, for example, monthly or annual meetings.” Katterhenrich v. Federal Hocking Local School District Board of Education, Ohio App., 700 N.E.2d 626, 631 (1997). “One would expect regular meetings to be scheduled well in advance as in the case sub judice, where the board’s regular meetings are scheduled each year at a January organizational meeting.” Id. at 632. “Special meetings, on the other hand, typically called to address some particular matter or matters of immediate concern, one could well expect to be scheduled on much shorter notice, perhaps only a day or so ahead of time, depending on the exigencies of the situation.” Id. See also, Att’y Gen. Op. 99-IB11 (Jun 25, 1999).
The documents submitted by the Board show that on December 17, 1999 the Raider Committee posted notice of its next five meetings for January 10, January 24, and February 7, 21, and 28. It is apparent that the Raider Committee met regularly since its formation in 1997, though not necessarily on a strict periodic schedule. The committee posted public notice for some, but not all, of its meetings during that time. However, for the March 14, 2000 meeting, the committee only gave notice of the meeting to Committee members. No public notice was provided. With no date set for a second referendum prior to March 14, 2000, there was no exigent circumstance or compelling need for the Raider Committee to hold a “special” meeting to discuss a second referendum without meeting the seven-day notice requirement for regular meetings.
*5 Alternatively, the Board argues that it gave notice to the public in a “memo sent to community members of the Raider Committee on March 8, advising them that the meeting would be held on Tuesday, March 14.” But the Board admits that this memo was not “publicly posted,” nor has the Board produced the newspaper article it claims “appeared in the local media, approximately one week prior to the meeting.”
FOIA requires notice of meetings by “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, ….” 29 Del. C. Section 10004(e)(4) (emphasis added). The Board’s documents show that the only notice of the March 14, 2000 Raider Committee meeting was a memorandum dated March 8, 2000 to members of the committee, but not the public at large. We find that the Raider Committee failed to post a conspicuous notice of its meeting on March 14, 2000 at the offices of the Woodbridge School District and was therefore in violation of 29 Del. C. Section 10004(e)(4).
3. March 21, 2000 Meeting – Agenda
As a general rule, FOIA requires a public body to post the agenda together with the notice of the meeting seven days in advance. “[H]owever, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.” 29 Del. C. Section 10004(e)(2).
Our Office has previously determined that “[i]f a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirement of FOIA.” Att’y Gen. Op. 97-IB20 (Oct. 20, 1997).
On March 14, 2000, the Board posted a “Tentative Agenda” for its meeting on March 21, 2000. The agenda included “Raider Committee – Mr. Harold Sheets, Jr.” The Board knew that the Raider Committee was meeting on March 14 to discuss a second referendum before making a recommendation to the Board. Dr. Carson’s letter of March 15, 2000, acknowledged the pendency of the issue as an item of Board business at least six days prior to the meeting. The referendum issue did not arise unexpectedly and no satisfactory explanation has been provided to suggest why the agenda notice did not include the referendum issue as required by law.
Our Office has recognized that discussion of noticed items in an agenda “can often segue into related public issues, and FOIA provides flexibility to address that situation.” Att’y Gen. Op. 97-IB20. In this matter, the facts support a conclusion that the second referendum was clearly an issue to be separately considered at the meeting on March 21, 2000. The agenda was drafted as “tentative”1 and the first order of business (after the invocation and the pledge of allegiance) was for Dr. Carson (a member of the Raider Committee) to move to add “Referendum Sanctioning” to the agenda. The Board violated the public notice requirements of FOIA by failing to include in the original agenda for the March 21, 2000 meeting a clear statement that the Board would be discussing a second referendum.
3. April 17, 2000 Meeting – Agenda
*6 Although no citizen has filed a complaint with respect to the amended agenda for the meeting of April 17, 2000, this office, on its own initiative, has concluded that the amendment posted on April 17 violated the FOIA notice requirements. The original posting on April 7, 2000 for the Board’s regular meeting on April 17 did not include any notice that the referendum would be an issue before the Board. The amended agenda posted on April 17, nine hours before the meeting, include the referendum as item IX.G. Since there was no explanation on the amended agenda as to why the referendum issue could not have been included on the original agenda as required by Section 10004(e)(5), the amended notice did not provide the requisite public notice of the business to be transacted, the approval of an election for a referendum, the Board’s consideration of and vote to hold a special referendum, the Board’s consideration of and vote to hold a special referendum is voidable. In light of the events which occurred in the intervening time from the last referendum, and with the Board’s awareness of the referendum issue at such an obviously high level, the failure to include the referendum issue on the agenda when it was posted on April 7, 2000 was a violation of Section 10004(e)(2).
4. May 4, 2000 Meeting – Agenda
We find that the April 27, 2000 notice for a special meeting of the Board for May 4, 2000 to consider and vote on the referendum issue meets the requirements of Section 10004(e) and, provided that the business conducted at the meeting on May 4, 2000, conforms to the notice, the violations relating to notice and agenda cited in this opinion will be effectively cured.
Based on the complaints, the Board’s response, and the documents provided to us, we determine that: (1) the Raider Committee violated the notice requirements of FOIA by not giving seven days’ notice to the public of its March 14, 2000 meeting; and (2) the Board violated the notice requirements of FOIA by failing to include the referendum issue in the original agenda for its March 21, 2000 meeting. Since the Raider Committee was not authorized to take any action on the referendum issue, we do not conclude that any purpose will be served by directing the Committee to meet again to discuss the issue and then advise the Board. In the future, however, we expect strict compliance by the Raider Committee (or any similar body) with the notice requirements of FOIA. The Committee must give timely and adequate notice of all of its meetings to the public (not just the members of the Committee) as required by law.
Additionally, we find the amendments to the March 21 and April 17 meetings do not comply with 29 Del. C. Section 10004(e) for the reasons stated above. The Board has noticed a special meeting for May 6, 2000 which appears to be in compliance with FOIA to reconsider and vote on the question of whether to go forward with a new referendum. A copy of that notice has been provided to this office. That is consistent with the action we would have required to remediate the agenda violations cited herein. If the business conducted at the meeting on May 4, 2000 conforms to the notice and to FOIA, the Board will have effectively cured the violation and no further action will be undertaken by this office as a result of the findings enunciated in this opinion.
Very truly yours,
*7 Michael J. Rich
|1||Section 10004(e) does not contemplate the publication of a “tentative” agenda. The characterization of the agenda is immaterial insofar as compliance with Section 10004 is concerned.|
Del. Op. Atty. Gen. 00-IB07 (Del.A.G.), 2000 WL 1092968