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03-IB23: Re: F.O.I.A. Complaint Against Sussex Technical School District Board of Education

Written on: October 20th, 2003 in 10001 Declaration of Policy

October 20, 2003
Civil Division-Kent County (739-7641)

Mr. Wayne A. Dukes
6494 Earle Lane
Seaford, DE 19973

Re: Freedom of Information Act Complaint Against
Sussex Technical School District Board of Education

Dear Mr. Dukes:

On August 18, 2003 we received your complaint alleging that the Sussex Technical School District Board of Education (“the School Board”) violated the Freedom of Information Act (“FOIA”), 29 Delaware Code Chapter 100, by meeting in executive session on August 11, 2003 without the required notice to the public.
By letter dated August 20, 2003, we asked for the School Board’s response to your complaint, which we received on September 11, 2003. On September 22, 2003, we asked the School Board for copies of the notice and agenda and minutes of the August 11, 2003 meeting. We received those documents on September 29, 2003. On October 2, 2003, we asked the School Board for copies of the notice and agenda and minutes of the School Board’s September 18, 2003 meeting, which we received on October 3, 2003.

According to the School Board, the “Board noticed and held an executive session commencing at 4:30 p.m. on August 11, 2003. Because the Board did not complete this discussion of executive session items prior to 5:00 p.m., the Board left the executive session in order to convene the public session at 5:00 p.m. The Board did so with the intent of returning to executive session following the public session.”
The School Board does not dispute that during the public session “the Board did not announce its intent to return to executive session.” The Board states that during the reconvened executive session it “made a decision concerning the process for selecting the superintendent (i.e. establishing the deadline for submitting applications).”
Relevant Statutes
FOIA provides that “[a]ll public bodies shall give 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. The notice shall include the agenda, . . . .” 29 Del. C. § 10004(e)(2).
FOIA allows a public body to meet in executive session to discuss “[p]ersonnel matters in
which the names, competency and abilities of individual employees . . . are discussed, unless the employee . . . requests that such a meeting be open.” Id. § 10004(b)(9). FOIA also allows a public body to meet in executive session to discuss “an individual’s qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open.” 29 Del. C.
§ 10004(b)(1).
FOIA allows for executive session to discuss “[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to . . . pending or potential litigation, but only when an open meeting would have an adverse effect on the . . . litigation position of the public body.” 29 Del. C. § 10004(b)(4).

Legal Authority

A. Notice of Executive Session

The agenda for the School Board’s August 11, 2003 meeting stated the meeting would start in the District Office Board Room at 4:30 p.m. with the call to order, and then the Board would go into “Executive Session To Discuss Legal/Personnel Matters.” The agenda then stated the meeting would move to the cafeteria at 5:00 p.m. for public session The last item on the agenda was “Adjournment.”
The minutes of the August 11, 2003 meeting show that the School Board “adjourned” the meeting at 6:10 p.m. and then “reconvened in executive session at 6:30 p.m. to discuss legal and personnel matters related to the superintendent search.” Your complaint raises the issue whether the second executive session was a new meeting requiring separate notice to the public, or a continuation of the same meeting already noticed to the public. Stated another way, did the School Board recess the public session of the meeting to go into executive session, or did the Board adjourn and hold a new meeting, which required new notice to the public?
“A recess is an intermission in the day’s proceedings, as for meals or for counting the ballots when much time is required; or in the case of meetings like conventions lasting several days, a recess is sometimes taken over an entire day.” Robert’s Rules of Order, Section 18, at p. 65.
In contrast, an “adjournment” is “the act of a court, legislative body, public meeting, or officer, by which the session or assembly is dissolved, either temporarily or finally, and the business in hand dismissed from consideration, either definitely or for an interval.” Black’s Law Dictionary 63 (4th rev. ed. 1968). A recess denotes a shorter break or temporary suspension of proceedings, while an adjournment is the putting off until another day and time or place.
We do not believe that FOIA requires additional notice in the case of a meeting re-convened after a recess. To require public notice each time a meeting is recessed in the course of a day would impose an onerous duty on the public body and do little to serve the purposes of the open meeting law, for notice could not be conveyed to the public in time to make it effective.
We determine that the School Board recessed its August 11, 2003 meeting at 6:10 p.m., and then re-convened and continued to discuss matters properly noticed for that meeting when it went into executive session at 6:30 p.m. The Board did not hold two separate meetings, but rather one continuous meeting for which FOIA required only one notice.
The problem here is not sufficient notice, but rather compliance with the procedures under FOIA for going into executive session. In Att’y Gen. Op. 94-IO08 (Feb. 25, 1994), the city council voted to adjourn a meeting and then went into executive session to discuss personnel matters authorized by FOIA. The complainant contended that after the council members adjourned, they violated FOIA because their vote to go into executive session did not “take place at a meeting of the public body which shall be open to the public.” 29 Del. C § 10004(c). We determined that, in substance, the council did not adjourn but rather recessed because “the adoption of the first motion to adjourn and the subsequent executive session followed immediately upon the other. The transaction of business was uninterrupted.” The public was still in attendance when the city council announced “ that an executive session would be held at the close of the regular business of the meeting to discuss personnel matters. The vote to go into executive session was taken in plain view of the public.”
In this case, the School Board voted to adjourn the August 11, 2003 meeting at 6:10 p.m. Twenty minutes later, the School Board voted to go back into executive session to discuss legal and personnel matters, but did not do so at a public meeting. The School Board violated FOIA because citizens have a right “to see that the public body follows the required procedures for going into executive session, and to observe the discussion of any public business that follows.” Att’y Gen. Op. 02-IB17 (Aug. 6, 2002).
We distinguish this case from Att’y Gen. Op. 94-IO08 because: (1) the School Board did not announce its intention to go back into executive session after the public session of the August 11, 2003 meeting; (2) the vote to go into executive session did not immediately follow the motion to adjourn; and (3) the vote was not taken in plain view of the public.
For these reasons, we determine that the School Board did not comply with the procedural requirements of FOIA when it went into executive session for the second time at the meeting on August 11, 2003. We appreciate that many public bodies try to schedule their executive sessions at the front or back of the public portion of their meetings, so that citizens can choose to attend only the public portion. But either way, FOIA requires a public body to vote to go into executive session in public view.

B. Matters Discussed In Executive Session

Although your complaint did not raise the issue directly, our in camera review of the minutes of the School Board’s executive sessions on August 11, 2003 requires us to consider whether the Board met in executive session for a purpose authorized by law.

1. Personnel Matters

Based on our in camera review of the executive session minutes, we are satisfied that
FOIA authorized discussion in private of three of the subjects discussed because they were personnel matters involving the “names, competency and abilities of individual employees.” 29 Del. C. § 10004(b)(9). We determine that FOIA did not authorize the School Board to meet in executive session to discuss “personnel matters related to the superintendent.” In its response to the complaint, the School Board further elaborated that it discussed “the process for selecting the superintendent” such as “establishing the deadline for submitting applications.”
In Att’y Gen. Op. 02-IB17 (Aug 6, 2003), we determined that the school board violated FOIA by discussing in executive session “the mechanics of the [superintendent] selection process.” The personnel exemption “on which the Board relied is limited to discussion of the names, competency, and abilities of individual employees.” A job applicant is not yet an “employee” of a public body.
At some point in the selection process, the School Board might rely on Section 10004(b)(1) of FOIA (discussion “of an individual citizen’s qualifications to hold a job”). But the record does not show that the School Board discussed the qualifications of individual applicants for the superintendent position during executive session on August 11, 2003. Indeed, it was not until its September 8, 2003 meeting that the Board established a deadline of September 18, 2003 to receive applications for the position.
We determine that the School Board violated FOIA by meeting in executive session on August 11, 2003 to discuss matters relating to the search for a new superintendent which were not authorized by statute.

2. Litigation

The School Board confirms that its legal counsel did not attend the August 11, 2003 meeting, and that the Board discussed in executive session a civil rights lawsuit filed by Acting Superintendent Carol Schreffler which is pending in federal district court.
The School Board has failed to meet its burden of proving that its discussion of the Schreppler lawsuit in executive session on August 11, 2003 was a “[s]trategy session[]” about “pending litigation” the disclosure of which “would have an adverse effect on the . . . litigation position of the public body.” 29 Del. C. § 10004(b)(4). For all we know, the Board could have discussed the status of the litigation, the filing of an answer, notices of depositions, and other matters which did not amount to a strategy session, particularly since legal counsel was not present. In our investigations and determinations under Section 10005(e) of FOIA, we must hold public bodies to their burden of proof to justify going into executive session for a purpose authorized by statute. If the minutes of the executive session (as here) are cursory, and the public body does not provide use with affidavits from those in attendance specifying in more detail the matters discussed, then the public body may not meet its burden of proof, as in this case..

Conclusion

For the foregoing reasons, we determine that the School Board violated the open meeting requirements of FOIA by: (1) failing to follow the proper procedures for going into executive session at the end of the public session of its meeting on August 11, 2003; and (2) meeting in executive session to discuss two matters (the superintendent search and pending litigation) for which they were not authorized by law.
We are sensitive that the superintendent search is ongoing and that the public has a vital interest in the timely selection of a new superintendent. Therefore, we are not directing any retrospective remediation for the School Board’s FOIA violations. On the other hand, we are concerned that the School Board may not be fully aware of the guidelines set forth in our opinion last year in a similar case involving the Capital School District’s search for a new superintendent. See Att’y Gen. Op. 02-IB17 (Aug. 6, 2002). To make sure that there are no further FOIA problems as the superintendent search unfolds, we are directing the School Board to provide our office with copies of the notices and agendas and minutes (both public and executive sessions) as
soon as practicable following their posting or occurrence until the superintendent search is concluded.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED
_______________________
Malcolm S. Cobin, Esquire
State Solicitor
cc: The Honorable M. Jane Brady
David H. Williams, Esquire
Phillip G. Johnson, Opinion Coordinator

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