October 10, 1996
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 May 17, 1996
Woodbridge School District
Dear Mr. Morozowich and Mr. Griffin:
This is the Attorney General's decision on the above referenced complaint pursuant to 29 Del. C. § 10005(e).
A complaint alleging violations of the Freedom of Information Act ("FOIA") by the Woodbridge School District Board of Education (the "Board") was initiated by Milton Morozowich by letter dated May 17, 1996, and received by the Attorney General on May 23, 1996. The Attorney General forwarded the complaint to the Board on June 4, 1996 and requested that the Board submit a response within 10 days. The Board's response was received on June 20, 1996.
In his complaint, Mr. Morozowich alleges that the Board violated the open meeting requirement of FOIA in connection with an executive session held during its April 23, 1996 monthly meeting. Mr. Morozowich acknowledges that, to the extent the executive session was conducted for the purpose of discussing certain personnel matters, it was in compliance with FOIA. See 29 Del. C. § 10004(b)(9) (providing that a public body may call an executive session for the purpose of discussing "personnel matters in which the names, competency and abilities of individual employees . . . are discussed"). Mr. Morozowich alleges, however, that of the "approximate three (3) hour time frame spent in 'Executive Session' only approximately one-half to three-quarter (½ -3/4) hour" was devoted to that purpose (Complaint, p. 2). He alleges that the remainder of the session covered matters that were not properly the subject of executive session. In support of this allegation, Mr. Morozowich divides the three hour executive session into seven segments of time and identifies the topics discussed during each segment.
In response, the Board contends that each of the segments identified by Mr. Morozowich were part of an overall discussion related to the type of personnel matters covered by Section 10004(b)(9). The Board explains that in April of each year it must make personnel decisions regarding teachers it must let go through terminations or reductions in force ("RIFs"), based on the number of teaching units for which State funding will be received for the following school year. In connection with such decisions, the Board considers present and projected pupil enrollment figures in accordance with the pupil unit count requirement of 14 Del. C. § 1704 which determines the number of teaching units and resultant State funding. The Board also considers reduction in teacher numbers which may occur as a result of resignations and retirements. The Board contends that it went into executive session on April 23, 1996 for the purpose of making decisions regarding necessary terminations and RIFs and that the session was devoted to discussion of such matters, which were later voted on in open session.
Based on our review of the complaint, the Board's response and all documents submitted by both parties, we conclude that the overall discussion of the three-hour executive session involved personnel matters of the type appropriate for executive session under Section 10004(b)(9), and thus find no FOIA violation. We address separately below each segment of the executive session as identified in the complaint.
1. Mr. Morozowich first alleges that from 1:25 - 1:40, the Board reviewed a handout entitled "grade level staffing." Mr. Morozowich believes discussion regarding this document should have been conducted in open session on the basis that no individual staff member names were included on the handout.
The "grade level staffing" handout at issue consists of two pages showing actual and projected pupil enrollment figures. The Board contends that such figures form the foundation for decisions regarding which teachers may need to be terminated or "riffed," and were part and parcel of the overall discussion related to terminations and RIFs. The Board contends that such overall discussion clearly involved "personnel matters in which the names, competency and abilities of individual employees" were discussed (Response, p.4). According to documents submitted with the Board's response, in addition to the "grade level staffing" pages, the Board received eight other pages, all of which identified specific employees involved in the Board's decisions.
Based on our review of the record, we find that the seven minute discussion of "grade level staffing" was a small part of an overall discussion regarding the type of personnel matters contemplated by Section 10004(b)(9), and thus find no FOIA violation in connection with this portion of the executive session.
2. Mr. Morozowich next alleges that from 1:40 - 1:47, the Board reviewed individual contract information, including the qualifications of seven named staff members. Although not expressly stated, this seven-minute segment appears to cover a topic which complainant agrees was properly handled in executive session. In any event, we find that this discussion was appropriate for executive session pursuant to section 10004(b)(9).
3. Mr. Morozowich next alleges that from 1:47 - 2:50, a "'Grade level / building realignment' proposal was presented by the administration" (Complaint, p.1). Mr. Morozowich does not indicate what this discussion involved. According to the Board's response, it included explanations by the administration of which teachers could be moved from one position to another, and the effect such movements might have on the numbers of teachers the Board would have to terminate. The Board represents that the discussion "directly involved the consideration of individual employees by name, competency and ability" (Response, p. 4). Based on this representation, we are satisfied there was no FOIA violation in connection with this part of the executive session.
However, this does not completely dispose of Mr. Morozowich's complaint with respect to this segment. Mr. Morozowich also alleges that, following this portion of the discussion, a "consensus vote was asked for by the Superintendent" (Complaint, p. 1). The Board denies that a consensus vote was requested, and contends that the Superintendent "merely provided the Board members with an opportunity to respond to the measures which the administration planned to take in respect to realignment of personnel within grade levels and buildings" (Response, p. 4).
Mr. Morozowich correctly states that consensus votes in executive session are prohibited. Levy v. Board. of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler, V.C. (October 1, 1990). While the Board's explanation of what occurred does not convince us that the members were not asked to give what would amount to a consensus vote, we find no FOIA violation here because we believe the matters on which the members were asked to state their position did not involve "public business" under FOIA. Specifically, "public business" is defined as "any matter over which the public body has supervision, control, jurisdiction or advisory power." 29 Del. C. § 10002(b). According to the Board's response, the subject on which members were asked to comment (transfers of teachers from one position to another) is a matter within the control of the administration, and need not be presented to or approved by the Board. In other words, it does not involve a matter over which the Board has "supervision, control, jurisdiction or advisory power," and thus does not involve "public business." Section 10002(b). Since the open meeting requirement of FOIA applies only when
a public body is discussing or taking action on "public business,"(1) it follows there was no FOIA violation even if what amounted to a consensus vote on transfers was taken in executive session. 4. Mr. Morozowich next alleges that from 2:50 - 3:15, the Board reviewed "staff member personnel information" regarding reductions in force, terminations, rehires, resignations and retirements. Although not clearly expressed, this segment appears to cover matters which complainant acknowledges were proper subjects for executive session. In addition, the Board's response includes a document which was reviewed during this discussion and which names individual teachers who fall within the categories mentioned. We find this discussion was properly confined to the executive session.
5. Mr. Morozowich next complains that between 3:15 and 3:20, the superintendent began a presentation regarding involuntary transfers of certain unidentified staff members. Mr. Morozowich indicates that this presentation was discontinued, however, because both the Superintendent and the Board President recognized that involuntary transfers are an administrative responsibility which "need not be discussed or approved by the Board" (Complaint, p. 2). For the same reasons given in paragraph 3, supra, we conclude that any discussion which occurred within this five minute segment, did not involve "public business," and therefore, there was no violation of the open meeting requirement of FOIA.
6. The complaint next covers the time period from 3:42 - 4:02. It is unclear from the complaint exactly what was discussed during this time period. Rather, the complaint merely states that it involved the following:
Administrative presentation re:
(1) Expansion of elementary 'GROW'/gifted program
(2) Examination/utilization of technology / Media Centers
(3) 'Involuntary Transfers' rest with Superintendent per check with teacher contract - will be reviewed at May Meeting
(4) Desire to know 'Program Changes' without releasing personnel names - Decided this cannot be done without everyone knowing individual names
(5) 'Terminations' will not be notified until May 15, 1996.
(Complaint, p. 1).
It appears there is no issue with regard to items (3) and (4) since the complaint itself indicates that discussion of these items was deferred. As to the remaining items, based on the explanations provided in the Board's response, we find no FOIA violation in connection with this segment of the executive session. The Board represents that items (1), (2) and (5) involved discussion of specific employees who were to be transferred, "riffed", or terminated. The Board contends that such discussions dealt with "personnel matters" involving the "names, competency and abilities of individual employees," and therefore were properly conducted in executive session. We agree.
7. Mr. Morozowich next alleges that between 4:02 and 4:27, "administrative recommendations were reviewed." Mr. Morozowich fails to describe the administrative recommendations or give any indication as to why they were inappropriate for discussion in executive session. The Board explains that this discussion involved a summary of the action which the administration believed the Board should take with respect to personnel decisions and specifically addressed "names, competency and abilities of individual employees." Based on this record, we find no violation of FOIA in connection with this discussion.
Finally, Mr. Morozowich alleges that this segment of the executive session ended with one Board member noting that "Litigation" had not been discussed even though it was on the agenda. The Superintendent reported that it had been placed on the agenda for the purpose of discussing potential litigation regarding the school's architectural services contract, but that no action had been filed to date. It is unclear whether Mr. Morozowich believes there was any FOIA violation in connection with these last few minutes of the executive session. In any event, we see no violation concerning this issue.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michele C. Gott
Deputy Attorney General
Michael J. Rich
cc: Elizabeth Bacon, Opinion Coordinator
1. See 29 Del. C. § 10004(a) (requiring every "meeting" of a public body to be open to the public); 29 Del. C. § 10002(e) (defining "meeting" as a gathering of a quorum of the members of a public body "for the purpose of discussing or taking action on public business").
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