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 APPROVED: 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.
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