Civil Division-New Castle County
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
Re: Freedom of Information Act Complaints Against Woodbridge School
Dear Mr. Morozowich:
This acknowledges receipt of three separate Freedom of Information ("FOIA")
complaints against the Woodbridge Board of Education ("the Board") and
the Raider Committee (a committee of the Board) dated May 8,
2000 and received in our Office on May 9, 2000. Each complaint is separately
described under the boldfaced headings below. In response to your
complaints, I contacted James D. Griffin, Esquire, attorney for the Woodbridge
Board of Education, to request copies of the agenda for the May 4, 2000
Raider Committee meeting and for the May 2, 2000 special board meeting.
To complete our review, a request was made of Mr. Griffin to provide information
concerning the process by which the Board receives the information about
the scholarship applications and the role of the Board in selecting the
final recipients. That information was faxed to our Office on May 26, 2000.
Mr. Griffin sent supplemental information concerning the Mary Bailey Scholarship
program by letter dated June 21, 2000.
Defective Notice and Public Comment for the Board's Special Meeting of May 4, 2000
This complaint alleges two separate violations: the first is that the public was denied an opportunity to speak at the May 4, 2000 special meeting. The second is that since the prior actions taken by the Board to approve a referendum subsequent to March 1, 2000 were void, the notice for the special board meeting for May 4, 2000 "to reconsider and re-approve the referendum issue" was invalid since the Board, in effect, was only considering the issue for the first time.
The purpose of the May 4th meeting, irrespective of the wording, was clearly stated on the posted agenda. The issue which you have presented is whether a semantic flaw in the wording of the notice is sufficient to substantially affect public rights under FOIA. As the Court of Chancery observed in the case of Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (August 29, 1986), Allen, C., the question to be addressed by any reviewing court or authority is whether the alleged violations of the statute "constitute technical violations not involving substantial public rights" Id. at 6. "Not every failure to comply with precision to the terms of this statute will involve substantial public rights and thus not every technical violation will support either a declaratory judgment or, more importantly injunctive relief." Id. Because the Board posted the notice in compliance with FOIA, and because there is no meaningful consequence to the Board's use of the words "to reconsider and re-approve the referendum issue" as opposed to the words "consider and approve," we find that there was no FOIA violation for defective notice. No substantial public right was affected by the decision of the Board to post the meeting for re-approval and reconsideration as opposed to some other wording which would have accomplished the same purpose. The Board did not violate FOIA as alleged.
Accordingly, no action will be taken by
this office on either issue presented by this particular complaint.
The Raider Committee Meeting
Your complaint stated that the notice for the Raider Committee meeting scheduled for May 4, 2000 violated FOIA because it "did not provide the requisite public notice of the specific business to be transacted." On April 19, 2000, the Board posted a public notice which read as follows:
A MEETING OF THE RAIDER COMMITTEE WILL BE HELD ON THURSDAY, MAY 4, 2000,
AT 7:00 P.M. IN THE BOARD ROOM AT THE DISTRICT CONFERENCE ROOM, 48 CHURCH
STREET, BRIDGEVILLE, DELAWARE.
Although Mr. Griffin informed our Office that the only subject of the Raider Committee meeting was to assist in passage of the referendum, the meeting notice did not contain an agenda or any other notice of the business to be considered at the meeting.(1) 29 Del. C. § 10004(e)(2) requires that the notice include an agenda of the meeting. A mere notice of the meeting is insufficient under the law. The Board violated FOIA by not including an agenda for the Raider Committee meeting of May 4, 2000. The question presented is what remedy is appropriate under the circumstances. We note that your complaint concerning the Raider Committee meeting of May 4, 2000 does not itemize what particular item of public business was discussed that was not included on the agenda. Since your complaint addresses only the form of the notice, there is no basis to conclude that any substantial public rights were affected by the Committee's conduct of the meeting of May 4, 2000 or that the public was prejudiced by the Board's failure to properly post the Committee's agenda. We find only a technical violation for which no remediation is required since, based on Mr. Griffin's representation, the only item of discussion was the referendum issue which was subsequently defeated at the polls.
The Special Meeting of the Board on May 2, 2000
The final complaint which you filed related to the special meeting of May 2, 2000 wherein the Board went into executive session to conduct "Student Hearings." You complain that the issue of "Authorizing the Awarding of Bailey Scholarships" was not on the agenda and that there was no urgent circumstance or compelling need to hold an executive session to authorize those scholarship awards without the seven day public notice required for regular meetings. We have obtained a copy of the agenda as posted for the May 2, 2000 meeting which included, among other things, the following items of business:
III Student Hearings
IV Executive Session
Since the Bailey Scholarships were not considered as part of the "Student Hearings" part of the meeting under the agenda, there is no FOIA violation as you alleged. Because the Bailey Scholarships were in fact discussed in the executive session, even though not included in the agenda for May 2, 2000, we will exercise our discretion and address that matter on our own initiative.
29 Del. C. § 10004(b)(9) permits the Board to go into executive session to consider "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." Evaluating which students will be eligible to receive a scholarship is within the ambit of a personnel matter and is a proper matter to be considered under the personnel provision for an executive session. The Board has recognized that it can consider personnel matters which relate separately to students and teachers and can provide public notice of its intention to consider them in executive session separately as it did on the agenda for May 11, 1999. In 1999 the personnel item did not stand alone on the agenda but included a reference that it related to staffing needs for the next year. The agenda item for May 2, 2000 stood alone and gave no indication of whether the matters to be considered were teacher, student, disciplinary or non-disciplinary. In light of its prior practice, the Board's failure to include an executive session notice for the review of the Bailey Scholarship applications for the May 2, 2000 special meeting was a violation of 29 Del. C. § 10004(b)(9) by failing to provide a posted notice that the Board would consider scholarship applications as a personnel matter in executive session. The question then focuses on the nature of the violation and the appropriate remedy, if any.
Based on the information provided to this Office in response to your
complaint, the Bailey Scholarship is a private trust and is administered
by the Mellon Bank ("Mellon"). Mellon receives the applications, processes
them and sends proposed recipients to the Board. The Board reviews the
names on the list and then makes an award recommendation to Mellon of the
persons who the Board believes should be the recipients of the award. Mellon
then makes the final decision as to who the recipients will be and the
names are subsequently announced at the high school's graduation exercises.
Even though the Board's only function is to review the names submitted
by Mellon and to make recommendations thereon, the process does require
the Board to consider the qualifications of the applicants for the award.
Since the competency of the students is an item to be considered by the
Board, it is entirely appropriate for the Board to do that in executive
session. The issue presented to this Office is whether the agenda correctly
stated the purpose for which the Board went into executive session. Although
it was entirely proper for the Board to consider the Bailey Scholarships
in executive session, the Board failed to include that item on the agenda
for the meeting of May 2, 2000. We find that the failure to do so is a
violation of 29 Del. C. § 10004(b)(9). We further find that the
failure to do so is a technical violation and that no substantial public
rights were affected by the failure to properly include that item on the
We find that there is no FOIA violation of notice or public comment with respect to the Board's special meeting of May 4, 2000. We find that the Board violated FOIA by failing to meet the requirements of public notice required by 29 Del. C. § 10004(e) with respect to the Raider Committee meeting and the notice for an executive session to consider the Bailey Scholarships. We further find that such violations were technical and did not negatively affect substantial public rights. We do not believe that any remedial action is required for these particular violations. Nevertheless, we do take this opportunity to admonish the Board for what appears to be a pattern of non-compliance and apparent disregard of the FOIA requirements for public notice.(2) Without regard to intent, what is clear is that, since February, the Board has failed to appreciate the seriousness this Office ascribes to FOIA compliance and/or the possible consequences of non-compliance. The Board does not consult with its attorney before posting its agenda, a practice which would obviously be less costly and burdensome than defending such claims under 29 Del. C. § 10005 either before this Office or the Court of Chancery, which has awarded attorneys fees to successful plaintiffs.(3) At some point, irrespective of whether the violations are merely technical and do not substantially affect public rights, a continuing pattern of violations will suggest that more formal action will have to be considered and more stringent sanctions sought to assure that the Board complies with FOIA and that the citizens of the school district are not deprived of the public notice of meetings to which they are entitled.
Very truly yours,
Michael J. Rich
cc: The Honorable M. Jane Brady
James D. Griffin, Esquire
W. Michael Tupman, Deputy Attorney General
Mr. Phillip G. Johnson
1. In Attorney General's Opinion IB 00-12 issued on April 27,2000, we noted that the Board agrees that the Raider Committee is a public body for purposes of FOIA.
2. The Board follows a practice of posting a "tentative" agenda. It is noted that 29 Del. C. § 10004(e) does not distinguish between tentative and non-tentative agenda. See Attorney General's Opinion 00-IB07, April 28, 2000. This Office concludes that all agenda must meet the requirements of 29 Del. C. § 10004(e). While there is no evidence of intentional conduct on the Board's part during the last three months, a practice over time of preparing incomplete agenda, of continually amending the agenda or assuming that any changes automatically will fit into the procedure allowed under 29 Del. C. § 10004(e)(5) or the exception for issues arising at the time of the meeting will create an impression that such conduct is intentional and designed to avoid the duties imposed on public bodies by FOIA.
3. Turner v. City of Newark, Del. Ch., No. 15787, 1988, (May 21, 1998) Chandler, C.