Delaware Atty General Office Invalidated Appoquinimink Superintendent Contract Due To FOIA Violations

Thanks to “Armpit” for sending this one to me!  Apparently, Delaware Attorney General Matt Denn’s office received a petition from a concerned citizen in the Appoquinimink School District due to an open meeting violation concerning their school board.  Superintendent Matthew Burrows contract was invalidated due to the FOIA violations!  You can read the legal opinion here but I will give the highlights:

We find that Executive Session and Public Meeting Agendas for the June 2014 Board Meeting violated FOIA and affected substantial public rights.  In a similar case, we determined that the school board violated substantial public rights “by deciding who to hire as the new [District] superintendent outside of public view.”  Del. Op. Att’y Gen. 02-IB17, 2002 WL 31031224, at *8 (Aug. 6, 2002).  In that case, the “specific rights at issue . . . were the rights of students, parents, teachers, and other concerned citizens in the District to be involved in the selection of a new superintendent.”  Id.  However, we declined to invalidate the school board’s approval of the new superintendent for equitable reasons.   See id., at *10.

Similarly, although we find that the Board’s June 2014 Meeting and related agendas violated FOIA, we decline to determine that the approval of the Contract is invalid for violation of the open meeting law.7  The record indicates that after Mr. Weller raised his concerns about the adequacy of the Board’s June 2014 meeting agendas, the Board placed the matter on its November agenda, engaged in a public discussion about the Contract at the November meeting, and voted on the Contract at the November meeting. The Board also completed FOIA training in a public session in November 2014 in order to gain additional understanding of FOIA’s public meetings laws.  Therefore, we find that the Board has already taken action to cure the June 2014 violations of the open meetings laws.  Under the circumstances, no additional remediation is required.

Even though the matter was fixed by the board, it still happened.  What would have happened if Mr. Weller never brought it to the Attorney General’s attention?  If I ever meet Mr. Weller I would like to shake his hand for his bravery and determination in this matter.  School boards are elected officials, and they need to follow the letter of the law!

5 thoughts on “Delaware Atty General Office Invalidated Appoquinimink Superintendent Contract Due To FOIA Violations

  1. a. The Discussion of the Superintendent’s Contract in Executive Session Is Not Authorized by FOIA

    As an initial matter, we find that the Board violated FOIA by discussing the Contract in executive session, which is not a permissible executive session discussion under FOIA. While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.” Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013). Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance. Id., at *18. Thus, we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent. Id.

    Even if we find that the Board properly discussed Mr. Burrow’s competency and abilities in executive session, there is insufficient support in the record for the Board’s contention that it only discussed the competency or abilities of the superintendent in executive session. Rather, the Board also discussed the renewal of the Contract and the terms of that Contract. “On its face, FOIA does not permit public bodies to engage in private strategy sessions regarding employment-related contracts outside of a collective bargaining or litigation context.” Id.

    In short, any exceptions to the open meeting requirements are to be construed narrowly. See Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984) (“[O]pen meeting laws are liberally construed, and closed session exceptions within these statutes are strictly interpreted to limit nonpublic meetings.”). Thus, we find that under the circumstances of this case, the Board violated FOIA when it discussed the renewal of the Contract in executive session.

    b. The Public and Executive Session Agendas did not Comply with FOIA

    The Board’s June 2014 meeting agendas violated FOIA because the agendas did not provide notice of the Board’s intention to discuss and vote on the superintendent’s employment Contract. “FOIA requires that any such ‘notice’ include an agenda notifying the public of important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.” Del. Op. Atty. Gen. 12-IIB13, 2012 WL 6858961, at *4 (Dec. 21, 2012). As noted by the Court of Chancery:

    While the statute requires only a ‘general statement’ of the subject to be addressed by the public body, when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of the Freedom of Information Act to state the subject in such broad generalities as to fail to draw the public’s attention to the fact that specific important subject will be treated.

    Ianni v. Department of Elections of New Castle County, 1986 WL 9610, at *6 (Aug. 29, 1986) (Allen, C.). Here, the public had no way of knowing that the superintendent’s Contract would be considered and voted upon by the Board at its June meeting. The post-meeting revision to the June agenda did not remediate this violation. No member of the public could decide whether or not to attend the June meeting based on the agenda provided, and by the time the amended agenda was posted, it was too late. Therefore, we find that the Board did not comply with FOIA’s notice requirements with respect to its discussion of the superintendent’s employment Contract at the June, 2014 Board meeting.

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  2. All public school employee and state charter school employee salaries should be available based on the fact that theor salaries are paid by TAXPAYERS!!!

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