Brandywine Board Violated FOIA According To DOJ Legal Opinion Over Removal Of Student Discipline Record

An attorney representing a student in the Brandywine School District filed a FOIA complaint against the Brandywine Board of Education.  The matter concerned expunging a disciplinary record for a student.  While the report does not go into details, obviously, of who the student was or the incident that led to a disciplinary action, that was not the basis for this FOIA complaint.  The Brandywine board decided against expunging the student’s record in executive session but did not vote on the action item on their agenda in public session.

From the legal opinion:

FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting.   See 29 Del. C. § 10002(a).  If the public body intends to go into executive session, it must so indicate in the agenda.   See id.   Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public.   Id.  Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op.Att’y Gen. 06-IB12, Del. Op.Att’y Gen. 05-IB29, Del. Op.Att’y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.

The Board does not have any procedures for considering a student’s request to expunge his or her record.[2]  The process is discretionary.  Counsel for the Board argues that there was no vote in executive session.  The statute does use the term “vote,” but we take a practical view and look at whether a matter was “decided,” even if the body avoids a vote.  The Board sent a letter “declining” a proposal; this acknowledges that a decision was made.  Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over.  In any event we cannot say that the decision was made publicly.  We believe the import of the statute’s language that “all voting on public business must take place at a public meeting and the results of the vote made public” is that the public should  be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session.  Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.

We find that the aforementioned Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA.  The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.

The attorney representing the student received an email from the district’s attorney which stated:

On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, “Steve. Given the strength of the District’s position it declines your client’s proposal to clear his record.”

While this does not make this a legal ruling, but rather an opinion, if the party who filed the FOIA complaint wished to pursue legal action, they certainly could.  However, by state law, the Department of Justice could not sue since school districts are a part of the state.  Last month at the Delaware State Board of Education there was an appeal matter on the board’s agenda.  This concerned an appeal against the Brandywine Board of Education.  It is not known if the two are connected.  To read the full ruling, please go here.

Delaware Senate Bill 165 Would Make Referendums Once A Year & Change School Board Elections To US Mail Only

Apparently there was a Delaware Senate Bill submitted on July 15th that I didn’t know about.  I found out because the House has a pre-filing day today so I thought I would check the Senate Side.  House Bill 165 would drastically change things with school district referendums.  Instead of a district having more than one referendum in a year, all school districts would have their referendum on the 2nd Tuesday of May.  This is also the same day when school board elections take place.  As for those school board elections, instead of having them at schools, they would take place through the US Mail system.  This bill is sponsored by Senator Karen Peterson and State Reps Michael Ramone and Deborah Hudson.  Co-sponsors are Senators Brian Bushweller and Margaret Rose-Henry and State Rep. Stephanie Bolden.  I assume a lot of this is in reaction to the Red Clay referendum last winter which is also part of a lawsuit.  To read the legislation, please see below:

16 To Watch In 2016: Senator David McBride

Delaware Liberal wrote about this half an hour ago.  I woke up and wasn’t sure what to write about today (yes, there are days like that).  And then I read their article.  Senator David McBride has colorectal cancer.  This is a man who has faithfully served in the Delaware legislature since 1978.  Ever since he defeated former State Rep. Robert Byrd, McBride has represented Delaware.  To give some perspective here, I was eight years old when he was elected.  That was 37 years ago.

Senator McBride wrote a letter to his friends and constituents on his Facebook page about his diagnosis.  It was very intimate and personal, but he wants to get the word out.  I admire this long-standing Delaware State Senator for his conviction and courage in what will be a difficult time.  No matter what your politics are, we will all be praying and rooting for Senator McBride in the year ahead.

Friends and Colleagues,

“How are you doing?”

“I’m great, thanks.”

It’s a simple greeting and reply – so automatic it’s almost rhetorical.

And, if you’d asked me that two months ago, it’s exactly the reply you would have gotten. I was exercising, eating well and never felt better.

Then last month, came the words no one ever wants to hear: “Dave, you have cancer.”

Fortunately because my colorectal cancer was detected during a regular screening, I was able to receive prompt treatment. And there’s a road to recovery that my wonderful doctors have put in place. I just have to follow it.

And in some ways, that’s the biggest challenge – dealing with the mental and physical toll of cancer treatment. In part, that’s why I’m writing you today, to ask for your encouragement and your prayers.
Most of you know that I tend keep my private life just that – private – so getting to the point where I could tell you this has been tough. At the same time, I’ve spent my career being honest and forthright. It’s who I am as a Senator and as a man, and it quickly became apparent to me that I must be true to those values, even in the face of this new challenge.

You deserve the truth, but even more than that, you deserve to hear the truth from me.

The truth is, I can’t help but smile at what I see as some real irony in all of this. During my Senate career, I’ve been proud to count myself as a leader in Delaware’s war against cancer. I sponsored the indoor smoking ban and supported efforts to use money from our share of the national settlement with Big Tobacco to fund the state’s Health Fund. Among other things, that fund helps provide money to support cancer screenings for people who couldn’t afford them otherwise. I also sponsored the legislation setting up the Delaware Cancer Consortium, which helps coordinate and guide our state’s ongoing battle with cancer. I really believe those efforts have saved some lives here in Delaware.
And it’s my hope that sharing my story with you today might save some more.

Early on, the Cancer Consortium decided to make colorectal cancer a priority not only because it’s so prevalent, but also because if it’s caught soon enough, it’s treatable and beatable.
Like most of you who are old enough to start the screening process, it’s not something I look forward to. Anyone who has had to take those two doses of the laxative from hell before screenings can easily think of a thousand other things we’d rather do.

In my case, three years ago, it was determined I would undergo annual screenings.

That decision saved my life.

As many of you know all too well, cancer begins as a stealthy disease. Until I heard those words from my doctor, I had no clue I was ill. I thought I was in incredibly good health and was doing all the things I usually did.

Thank God I followed my doctor’s advice and had my screening. And in turn, I hope you’ll take my advice and do the same.

As I write this, I’ve had surgery to remove the cancer and am about to embark on a regimen of chemotherapy to ensure that the disease has been fully defeated. I know that means I’ve got a fight on my hands. It’s a fight I’m ready for now.

I wasn’t so sure just a few weeks ago. As many of you know from first-hand experience or by being at the side of a family member or friend who’s had cancer, the pain has been beyond description. And as upbeat as you all know me to be, the discomfort, coupled with the mental anguish of coming to terms with my experience had plunged me into some real despair.

But I’ve really turned the corner over the last several days, and it’s because of the outpouring of love and support I’ve received from so many.

My wife, Margaret, and my family have helped bolster my spirits, as have the amazing staff at Christiana Care. Words cannot begin to describe the care and support that everyone – from the doctors and nurses to the technicians (who always seem to be checking your vital statistics) and even the friendly cleaning staff – has offered.

Then, there’s all of you.

Serving you as your senator has been one of the great privileges and passions of my life. I care deeply for all of you and my desire to continue serving you and doing the important work that lies ahead has, more than anything, picked me up and pushed me forward.

To be sure, I have a journey ahead of me. There’s six months of chemotherapy to come. But, come Jan. 12, I’ll be on the Senate floor, ready to go to work. There are big challenges ahead of us and I want to be a part of the solution. I look forward to:

• Continue my work with Chief Justice Leo Strine to revise and modernize our criminal sentencing laws as we’ve done over the past couple of years with a wide range of environmental crimes;
• Continue my work as chairman of the Senate Natural Resources and Environmental Control Committee to preserve and protect Delaware’s fragile and scarred environment;
• Lend my experience and leadership to our state’s efforts to create jobs and grow our economy, while overcoming some tough financial challenges;
• Continue my tireless and passionate advocacy for you, my friends and neighbors in the 13th Senatorial District.

While I intend to continue my record of perfect attendance at regular Senate sessions and to keep up my community involvement, there may be times when my treatment will necessitate sending a member of our amazing Senate staff out to community meetings in my stead. They’ll give me full reports and will be able to reach out to me electronically on the spot if there’s something they think demands my immediate attention. Be assured that my resolve to serve you and my energy are undiminished.

In closing, I want to thank my friends for their well wishes and prayers of support.

More than anything, your support will be the thing that helps me beat this. And down the road, we’ll all get together for one heck of a victory party when I beat this disease.

I may be an old Air Force guy, but I’ve always loved the Navy SEALS creed: “I will draw on every remaining ounce of strength…to accomplish our mission. I am never out of the fight.”

With gratitude,

David McBride