Presented by:
Adria B. Martinelli, Esq.
Young, Conaway,
Stargatt & Taylor, LLP
amartinelli@ycst.com
Open
Meetings
Compliance
for Schools
Open Meetings – The Policy

“It is vital in a democratic society that
public business be performed in an
open and public manner so that our
citizens shall have the opportunity to
observe the performance of public
officials and to monitor the decisions
that are made by such officials.”
29 Del. C. § 10001.
What Is a “Meeting”?

Any “formal or informal
gathering of a quorum of the
members for the purpose of
discussing or taking action on
public business”


Beware of “serial meetings” where
consensus is reached
Court will look at nature, timing, &
substance of communication to
determine if meeting occurred
What Is a “Meeting”?


Any time where public business is
discussed, even if no action taken
Can include


Informal meetings where no action
taken
“workshops”
What is a “Meeting”

Email

Cannot have active exchange of
ideas, vote, or take straw poll among
a forum of Board
Narrow Exceptions

Every meeting of all public bodies shall
be open except:
1.
2.
3.
4.
5.
Discussion of an individual’s qualifications
to hold a job
Strategy sessions including legal advice
with respect to pending or potential
litigation
Personnel matters in which the names and
competencies of employee or student
discussed
Hearing of student disciplinary cases
Discussion of non-public documents
Qualifications

Personnel matters (29 Del. C. §
10004(b)(9))

Relates to current employees, not
applicants
Strategy Sessions


Attorney present not enough
Must relate to pending or potential
litigation


reasonable threat based on objective
factors: demand letter, notice of intent
to sue, prior litigation between same
parties on topic
Must adversely affect agency’s
position in lawsuit

“litigation status update” not sufficient
Personnel Matters


Must be discussion of specific
individual and their
qualifications/performance
Does not include personnel matters of
a more general nature
**could relate to competitive position in
collective bargaining

Does not include information about an
employee’s salary or other
compensation, which is public
information
Non-public documents



Draft documents
Applications for personnel
Personal information: social security
numbers, home address, telephone
number
Agenda

Must be posted 7 days in advance
of meeting


Proof of posting
Avoid amending within 7 days
unless it’s a true emergency – THEN


No less than 6 hours’ notice
State reason for the late notice
Agenda – Do’s and Don’ts

DO

Include date, time, and place of
meeting prominently




Include where meeting will resume after
Executive Session
Include date of posting prominently at
the top
Be as specific as possible as to topics
Include Executive Session and reason
Agenda – Don’ts

DON’T



Do not state that agenda is “subject
to change”
Do not include “Old Business” on the
agenda items
Do not leave “Personnel and
Litigation” as the standing reason for
an Executive Session
Minutes


Minutes must be maintained of all
meetings, and posted on website
within 5 days of their approval
Must include



All members present
Record, by individual members, of each
vote taken and action agreed upon
Once a matter is addressed, must be
done in a way that is not misleading
Remedies for Violations

Petition to AG to determine whether
violation occurred

AG can:





Public slap on wrist
Void any action taken at improperly
noticed meeting
Order new meeting to take place for
public discussion
Make minutes of executive session public
Enter into consent decree with other
requirements
Remedies for Violation

Citizen can file suit in Court of
Chancery



Injunction
Declaratory judgment
Attorneys’ fees and costs
Case Studies – Dewey Beach*

Violations




Did not date agendas or otherwise
provide evidence of when they were
posted
Each agenda simply noted “EXECUTIVE
SESSION – PERSONNEL AND LITIGATION”
Executive sessions were “the rule not the
exception”
Agenda failed to give notice of major
business to be discussed
* decision July 13, 2012
Dewey Beach

Violations (cont.)


Agenda included misleading
statement: “Please be advised that this
agenda is subject to amendments
including additional or deleted items”
Amendment permitted ONLY for items
of an emergency nature OR at least 6
hours’ in advance if cannot reasonably
be delayed until next meeting
Dewey Beach

Remedies awarded:

“open meetings violations have been
so obvious, prolonged, and habitual,
that extraordinary violations require
extraordinary and rigorous remedies”
Dewey Beach

Remedies Agreement required:
 Council shall deliver to AG within 10 days,
copies of all minutes of public and executive
session that we have determined to have
violated FOIA
 For one year, Council shall provide agendas to
AG at least 10 days in advance of any meeting
 Council shall prominently post on the 1st page
of every agenda the date, time and place of
posting
Dewey Beach

Remedies awarded


Council shall refrain from any
mention on meeting notices and
agendas of any right to amend the
agenda
Council shall refrain from amending
any posted agenda without first
obtaining consent of AG 48 hours in
advance of meeting
Case Studies – Capital School
District*

Violations Found:
1. Failed to identify in its posted agenda
the subject matter of executive
session
 Announcement at the meeting not
enough
* Decision Jan. 6, 2012
Capital School Dist.
2. Ambiguous notice of where the
public meeting would resume
 “Board will meet for a Public
Meeting[location not specified] and
go into Executive Session . . . In the
Library to discuss Personnel,
Negotiations and Litigation. It will
then return to the auditorium for
Public Session.”
Capital School Dist.

Violations found
3. Approved a 5% salary increase for
administrators without giving proper
notice of its intent to discuss and act on
salary increase
Capital School Dist.

Remedies:
 Executive sessions could be deemed
public, but “since Board may not have
fully understood FOIA’s requirements
regarding executive sessions,” just a
stern warning
Capital School Dist.

Remedies:


Caution to given proper notice of
location and time of public meetings
District to propose how to reconsider
salary increase issue
Review
1. Cautious of public business
(including email) outside of public
session
2. Agenda should include all major
issues known to be addressed at
meeting
Review
3. Avoid revising agenda with less than 7
days’ notice unless emergency – then
give reason
4. Limited topics for executive session:
make sure topics fall into exceptions and
identify clearly in agenda
Review
5. Minutes need to include each
Board member’s vote
6. Be posted within 5 days’ of
approval (normally at regular
meeting)
THE END