Showing posts with label Freedom of Information. Show all posts
Showing posts with label Freedom of Information. Show all posts

Friday, February 15, 2013

KNOW YOU FOIA RIGHTS: Constructive Quorums Violate both the Spirit of and Purpose of Open Meeting Laws

From the Office of the Attorney General, previous FOIA finding on serial board meetings and constructive quorums:

Our Office has previously determined that a public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body “to receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take.”
Att’y Gen. Op. 03-IB11 (May 19, 2003) (exchange of e-mails between the three members of a nominating committee over a two-day period). For serial discussions to amount to a constructive quorum, there must be “an active exchange of information and opinions” as opposed to “the mere passive receipt of information.”

Id. “It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum.”

Att’y Gen. Op. 06-ID16 (Aug. 7, 2006). Serial discussions may amount “to a constructive quorum of the public body when there was an active exchange of thoughts and opinions and members were asked to vote or adopt a particular point of view or reach a consensus on what action to take.”


Id. In Att’y Gen. Op. 04-IB10 (Oct. 18, 2004), a member of the county council drafted amemorandum proposing to allocate $15 million to the City of Wilmington for law enforcement and then circulated a copy of the proposal to the other six members of the council. Four members of the council signed the proposal which stated it “represents a consensus” based on telephone conversations among members of the council. Our Office determined “that those serial telephone calls amounted to a meeting of a quorum of the council in violation of [FOIA].”

In Att’y Gen. Op. 05-IB03 (Feb. 3, 2005), a member of the town council drafted a lettercritical of another member of the council and circulated it to three members of the five-member council, following up with telephone or face-to-face conversations to see if they agreed with her position. Our Office determined that “these contacts were more than the passive receipt of information” and “the sum of these communications amounted to a meeting of a public body covered by FOIA.”

More Here
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Friday, April 30, 2010

Open Letter to the Residents of the Christina School District

Dear Christina Constituents,

In a few hours C&E 1st will go on hiatus for three days as I hit the wilderness with my girl scout troop.  Before I go, I want to address an article in today's News Journal, Delaware schools: Christina board violated FOIA, AG's Office rules.

In March, I found myself in a difficult place.  The board had convened a public meeting that in my opinion was not properly noticed in accordance Delaware State law.  The night before the meeting, a fellow board member brought the omission of the Agenda from the posting to my attention.  On the morning of March 6th, I attended the board meeting at Sarah Pyle Academy and shared my concerns.  I presented a copy of the state's code on open meetings and Delaware's Freedom of Information Act to our board president.  He briefly considered the documents and determined that the meeting was "legal."

The meeting was called to order.  After the Pledge of Allegiance, I re-iterated my concerns with the appropriateness of the meeting and informed those in attendance that I would not stay and participate.  I have been committed to transparency since I began my campaign more than a year ago.  I was elected to position on that platform and will not deviate from my core values.  Participation in this meeting would have constituted both a personal moral and ethical violation. 

The meeting was conducted at the president's direction after I departed.

At the regularly scheduled March meeting, our president offered comments regarding the departure of a board member at the previous meeting.  It became apparent to me that the culture that sustains our district is one in which transparency is not clearly understood and that deficit is reflected in all of our actions.  I believed that the only place to turn for an accurate interpretation of the state code was the Office of the Attorney General for a Freedom of Information Act finding.

The FOIA reflected two concerns: 1)The proper posting of the March 6th meeting and 2) The lack of minutes for the on-going Agenda Prep meetings held prior to the regularly scheduled monthly board meetings.  In March, I, along with another board member, co-submitted a FOIA petition on behalf of the voters of the Christina School District to the A.G.  The findings were recently released and can be found on the A.G.'s website at  http://attorneygeneral.delaware.gov/office/opinions/2010/10-IB04.pdf

The Attorney General's Opinion supports the FOIA Petition.  Our Board of Education was found to have incorrectly interpreted the code and as a result, has held questionable meetings.  The A.G. does recognize that the board did not vote or take any other action during the meetings that were the subject of the FOIA. 

For many, the above chain of events will evoke anger.  It did for me, for a number of reasons.  But, I am more concerned for the district's constituents, that they have historically been shut out of process and lost their opportunity to have a voice on policy in times when it has been direly needed.  There are some that support the "old guard," who will be angry that I or any other board member rocked the boat.  They will argue that this was not a matter that should have gone before the A.G. and that I am part of a rogue gang of board members who have a secret agenda.  I know this because in recent weeks those rumors have made their way back to me. 

I assure you that I am neither a "rogue" board member nor do I have a "secret" agenda.  My agenda has been very public from day one:  I seek to create transparency and ensure accountability in our best efforts to provide a world class education for all students.  I will go to the ends of earth -- and the A.G.--  to ensure that I have maintained that effort. 

Had the A.G. found for the district, I believe that I would feel the same satisfaction, in knowing that I had engaged process to ensure that we were following both the letter and the spirit of the law.  This was a necessary step to ensure that our actions support our assertions.  I am a passionate advocate for open government and true democracy and as such I have included the FOIA petition submitted to the Attorney General in tab, labeled Pages, to the right of this post.  It is my hope that you will draw your own conclusions about the appropriateness of these meetings, the filing of the petition, and the A.G. Opinion.

Ultimately, I am satisfied with and saddened by the outcome.  I admit to being a part of meetings (Agenda Prep) that were not in compliance with the state code.  I bear that responsibility and have taken the necessary action to rectify it, through this FOIA petition.  I continue to be troubled by what appears to be a history of such meetings and I cannot tell you (having only been on this side of the board for 10 months) how many such meetings have occurred in the last thirty years. 

Accidental as it may seem, it's ultimately a sad chain of events.  It is, however, a necessity, as in my opinion, we as both a district and a board are without the ability to change erroneous behavior if we do not acknowledge it.

Sincerely,

Elizabeth Scheinberg

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Wednesday, March 10, 2010

Sunshine ...

"Sunlight is said to be
the best of disinfectants."


From U.S. Supreme Court Justice Louis Brandeis
speaking on open government laws.

Title 14
http://delcode.delaware.gov/title14/index.shtml

Title 29
http://delcode.delaware.gov/title29/c100/index.shtml
State Government

General Regulations for State Agencies
CHAPTER 100. FREEDOM OF INFORMATION ACT

§ 10001. Declaration of 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 in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.

§ 10004. Open meetings.
Excerpt:
(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings, including whether such meeting will be conducted by video-conferencing; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body's meeting.

(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available. In addition, all public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post said notice to the designated State of Delaware website approved by the Secretary of State.

(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.

(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer. All public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post final approved minutes of open public meetings to the designated State of Delaware website approved by the Secretary of State within 5 working days of final approval of said minutes.
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