Indian River School District violated open-meeting laws

Indian River School District violated the Freedom of Information Act at its Aug. 23 school board meeting by voting on items that were not adequately noticed on the agenda, the state Attorney General’s Office found Sept. 27.

“If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirements of FOIA,” the Attorney General’s Office opinion states.

At the meeting, board members motioned and voted on two items not on the approved agenda – a vote for no confidence in Gov. John Carney’s mask mandate, and a vote to submit a petition asking for the emergency order to be reconsidered or revised. 

The votes came during a marked discussion item titled 2021-22 School Year (D), and a motion to amend the agenda to include the votes was not made before the votes were held.

“The IRSD knew or should have known that the state mask mandate would come up during the public comment period, and if it wanted to hold a vote on topics related to mask mandates, it should have been listed as its own item on the agenda to put parties on notice,” the opinion states.

In the opinion regarding the FOIA petition filed by William Pickett, the Attorney General’s Office found Indian River violated the law because the agenda item was a “very broad and encompassing topic, and is too vague to be reasonably tied to the two contested votes.”

Through its legal counsel, Indian River argued that the school board did not violate open-meeting requirements as FOIA “allows for the amendment of the agenda for those items that ‘arise at the time of the public body’s meeting,’” the opinion states.

In its response to the petition, Indian River officials stated that the two contested votes occurred after attendees expressed dissatisfaction with the mask mandate and urged the board to take action. The district stated “the vote was made directly in response to the public comments and was a ‘natural evolution of the discussions to the 2021-2022 school year plan, which was a publicly noticed item.’”

Pickett filed a response to Indian River’s submission, stating the agenda item was not sufficient notice and too vague, the opinion states. Pickett stated that the board was aware that masks were an issue of interest to the public, “and cannot now claim that it came up for the first time at public comment and could not have been properly noticed.”

FOIA requires public bodies to give at least seven days’ notice of any meeting and include an agenda in the notice. Agendas may be changed to include additional items that arise during the meeting. 

In the opinion, the Attorney General’s Office stated it disagreed with Indian River’s argument that the two contested votes flowed naturally from the agenda item and that the votes were permitted changes. 

The Attorney General’s Office found Indian River’s agenda item was too broad and general, and did not alert the public that votes would be held on significant issues, the opinion states.

Delaware Public Health spokesperson Mary Fenimore said DPH has not received a petition from Indian River School District. Representatives from the Office of the Governor could not be reached for comment as to whether Carney had received a petition.

Fenimore said DHSS had received a comment regarding the mask mandate from Delmarva Christian Head of Schools Matt Kwiatkowski, who stated in an Aug. 24 email to families that the school will comply with the mask order while also petitioning the order to Delaware Health and Social Services.

“The Division of Public Health provides a summary evaluation of written comments in the Summary of Evidence attached to the order adopting the regulations as final, which is published in the Register of Regulations,” Fenimore said. “These regulations have not yet been published as final.”