The votes elicited cheers from some of those in attendance under the lights of the football field at Sussex Central High School in Georgetown during a late August meeting of the Indian River school board.
But the board’s decision to vote no confidence in Delaware Gov. John Carney, as well as a vote to petition to the state’s education department over school mask mandates was more show than substance. The statewide mask policy issued by the governor in August covered both public and private schools and took the decision out of the hands of local districts.
“We’re speaking out as a board,” district board president Rodney Layfield said during the Aug. 23 meeting. “I think this was what we could do to exercise … what little local control we have within our district.”
Those votes, however, violated part of Delaware’s Freedom of Information Act law when the board failed to properly alert the public by putting the matters on the public agenda in the lead-up to the meeting, according to an Attorney General’s office response to a FOIA petitioner.
Delaware’s FOIA law requires public bodies like the school board to give seven days notice of any meetings and requires, in that notice, the public body to provide an agenda. That agenda is supposed to alert members of the public with that a certain subject will be taken up by the public body. Further, the law states that the agenda can be changed to “include additional items… which arise at the time of the public bodies’ meeting.”
The school district, according to a response to a FOIA petition filed by a member of the public and provided to Delaware Online/The News Journal, argued that an agenda item titled “2021- 2022 School Year (D)” implied a discussion would be had on the safe return to school. “No such language was included on the agenda,” the AG’s office said.
The AG’s office wrote that “the question is then whether the entry titled “2021-2022 School Year (D)” satisfies” previous Delaware precedent and enough information to “put members of the public ‘intensely interested’ in [masks] on notice that they should attend the meeting.
“We find that it does not.”
The AG’s office said the agenda entry was “too broad” and “too vague to be reasonably tied to the two contested votes.”
Indian River “asserted that the votes made by the Board of Education on August 23 were made in direct response to numerous public comments regarding the Governor’s mask mandate and were directly related to an agenda item regarding the 2021-2022 school year,” a district spokesperson said in a statement. “The Delaware Attorney General’s Office has determined that the agenda item was overly vague and that the votes constituted a violation of the Freedom of Information Act.”
The ramifications of that violation are not clear.
“While the DOJ provides legal opinions on FOIA appeals, we have not been granted any injunctive or punitive enforcement power when FOIA has been violated,” spokesperson Mat Marshall said in a statement. “FOIA violations dealing with records requests often have clear remedies, and we will sometimes suggest a remedial action when we see one.”
It’s possible harmed parties may be able to pursue a civil lawsuit, though it’s not clear what would be gained from such a suit.
The Indian River board meeting Aug. 23 came on the heels of a series of school board meetings around the state that brought opponents of school mask mandates to public comment sessions to express their outrage at the governor’s order while asking district board members to do more to represent their concerns.
Some meetings featured passionate speeches from parents saying they should have the choice whether to mask their children or not. Others, like the August Cape Henlopen meeting, were not able to finish when members of the public were not compliant with meeting rules.
Indian River’s meeting came on a Monday following a week where at least four school board meetings included public comment periods with anti-mask rhetoric. The board, which serves a district in Delaware’s largely conservative Sussex County, twice extended the public comment period to allow members of the public to speak.
After the public comment period, a motion from board member Charles Hattier called for a vote of no confidence “in the governor, his staff or (the Delaware Department of Public Health).” All but one board member agreed with him.
Board member James Fritz took issue with the Department of Education.
“My biggest issue is pretty much the fact that the governor and Dr. Bunting, who carries this order, have decided to take power away from the local school districts,” he said.
Fritz made a motion for the board to submit a petition to the Department of Education asking for the emergency order to be reconsidered or revised, which he said they must respond to. It passed unanimously.
Those motion and votes, however, violated Delaware code.
“While the IRSD argues that it was unable to notice a meeting due to the start of the school year and it had to be handled at that meeting, that is not a sufficient reason to avoid providing proper notice of important topics such as voting no confidence in the Governor or requesting a mask mandate be removed,” the AG’s office wrote.
The FOIA petitioner said the agenda item was “not sufficient notice as it was too vague to put members of the public on notice that masks would be included in that discussion,” the FOIA response said.
The district, according to the FOIA response, argued that the votes were made directly in response to the public comments and were a “natural evolution” to the 2021-22 school year plan on the agenda item.
The AG’s office, disagreed.
Despite holding a vote that effectively appeased a cheering crowd, the board has not yet filed any petition to the Delaware Department of Education over the mask mandate, a spokesperson for the department said.
Contact reporter Jeff Neiburg at firstname.lastname@example.org. Follow him on Twitter @Jeff_Neiburg.