By Glenn Rolfe

GEORGETOWN – Delaware’s Attorney General’s Office has ruled Indian River School District and its board of education violated Delaware’s Freedom of Information Act at its Aug. 23 meeting by voting on two items, including a state mask mandate for all students, that were not on the public agenda.

The school board’s first vote, approved by a 9-1 margin, was to express “no confidence” in Gov. John Carney and his mandatory order requiring masks for all students.

The second vote, approved 10-0, was to petition the Delaware Department of Education, DOE Secretary Dr. Susan Bunting and Gov. Carney to “reconsider or revise the emergency order” placed on the state under Delaware Code.

The FOIA complaint was brought by William Pickett. The FOIA complaint was brought by William Pickett. Earlier in the year, Mr. Pickett submitted an open meetings request against Georgetown for emailing council members as to whether to recognize Juneteenth as a formal holiday.

In response to that complaint, on July 23, the state Attorney General’s Office determined the town violated the state’s open-meeting requirements.

FOIA requires that public bodies, such as the IRSD, give at least seven days’ notice of any meetings, and shall include in the notice “the agenda, if the agenda has been determined.” The agenda should, at least “alert members of the public with an intense interest in the matter that the subject will be taken up by the [public body].” The statute further provides that an agenda may be changed to “include additional items ... which arise at the time of the public bodies’ meeting.”

The IRSD, through its legal counsel, provided a response to the petition on Sept. 1. The IRSD argued that the board of education did not violate FOIA’s 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 IRSD further argued that the standard for amendment of the agenda at the meeting, which “requires a showing that the item truly did arise at the time of the meeting, as a natural evolution of discussions of a related publicly noticed item” was met.

IRSD asserts that its agenda for the Aug. 23 meeting included a topic titled “5.02. 2021-2022 School Year (D)” which it asserts included a discussion “concerning Safe Return to In Person Instruction and Continuity of Services Plan” and one of the topics that came up during this discussion was masks.

The district argued that the two contested votes occurred after the public comment period during which “several members of the public expressed their dissatisfaction and concerns regarding the governor’s mask mandate for students in Delaware schools and urged the board to take action.”

Furthermore, the IRSD asserts that the vote was made directly in response to the public comments and was a “natural evolution of the discussions related to the 2021-2022 dchool year plan, which was a publicly noticed item.”

According to the Attorney General’s Office, the agenda item “2021-2022 School Year (D),” is a very broad and encompassing topic, and is too vague to be reasonably tied to the two contested votes.

“However, this office cautioned that at some point, the issues may so far depart from the issues noticed on the agenda that they are better reserved for the next meeting of the public body so that the public will have adequate notice,” stated Deputy Attorney General Annie Cordo in the ruling.

“This is that point. 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 ruling further stated 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.”