Sussex Tech cited for FOIA violation in hiring of superintendent

By Brooke Schultz
Posted 2/25/21

GEORGETOWN — Sussex Vocational Technical School District violated the Freedom of Information Act in hiring its superintendent in November, the attorney general’s office has ruled.

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Sussex Tech cited for FOIA violation in hiring of superintendent

Posted

GEORGETOWN — Sussex Vocational Technical School District violated the Freedom of Information Act in hiring its superintendent in November, the attorney general’s office has ruled.

The ruling was made Thursday by Deputy Attorney General Dorey Cole, who found the district did not give adequate notice on the agenda of its intent to vote on the superintendent’s appointment.

The opinion recommended that the school board “remediate this violation by conducting a vote in open session at a future meeting with proper notice of its intended action,” though noted that the authority to invalidate a vote lies solely with the courts.

Kevin Carson was tapped to serve as interim superintendent for Sussex Tech in July, after the resignation of then-superintendent Stephen Guthrie. He had previously worked as assistant superintendent at Sussex Tech.

In November, Dr. Carson was appointed superintendent in a unanimous vote by the board at their meeting on Nov. 9. No discussion of the appointment occurred during public session.

The board’s posted agenda listed “personnel action items,” under which Dr. Carson’s appointment was handled.

In other rulings, the attorney general’s office has previously declined to recommend remediation when it would cause disruption or when the public “had additional opportunities to observe the superintendent selection process.”

“We can discern no other opportunity in this record for the public to observe the appointment of the superintendent, and he was in an acting position for months prior to his appointment,” the opinion reads. “Unlike previous precedent, a re-vote in these circumstances will not cause significant disruption to the district.”

The ruling took no issue with the use of “personnel matters” on the agenda for closed session. While FOIA permits an executive session for discussing personnel matters, agendas should alert members of the public to items and votes of “intense interest,” the opinion states.

The opinion states that “broad descriptors” such as “Personnel” and “Personnel Action Items,” for open session, however, were insufficient “in alerting any citizen with an intense interest in the matter of the renewal of the superintendent’s contract that it would be addressed at the meeting.”

In response to the petition alleging the violation, the board’s attorney told the attorney general’s office that the board complied with FOIA by giving adequate notice, arguing that “even if a violation took place, ... the lack of notice caused no harm because no discussion of the appointment of the superintendent occurred at the meeting prior to the vote that the public could observe.”

The response also adds that if Dr. Carson’s contract had not been renewed, “the public would have learned of his non-renewal at the same time he did,” according to the opinion. It goes on to say that he wouldn’t have “any privacy or a chance to be informed of such traumatic information before its publicity, and would be completely contrary to how public business transacts in Delaware.”

Because the public would not have known the superintendent’s contract was being voted upon in November, however, the opinion found it constituted a FOIA violation.

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