Cause for Debate? Board members violating executive privelege?

By Elizabeth Scheinberg

It's been a busy week for me and that's delayed my dissection of the latest Department of Justice FOIA on education issues:

But, here are my first thoughts: Red is direct quotations from non-CE&1st sources.

From: John Young's FOIA to the DOJ regarding the 8/4/15 board meeting:

Additionally, it has come to my attention (I was unable to attend this meeting due to a work meeting out of state) that the Board held a vote in executive session to prevent a board member from making and audio recording of the meeting (not sure that practice is permitted/not permitted). I believe that all votes must occur in public and not in an executive session. I am seeking to determine if this was a FOIA violation with the expectation that a determination as such would likely not yield a remediation beyond a response indicating the BOE will not hold any votes in executive session.

And the FOIA Found:

...we find that the CSB violated FOIA when it “recommended that [the] Executive Session meeting not be recorded” while in executive session. Pursuant to 29 Del. C. §10004(c), “all voting on public business must take place at a public meeting and the results of the vote made public” (emphasis supplied).

Clearly, there is no debate that the CSD board erred. And DOJ considers this error so minute that it has not recommended compensatory measures.

The CSB conceded that it voted on the recording issue during executive session and agreed to refrain from taking any votes in executive session in the future...

However, we find that the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded. Therefore, no remediation is required. http://opinions.attorneygeneral.delaware.gov/2015/12/01/15-ib10-1212015-foia-opinion-letter-to-mr-john-young-re-foia-complaints-concerning-the-christina-school-board/

The DOJ finding does, however, raise another question. Mr. Young stipulated that he was not present at the meeting. How then did Mr. Young come to know that a vote was taken during this executive session? And if a fellow board member felt that a violation occurred, why didn't he/she file the foia?

And the deeper question - Where does executive privilege begin and end? Do individual board members hold an executive authority that allows them discuss the content of executive session outside of the session?

Remember that the content is highly confidential regarding legal or personnel and that executive privilege can only be waived by the subject of the personnel inquiry.

While the vote in question was not personnel, Mr. Young's petition does raise an important legal question: Can the body refuse the right of a member to record in executive? Does the concept fall within the legal realm? Was the discussion legal and just the vote a violation? If so, was privilege violated when a discussion occurred outside of executive about this particular content?

The DOJ has found that "the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded." And the CSB was fortunate in that regard.

But, the question that remains to be answered, and sadly DOJ did not opine on it - Where does privilege begin and end?

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