School District Found in Violation of FOIA

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By Terry Rogers

On July 7, 2017, the Delaware Attorney General’s Office found Milford School District and the Citizen’s Budget Oversight Committee (CBOC) in violation of the Freedom of Information Act (FOIA) after a complaint was filed by Gloria Markowitz, a Milford resident. The complaint stemmed from a June 2016 meeting where the Milford School District Board of Education approved a tax increase due to higher-than-expected tuition costs.

“It is our determination that the Milford School District CBOC violated FOIA by failing to provide sufficient notice of its intent to discuss Fiscal Year 2017 tax rate proposal at its June 14, 2016 meeting. In addition, the Milford School District Board of Directors violated FOIA by failing to provide sufficient notice of its intent to discuss and vote upon the matter at its June 20, 2016 meeting,” the decision, which was signed by Michelle E. Whalen, Deputy Attorney General, read. “However, this Office does not have the authority to invalidate the CBOC or Board’s actions.”

The decision recommended that the CBOC and the Board take steps to clarify the requirements of FOIA and ensure that it complies with the law in the future. It also suggests that the District consult existing opinions on FOIA issued by the Attorney General as well as state policy manuals and other information on FOIA available through the state.

“We acknowledge that we violated FOIA in the posting of our agenda for the June 20, 2016, regular board meeting,” Superintendent Dr. Kevin Dickerson said. “Due to an internal mistake, the 2017 tax rate proposal action item was not included on the original agenda. We fixed this by posting an addendum to the agenda, but did not include on the addendum a reason why the proposal was not on the original agenda or the time in which the agenda was posted. It was never our intention to violate FOIA. Since then, we have worked to improve our processes relative to FOIA regulations and continue to do so.” Dr. Dickerson said that the district strongly believes that they were in compliance regarding the June 2016 CBOC meeting.

The FOIA complaint was filed by Gloria Markowitz, a Milford resident, who said that she had a significant amount of support from the community. Ms. Markowitz said that about a dozen neighbors gathered at her home after receiving their tax bills to discuss what they should do. This small group eventually led to the formation of the Coalition Against the Milford School Tax.

“The meetings grew to 80 and 90 people so we had to move it to the Milford Moose Lodge,” Ms. Markowitz said. “Someone else in the Coalition Against the Milford School Tax had submitted a complaint to the American Civil Liberties Union first. When we hadn’t heard back, another Coalition member found the correct office at the DE Justice Department to submit our complaint, which was filed January 29, 2017.” The decision by the Attorney General’s office mentions that an electronic complaint was filed with the ACLU in August 2016.

In their initial response regarding the complaint, Milford School District objected to the hearing of the FOIA complaint as it had been more than six months since the alleged violation occurred when the Attorney General received the complaint. FOIA statutes state that citizens may challenge the validity of any action of a public body by filing suit within 60 days but no later than six months after the date of the action. This indicates that the complaint needed to be filed by December 20, 2016, over one month after the Attorney General’s office received Ms. Markowitz complaint. The Attorney General’s Office decision states that there was clear evidence that there were repeated attempts within the six month window to bring the matter to the attention of various governmental agencies, including a letter sent to the Attorney General’s office via certified mail that was addressed incorrectly as well as the ACLU complaint.

In the complaint, Ms. Markowitz asked that the tuition tax rate approved at the June 2016 board meeting be deemed null and void and that Milford School District should be required to refund all payments made by the citizens toward the portion of property taxes. It also stated that the district halt any collection of payments associated with the increases. The Attorney General’s decision stated that, although the Attorney General’s office can express a legal opinion regarding the validity of the June 20, 2017 vote, it is not “vested with the authority to specifically invalidate the vote, halt the collection of taxes or order a refund to taxpayers.” The opinion stated that Ms. Markowitz could seek relief through a civil lawsuit, however. Ms. Markowitz said that the decision by the Attorney General’s office, although helpful, did not provide her or the Coalition Against the Milford School Tax the remedy they desired.

“The Coalition had requested from Governor Markell and previous Education Secretary, Dr. Stephen Godowsky, to have an independent audit performed of the school district’s records, aside from the Delaware Auditor of Accounts, Tom Wagner’s, office,” Ms. Markowitz said. “This would have been a satisfactory response, but it did not happen. An independent audit might reveal how funds are moved out of the Operating Fund into other accounts and maybe the Operating Fund will not be depleted as before, avoiding another referendum.” When asked whether the group planned to file a civil lawsuit, Ms. Markowitz said the group would meet “next week to discuss our future plans.” She said that the decision has given the group further steps to take.

In July 2017, Milford School District lowered the tax rate, which will take effect with the next property tax bill, by 7.6 percent. Ms. Markowitz said that this is insignificant considering the increase last year and the recent change to the senior property tax credit. The State of Delaware lowered the maximum amount a senior citizen can receive as a property tax credit by $100, from $500 to $400.

Dr. Dickerson said that many changes had been made to the board meeting process since he took over from Dr. Phyllis Kohel, who retired in June 2017, to make sure that an error like this never occurs again. “We have eliminated addendums,” Dr. Dickerson said. “Everything is now on the board agenda and we double, triple check the document prior to posting it. Over the past year, we have held multiple public meetings regarding our taxes and our budget in order to be as transparent as possible. This error was simply a clerical error and we sincerely apologize for the mistake.” Dr. Dickerson said that FOIA training was planned for August for the board and staff members.

Ms. Markowitz said that a significant reduction in property taxes would be a satisfactory resolution, but getting the word out to taxpayers about how the Milford School Board and Citizens Budget Oversight Committee have been operating in the past is crucial.

“Letting the School Board know that we are now watching closely how their business is conducted is important,” Ms. Markowitz said. “We are currently looking for two people with finance or business experience to run in the next school board election next May.”

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