The Capital School District Board of Education violated the state Freedom of Information Act on May 16, 2012 when it voted to give Superintendent Dr. Michael Thomas a two-year contract extension without expressly stating its intent to take a vote after its second executive session that night.

The Capital School District Board of Education has scheduled a new vote on a contract extension for Superintendent Dr. Michael Thomas given that the Delaware Department of Justice has ruled the two-year extension granted to him in May 2012 violated the state Freedom of Information Act.

The Department of Justice concluded that the Capital Board of Education violated FOIA when it led those attending its May 16, 2012 meeting to believe that it would not take action on the listed agenda item, "Superintendent Contract."

That was because then board President Phillip Martino skipped over the agenda item before the board went into a second, closed door executive session to finish its discussion on the personnel matter, DOJ's Dec. 21, 2012 opinion stated. The board came back into open session and held a split, 3-2, to give Thomas an extension before an empty auditorium.

DOJ's opinion stated that Martino should have stated the board's intention to come back into open session to vote on the mater after it had concluded its closed door session.

Therefore, DOJ ruled that the contract extension granted to Thomas was null and void, and the board would have to take up the matter in public session once again.

But DOJ did not believe "that the Board intentionally withheld information from attendees or otherwise willfully violated FOIA."

The state Department of Justice issued its opinion in response to a FOIA complaint filed by Margaret "Mickey" McKay, of the Kent County League of Women Voters

The DOJ ruling stated, "... the Board violated FOIA by frustrating, whether intentionally or not, the public's right to observe and monitor the Board's discussion of and vote on the proposal to extend the District superintendent's employment contract." The opinion was rendered by Deputy Attorney General Jason W. Staib and approved by State Solicitor Ian R. McConnel.

The Jan. 6 opinion was Capital's second FOIA violation within the last two years. The state Department of Justice also determined in a Jan. 5, 2012 opinion that the Capital School District violated Delaware's Freedom of Information Act when its board of education approved pay raises for administrators as a last minute agenda item at its Aug. 24, 2012 meeting. The Capital Board of Education had to hold another vote on Feb. 8, 2012 to approve the pay raises retroactively.

Martino said he appreciated that the state Department of Justice recognized that the Capital school board's latest violation was unintentional. Nonetheless, he was exasperated at the negative attention bestowed upon the school district.

"I think it's ridiculous," Martino said. "It just makes it look like we're always trying to do something behind somebody's back. We waited, went back into closed session and came back to public and voted. We didn't announce that we would be coming back into open session and they said we violated FIOA.

"We decided not to rush through it in the first executive session," he added, referring back to the May 16 meeting. "We're just under this microscope by this woman at the League of Women Voters and they try to make it look like we're doing this underhand stuff and we're not. I'm just so tired of being looked at like I'm a criminal. I wish my term were up. But, I'll stick out my last year."

Current Capital Board of Education President Kay Dietz-Sass and Thomas both said Capital had done an exemplary job of interpreting and following open government laws by and large. But, this was another lesson learned and applicable to future board votes, the school officials said.

"It was listed on our agenda to vote," Dietz-Sass said. "What was not said was that we would come back from the second executive session for the vote. I don't believe that was intentional."

Thomas said Capital School District was open and transparent in the way that it posted its agendas and ran its public meetings.

"if somebody wants to come and pick at items, I 'm sure they can find something," he said. "But every school district works hard to comply with FOIA."

The school board meets at 7:30 p.m. Wednesday at the CSD Administration Complex.