Second Formal Notice and Demand to Reassert Board Fiduciary Authority

This missive constitutes a second formal notice and demand that the Board reassert its non-delegable fiduciary and policymaking responsibilities under Delaware law.

On multiple occasions, board members have publicly stated that the Board must ‘listen to the district’, trust the district’, as well as the district staff rewriting documents on matters of policy development. Board members have indicated that community participation should be observational rather than substantive. Further, several board policies explicitly state that the ‘Board shall work collaboratively with staff’, signaling a fundamental misunderstanding of the Board’s governing role.

While collaboration may be appropriate at the level of implementation, policy formulation, agenda control and discretionary judgement are core board functions that may not be delegated.

Delegation of policymaking authority to non-governing actors is constitutionally impermissible because it severs accountability from those elected to exercise judgement on behalf of the public. That delegation becomes ethically egregious when authority is transferred to individuals who are themselves directly affected by the policies at issue- such as district staff- because it collapses the necessary separation between governance and self-interest.

Under these circumstances the problem is no longer merely procedural or structural; it’s a conflict-laden displacement of independent judgement. Regardless of intent, when those subjects to board oversight are placed in positions of authority to shape, control, or effectively determine policy outcomes, the governing body fails its fiduciary duty to act impartially, in the public interest and with independent discretion.

Under Delaware ethics law, an elected body cannot evade its statutory and ethical duties through formal committee structure alone if, in practice, decision-making authority is exercised by others. Oversight bodies- including the Delaware Public Integrity Commission- evaluate conduct based on operational reality, rather than nominal design, focusing on who controls information, who frames options, who influences outcomes, and whether the board action reflects independent judgement or derivative assent.

In that context, plausible deniability created by committee composition or procedural formality does not negate abdication. Where board member’s role is reduced to ratification rather than evaluation, compliance on paper does not satisfy Delaware’s ethical standards; including the duty to act in public interest and to avoid conduct that undermines public confidence in government integrity.

Importantly Delaware’s ethics enforcement does not require proof of intent to abdicate its authority- only that the conduct had the effect of undermining the independent judgement. Multiple interactions and committee structures alone demonstrate that the district staff not only control the information and the process, but in several instances serve as committee chairs and constitute the overwhelming voting majority on bodies charged with policy development.

 The structure cannot be reconciled with the Bord’s legal or ethical obligations.

Accordingly, I respectfully request that the Board:

1. Reassert exclusive board control over policy committee agendas and recommendations

2. Reconstitute committee membership to ensure staff serve in an advisory, non-voting capacity only

3. Clarify through policy that the community participation is substantive, not merely observational and

4. Ensure that the final policy proposals reflect independent board deliberation, not derivative adoption

 PROPOSED REMEDIES

1.      Adopt ‘Governance Independent Rule’- Prohibit district staff from Chairing or Co-Chairing Board or Board-created Committees and limit their role to administrative, advisory or for expert knowledge/insight, by stating, ‘No district employee, contractor or agent shall serve as chair, co-chair or agenda setting authority…’ ‘No district employee, contractor or agent shall serve as a voting member…’

2.      Codify a Non-Delegation Clause- adopting a binding policy provision that states ‘the board shall not delegate its policymaking, rule-adoption or fiduciary judgement responsibilities to…’. This policy would remedy the ‘working collaboratively’ does not equal shared authority or development responsibility.

3.      Redefine public participation as substantive, not observational- replace language or practices that in any way implies the board shall provide meaningful, substantive opportunities for public input prior to the drafting, revision or adoption of policy.

4.      Require written staff recommendations with legal basis- require all staff policy recommendations include statutory authority, regulatory citations, fiscal impact, equity impact and identification of non-delegable decisions reserved to the board. In addition to creating a standardized board recommendation template.

5.      Create a policy compliance and delegation audit- direct an independent audit to identify structural failures, create corrective action roadmaps and demonstrates good-faith recommendations.

Failure to correct these deficiencies will necessitate further action.

Devon Hynson, Board Member