June 2, 1997

New Castle County - Civil Division

Mr. Richard H. Anthony
P.O. Box 653
Lewes, DE 19958


RE: Freedom of Information Act Complaint
 Against City of Lewes


Dear Mr. Anthony:

This letter is our written determination in response to your
complaint alleging that the City of Lewes (the "City") violated
the Freedom of Information Act, 29 Del. C. Sections 10001-10005
("FOIA"), by not giving the required notice of meetings where
public business was discussed.

Your letter of complaint dated February 22, 1997 was received by
this Office on February 28, 1997. By letter dated March 10, 1997,
we asked for the City's response to your allegations that the
City had violated the open meeting requirements of FOIA. Although
your complaint also alleged a violation of the public notice
provisions of the Code of Lewes, we did not ask the City to
respond to those allegations since they involved matters outside
the jurisdiction of the Attorney General's Office.

In your letter, you alleged that the City had violated FOIA in
two ways: first, by holding meetings of the Personnel Policy
Review Committee during the last two years without notice to the
public; and second, by holding a meeting of the Mayor and three
council members on January 27, 1997 to discuss matters of public
business, again without notice to the public. By letter dated
March 24, 1997 we received a response from the City's attorney,
denying that the City had committed any FOIA violations.

By letter dated April 28, 1997, we asked the City for additional
documents and information, which we received on May 2, 1997.

Concerning the first issue, the City Council, at a regularly
scheduled meeting on April 10, 1995, appointed an "in house"
committee to review personnel policy issues, and to advise and
make recommendations to the whole City Council. That committee,
which came to be known as the Personnel Policy Review Committee
(the "Committee"), first met on May 23, 1995. Since then, the
Committee has met sixteen more times, most recently on March 13,
1997. According to the City's attorney, "[e]ach meeting was
noticed with an agenda at least seven days prior to the meeting."
Enclosed with the City's letter response were copies of the
three-line notices for each of the meetings of the Committee. The
City's attorney also states that each of those meetings was
tape-recorded, and the tapes "are available for review pursuant
to an appropriate request under Section 10003 of Title 29 of the
Delaware Code."

Concerning the second issue, the City acknowledges that in
January 1997 "the Mayor and Councilpersons each received an
invitation from the Historic Lewes Business Committee of the

Lewes Chamber of Commerce inviting each 'to attend a workshop
with our group at St. Peter's Parish Hall on Monday, January 27,
1997, at 7:30 p.m.'" The invitation listed "areas we feel need to
be addressed," including: police coverage, park and recreation
proposals, uneven pavement and sink holes, parking, transient
boats, street cleaning, and Christmas lights.

The only notice of this meeting was in the January 1997
newsletter of the Chamber of Commerce, which stated: "The
committee has also requested a meeting with City of Lewes
officials to discuss a number of issues that businesses in the
historic district have with the City. The meeting is scheduled
for Monday, January 27 at 7:30 p.m. at St. Peter's Hall." That
notice was also listed in the Chamber of Commerce and Visitor
Bureau's calendar of events.

The Mayor and three members of the City Council attended the
meeting on January 2, 1997. The City, however, contends that
"[t]here was no action taken at this public forum. The Mayor and
members of Council did not discuss between themselves any matter
of public business but rather heard discussion by the Chamber of
Commerce and the Lewes Business Committee."

Summary of the Law

Section 10004 of Title 29 of the Delaware Code provides that
"[e]very meeting of all public bodies shall be open to the
public" except as authorized by statute for executive session.
Section 10004(e)(2) further provides: "All public bodies shall
give public notice of their regular meetings and of their intent
to hold an executive session closed to the public, at least 7
days in advance thereof. The notice shall include the agenda, if
such has been determined at the time, and the dates, times and
places of such meetings; . . . ." Section 10004(e)(4) requires
that notice "shall include, but not be limited to, conspicuous
posting of said notice at the principal place of the public body
holding the meeting, . . . ."

Section 10004(f) requires every public body to "maintain minutes
of all meetings, including executive sessions, conducted pursuant
to this section, and shall make such minutes available for public
inspection and copying as a public record. Such minutes shall
include a record of those members present and a record, by
individual members (except where the public body is a town
assembly where all citizens are entitled to vote), of each vote
taken and action agreed upon."

The Committee is a "public body" for purposes of FOIA. FOIA
defines a public body to include any "committee, ad hoc
committee, special committee, advisory board and committee, [or]
subcommittee, . . . appointed by any body or public official
[which] . . . is impliedly or specifically charged by any other
public official, body, or agency to advise or to make reports,
investigations or recommendations." 29 Del. C. Section 10002(a).
The City does not dispute that the Committee was appointed by a
public official (the Mayor) to give advice and to make
recommendations to a public body (the City Council).

Discussion and Findings

For each of the seventeen meetings of the Committee, the City
posted a notice stating the date, time, and place of the meeting.
None of those notices, however, included an agenda, as required
by Section 10004(e)(2). FOIA defines an agenda to include, at the
very least, "a general statement of the major issues expected to
be discussed at a public meeting, as well as a statement of
intent to hold an executive session and the specific ground or
grounds therefor . . . ." 29 Del. C. Section 10003(f). See Ianni
v. Department of Elections of New Castle County, Del. Ch., 1986
WL 9610 (Aug. 29, 1986) (Allen, C.) (agenda was insufficient "to
alert the public" as to the matters the public body would
consider).

Furthermore, the City admits in its response that "[n]o formal
written minutes" were maintained of any of those meetings of the
Committee. Rather, the meetings were tape-recorded. This Office
has previously determined that, even where a public body has
taped a meeting, FOIA still requires that minutes be prepared so
that they are readily available for public inspection. See Att'y
Gen. Op. 96-IB25 (July 22, 1996).

We find that the City committed two separate violations of FOIA:
(1) failure to post agenda for meetings of the Committee, in
violation of Section 10004(e)(2); and (2) failure to maintain
minutes of those meetings, in violation of Section 10004(f). We
now turn to the issue of notice of the January 27, 1997 meeting
between members of the City Council and the Chamber of Commerce.

The application of the open meeting law to joint meetings of
different bodies does not lend itself to bright lines. On the one
hand, there is no "reason why a joint discussion meeting of
several public bodies with respect to matters of mutual public
concern should not be as fully subject to [FOIA] as is a
discussion of a single body with respect to matters of public
concern." Allen-Deane Corp. v. Township of Bedminster, N.J. App.,
379 A.2d 265, 268 (1977). On the other hand, the public policies
behind the act may not be implicated where a joint meeting is
"informational" only and "not for the purpose of official
action." Woodbury Daily Times Co. v. Gloucester County Sewerage
Authority, N.J. App., 386 A.2d 445 (1978) (meeting between local
authority and state department of environmental protection).

The issue turns on whether members of a public body attending
such a joint meeting are there simply to listen and learn, or
whether they actively participate in the discussion or resolution
of any issues of public concern. Even though the members may not
vote on anything at the joint meeting, the same issues may be
raised at a later meeting of the single public body. That creates
at least the appearance that decisions affecting the public are
being crystallized out of the public view, and the public vote is
only a "ceremonial acceptance." Levy v. Board of Education of
Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p.7
(Oct. 1, 1990) (Chandler, V.C.). "[R]arely could there be any
purpose to a nonpublic pre-meeting conference except to conduct
some part of the decisional process behind closed doors, . . .
[A] sunshine statute, being for the benefit of the public, should
be construed so as to frustrate all such evasive devices." Id.

The City suggests that the meeting attended by the Mayor and
three council members was not subject to FOIA because the meeting
was called by the Chamber of Commerce. This Office has previously
determined that it is irrelevant who sponsors such a meeting.
"[A] meeting as defined in Section 10002(e) does not cease to be
a meeting because the Council gathers as a result of an
invitation of another public official or body. If the 'gathering'
is 'for the purpose of discussing public business,' it would be
within the scope of [FOIA], regardless of [who] initiated the
breakfast." Att'y Gen. Op. 94-I036 (Dec. 15, 1994).

The subjects of discussion at the January 27, 1997 meeting of the
Chamber of Commerce were clearly "public business." FOIA defines
"public business" to mean "any matter over which the public body
has supervision, control, jurisdiction or advisory power." 29
Del. C. Section 10002(b). The purpose of the Chamber of Commerce
meeting was "not merely for academic discussion" on matters
"which would have no effect upon the City." The News-Journal Co.
v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977) (Brown, V.C.).
Rather, the matters discussed at the meeting -- paving, parking,
parks, and police -- are "matters over which City Council clearly
had control, supervision and jurisdiction." Id. See Code of
Lewes, City Charter, Section 19(i) (charge and supervision of
streets, parks, and other administrative affairs of the city);
Section 24 (police force).

The City also contends that the January 27, 1997 meeting was not
subject to FOIA because the City representatives took "no
action." In McLaughlin, the Chancery Court distinguished the
Pennsylvania open meeting statute, which applied only "to
meetings where 'formal action' was taken. Our law is not so
limited. Rather, it applies to meetings called to discuss public
business as well as to meetings called to take action on public
business." 377 A.2d at 362.

In Levy, supra, the Chancery Court again rejected the notion that
FOIA applied only to meetings where a public body intended to
take "formal action, but did not apply where a school board held
a "workshop" at a local restaurant. Under that interpretation,
"there would be no remedy to deter Board members from privately
meeting for discussion, investigation or deliberation about
public business as long as the Board reached no formal decision
at that private meeting. 1990 WL 154147, at p. 6. FOIA
"recognizes that policy decisions by public entities cannot
realistically be understood as isolated instances of collective
choice, but are best understood as a decisional process based on
inquiry, deliberation and consensus building. Because informal
gatherings or workshops are part of the decision-making process
they too must be conducted openly." Id.

The City contends that the public had notice of the Chamber of
Commerce meeting through the Chamber's newsletter and calendar of
events. FOIA, however, requires that notice of public meetings
"shall" include "conspicuous posting of said notice at the
principal office of the public body holding the meeting." 29 Del.
C. Section 10004(e)(4) (emphasis added). In Att'y Gen. Op.
96-IB26 (July 25, 1996), this Office determined that the county
did not satisfy the notice provisions of FOIA, when it gave
notice of a meeting in the county administrator's report. The
purpose of requiring conspicuous posting of notice at the public
body's principal office "is to ensure that no member of the
public will have to search out to discover public meetings." Id. 

We do not find, however, on the basis of this record, that the
City violated the notice requirements of FOIA in connection with
the January 27, 1997 meeting attended by the Mayor and three
members of the City Council. The Chamber of Commerce is not a
public body, and therefore is not required by FOIA to maintain
minutes of its meetings. The City's counsel has also represented
that "the City is unaware of any minutes, notes or any other
documents memorializing or relating to what was discussed at the
January 27, 1997, meeting." We have reviewed the minutes of the
general and special meetings of the City Council through March
24, 1997, and it does not appear that any matters of public
business that were discussed at the Chamber of Commerce meeting
in January were also the subject of any formal action at a later
Council meeting. On the basis of this record, we accept the
City's representations that the Council members attended the
Chamber of Commerce meeting to obtain information only, and that
they did not actively participate in discussions of public
business that were later the subject of formal action by the City
Council at one of its own meetings.

The City is cautioned, however, that attendance by members of the
Council at meetings like the one with the Chamber of Commerce may
trigger the requirements of FOIA. To make certain that their
attendance is merely to listen and learn, it behooves Council
members to take notes or otherwise memorialize the proceedings,
in case there is a question raised in the future about the
applicability of FOIA. When in doubt, all that the Council need
do is to give notice of the attendance by members at a meeting
sponsored by another body, the date, place and time of that
meeting, and the subjects to be discussed. Such notice requires
only a modicum of time and effort, and will help save the City
from any FOIA scrutiny.

As for remediation, since the meetings of the Committee were
tape-recorded and have been preserved, the City is directed to
prepare minutes of all of the meetings to date, and to prepare
minutes for all meetings that might be held in the future. 

The most serious violation resulting from the complaint is the
failure to provide the public with agenda for the seventeen
meetings of the Committee. Those meetings have been held over the
course of the last two years. The City Council has charged the
Committee with an important function: to review the City's
personnel policies and make recommendations to the Council,
presumably for the Council to take action. Such action could have
considerable impact, not only on City employees, but also on the
citizens at large, who rely on the City for a variety of
services. By failing to notify the public of the subject matter
of its meetings, the Committee could very well have deprived the
citizenry of an opportunity to monitor and influence issues of
important public policy, before they became crystallized for
approval by the City Council.

We find that the failure to post agenda involved "substantial
public rights" and was not merely a "technical" violation. Ianni,
1986 WL 9610, at p. 6. As a practical matter, the City cannot
recreate two years of history by re-noticing and holding
seventeen meetings of the Committee. To the extent that the City
Council may have acted on advice or recommendations formulated by
the Committee at one of those meetings, however, the action(s) by
the Council may be subject to invalidation. 

We note in particular that the minutes of the July 10, 1995

meeting of the Council state: "Due to his absence, Councilperson
Sheehan read a memo from Deputy Mayor Pratt regarding the
direction that the Personnel Policy Review Committee is taking.
The memo states that a new organizational chart has been
prepared, and requests Council's approval of same. Council person
Sheehan noted the changes that were made to the organizational
chart. City Solicitor Tempe Steen stated that the committee is
requesting direction from Council as to how they want the
committee to go with revisions, or are they to just review the
policy and procedures. After some discussion, Mayor Smith
recommended, by common consensus, that the committee proceed with
changes."

In at least one instance, therefore, the Committee made a formal
recommendation to the Council for its approval, a clear violation
of FOIA since the Committee had met to discuss the issue without
the required public notice. The minutes also suggest that the
Committee made other recommendations to the Council, as a result
of discussions at meetings of the Committee.

To remedy these FOIA violations, we direct that the City notice a
special meeting to discuss any formal report or recommendation
that has been made by the Committee since its inception, and to
give proper notice of that special meeting to the public so that
interested citizens can attend and comment. At that time, after
"full public discussion," Beebe Medical Center v. Certificate of
Need Appeals Board, Del. Supr., 1995 WL 465318, at p. 6 (June 30,
1995) (Terry, J.), the Council can publicly vote to implement any
recommendations of the Committee.

If the City will agree, in writing, to hold such a special
meeting within thirty (30) days of the date of this letter, then
our Office will be willing to forego filing suit in the Chancery
Court to seek invalidation of any actions taken by the Council
upon the advice and recommendation of the Committee.

Very truly yours,



W. Michael Tupman
Deputy Attorney General

Approved:


____________________
Michael J. Rich
State Solicitor



cc: The Honorable M. Jane Brady
Attorney General

Keith R. Brady, Esquire 
Chief Deputy Attorney General

Tempe Brownell Steen, Esquire

Elizabeth A. Bacon
Opinion Coordinator



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