January 21, 1998 New Castle County - Civil Division Ms. Shirley M. Tarrant 37 Old Oak Road Newark, DE 19711 RE: Freedom of Information Act Complaint Against City of Newark Dear Ms. Tarrant: This letter is the Attorney General's written determination in response to your complaint alleging that the City of Newark (the "City") violated the Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"). Your letter of complaint dated December 12, 1997 was received by this Office on December 15, 1997. By letter dated December 16, 1997, we asked the City to respond to your allegations within ten days. By letter dated December 24, 1997, we received the City's response. Initially, this Office lacks jurisdiction over, and expresses no opinion regarding, the merits of your alleged ethical violations by a member of the City Council. Our focus is strictly on your claim that, in connection with a hearing on those alleged ethical violations, the City's Board of Ethics violated FOIA. In your letter of complaint you identify two FOIA violations: first, the City did not timely provide you with a transcript of an executive session held on June 19, 1997; and second, the City's Board of Ethics did not go into executive session on June 19, 1997 for a purpose authorized by statute. The City denies that it violated FOIA in either regard. FOIA does not require a public body to tape record its meetings or executive sessions, or have a stenographer present to transcribe the proceedings. The statute only requires that "[e]ach public body shall 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." 29 Del. C. Section 10004(f). This Office has previously determined that the duty to maintain written minutes of public meetings does not require a public body to tape record the meeting. See Att'y Gen. Op. 94-IO23 (June 21, 1994). Since FOIA does not require a public body to tape record its meetings, FOIA cannot require that public body to prepare a verbatim transcript of any meeting. In this case, the City elected to prepare a verbatim transcript of its June 19, 1997 meeting, including the executive session. Public bodies are required by law to prepare minutes of their meetings in a timely fashion, consistent with the purposes of FOIA. The City prepared a verbatim transcript in lieu of minutes at your request, which required a longer time. Any reasonable delay encountered thereby would not give rise to a FOIA violation. The second issue is whether the City's Board of Ethics went into executive session for a purpose authorized by statute. Section 10004(b)(4) of FOIA permits a public body to go into executive session for: "Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only where an open meeting would have an adverse effect on the bargaining or litigation position of the public body; . . . ." The minutes of the meeting of the Board of Ethics on June 19, 1997 show that at 5:32 p.m. the Board voted unanimously to go "into executive session with the assistance of legal counsel." The Board came out of executive session at 6:47 p.m., approximately one hour and fifteen minutes later. The City's response to the alleged impropriety of the executive session is as follows:
The motion to move into such a session was apparently driven by the fact that the Board of Ethics was confronted by various legal arguments during the hearing and was being called upon to interpret and rule upon heretofore unconstrued Ethics Code provisions. The request to meet with legal counsel was entirely in order. Since Ms. Tarrant has provided you with a verbatim transcript of the executive session discussion, you are of course free to review it and to assess the interaction between the Board and City staff.We have reviewed the seventeen-page transcript of the executive session on June 19, 1997. Although there is some discussion of legal issues between members of the Board and the City Solicitor, most of the discussion is about the merits of the ethics charges. There is no discussion with counsel of pending or potential litigation. The only litigation discussed was litigation that occurred in 1981 involving one of the City Council members now charged with ethical violations.
Rather than a legal strategy session with counsel,
the executive session was clearly to allow the Board to deliberate the
merits of the ethical charges considered in the public hearing. Indeed,
at one point the City Solicitor remarked: "If you're not ready, if you're
not comfortable taking a vote on each and every one of these questions,
then I think we ought to adjourn and continue our deliberations
another day." (Emphasis added.) The Board continued deliberating, and by
the end of the executive session the Board members had reached a consensus
on how they would vote on each of the charges after the Board came out
of executive session.
In Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., C.A. No. 1216-K, 1994 WL 274295 (May 19, 1994) (Jacobs, V.C.), the Chancery Court observed that the "legal advice" exception to the open meeting law must be given "[a] narrow, limited interpretation" consistent "with the legislative history of the act, which the General Assembly had amended in 1985 to narrow its scope to prevent potential abuse." 1994 WL 274295, at p. 11. In CIC, the State Coastal Zone Industrial Control Board met in private with counsel to discuss proposed regulations. Even if the Board's regulations were likely to be the subject of litigation, the "wholesale use of executive sessions . . . to debate, discuss, and share views concerning the evolving revisions of the Regulations . . . went far beyond strategizing with its counsel about potential litigation." Id. Public bodies are not permitted to evade the requirements of the open meeting law by nominally invoking one of the statutory exceptions for executive session. See Att'y Gen. Op., 96-IB32 (Oct. 10, 1996) ("consensus votes in executive session are prohibited") (citing Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Oct. 1, 1990) (Chandler, V.C.)). The whole executive session on June 19, 1997 was to deliberate the merits, which in turn led to a consensus vote. The discussion at the executive session extended well beyond legal advice regarding pending or potential litigation. A legitimate argument may be made that the Board of Ethics should be entitled to deliberate in private because of the sensitive nature of the subjects before it. If the Board, however, believes that the requirements of the open meeting law "unreasonably infringe[s] upon their deliberative processes, such grievances must be directed to the General Assembly which has made the policy decision to enact the sunshine law in its present form." Levy, 1990 WL 154147, at p. 6. Indeed, the General Assembly has excepted, by statute, certain public bodies from the requirement of the open meeting law to deliberate in public. See, e.g., 29 Del. C. Section 10004(h); House Bill 205 (effective July 1997) (Industrial Accident Board, Human Relations Commission, Tax Appeals Board). That leaves us with the issue of remedy. You have asked our Office to invalidate the decision made by the Board of Ethics in violation of FOIA. The City responds that holding the hearing again would not change the result. "The Board of Ethics has rejected Ms. Tarrant's claims of ethical violations by Councilman Godwin. That rejection has been accepted by the City Council. The Council has further elected not to rescind that acceptance based on any alleged impropriety by its staff." We do not believe, however, that the City committed a mere "technical" violation of FOIA for which no remedy might be necessary. We find that the Board's closed deliberations affected "substantial public rights" by depriving "members of the public with an intense interest in the subject of the Board's action" an opportunity to view a critical step in the process of adjudicating ethics charges against a City councilman. Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen, C.). Even though the City Council accepted the Board of Ethics' recommendation to dismiss the ethical charges, that acceptance does not cure the FOIA violation. In Levy, Vice Chancellor Chandler rejected the school district's argument that a later public vote validated any action taken at a meeting in violation of FOIA. The court, however, declined to enjoin the implementation of the student reassignment plan, which had already been fully implemented, because of the toll on the students involved. In this case, no similar hardship would be involved if the Board of Ethics were to hold a new hearing and this time deliberate in public as required by law. We direct the Board to do so within sixty days of the date of this letter, and to report back to us in writing to confirm that this remedial action has been taken. Conclusion Based on your complaint, the City's response, and the documents provided to us, we determine that the City did not violate the public records provisions of FOIA. Further, we determine that the City's Board of Ethics went into executive session on June 19, 1997 for a purpose not authorized by statute. To remedy that FOIA violation, we direct the City to notice another hearing on the ethics charges filed against City Councilman Godwin which shall be open to the public. Further, if the Board of Ethics votes to go into executive session at any time during that hearing, it must be for a purpose authorized by FOIA, and any discussion during executive session shall be limited to that authorized purpose. 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 Roger A. Aiken, Esquire Chrystyna Lafferty Opinion Coordinator
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