Civil Division-Kent County (739-7641)
Ms. Amy Garrison
510 Candlelight Lane
Bethany Beach, DE 19930
Re: Freedom of Information Act Complaint
Against Town of Bethany Beach
Dear Ms. Garrison:
By letter dated February 23, 1999 (received by this Office on March 2, 1999), you complained that the Town of Bethany Beach ("the Town") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"). Specifically, you alleged: (1) the Town Council met in executive sessions on January 12, January 15, and February 19, 1999 for purposes not authorized by law; and (2) the Town did not give the required notice of a special meeting held on February 19, 1999.
By letter dated March 11, 1999, we asked the Town to respond to your complaint within ten days. Because the Town Manager was recovering from an illness, we granted the Town's request for an extension of time until March 26, 1999.
The Town Council held a special meeting on January 12, 1999. The agenda stated that the Town will discuss "the possibility of contracting, with an outside vendor, for the complete collection of all residential trash" and "personnel matters relating to annual evaluation" of the Town Manager. After hearing from members of the public about trash removal, the Town Council voted to go into executive session. The minutes of the executive session, which we have reviewed confidentially, show that the Council discussed the Town Manager's job performance evaluation. FOIA provides that a public body can go into executive session for "[p]ersonnel matters in which the names, competency and abilities of individual employees . . . are discussed." 29 Del. C. Section 10004(b)(9). The Council therefore met in executive session for a purpose authorized by law.
The Town Council held its regular monthly meeting on January 15, 1999. The noticed agenda stated that the Council would "[c]onsider a motion to go into Executive Session to discuss personnel matters relating to names, competency and abilities of individual employees." After discussing other matters of public business, the Council voted to go into executive session to discuss personnel matters. The minutes of that executive session, which we have reviewed confidentially, show that the Council discussed the Town Manager's job performance evaluation. The Council therefore met in executive session for a purpose authorized by law.
The Town Council held a special meeting at 6:30 p.m. on February 19, 1999 (which preceded the regularly scheduled meeting at 7:30 p.m.). The notice and agenda were posted on February 17, 1999. As a general rule, FOIA requires at least seven days' notice of a meeting of a public body, but a special meeting may be held on 24 hours' notice. See 29 Del. C. Section 10004(e)(3). "The public notice of a special or rescheduled meeting shall include an explanation as to why the [seven days'] notice required by paragraph (1) of this subsection could not be given." Id. The notice of the February 19, 1999 special meeting did not explain why seven days' notice could not be given.
The agenda for the regular monthly meeting on February 19, 1999 stated that the Town Council will "[c]onsider a motion to go into Executive Session to discuss personnel matters relating to names, competency and abilities of individual employees." At the regular monthly meeting on February 19, 1999, the Town Council voted to go into executive session to discuss personnel matters. The minutes of that executive session, which we have reviewed confidentially, show that the Council went into executive session for a purpose authorized by law.
For the foregoing reasons, we conclude that the Town Council met in executive session at its meetings on January 12, January 15, and February 19, 1999 for purposes authorized by FOIA. We find that the Town gave timely notice of the special meeting on February 19, 1999, but violated FOIA by not explaining why it could not give seven days' notice to the public. We also find that the notice of the special meeting on February 19, 1999 was deficient because it stated that the Town Council will meet in executive session to discuss personnel matters, when in fact the Council met to discuss new hires.
You claim that the notice should have disclosed more specifically what the Town Council intended to discuss in executive session at the special meeting on February 19, 1999 (the hiring of Mr. Hudson as the new Town Manager). This Office has determined that "'it is not necessary to identify the personnel in convening an executive session to consider personnel matters.'" Att'y Gen. Op. 96-IB27 (Aug. 1, 1996) (quoting Nageotte v. Board of Supervisors of King George County, Va, Supr., 288 So.2d 423, 426 (1982)). Similarly, we do not believe that FOIA required the Town to disclose in the agenda the name or names of applicants for a job. For sound public policy reasons, job applicants have a right of privacy to information disclosed during the application process, at least until they are hired.
[D]isclosure may embarrass or harm applicants who
failed to get a job. Their present employers, co-
workers, and prospective employers, should they seek
new work, may learn that other people were deemed
better qualified for a competitive appointment.
Core v. United States. 730 F.2d 946. 949 (4th Cir. 1984). Seealso Arizona Board of Regents v. Phoenix Newspapers, Inc., Ariz. Supr., 806 P.2d 348, 352 (1991) (en banc) (publicity attendant to a job search may result "in lesser qualified" applicants and "chill the attraction of the best possible candidates for the position").
We do not think that remediation is necessary or appropriate for the two deficiencies in the notice of the February 19, 1999 special meeting. Even if the Town had posted the notice seven days in advance and stated that the Town Council will go into executive session to discuss hiring a new Town Manager, under FOIA the Council still could have met in executive session. To direct them to meet again in executive session would not change the result: the unanimous vote by the Council, at a meeting properly noticed to the public, to hire a new Town Manager.
You state in your letter that the Town should have "advertised the position opening" for Town Manager, and you question Mr. Hudson's qualifications. We take no position on either of those two issues. The first is a matter of municipal law, which is outside the jurisdiction of our Office. The wisdom of selecting a Town Manager is to be judged by the political process. We only hold that the process did not violate FOIA except in two respects which do not warrant
remediation. The Town is cautioned, however, to ensure accuracy in its
agenda and the minutes to avoid confusion as to the nature of the business
to be conducted or acted upon, and to fully comply with FOIA notice requirements
in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: M. Jane Brady
John Terence Jaywork, Esquire
Phillip G. Johnson
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