September 13, 2002 Kent County - Civil Division
RE: Freedom of Information Act Complaints Against New Castle County and New Castle County Council
On July 19, 2002, we received your two complaints alleging violations of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"). The first complaint alleges that the New Castle County Executive and the County Council met on July 11, 2002 without adequate notice to the public, and that they discussed matters of public business not specified in the notice. The second complaint alleges that the Executive Committee of the County Council met on July 16, 2002 without timely notice to the public, and in that meeting discussed matters beyond those listed in the agenda.
By letter dated July 24, 2002, we asked the County and the Council to respond to your complaints within ten days. We received their responses on August 9, 2002 after granting their request for a one-week extension of time.
FOIA requires all public bodies to "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, . . . ." 29 Del. C. § 10004(e)(2). The agenda must "include but is not limited to 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 . . . ." Id. § 10002(f).
The public notice required by FOIA "shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available." Id. § 10004(e)(4).
The open meeting requirements of FOIA do not apply to a "body of one." 29 Del. C.
A. July 11, 2002 Meeting
In your first complaint, you acknowledge that the "July 11th County Executive/County Council public meeting notice was posted seven days in advance of the meeting" and that notice "was posted on the 8th Floor of the City/County Building." You claim, however, that "[n]o notice was ever posted in the main lobby of the City/County Building where the County Council Chambers are located"; and that notice should have been posted at the New Castle County Government Center in New Castle where the meeting took place.
The Council provided us with a sworn statement of Melissa A. Grey, Legislative Aide to the President of the New Castle County Council. Ms. Grey says that she discussed the notice requirements for the July 11, 2002 meeting with Susan Brennan, Executive Assistant to the County Executive. According to Ms. Grey, Ms. Brennan posted the notice of the July 11th meeting "on the bulletin board on the 8th floor of the City/Council Building, and in the lobby showcase on the first floor of the City/County Building." According to the Council, this is where the Council normally posts notices of its meetings.
The July 11, 2002 meeting was a joint meeting of two different public bodies, the County
Executive, and the Council. FOIA does not apply to a "body of one," 29 Del. C. § 10004(h), so the public notice requirements did not apply to the County Executive in this context. See Att'y Gen. Op. 01-IB15 (Oct. 23, 2001) (FOIA did not apply to discussions between the County Administrator and his department heads and staff). The public notice requirements of FOIA were triggered, not by the presence of the County Executive, but rather by the attendance of members of the Council.
FOIA requires that notice be posted "at the principal office of the body holding the meeting." 29 Del C. § 10004(e)(4). FOIA therefore required that notice be posted at the "principal office" of the Council. See Att'y Gen. Op. 97-IB13 (June 2, 1997) (city council members invited to attend a meeting of the local Chamber of Commerce, which was not subject to FOIA, could not rely on notices posted by the Chamber in its newsletter). In other words, even if the County Executive had posted notice of the July 11, 2002 meeting at the New Castle County Government Center (where the joint meeting was held),(1) FOIA still required the Council to post notice of the meeting at its principal office -- the City/County Building.
We find that the Council complied with FOIA by posting notice of its July 11, 2002 meeting with the County Executive seven days in advance at the Council's principal office in the City/County Building.
The copy of the notice of the July 11, 2002 meeting attached to your complaint states that "the Office of the New Castle County Executive will hold a meeting and invited members of New Castle County Council" to "discuss the letter sent by Councilman Abbott to DelDOT, and a letter from Secretary Hayward to Frank Acierno concerning Councilman Abbott's representation of Frank Acierno with respect to a land use project, the Christiana Town Center."
The minutes of the July 11, 2002 meeting show that "[t]here was a discussion of Councilman Abbott's representation of different developers and the confusion it had caused with the County Land Use Department." Based on the record, we find that the matters discussed at the July 11, 2002 meeting were within the matters noticed for the meeting, and that the Council did not violate FOIA.
The Council has provided us with a sworn statement of Kathleen P. Harris, Secretary/Receptionist to the New Castle County Council. According to that statement, on July 9, 2002 Ms. Harris "posted the notice for the July 16, 2002 Executive Committee meeting in the lobby showcase on the first floor of the City/County Building, and on the bulletin board on the 8th Floor of the City/County Building."
The Council has also submitted a sworn statement of Melissa A. Grey, Legislative Aide for the Executive Committee of the New Castle County Council. According to that statement, on July 12, 2002 Ms. Grey posted a revised agenda for the Committee's July 16, 2002 meeting "in the lobby showcase on the first floor of the City/County Building, and on the bulletin board on the 8th Floor of the City/County Building." Among the items added to the agenda was "Policy Discussion Regarding County Ethics Issues." The revised agenda states that the additional items were "not published at the time of the original notice of the meeting, 7 days in advance thereof, because items had not yet been received."
FOIA permits a public body to amend an agenda without violating the seven-day notice rule under two circumstances. First, "the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body's meetings." 29 Del. C. § 10004(e)(2). This exception recognizes that "discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation." Att'y Gen. Op. 97-IB20 (Oct. 20, 1997). However, if "a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA." Id.
The second exception is "[w]hen the agenda is not available as of the time of the initial posting of the public notice." 29 Del. C. § 10004(e)(5). In that situation, a revised agenda "shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." Id.
FOIA "requires only a reason, not a specific detailed factual basis, why the seven-day requirement could not be met." Att'y Gen. Op. 96-IB15 (May 10, 1996). Accord Att'y Gen. Op. 94-IO37 (July 26, 1994). On July 9, 2002, when the Executive Committee posted notice of its meeting for July 16, 2002, the Committee was not aware that it might take up the ethics issues discussed at the July 11, 2002 County/Council meeting. The minutes of the July 11, 2002 meeting show that "President Coons invited those present who were not able to speak at this meeting to attend Council's July 16th Executive Committee meeting and they would be provided the opportunity to make comment on County ethics." The next day (July 12, 2002), the Committee amended the agenda for its July 16th meeting to include "Policy Discussion Regarding County Ethics Issues," explaining that this item "had not yet been received" at the time the first notice was posted on July 9, 2002.
We find that the Executive Committee sufficiently explained the reason for amending the agenda for the July 16, 2002 meeting and posted that amended agenda within the time permitted by FOIA.
In Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610
(Aug. 29, 1986) (Allen, C.), Chancellor Allen observed that while FOIA "requires only a 'general statement' of the subject to be addressed by the public body, when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfied neither the spirit nor the letter of [FOIA] to state the subject in such broad generalities as to fail to draw the public's attention to the fact that that specific important subject will be treated." The Chancery Court held that listing "primary election" on the agenda for a meeting did not alert the public that the county department of elections would consider consolidating election districts and cutting back on the number of polling places.
In Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., Civ.A. No. 1216-K (May 19, 1994) (Jacobs, V.C.), the board held a series of public and private meetings to develop regulations. During an executive session on June 9, 1993, the board continued to discuss the regulations until a majority of the board members supported a draft proposal. The board then went into public session to vote to adopt those regulations.
The agendas for these meetings listed among the topics of business "proposed regulations." A trade association argued that was not specific enough to alert the public that the board might go beyond discussion and public comment and adopt new regulations. Vice Chancellor Jacobs disagreed. "If a public body is uncertain as to what specific provisions or components of a complex proposal it will consider at an upcoming meeting, the agenda need not disclose each specific component of that proposal, so long as the agenda clearly and directly discloses the broader subject of which the components are a part. . . . Regulations was the 'major issue' to be discussed at all but one of the public meetings, and the public was appropriately so notified."
The agenda for the July 16, 2002 meeting of the Executive Committee listed for discussion, "County Ethics Issues." You claim that the Committee went further and "discussed specific legislation. . . . No mention was made on the agenda that discussion would occur regarding specific legislation."
The minutes of the July 16, 2002 meeting of the Executive Committee show that there was public discussion about the County code of ethics and the County ethics commission. According to the minutes, Councilwoman Venezky stated that she had drafted a resolution regarding ethics and the representation of developers by Council, but "clarified that this was only a resolution and not an ordinance so it does not change the law. She does have an ordinance that has been introduced and sent to the Ethics Commission for comment and that hopefully will be discussed at a later meeting." We find that the agenda for the July 16, 2002 meeting of the Executive Committee sufficiently drew to the public's attention that the Committee would discuss county ethics issues, and that discussion reasonably encompassed various alternatives for dealing with a perceived problem when a council member privately represented real estate developers in New Castle County. County ethics "was the key issue to be discussed" and "the public was appropriately notified." Chemical Industry Council, supra. Our decision might be different if the Council had gone beyond discussion of alternatives and adopted an ordinance to change existing law
For the foregoing reasons, we determine that the County Executive and the Council did not violate the open meeting requirements of FOIA with respect to the July 11, 2002 joint meeting, and that the Council's Executive Committee did not violate the open meeting requirements of FOIA with respect to its July 16, 2002 meeting.
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
Eric L. Episcopo, Esquire
Carol J. Dulin, Esquire
Phillip G. Johnson, Opinion Coordinator
1. In its response, the County states that it posted notices "at the New Castle County Government Center, the location at which the meeting was held." The County did not provide us with copies of those notices, or indicate exactly when those notices were posted and where.