January 21, 2003
(revised February 11, 2003)
Civil Division-Kent County
Re: Freedom of Information Act Complaint Against Town of Fenwick Island
Dear Mr. Manning:
Our Office received your Freedom of Information Act ("FOIA") complaint on November 22 , 2002. You allege that the Town of Fenwick Island ("the Town") violated the open meeting requirements of FOIA by not allowing you to speak at a meeting of the Town Council on November 15, 2002.
By letter dated December 4, 2002, we asked the Town to respond to your complaint. We received the Town's response on December 16, 2002. The Town denies that it violated FOIA because the statute does not have any "requirement for public participation." By letter dated January 2, 2003, we asked the Town for copies of the agenda and the minutes for the November 15, 2002 meeting of the Town Council, which we received on January 2, 2003. The agenda listed a period for "Public Participation" after the reports on various matters of public business.
FOIA requires that "[e]very meeting of all public bodies shall be open to the public" except as authorized for executive session. 29 Del. C. § 10004(a). As explained in FOIA's Declaration of Policy: "It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; . . . . 29 Del. C. § 10001 (emphasis added).
The key words here are "observe" and "monitor." FOIA entitles citizens to have notice and attend meetings of public bodies to watch the discussion of public business, but "does not afford the public any right to participate in the meetings." City of New Carrolton v. Rogers, Md. App., 410 A,2d 1070, 1078 (1980). Accord Sigma Construction Co. v. Guilford County Board of Education, N.C. App., 547 S.E.2d 178, 181 (2001) (there is nothing in the text of the open meeting law "requiring the solicitation of public comment as a prerequisite to a vote on a pending motion"); Souder v. Health Partners, Inc., Tenn. App., 997 S.W.2d 140, 150 (1998) ("While the Act requires all meetings of entities subject to the Act to be open to the public, it does not guarantee all citizens the right to participate in the meetings"); Wyse v. Rupp, Ohio App., 1995 WL 547784 (Sept. 15, 1995) ("There is nothing in the statute which requires that a public body permit a member of the public to speak at the meeting.").
Our Office has always encouraged public bodies to "to have an open meeting by answering questions by the citizens at public meetings." Att'y Gen. Op. 94-IO23 (June 21, 1994)). But the plain language of FOIA does not require public participation, only that citizens have timely notice of public meetings so that they can monitor and observe their elected public officials discuss matters of public concern. "The Act clearly states that the meeting is public not so that the public may comment, but so that the public, at a minimum, may observe and monitor public officials and their decisions." Att'y Gen. Op. 94-IO36 (Dec. 15, 1994).
If a public body chooses to allow public participation in a meeting, however, then it must treat members of the public fairly and even-handedly. "[O]nce a forum is open for the expression of views" the government may not "pick and choose between those views which may or may not be expressed." Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir. 1973). "Government action permitting some to speak, but denying the opportunity to others, raises an equal protection claim that is closely intertwined with First Amendment interests." Henrico Professional Firefighters Association v. Board of Supervisors of Henrico County, 649 F.2d 237, 241 (4th Cir. 1981).
City Council meetings . . . where the public is afforded
the opportunity to address the Council, are the focus of
highly important individual and government interests.
Citizens have an enormous first amendment interest in
directing speech about public issues to those who govern
their city. It is doubtless for this reason that such meet-
ings, once opened, have been regarded as public forums.
White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).
In Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992), the city council held a meeting to discuss the staffing of fire stations. The agenda provided for a period of public comment. During the public comment period, a firefighter raised his hand to be recognized, but the council refused to hear him, explaining that as a city employee he had to go through the city manager. The federal district court held that the city council violated the firefighters first amendment right of free speech. Once "the government had opened its doors to discussion by members of the public in general," the government "may not limit the forum to discussion by some and not to all of those who wish to speak." 794 F. Supp. at 782. The government "may not selectively prohibit a citizen from speaking at a public meeting based upon the content of the speech or upon the speaker's status." Id. at 783.
We believe that these constitutional principles inhere in the definition of an "open meeting" under Delaware's FOIA when a public body allows for a period of public participation. (1)
agenda for the Town's November 15, 2002 meeting listed "Public Safety Report- Councilman Henifin." The minutes of the meeting show that Councilman Henifin recommended hiring a retired State Trooper, Glenn Hudson, as a temporary full-time police officer for six months, and to appoint Hudson as the officer-in-charge of the Town until December 5, 2002. According to the minutes, Sergeant Michael Bruyette of the Town police department asked about Hudson's salary, and Council Henifin said "$35,389.00 per annum, which is $17.00 an hour which is approximately the average salary for Lieutenants up and down the coast, which is the average salary for an officer with fifteen years experience."
The minutes of the November 15, 2002 meeting of the Town Council do not reflect much of what transpired at the meeting. But according to a local newspaper article (The Wave, Nov, 20, 2002), "several Fenwick Island residents in attendance demanded to know why Maj. William Manning, the police department's second in command, had been passed over for the position of officer in charge on two separate occasions. [Councilman] Henifin responded that 'there is a problem of communication and trust between the council and Major Manning.' Manning wanted to rebut that statement, but Council President Peg Baumchalk refused to let him speak as he was not a Fenwick Island property owner." According to the newspaper article, the Town Council voted to hire Hudson as officer-in-charge of the police department for six months.
All citizens of the State of Delaware have rights under FOIA, including the right to attend a public meeting. During a pubic comment period, a public body can distinguish between citizens and non-citizens. See Att'y Gen. Op. 96-IB01 (Jan. 2, 1996) (town council could refuse to answer a question from a resident of Maryland on the ground Delaware's FOIA "applies only to Delaware citizens"). But a public body cannot derogate from FOIA by affording rights to a more restrictive group of citizens, such as the owners of property within a municipality.
The agenda for the November 15, 2002 meeting of the Town Council provided for a period of "Public Participation" after discussion of various reports, including the "Public Safety Report." After Councilman Henifin discussed hiring Glenn Hudson as a full-time police officer and appointing him officer-in-charge on an interim basis, the Council heard from several members of the public, including Sergeant Michael Bruyette (who, like Major Manning, does not own property in Town, as confirmed by the Town in its supplemental response).
We find that the Town violated the open meeting requirements of FOIA by restricting public comment at the November 15, 2002 Council meeting to Town property owners. The Town further violated the open meeting law by allowing some citizens who are not Town property owners to speak (Sergeant Bruyette), but refusing to let you speak on the subject of hiring Glenn Hudson when the issue was open for public discussion.
We also find that the Town did not comply with the requirements of FOIA for preparing minutes. FOIA requires minutes to "include a record of those members present and a record, by individual members . . . of each vote taken and action agreed upon." 29 Del. C. § 10004(f). The minutes of the November 15, 2002 meeting do not reflect the vote to hire Glenn Hudson as a full-time police officer for six months.
For the foregoing reasons, we find that the Town violated the open meeting requirements of FOIA at the November 15, 2002 Council meeting by: (1) restricting public comment to Town property owners, and then allowing some non-property owners but not you to comment on the proposal to hire Glenn Hudson on a full-time basis for six months and appoint him as the officer-in-charge of the Town police department on an interim basis; and (2) by failing to prepare minutes of that meeting reflecting the vote, by individual members of the Council, to hire Mr. Hudson. As remediation for these violations, we direct the Town to hold a special meeting within thirty days of the date of this letter to vote again whether to hire Mr. Hudson on a full-time basis. Because the Town has previously allowed public comment on the issue, the agenda for that meeting must include a reasonable period of public participation open to all citizens.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Tempe Brownell Steen, Esquire
Phillip G. Johnson, Opinion Coordinator
1. A public body can impose reasonable time, place, and manner restrictions on public participation. There is no evidence in the record, however, that anyone disrupted the November 15, 2002 Town Council meeting by "speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies" so as to prevent the Council "from accomplishing its business in a reasonable manner." City of Norwalk, 900 F.2d at 1426. See 29 Del. C. § 10004(d) (authorizing "removal of any person from a public meeting who is willfully and seriously disruptive of such meeting").