New Castle County/Civil Division
September 3, 2003
Mr. Ted Marcucilli
128 Henlopen Drive
South Bethany, DE 19930
Re: Freedom of Information Complaint Against Town of South Bethany
Dear Mr. Marcucilli:
Our Office received your Freedom of Information Act ("FOIA") complaint dated December 16, 2002 against the town of South Bethany ("the Town"). You allege that the Town violated FOIA by: (1) meeting in executive session on November 8, 2002 for a purpose not authorized by law; and (2) holding a meeting on November 18, 2002 without sufficient advance notice to the public. You also complained that the Mayor made inappropriate remarks about you during the meeting on November 18, 2002. That complaint is not within our Office's jurisdiction under FOIA.
By letter dated December 20, 2002, we asked the Town's attorney to provide to us with copies of the minutes for the Town's public meetings on November 8 and November 18, 2002 and the minutes of the executive session on November 8, 2002. By letter dated January 2, 2003, we asked the Town's attorney to explain the reason for the late change to the agenda for the November 18, 2002 meeting in greater detail. We received that supplemental information on January 27, 2003.
Recently, we asked the Town for additional information concerning the process to appoint a new member to the Board of Adjustment and the status of Board members within local government to complete our factfinding. We received that information on August 13, 2003.
A. November 8, 2002 Meeting
You question whether the agenda for this meeting gave sufficient notice to the public that the Council would meet in executive session because the only matter listed for executive session was "personnel." You also were concerned that agenda scheduled the vote on the personnel matter ahead of the executive session, suggesting that the matters discussed in the executive session were for another, unauthorized purpose.
We have reviewed the minutes of the November 8, 2002 executive session in camera and compared them with the minutes of the public portion of the meeting. It is clear that the Council met first in executive session to discuss the qualifications of a property owner who was interested in being a member to the Board of Adjustment and then, after going back into public session, decided to postpone approval of a new Board of Adjustment member until the Town's next meeting on November 18, 2002.
FOIA does not require that the items addressed by a public body in a meeting be discussed in the order in which they are listed in the agenda. Indeed, the agenda for the Town's November 8, 2002 meeting specifically stated that "[t]he agenda items, as listed, may not be considered in sequence."
FOIA authorizes a public body to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." 29 Del. C.
§ 10004(b)(9). We have previously 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). If the Town had discussed the names, competency and abilities of individual employees in executive session at the meeting on November 8, 2002, the agenda item "Executive Session to Discuss Personnel" would have satisfied FOIA's notice requirements. But the Town has confirmed that members of Board of Adjustment are not "employees" of the Town. FOIA's personnel exemption for executive session, therefore, does not apply.
FOIA, however, authorizes a public body to meet in executive session to discuss "an individual's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open." 29 Del. C. § 10004(b)(1). Under that exemption, the Town could lawfully have met in executive session on November 8, 2002 to discuss an individual's qualifications to be a member of the Board of Adjustment. See Att'y Gen. Op. 99-IB03 (Apr. 28, 1999) (town could meet in executive session to discuss qualifications of the candidates for town manager; FOIA did not require the agenda to list the names of the candidates).
We find that the Town invoked the wrong exemption to go into executive session on November 8, 2002 to discuss the qualifications of an individual to be a member of the Board of Adjustment. Since the Town could have met in lawful executive session to discuss the qualifications of a job candidate -- and FOIA did not require the agenda to list the name of the candidate -- we find this to be a technical violation for which remediation is not necessary. See Atty' Gen. Op. 99-IB03 (Apr. 28, 1999) ("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.").
B. November 18, 2002 Meeting (1)
According to the Town, it posted a revised agenda for the November 18, 2002 meeting at 9:00 a.m. on that day, more than six hours prior to the scheduled meeting (at 4:00 p.m.), to add an item, "Reconsideration of New Board of Adjustment Member."
FOIA provides for two distinct methods to amend an agenda. First, FOIA allows a public body to change an agenda "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 meeting." 29 Del. C. § 10004(e)(2) (emphasis added). The item added to the agenda of the Town's November 18, 2002 meeting ("Reconsideration of New Board of Adjustment Member") did not arise at the time of the Town's meeting.
Second, FOIA also provides: "When the agenda is not available as of the time of the initial posting of the public notice it 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." 29 Del. C. § 10004(e)(5).
According to the minutes of the executive session on November 8, 2002, the Council discussed the qualifications of the one candidate to date who had expressed an interest in the position on the Board of Adjustment, Paul E. Tabor. When the Council returned to public session during the November 8, 2002 meeting, the minutes show that "Mayor Beck postponed discussion on the appointment and approval of a new Board of Adjustment Member until the November 18 Special Meeting/Workshop Meeting."
According to the Town, when Mayor Beck first reviewed the agenda for the November 18, 2002 meeting on the morning of that meeting, he realized that there was no line item for the Board of Adjustment vacancy. The Town then amended the agenda to add "Reconsideration of New Board of Adjustment Member." The Town has provided us with an affidavit from Linda L. Collins attesting that the revised agenda was posted at approximately 9:00 a.m. on November 18, 2002 (the special meeting was scheduled for 4:00 p.m. later that day).
The Town satisfied the requirement of Section 10004(e)(5) of FOIA to amend the agenda at least six hours in advance of the meeting on November 18, 2002. We are also satisfied that the item added to the agenda was not available at the time of the initial posting of the agenda because the Mayor had not had an opportunity to review the agenda prior to November 18, 2002 to see if it was consistent with the action contemplated by the Council at the meeting on November 8, 2002. See Att'y Gen. Op. IB22 (Sept. 13, 2002) (when the public body posted notice of the July 16, 2002 meeting on July 9, 2002, it was not aware that it might take up the ethics issues discussed at the July 11, 2002 meeting of the County and Council).
The Town admits that the revised notice of the November 18, 2002 meeting did not include an explanation why the subject -- "Reconsideration of New Board of Adjustment Member" -- was not available at the time the Town posted the original notice for that meeting. We find this a technical violation that does not require remediation. The public had notice that the Council intended to re-visit the Board of Adjustment issue at the November 18, 2003 meeting as announced during the public portion of the meeting on November 8, 2002. Indeed, during that ten-day interval you apparently expressed an interest in the Board of Adjustment position. At the November 18, 2002 meeting, the Council discussed several candidates for the job, and Councilman Cestone made a motion to appoint Mr. Tabor. According to the minutes, "Since the motion failed with only three FOR votes (four FOR votes were required to carry), it will be presented against at another Town Council meeting."
Based on this record, the public had effective notice that the Council would take up the matter of the Board of Adjustment position at the meeting on November 18, 2002. The matter was thoroughly discussed in public before the Council took a vote that did not result in any final action. Under these circumstances, we do not believe that any remediation is necessary to cure the technical violations of FOIA in the amended agenda for the November 18, 2002 meeting.
For the foregoing reasons, we determine that the Town violated the open meeting requirements of FOIA by: (1) meeting in executive session on November 8, 2002 under an agenda item listed as "personnel" when in fact the Town discussed another matter that FOIA authorizes for discussion in executive session; and (2) by amending the agenda for the November 18, 2002 meeting without explaining the reason for the delay in posting an amended agenda. We find these two FOIA violations to be technical, and therefore do not require remediation. The Town is cautioned to strictly comply with the requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S Cobin
cc: The Honorable M. Jane Brady
John Terence Jaywork, Esquire
Mr. Philip G. Johnson
1. The agenda and minutes of the November 18, 2002 meeting refer to it as a "Special Meeting/Workshop." FOIA has a separate provision for noticing a "special meeting," defined as any meeting "to be held less than 7 days after the scheduling decision is made." 29 Del. C. § 1000(4)(e)(3). The Town posted the original notice of the November 18, 2002 meeting more than seven days in advance, so the change later made to the agenda is governed by Section 1000(4)(e)(5), not Section 1000(4)(e)(3).