Del. Op. Atty. Gen. 96-IB02 (Del.A.G.), 1996 WL 40923
(determining that meetings between two or three members of city council and UD employees were public meetings subject to FOIA’s open meeting requirements where council member groups could be viewed as special or ad hoc committees “impliedly or specifically charged” by the full council to advise or to make reports or recommendations concerning public business)
Civil Division – New Castle County
January 2, 1996
Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Re: Freedom of Information Act Complaint
29 Del. C. § 10005(e)
Newark City Council
Dear Mr. Porach:
Please consider this the Attorney General’s written determination pursuant to 29 Del. C. § 10005(e) in the above-referenced matter.
As you are aware, after the Attorney General’s Office received your Complaint on October 24, 1995, it was required to conduct an investigation to determine the validity of the Complaint. 29 Del. C. § 10005(e). A response to your Complaint was requested in an October 26, 1995 letter to the Mayor of Newark. On November 29, 1995, this office received a response from the City Solicitor of Newark.
Your Complaint states that you were informed at an October 16, 1995 Newark City Council Workshop of a recent gathering of the Newark City Council (hereinafter the “Council”) and University of Delaware administrators. Although you were not advised of the exact date of the gathering, you were told that the topic discussed was the University building plans and that the gathering was split between a morning and evening session to avoid a City Council quorum at any one session. You asked for an investigation to determine the following:
1. Did a gathering occur between the Newark City Council and University administrators?
2. Were any other gatherings held in the last six months with the University or other interests to discuss their building plans?
3 Did the Newark City Council consider scheduling and/or attending the University gathering or any gathering as discretionary?
4. Was public notice given announcing the gathering?
5. When did the gathering occur?
6. Where was the gathering held?
7. Who attended the gathering?
8. Was the gathering a split session affair?
9. Was the information presented at each split session identical or similar enough to be considered identical?
10. Was the split session format deliberately implemented to avoid a City Council quorum?
11. Who recommended the split session format?
12. Does the University, a state agency, consider the gathering as fully complying with Delaware Code, Title 29, Section 9227?
In response to your letter, Roger A. Akin, Esquire, City Solicitor for the City of Newark, in his November 21, 1995 letter advised that Mr. John Brook, University Vice President for Government and Public Relations scheduled a series of meetings. The first meeting was a dinner meeting at the Blue & Gold Club on August 30, 1995, attended by Mayor Ronald Gardner, Councilman Godwin, Councilman Felicia and Mr. Brook, Mr. Hollowell and Mr. Armitage from the University.
The second meeting was a luncheon meeting at the Blue & Gold Club on September 7, 1995, attended by Councilwoman Jane Tripp and Councilwoman Irene Zych and the same three members of the University staff. The final meeting was a breakfast meeting held at the University Student Center on September 8, 1995 attended by Councilman Wampler and Councilman Grant and the same three members of the University staff. The University arranged the locations and the time of the meetings. The topics discussed at the meeting “included the University’s building plans as well as other subjects including traffic and other matters.” Mr. Aiken further advises that none of these sessions was a “public meeting” of the Newark City Council because “[n]o quorum was present on any of the three listed dates.”
§ 10002. Definitions.
(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.
(b) “Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power.
(e) “Meeting” means the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.
(2) All public bodies shall 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, if such has been determined at the time, and the dates, times and places of such meetings; however, 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 meeting.
(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.
(4) Public notice required by this subsection 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.
For the reasons stated below, we conclude that the Council did violate the Freedom of Information Act (hereinafter the “Act”) by failing to give public notice and record minutes of the meeting, and to perform public business in an open and public manner. See 29 Del. C. § 10004(e)(2),(4) and § 10004(f).
The Council through its attorney concedes that it is a public body and wishes to argue that none of the three meetings was a public meeting of the Council because a quorum was not present. Since the Council consists of seven members and according to the Newark City Charter, a quorum of the Council consists of a majority of its members, a quorum of the Newark City Council is four members. The argument is that by definition, a public meeting occurs only when there is a quorum of the Council. The City cites Delaware Solid Waste Authority v. News-Journal Co., Del. Supr., 480 A.2d 628 (1984) in support of this argument.
The difficulty encountered by the City’s argument is that in July, 1985, the General Assembly amended the definition of public body provided by 29 Del. C. § 10002(a) in response to the Court’s comments in Delaware Solid Waste Authority v. News-Journal Co., Del. Supr., 480 A.2d 628 (1984). In that case, the Court construed the definition of public body and found that a standing committee of less than a quorum of the public body was not subject to the “open meeting” provisions of the Act. Id. Accordingly, the General Assembly amended the definition of “public body” to include an “ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee,” and included such committees “established by any body established by the General Assembly of the State.” The definition of “public body” now applies to many groups including temporary, special or ad hoc committees such as the meetings on August 30, September 7 and September 8, 1995.
In its response, the City advised that the University chose the time and location of the meetings. It may be assumed that the invitations did not specify the members to attend, but that this decision was made by the Council itself. These groups of two or three become special or ad hoc committees selected to meet with the University personnel and “impliedly or specifically charged” by the full Council to advise or to make reports or recommendations. These three special committees are public bodies as certainly as is the Council itself.
The facts in this matter permit only one reasonable conclusion. The formation of three ad hoc committees to meet with the same university staff to discuss essentially the same topics was a scheme to avoid compliance with the Act. A year before, also in response to a complaint filed by Mr. Porach, this office had found that a meeting between the City Council and the University personnel was not a public meeting because the meeting did not concern a matter “over which the public body has supervision, control, jurisdiction, or advisory power.” In that December 15, 1994 opinion, this office stated that the Act was applicable to the meeting even though it involved the University of Delaware, an exempt entity under the Act.
In this instance, a year later, the City Council has attempted to avoid a quorum by meeting with the University in three separate meetings. If there were only two meetings, at least one would have a quorum of the Council. The fact that the three meetings involved practically the same topics and the same University staff appears to be an egregious waste of time and energy unless the three meetings had another purpose. Although the Council argues that the purpose of the meetings was not public business, the Act places the burden of proving the purpose of a gathering of a public body on the public body. News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358 (1977). The absence of minutes of the meeting or an agenda precludes findings on the subjects discussed at the meetings.
This opinion does not respond to your twelve questions, paragraph by paragraph, but with the exception of question twelve concerning the University, the information requested is given. Since there has been no decision resulting from the three meetings, no further enforcement activity is planned. However, should the Council decide to discuss these public matters again, all provisions of the Act must be complied with, including 29 Del. C. § 10004(e)(2),(3) and (4), as well as 29 Del. C. § 10004(f). If the Council continues to meet with the University in violation of the Act, this office may consider invoking the statutory enforcement remedies contained in 29 Del. C. § 10005(e).
Very truly yours,
John K. Welch
Deputy Attorney General
James J. Hanley
Deputy Attorney General
Michael J. Rich