Civil Division – New Castle County
February 13, 1996
Del. Op. Atty. Gen. 96-IB05 (Del.A.G.), 1996 WL 114716
(determining that non-public meetings of town council sub-groups to discuss, formulate and execute an employee policy memorandum violated FOIA’s open meeting requirements)
Ms. Lynn M. DeLeon
307 Carolyn Street
Georgetown, DE 19947
Re: Town of Georgetown – Freedom of Information Act Complaint
29 Del. C §10005(e)
Dear Ms. DeLeon:
This is the decision on the above-referenced Freedom of Information Act Complaint (“the Complaint”) you filed with the Attorney General.
The operative facts in the Complaint are that you alleged that since the firing of the Town Manager of Georgetown on November 9, 1995 the Town Council (“the Council”) has met each day in Town Hall under clear violation of the Sunshine Law. You stated that three councilpersons met at Town Hall and made some decisions that are crucial to the Town of Georgetown and that the newly appointed Town Solicitor, Mr. Richard Stokes refuses to do anything to stop this behavior.
You attached a copy of a November 27, 1995 memorandum that was directed to you without the Mayor and Councilperson Warren’s signature. (Exhibit “A”). You stated that you would like to know whether “someone is going to stop these people from blatantly breaking the law on a daily basis.” Finally, you alleged that Chief Harvey Gregg has taken it upon himself to change the way the police should be paid and that “the Councilwomen refuse to listen to myself or our accountant as to the best way to handle the situation they are given (sic) to the Chief.” (Complaint p. 3). You state that this complaint is an honest attempt to bring law and order back to the Town.
On December 15, 1995 the Town of Georgetown, through its counsel, Brian D. Shirey, acknowledged receipt of the complaint. The Town claims that this was the first notice of the complaint and that the Town would respond within ten (10) calendar days of the correspondence.(1)
In its December 22, 1995 answer to the complaint, the Council stated that your complaint lacked specificity and that it was difficult to respond to your sweeping allegation[s], including the allegation that the Council has met each day in violation of the Act since November 9, 1995. The Town Council also pointed out that the majority of your correspondence dealt with your personal disagreement with various lawful decisions of the Town Council, not the Freedom of Information Act, 29 Del. C. ch. 100.
The Council concedes that Mayor David Bloodsworth and Councilperson Jane Hovington met together and developed the points addressed in the November 27, 1995 memorandum. The Council admits that Councilperson Hovington had the memorandum prepared and subsequently met with Councilperson Mabel Givens to review the same. The Council also concedes that Councilperson Hovington also reviewed the memorandum with Councilperson Silva Short Calhoun on a separate occasion. The Council stated that Councilperson Hovington did not review the memorandum with Councilman Nelson Warrington due to a conflict. Finally, the Council argues that at no time did a quorum of the Mayor and Council meet together to develop and/or discuss the contents of the November 27, 1995 memorandum. Despite the allegations in your complaint, Mr. Shirey on behalf of the Council, stated that he has been assured that Town Council has not met on any occasion to discuss public business in Town Hall or elsewhere.
On January 4, 1996 this office, as part of its required investigation pursuant to 29 Del. C. § 10005(e) requested copies of the public notice, agenda and minutes of the Georgetown Council’s meeting where it adopted and signed the Council’s November 27, 1995 memorandum.
After a telephone call to the attorney for the Council, Mr. Shirey responded in writing on January 29, 1996 and stated that no meeting of the Council as defined in 29 Del. C. §10002(e) concerning the matter addressed in the memorandum and issue were ever held. The Council was unable to provide copies of the notice, agenda and/or minutes as requested by the Attorney General.(2)
§ 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.
(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.
(f) “Agenda” shall 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 under subsection (b) of §10004 of this title.
§ 10003. Examination and copying of public records.
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy. (Emphasis added).
§ 10004. Open meetings.
(e) (1) This subsection concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to the General Assembly.
(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.
(5) 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 on the agenda.
(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.
DECISION AND ORDER
First, with regard to any alleged charter violations in your complaint, the Attorney General has no jurisdiction over these matters as they are outside 29 Del. C. ch. 100. They therefore will not be addressed in this written determination pursuant to 29 Del. C. § 10005(e).
Second, with regard to the sweeping, vague allegations against Council charging that the Council met each day in Town Hall, no specific facts are alleged and Council’s attorney has summarily denied the sweeping allegations because they lack sufficient specificity upon which an answer can be based. Because of the lack of specificity in your complaint, and because the Town’s attorney has expressly denied the allegations, we must conclude that no violation has occurred.
Third, with regard to the discussion, drafting and execution of the November 27, 1995 memorandum adopted by Council we find that the following violations of the Act occurred:
1. A violation of 29 Del. C. § 10004(e)(1) by Council for failing to give public notice of its public meeting including the agenda, and/or listing of an Executive Session where it adopted and signed the November 27, 1995 memorandum;
2. A violation of 29 Del. C. § 10004(e)(4) by failing to post the required public notice at its principal office and/or where the public meeting regularly takes place by Council wherein it signed and adopted the November 27, 1995 memorandum; and
3. A violation of 29 Del. C. § 10004(f) by failing to maintain minutes of said meeting which adopted and/or executed the November 27, 1995 memorandum;
4. A violation by Council of 29 Del. C. § 10003(a) to either provide the public records as requested by the Attorney General in its January 4, 1996 letter or indicate no public records existed for twenty (20) days.
The Attorney General requests that the Board re-notice a regularly scheduled or special public meeting to adopt and/or ratify the illegal actions of Council wherein it failed to properly post and publicly notice a meeting to adopt or ratify the November 27, 1995 memorandum. The Council is without authority to take action under 29 Del. C. ch. 100 (specifically the above sections cited) without first complying with the agenda, public notice and record keeping provisions of the Act.
If the Council does not take corrective action within thirty (30) days, the Attorney General may undertake enforcement action pursuant to 29 Del. C. § 10005(e). Please provide this office with copies of the public notice, agenda and meeting minutes of the public meeting required herein when it is scheduled by Council.
Finally, Town Council’s argument that no violation occurred because a quorum was not present when it drafted, signed and executed the November 27, 1995 memorandum is without merit. In its January 2, 1996 Opinion No. 96-IB02 (attached), the Attorney General outlined in detail that a public body may be subject to the Act even if strict quorum requirements are not satisfied. (Op. at 6). The fact that Council met in sub-groups to discuss, formulate and execute the November 27, 1995 memorandum suggests that the Council acted deliberately to circumvent the public notice, agenda and record keeping requirements of the Act. We find this conclusion compelling because the November 27, 1995 memorandum set forth significant policies for employees which were discussed by the Council and upon which the Council took action. We therefore direct to the Council take the remedial action set forth in this opinion.
Very truly yours,
John K. Welch
Deputy Attorney General
Michael J. Rich
cc: Ms. Elizabeth Bacon, Opinion Administrator
1. Apparently the first letter was lost in the U.S. Mail.
2. Because of the delay by the Council in responding to the Attorney General’s January 4, 1996 letter requesting the public documents, the Attorney General treats these “FOIA” allegations as alleged ongoing violations. See, 29 Del. C. § 10005(e).