Civil Division – New Castle County
May 29, 1996
Del. Op. Atty. Gen. 96-IB18 (Del.A.G.), 1996 WL 345781
(determining that zoning board violated FOIA where board chairman and attorney made conflicting comments concerning whether an agenda item would be decided at that meeting or a later public meeting, and where such comments caused confusion and lead the public to believe that the matter would be considered at a later public meeting)
Ms. Donna Sturgis
Rt. 2
Box 309
Delmar, DE 19940
Re: Freedom of Information Complaint
29 Del. C. §10005(e)
Sussex County Planning & Zoning Board
Dear Ms. Sturgis:
Please consider this the Attorney General’s written determination pursuant to 29 Del. C. §10005(e) in the above referenced case.
As you are aware, after the Attorney General’s Office recieved your Complaint on March 21, 1996, 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 a March 22, 1996 letter to the Chairman of the Sussex County Planning & Zoning Board (hereinafter “the Board”). On April 12, 1996, this office received a response from the Assistant Count Attorney.
Your Complaint states that on February 22, 1996 the Board held a hearing to discuss the application of Springfield Enterprises/Subdivision 96-2 (hereinafter “the Project”), and after the hearing, the Board made a decision to defer action on the application until comments were available to the Board from other agencies. You were told that “a decision would take weeks,” and “[h]ad [you] known and been informed correctly instead of being misinformed by the Board, [you] would have remained and waited for more discussion and a vote if it was forthcoming.” Your complaint also stated that in response to a question asking when the Project would be brought back up for a vote and when it would appear on a future agenda, you were told to contact the Director of the Planning & Zoning Office. The Board discussed, voted and approved the application about midnight that night. Finally, you also alleged that one member of the Board may be related by marriage to the owners of the Project. You allege that these actions violated the Freedom of Information Act, 29 Del. C. ch. 100 (hereinafter “the Act”).
In response to your complaint, the Assistant County Attorney provided a copy of the application for the Springfield Enterprises Subdivision, a copy of the agenda for February 22, 1996, the minutes of the meeting of February 22, 1996, documents from the Board’s file on the application and a copy of the tape recording of the meeting. He publicly announced at the meeting that the matter would be discussed that night and “it was possible for the case to be decided at that time.” He further stated that the public was welcome to stay, and in fact, some members of the audience and the attorney representing a few of the opponents of the Project did stay until the conclusion of the agenda including the vote on the Project. In response to the charge that the public had been told to contact the office to learn when the Project would be brought back for a vote, he stated that the conversation occurred at the conclusion of the public comments prior to any decision, and prior to the announcement that the decision might be reached later that evening.
We have prepared a transcript of the comments which took place at the close of the public hearing for the Project on February 22, 1996. The transcript is the best that could be done considering the quality of the recording and the fact that there was no stenographic record. The pertinent portions of the hearing are as follows:
CHAIRMAN: I would like to thank you for your cooperation, we appreciate this large a crowd that they have controlled themselves as well as you have. I would like to thank you. We’ll close the public hearing. Some day we’ll have some kind of answer, I don’t have any idea what the (inaudible) will be. Sorry. We will have to take it under advisement and review and wait probably until we get some more reports in before we make any decisions. Thank you. (Emphasis supplied).
AUDIENCE: How will notification come, after your decision.
LAWYER: There are two things that happen. One of them is that we are going to go back and relook at the balance of the agenda that we have to deal with tonight. Theoretically, it could be decided tonight. You are welcome to stay. As long as we are here open for business you are allowed to stay and watch do it. If for some reason you are concerned that it will be deferred later this evening then it will reappear on the agenda at a later date. As Mr. Lank explained the agenda is posted in the main office about a week to eight days ahead of time and you can always call the building office at 7878 and say “I am interested in subdivisions 96-2 Springfield Enterprises, can you tell me if it is on the agenda for next Thursday.” We have a regularly published scheduled two meetings per month. There is a schedule available in the office also. (Emphasis supplied).
AUDIENCE: Are there not criteria that have not been met prior to your making your decision this evening?
LAWYER: You are asking me something that we will deliberate on later on.
AUDIENCE: I am sorry I mis-heard, I thought you said something about it earlier.
AUDIENCE: If there is another hearing, will everyone have the opportunity to reappear.
LAWYER: There will not be another public hearing on this. There will be ah… the public is always invited to attend the sessions in which these things come up.
AUDIENCE: Have you signed the petitions, or anything of that nature so that we can have all of your telephone numbers for notification when these hearings are taking place.
CHAIRMAN: We have a lot of things left on this agenda, we would appreciate the audience sitting down or leaving if you want to meet with the people, you are more than welcome to meet out in the hall, or whatever you would like to do.
LOTS OF COMMOTION…(1)
THE LAW
§ 10001. 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; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
§ 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
(e)(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.
(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.
(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
OPINION AND ORDER
A review of this transcript indicates clearly that the Chairman advised the public after the hearing on the Project that the Board would have to “wait probably until we get some more reports in before we make any decision.” This comment departs from the Chairman’s advice following the first four public hearings, when the Chairman had made very terse comments stating that the matter may be reviewed “later this evening” or “you may call the office to see if we have made any decision.” The Chairman’s comments after the fifth hearing appear to be an apology for the Board’s inability to decide the matter on the night of the hearing. In view of the Board’s decision on the application approximately an hour later, we believe that the Chairman’s remarks misinformed the public. Although there is no proven connection between the chairman’s comments and the response from the public, the Courthouse’s sign-in sheet for the night of the meeting indicates that a majority of the audience left around 10:30 p.m., after the public hearing for the Project.
The Assistant County Attorney in his response argues that the complainants did not understand what they heard. He is referring, however, to what he told the public, and, after acknowledging that he reviewed the tapes, he made no reference to or explanation for the Chairman’s comments. This is noteworthy because throughout the four hours of tape recordings, it is the Chairman and not the attorney who presided at the hearings. However, the transcript clearly indicates that the County Attorney did attempt to inform the public of what would occur, and in this regard, advised the public that “theoretically, it could be decided tonight.” He confirmed that the public was welcome to stay and explained how to learn if the Project “will reappear on the agenda.” In his statement, the attorney did not address the comments of the Chairman concerning the need to wait.
Following the attorney’s comments, a member of the audience noticed that the attorney had not spoken to the Chairman’s comments, and he asked whether there were criteria that have to be met “prior to making your decision this evening.” The attorney did not express his opinion but referred the question to later deliberations. When the questioner from the audience persisted, his question was unanswered even though on the tape recording, there was a suitable pause before the next question was asked by someone else.
The failure by the attorney to answer the question from the audience concerning the “criteria that have not been met” precluded any opportunity to correct the misinformation provided by the Chairman. When the persistent questioner was ignored the second time, we find that the attorney’s attempt to inform the public left the Chairman’s comment unexplained.
If the comments of the Chairman and the attorney are considered separately, the transcript of the comments made at the conclusion of the hearing indicates that the statements made by the Chairman and the attorney were in themselves, not confusing. The public apparently became confused because the attorney’s remarks, although following the Chairman’s remarks, did not reference them. Moreover, when the questioner from the audience attempted to have the attorney explain the Chairman’s comments, the effort was fruitless. The confusion resulted when the attorney volunteered to advise the public, but in the context of the hearing in which the Chairman had advised the audience that a decision had to wait, he failed to clarify the Chairman’s comments.
The public is entitled to notice as to when a matter will be discussed and decided. 29 Del. C. §10004(e)(2). The question is whether the audience at the public hearing of the Board had reasonable cause to believe that this Board would hold another public hearing at some later time before deciding the application for the Project. We conclude, based on a review of the tape recordings of the hearing, especially the transcript of the comments following the hearing for the Project, that the audience did have reasonable cause to believe the record would be open for further proceedings other than a vote. We find that even though the audience members were advised that they were welcome to remain based upon the Chairman’s comment and ambiguity in the conflicting statements, they could reasonably have believed that the application on the Project would not be decided that night. The failure to advise the public when a matter is to be discussed and decided is a violation of the Act. See Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch. C.A. No. 1216-K, Jacobs, V.C. (May 19, 1994).
The second issue presented by the Complaint is the allegation that a question was asked “when the issue would be brought back for a vote” and the complainant was told to telephone the Planning and Zoning Office. A review of the transcript reveals that the advice to call Mr. Lank of the Planning and Zoning Office was given by the attorney gratuitously and not in response to a question concerning when the matter would reappear on the agenda. We find that in the context of the hearing, the attorney’s reference to Mr. Lank’s office was not misleading.
The Complaint’s third allegation concerns the possible relationship of one of the Board members to a landowner associated with the application. These allegations are not within the scope of the Act and are better addressed to the Public Integrity Commission.
The remaining question is what is the consequence of the Board’s violation of the Act. The remedies for violations of the Act provided in §10005(a) and (d) are permissive. This is true also of the filing of suit authorized by §10005(e). For the reasons that follow, we conclude that no remedy other than this Opinion finding a violation is appropriate.
The appropriateness of a remedy should consider “whether a violation was unintentional or deliberate and whether it was an isolated incident or an ongoing pattern of infraction. Levy v. Board of Education of the Cape Henlopen School District, Del. Ch. C.A. No. 1447 at 16, 17, Chandler, V.C. (October 1, 1990). Also, in fashioning an appropriate remedy for a violation of the Act, the Court has considered whether substantial public rights have been affected and whether violations of both the letter and spirit of the Act have occurred. Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board at 27.
The violation of the Act by the Board resulted from the Chairman’s comments that misled the audience and the failure of the Board’s attorney in his remarks to clarify the Chairman’s comments. There is no basis to charge that this misinformation was deliberate or part of an ongoing pattern of misleading the public. More importantly, the violation is properly seen as a violation of the spirit of the Act rather than a violation of a specifically enumerated section of the Act. A final consideration is that the meeting remained open and some members of the public did remain and observe the public decision making process. Thus, although the Board’s comments may have resulted in many leaving the Board’s February 22, 1996 meeting prior to the decision on the Project application, some members of the audience remained.
In these circumstances, we conclude that the Board’s actions do not warrant a further remedy. It is hoped that this opinion will assist the Board to comply fully with the letter and spirit of the Act in future similar circumstances.
Very truly yours,
John K. Welch
Deputy Attorney General
James J. Hanley
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor
cc: Elizabeth Bacon, Opinion Administrator
1. This quote was transcribed by the Department of Justice and is not a quote from an official document as transcribed by a Court reporter.

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