Delaware Department of Justice
Attorney General
Kathy Jennings

96-IB17: FOIA-Town of Millsboro

New Castle County – – Civil Division
May 30, 1996
Del. Op. Atty. Gen. 96-IB17 (Del.A.G.), 1996 WL 345778
(finding (a) a violation of FOIA where a town council reconvened after the scheduled public meeting had been adjourned, which violation was cured by a subsequent de novo consideration at a public meeting; and (b) that town council did not violate FIOA by engaging in straw polling of members to determine how members might vote on a proposed purchase of real property)
Ms. Faye L. Lingo
Town Manager
Town of Millsboro
322 Wilson Highway
Millsboro, DE 19966
RE: Freedom of Information Complaint
Dated March 21, 1996 – Town of Millsboro
Dear Ms. Lingo:
This is the Attorney General’s decision on the above reference anonymous complaint filed pursuant to 29 Del. C. § 10005 (e).
A complaint was forwarded to you alleging a Freedom of Information Act (FOIA) violation in the actions of Town Council preceding the purchase of the old post office to house the police department. You responded by letter dated April 4, 1996 with attachments including, a property assessment showing the value to be $135,800, the agenda and minutes of the February 5, 1996 Town Council meeting, and the agenda and minutes of the Council meeting of March 4, 1995. Pursuant to our request you supplemented the record on April 26, 1996 with the proposed minutes for the meeting held April 1, 1996.
Faye L. Lingo
May 30, 1996
Page Two
We have reviewed the submission as required under 29 Del. C. § 10005(e), and for the reasons stated below, we find the Board violated FOIA in connection with the gathering following the March 4, 1996 meeting. We find, however, that no remedial action’s warranted because the violation was cured at a later meeting.
The complainant alleged that a decision to purchase the old post office building we made without having had a town meeting. The topic first appeared in the minutes of the February 4, 1996 posting of the agenda at the Town Hall in accord with 29 Del. C. § 10004(e)(2). During the police report the cramped quarters were discussed and the post office building was suggested as a possible solution. A committee was appointed to do a feasibility study. (minutes p.3) At the next meeting on March 4, 1996 the minutes at p.2 indicate that the committee had not met but the suggestion was made that the entire Council should inspect the building and consider the cost of an addition to the existing Police Department. The meeting adjourned at 8:00 p.m.
The violation of FOIA occurred when the members apparently realized they needed a contingency plan. According to the supplement to the minutes, Council reconvened at 8:50 p.m. At this meeting, which also adjourned at 8:50 p.m., the members voted to offer $80,000 and authorize a bid up to $125,000 at the auction. By this time the public would have left correctly concluding that the meeting had adjourned. Parenthetically, had the members voted during the regular meeting to go into executive session under 29 Del. C. § 10004(b), discussion of the bid limit
Faye L. Lingo
May 30, 1996
Page Three
would have been a proper purpose. 29 Del. C. § 10004(b)(2). Confidentially of matters relating to acquisition of property is necessary in the negotiation stage to conserve public funds.
Subsequently, members were polled by telephone to get their individual positions on an offer of $105,000. There was no public meeting of a quorum of Council members and no violation of FOIA. Under FOIA a meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussion or taking action on public business. 29 Del. C. §10002(c). There was no gathering and no action taken. A informal poll to determine how members might vote on a proposal does not constitute a violation of FOIA. Tryon v. Brandywine School District, et al., Del. Ch., C. A. No. 11161, Hartnett, V.C. (April 20, 1990).
The purchase of the old post office was subject to public discussion and vote at the next regularly scheduled meeting on April 1, 1996 (proposed minutes p.1). Thus, the violation of FOIA was cured. (Attorney General Opinion No. 96-IB12 citing, Beebe v. Certificate of Need Appeals Board, Del. Super., C. A. No. 94A-01004, Terry, J., slip op. at 4-6 (June 30, 1995) (declining to invalidate action of public body based on violation of FOIA open meeting requirements where violation was de minimus since full public discussion occurred despite violation). The settlement on the acquisition occurred after the public meeting. In addition, pursuant to case law, a new de novo consideration of the agenda item was given by the members at the next meeting with a
proper vote. See Mark J. Levy v. Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler. V.C. (October 1, 1990).
Faye L. Lingo
May 30, 1996
Page Four
After reviewing the documents submitted it is clear that any violation was cured and no remedial action is necessary. Please feel free to contact our office if there are any other questions.
Very truly yours,
Sherry V. Hoffman
Deputy Attorney General

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