Del. Op. Atty. Gen. 97-IB13 (Del.A.G.), 1997 WL 606460
Office of the Attorney General
State of Delaware
Opinion No. 97-IB13
June 2, 1997
RE: Freedom of Information Act Complaint Against City of Lewes
*1 Mr. Richard H. Anthony
P.O. Box 653
Lewes, DE 19958
Dear Mr. Anthony:
This letter is our written determination in response to your complaint alleging that the City of Lewes (the “City”) violated the Freedom of Information Act, 29 Del. C. Sections 10001–10005 (“FOIA”), by not giving the required notice of meetings where public business was discussed.
Your letter of complaint dated February 22, 1997 was received by this Office on February 28, 1997. By letter dated March 10, 1997, we asked for the City’s response to your allegations that the City had violated the open meeting requirements of FOIA. Although your complaint also alleged a violation of the public notice provisions of the Code of Lewes, we did not ask the City to respond to those allegations since they involved matters outside the jurisdiction of the Attorney General’s Office.
In your letter, you alleged that the City had violated FOIA in two ways: first, by holding meetings of the Personnel Policy Review Committee during the last two years without notice to the public; and second, by holding a meeting of the Mayor and three council members on January 27, 1997 to discuss matters of public business, again without notice to the public. By letter dated March 24, 1997 we received a response from the City’s attorney, denying that the City had committed any FOIA violations.
By letter dated April 28, 1997, we asked the City for additional documents and information, which we received on May 2, 1997.
Concerning the first issue, the City Council, at a regularly scheduled meeting on April 10, 1995, appointed an “in house” committee to review personnel policy issues, and to advise and make recommendations to the whole City Council. That committee, which came to be known as the Personnel Policy Review Committee (the “Committee”), first met on May 23, 1995. Since then, the Committee has met sixteen more times, most recently on March 13, 1997. According to the City’s attorney, “[e]ach meeting was noticed with an agenda at least seven days prior to the meeting.” Enclosed with the City’s letter response were copies of the three-line notices for each of the meetings of the Committee. The City’s attorney also states that each of those meetings was tape-recorded, and the tapes “are available for review pursuant to an appropriate request under Section 10003 of Title 29 of the Delaware Code.”
Concerning the second issue, the City acknowledges that in January 1997 “the Mayor and Councilpersons each received an invitation from the Historic Lewes Business Committee of the Lewes Chamber of Commerce inviting each ‘to attend a workshop with our group at St. Peter’s Parish Hall on Monday, January 27, 1997, at 7:30 p.m.”’ The invitation listed “areas we feel need to be addressed,” including: police coverage, park and recreation proposals, uneven pavement and sink holes, parking, transient boats, street cleaning, and Christmas lights.
*2 The only notice of this meeting was in the January 1997 newsletter of the Chamber of Commerce, which stated: “The committee has also requested a meeting with City of Lewes officials to discuss a number of issues that businesses in the historic district have with the City. The meeting is scheduled for Monday, January 27 at 7:30 p.m. at St. Peter’s Hall.” That notice was also listed in the Chamber of Commerce and Visitor Bureau’s calendar of events.
The Mayor and three members of the City Council attended the meeting on January 2, 1997. The City, however, contends that “[t]here was no action taken at this public forum. The Mayor and members of Council did not discuss between themselves any matter of public business but rather heard discussion by the Chamber of Commerce and the Lewes Business Committee.”
 
Summary of the Law
 
Section 10004 of Title 29 of the Delaware Code provides that “[e]very meeting of all public bodies shall be open to the public” except as authorized by statute for executive session. Section 10004(e)(2) further provides: “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; ….” Section 10004(e)(4) requires that notice “shall include, but not be limited to, conspicuous posting of said notice at the principal place of the public body holding the meeting, ….”
Section 10004(f) requires every public body to “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.”
The Committee is a “public body” for purposes of FOIA. FOIA defines a public body to include any “committee, ad hoc committee, special committee, advisory board and committee, [or] subcommittee, … appointed by any body or public official [which] … is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.” 29 Del. C. Section 10002(a). The City does not dispute that the Committee was appointed by a public official (the Mayor) to give advice and to make recommendations to a public body (the City Council).
 
Discussion and Findings
 
For each of the seventeen meetings of the Committee, the City posted a notice stating the date, time, and place of the meeting. None of those notices, however, included an agenda, as required by Section 10004(e)(2). FOIA defines an agenda to include, at the very least, “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 ….” 29 Del. C. Section 10003(f). See Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen, C.) (agenda was insufficient “to alert the public” as to the matters the public body would consider).
*3 Furthermore, the City admits in its response that “[n]o formal written minutes” were maintained of any of those meetings of the Committee. Rather, the meetings were tape-recorded. This Office has previously determined that, even where a public body has taped a meeting, FOIA still requires that minutes be prepared so that they are readily available for public inspection. See Att’y Gen. Op. 96-IB25 (July 22, 1996).
We find that the City committed two separate violations of FOIA: (1) failure to post agenda for meetings of the Committee, in violation of Section 10004(e)(2); and (2) failure to maintain minutes of those meetings, in violation of Section 10004(f). We now turn to the issue of notice of the January 27, 1997 meeting between members of the City Council and the Chamber of Commerce.
The application of the open meeting law to joint meetings of different bodies does not lend itself to bright lines. On the one hand, there is no “reason why a joint discussion meeting of several public bodies with respect to matters of mutual public concern should not be as fully subject to [FOIA] as is a discussion of a single body with respect to matters of public concern.” Allen-Deane Corp. v. Township of Bedminster, N.J. App., 379 A.2d 265, 268 (1977). On the other hand, the public policies behind the act may not be implicated where a joint meeting is “informational” only and “not for the purpose of official action.” Woodbury Daily Times Co. v. Gloucester County Sewerage Authority, N.J. App., 386 A.2d 445 (1978) (meeting between local authority and state department of environmental protection).
The issue turns on whether members of a public body attending such a joint meeting are there simply to listen and learn, or whether they actively participate in the discussion or resolution of any issues of public concern. Even though the members may not vote on anything at the joint meeting, the same issues may be raised at a later meeting of the single public body. That creates at least the appearance that decisions affecting the public are being crystallized out of the public view, and the public vote is only a “ceremonial acceptance.” Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p.7 (Oct. 1, 1990) (Chandler, V.C.). “[R]arely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors, … [A] sunshine statute, being for the benefit of the public, should be construed so as to frustrate all such evasive devices.” Id.
The City suggests that the meeting attended by the Mayor and three council members was not subject to FOIA because the meeting was called by the Chamber of Commerce. This Office has previously determined that it is irrelevant who sponsors such a meeting. “[A] meeting as defined in Section 10002(e) does not cease to be a meeting because the Council gathers as a result of an invitation of another public official or body. If the ‘gathering’ is ‘for the purpose of discussing public business,’ it would be within the scope of [FOIA], regardless of [who] initiated the breakfast.” Att’y Gen. Op. 94-I036 (Dec. 15, 1994).
*4 The subjects of discussion at the January 27, 1997 meeting of the Chamber of Commerce were clearly “public business.” FOIA defines “public business” to mean “any matter over which the public body has supervision, control, jurisdiction or advisory power.” 29 Del. C. Section 10002(b). The purpose of the Chamber of Commerce meeting was “not merely for academic discussion” on matters “which would have no effect upon the City.” The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977) (Brown, V.C.). Rather, the matters discussed at the meeting — paving, parking, parks, and police — are “matters over which City Council clearly had control, supervision and jurisdiction.” Id. See Code of Lewes, City Charter, Section 19(i) (charge and supervision of streets, parks, and other administrative affairs of the city); Section 24 (police force).
The City also contends that the January 27, 1997 meeting was not subject to FOIA because the City representatives took “no action.” In McLaughlin, the Chancery Court distinguished the Pennsylvania open meeting statute, which applied only “to meetings where ‘formal action’ was taken. Our law is not so limited. Rather, it applies to meetings called to discuss public business as well as to meetings called to take action on public business.” 377 A.2d at 362.
In Levy, supra, the Chancery Court again rejected the notion that FOIA applied only to meetings where a public body intended to take “formal action, but did not apply where a school board held a “workshop” at a local restaurant. Under that interpretation, “there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business as long as the Board reached no formal decision at that private meeting. 1990 WL 154147, at p. 6. FOIA “recognizes that policy decisions by public entities cannot realistically be understood as isolated instances of collective choice, but are best understood as a decisional process based on inquiry, deliberation and consensus building. Because informal gatherings or workshops are part of the decision-making process they too must be conducted openly.” Id.
The City contends that the public had notice of the Chamber of Commerce meeting through the Chamber’s newsletter and calendar of events. FOIA, however, requires that notice of public meetings “shall” include “conspicuous posting of said notice at the principal office of the public body holding the meeting.” 29 Del. C. Section 10004(e)(4) (emphasis added). In Att’y Gen. Op. 96-IB26 (July 25, 1996), this Office determined that the county did not satisfy the notice provisions of FOIA, when it gave notice of a meeting in the county administrator’s report. The purpose of requiring conspicuous posting of notice at the public body’s principal office “is to ensure that no member of the public will have to search out to discover public meetings.” Id.
*5 We do not find, however, on the basis of this record, that the City violated the notice requirements of FOIA in connection with the January 27, 1997 meeting attended by the Mayor and three members of the City Council. The Chamber of Commerce is not a public body, and therefore is not required by FOIA to maintain minutes of its meetings. The City’s counsel has also represented that “the City is unaware of any minutes, notes or any other documents memorializing or relating to what was discussed at the January 27, 1997, meeting.” We have reviewed the minutes of the general and special meetings of the City Council through March 24, 1997, and it does not appear that any matters of public business that were discussed at the Chamber of Commerce meeting in January were also the subject of any formal action at a later Council meeting. On the basis of this record, we accept the City’s representations that the Council members attended the Chamber of Commerce meeting to obtain information only, and that they did not actively participate in discussions of public business that were later the subject of formal action by the City Council at one of its own meetings.
The City is cautioned, however, that attendance by members of the Council at meetings like the one with the Chamber of Commerce may trigger the requirements of FOIA. To make certain that their attendance is merely to listen and learn, it behooves Council members to take notes or otherwise memorialize the proceedings, in case there is a question raised in the future about the applicability of FOIA. When in doubt, all that the Council need do is to give notice of the attendance by members at a meeting sponsored by another body, the date, place and time of that meeting, and the subjects to be discussed. Such notice requires only a modicum of time and effort, and will help save the City from any FOIA scrutiny.
As for remediation, since the meetings of the Committee were tape-recorded and have been preserved, the City is directed to prepare minutes of all of the meetings to date, and to prepare minutes for all meetings that might be held in the future.
The most serious violation resulting from the complaint is the failure to provide the public with agenda for the seventeen meetings of the Committee. Those meetings have been held over the course of the last two years. The City Council has charged the Committee with an important function: to review the City’s personnel policies and make recommendations to the Council, presumably for the Council to take action. Such action could have considerable impact, not only on City employees, but also on the citizens at large, who rely on the City for a variety of services. By failing to notify the public of the subject matter of its meetings, the Committee could very well have deprived the citizenry of an opportunity to monitor and influence issues of important public policy, before they became crystallized for approval by the City Council.
We find that the failure to post agenda involved “substantial public rights” and was not merely a “technical” violation. Ianni, 1986 WL 9610, at p. 6. As a practical matter, the City cannot recreate two years of history by re-noticing and holding seventeen meetings of the Committee. To the extent that the City Council may have acted on advice or recommendations formulated by the Committee at one of those meetings, however, the action(s) by the Council may be subject to invalidation.
*6 We note in particular that the minutes of the July 10, 1995 meeting of the Council state: “Due to his absence, Councilperson Sheehan read a memo from Deputy Mayor Pratt regarding the direction that the Personnel Policy Review Committee is taking. The memo states that a new organizational chart has been prepared, and requests Council’s approval of same. Council person Sheehan noted the changes that were made to the organizational chart. City Solicitor Tempe Steen stated that the committee is requesting direction from Council as to how they want the committee to go with revisions, or are they to just review the policy and procedures. After some discussion, Mayor Smith recommended, by common consensus, that the committee proceed with changes.”
In at least one instance, therefore, the Committee made a formal recommendation to the Council for its approval, a clear violation of FOIA since the Committee had met to discuss the issue without the required public notice. The minutes also suggest that the Committee made other recommendations to the Council, as a result of discussions at meetings of the Committee.
To remedy these FOIA violations, we direct that the City notice a special meeting to discuss any formal report or recommendation that has been made by the Committee since its inception, and to give proper notice of that special meeting to the public so that interested citizens can attend and comment. At that time, after “full public discussion,” Beebe Medical Center v. Certificate of Need Appeals Board, Del. Supr., 1995 WL 465318, at p. 6 (June 30, 1995) (Terry, J.), the Council can publicly vote to implement any recommendations of the Committee.
If the City will agree, in writing, to hold such a special meeting within thirty (30) days of the date of this letter, then our Office will be willing to forego filing suit in the Chancery Court to seek invalidation of any actions taken by the Council upon the advice and recommendation of the Committee.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
 
Approved:
 
Michael J. Rich
State Solicitor
Del. Op. Atty. Gen. 97-IB13 (Del.A.G.), 1997 WL 606460

End of Document

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