September 2, 1997
New Castle County – Civil Division
Mr. Handley J. Orr
Chief of Police
Bridgeville Police Department
302 Market Street
Bridgeville, DE 19933
RE: Freedom of Information Act Complaint
Against Town of Bridgeville
Dear Mr. Orr:
By letter dated July 15, 1997 (received by this Office on July
17, 1997), you alleged that the Town of Bridgeville (“the Town”)
had violated the Delaware Freedom of Information Act, 29 Del. C.
Sections 10001-10005 (“FOIA”), by not posting notice of a meeting
on June 30, 1997 at least seven days prior to the meeting.
By letter dated July 28, 1997, we asked the Town for its response
to your complaint. By letter dated August 7, 1997, the Town’s
attorney responded claiming that FOIA only required 24 hours’
notice for the meeting on June 30.
STATUTORY PROVISIONS
Section 10004(e)(2) of FOIA provides that “[a]ll 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.” 29 Del. C. Section 10004(e)(2).
For a “special or rescheduled meeting,” however, FOIA only
requires that the public body give notice “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 [seven days] could not be given.” 29 Del.
C. Section 10004(e)(3).
OPINION
By letter dated June 25, 1997, Chief Orr wrote to Charles R.
Singman, Town Commissioner, in response to a letter dated June
18, 1997 from Mr. Singman. Chief Orr alleged in his letter that
the Town had “violated the policeman’s bill of rights,” and
stated that he was going to “contact Attorney General M. Jane
Brady to conduct a proper investigation.” Chief Orr copied his
letter to, among others, Attorney General Brady.
According to the Town’s attorney, Chief Orr’s letter prompted the
Town to hold a special meeting on June 30, 1997. Notice of the
special meeting and the agenda were posted on June 27, 1997 at
approximately 3:45 p.m. at the Town Hall and the Bridgeville
Library. The agenda stated that the Town Commissioners would go
into executive session to discuss a “personnel” matter. The
minutes of the special meeting state that the Commissioners “held
an executive session on police department personnel and a letter
[Commissioner Singman] received June 25, 1997.” After the
executive session, the Commissioners voted to direct the Town
Attorney “to write a letter to the Attorney General of the State
of Delaware requesting any investigation the Chief of Police may
request of her.”
The only FOIA issue raised in your complaint is the timeliness of
the posting of the notice of the June 30, 1997 meeting. For
purposes of the notice provisions of FOIA, this was a “special”
meeting since it was held “less than 7 days after the scheduling
decision was made.” 29 Del. C. Section 10004(e)(3). The decision
to schedule the meeting was made after Mr. Singman received Chief
Orr’s letter dated June 25, 1997, and the meeting was held five
days later.
In its response to your complaint, the Town suggests that the
meeting on June 30, 1997 was an “emergency” meeting for which
notice is not required. See 29 Del. C. Section 10004(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.”). We do not
believe that the circumstances surrounding the dispute between
Mr. Singman and Chief Orr so threatened the public peace, health
or safety as to obviate the notice requirements of FOIA. Compare
Markowski v. City of Marlin, Tex. App., 940 S.W.2d 724 (1997)
(emergency meeting to meet with the city’s attorney to discuss
lawsuit filed by the fire chief who had been suspended without
pay the day before).
Section 10004(e)(3) requires that the notice of a special meeting
“shall include an explanation as to why the notice required by
paragraph (1) of this subsection [seven days’ notice] could not
be given.” The notice of the special meeting posted by the Town
on June 27, 1997 did not provide such an explanation.
In Att’y Gen. Op., 94-IO37 (July 26, 1994), a school district
posted notice of a special meeting to discuss student assignments
five days prior to the meeting. This Office found that the notice
failed “to provide any explanation whatsoever concerning the
reason why the normal seven day notice could not be given.” We
determined “that the District failed to comply with the
provisions of the Act concerning the required contents of a
public notice announcing a special meeting.” As a remedy, this
Office asked the school district to re-notice its special meeting
and “explain to the public its intention to formally ratify its
previous action.”
Accordingly, we find that the Town violated FOIA by failing to
explain in the notice of the June 30, 1997 special meeting why
seven-days’ notice could not be given. Under the circumstances,
however, we do not believe that any remedial action is necessary
in order to accomplish the purposes of FOIA.
The principal purpose of the June 30, 1997 special meeting was to
meet in executive session to discuss the dispute with the Police
Chief. As a result of that meeting, the Town Attorney wrote a
letter dated July 3, 1997 to the Attorney General stating: “I
have been asked by the Commissioners of Bridgeville to inform you
that they met on Monday morning in Executive Session, reviewed
[Chief Orr’s June 25] letter, and have directed me to write to
you confirming that they likewise seek to have an investigation
conducted by your office.”
After an exchange of correspondence seeking further factual
information, Eugene M. Hall, the Director of the Fraud and
Consumer Protection Division of the Delaware Department of
Justice, wrote a letter dated July 24, 1997 to the Town’s
attorney. Mr. Hall observed that although the Attorney General
had been copied on Chief Orr’s June 25 letter, “Chief Orr never
sent a letter of complaint to the Attorney General. Based upon
your letter, there is apparently nothing for the Department of
Justice to investigate, and the Department of Justice is closing
its interest in this matter. Hopefully, the underlying conflict
has been or will be resolved.”
Under these circumstances, it would serve not serve any purpose
to require the Town to re-notice its special meeting to consider
whether to ask for an investigation by the Attorney General’s
Office because this Office has already decided not to
investigate. The FOIA issue, as it relates to the notice of the
executive session, is now moot. The Town is cautioned that in the
future there must be an appropriate explanation in the notice of
any special or rescheduled meeting explaining why the normal
seven-days’ notice could not be given. See, e.g., Att’y. Gen. Op.
97-IB02 (Feb. 12, 1997) (“it is our opinion that it is a
sufficient explanation to state that an earlier notice was not
possible because legal opinions had not been obtained from the
City Solicitor and the Attorney General prior to the posting of
the notice”).
More troubling is the fact that at the special meeting on June
30, 1997 the Town discussed several items of new business.
Specifically, the Commissioners discussed: (1) the EDU’s for
Gateway Plaza; and (2) a clause in the Town Code pertaining to a
tax exemption for new business. Although we can appreciate that
the Town was trying to use the time already scheduled for the
police personnel matter to take up other business, there does not
appear to be any reason why these new items of business could not
have been discussed at a regularly-scheduled meeting with the
normal seven-days’ notice. We believe that it is the better
practice, consistent with the purposes of FOIA, to limit the
discussion at an emergency or special meeting of a public body
solely to those issues which justify deviating from the seven-day
notice rule.
In order to remediate this violation of FOIA, we direct the Town
to re-notice for a regularly scheduled meeting the non-personnel
matters that were discussed on June 30, 1997 to allow the public
the opportunity to have input on those matters and to ratify the
previous discussion of those matters by the Town Commissioners.
Conclusion
For the foregoing reasons, we determine that the Town violated
the notice requirements of FOIA in posting the notice of the
special meeting on June 30, 1997 three days before the meeting
without explaining in the notice the reason why it could not have
been posted sooner. Since the action taken by the Town
Commissioners during the executive session portion of that
meeting is now moot, no remediation is necessary. We direct the
Town, however, to re-notice and ratify the non-personnel matters
discussed at the meeting on June 30, 1997.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
___________________
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
Dennis L. Schrader, Esquire
Elizabeth A. Bacon, Opinion Coordinator

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