January 21, 1998
New Castle County – Civil Division
Ms. Shirley M. Tarrant
37 Old Oak Road
Newark, DE 19711
RE: Freedom of Information Act Complaint
Against City of Newark
Dear Ms. Tarrant:
This letter is the Attorney General’s written determination in
response to your complaint alleging that the City of Newark (the
“City”) violated the Freedom of Information Act, 29 Del. C.
Sections 10001-10005 (“FOIA”).
Your letter of complaint dated December 12, 1997 was received by
this Office on December 15, 1997. By letter dated December 16,
1997, we asked the City to respond to your allegations within ten
days. By letter dated December 24, 1997, we received the City’s
response.
Initially, this Office lacks jurisdiction over, and expresses no
opinion regarding, the merits of your alleged ethical violations
by a member of the City Council. Our focus is strictly on your
claim that, in connection with a hearing on those alleged ethical
violations, the City’s Board of Ethics violated FOIA.
In your letter of complaint you identify two FOIA violations:
first, the City did not timely provide you with a transcript of
an executive session held on June 19, 1997; and second, the
City’s Board of Ethics did not go into executive session on June
19, 1997 for a purpose authorized by statute. The City denies
that it violated FOIA in either regard.
FOIA does not require a public body to tape record its meetings
or executive sessions, or have a stenographer present to
transcribe the proceedings. The statute only requires that
“[e]ach 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.” 29 Del. C. Section 10004(f). This
Office has previously determined that the duty to maintain
written minutes of public meetings does not require a public body
to tape record the meeting. See Att’y Gen. Op. 94-IO23 (June 21,
1994).
Since FOIA does not require a public body to tape record its
meetings, FOIA cannot require that public body to prepare a
verbatim transcript of any meeting. In this case, the City
elected to prepare a verbatim transcript of its June 19, 1997
meeting, including the executive session. Public bodies are
required by law to prepare minutes of their meetings in a timely
fashion, consistent with the purposes of FOIA. The City prepared
a verbatim transcript in lieu of minutes at your request, which
required a longer time. Any reasonable delay encountered thereby
would not give rise to a FOIA violation.
The second issue is whether the City’s Board of Ethics went into
executive session for a purpose authorized by statute. Section
10004(b)(4) of FOIA permits a public body to go into executive
session for: “Strategy sessions, including those involving legal
advice or opinion from an attorney-at-law, with respect to
collective bargaining or pending or potential litigation, but
only where an open meeting would have an adverse effect on the
bargaining or litigation position of the public body; . . . .”
The minutes of the meeting of the Board of Ethics on June 19,
1997 show that at 5:32 p.m. the Board voted unanimously to go
“into executive session with the assistance of legal counsel.”
The Board came out of executive session at 6:47 p.m.,
approximately one hour and fifteen minutes later.
The City’s response to the alleged impropriety of the executive
session is as follows:
The motion to move into such a session was apparently driven by the fact that the Board of Ethics was confronted by various legal arguments during the hearing and was being called upon to interpret and rule upon heretofore unconstrued Ethics Code provisions. The request to meet with legal counsel was entirely in order. Since Ms. Tarrant has provided you with a verbatim transcript of the executive session discussion, you are of course free to review it and to assess the interaction between the Board and City staff.
We have reviewed the seventeen-page transcript of the executive session on June 19, 1997. Although there is some discussion of legal issues between members of the Board and the City Solicitor, most of the discussion is about the merits of the ethics charges. There is no discussion with counsel of pending or potential litigation. The only litigation discussed was litigation that occurred in 1981 involving one of the City Council members now charged with ethical violations.
Rather than a legal strategy session with counsel, the executive session was clearly to allow the Board to deliberate the merits of the ethical charges considered in the public hearing. Indeed, at one point the City Solicitor remarked: “If you’re not ready, if you’re not comfortable taking a vote on each and every one of these questions, then I think we ought to adjourn and continue our deliberations another day.” (Emphasis added.) The Board continued deliberating, and by the end of the executive session the Board members had reached a consensus on how they would vote on each of the charges after the Board came out of executive session.
In Chemical Industry Council of Delaware, Inc. v. State Coastal
Zone Industrial Control Board, Del. Ch., C.A. No. 1216-K, 1994 WL
274295 (May 19, 1994) (Jacobs, V.C.), the Chancery Court observed
that the “legal advice” exception to the open meeting law must be
given “[a] narrow, limited interpretation” consistent “with the
legislative history of the act, which the General Assembly had
amended in 1985 to narrow its scope to prevent potential abuse.”
1994 WL 274295, at p. 11. In CIC, the State Coastal Zone
Industrial Control Board met in private with counsel to discuss
proposed regulations. Even if the Board’s regulations were likely
to be the subject of litigation, the “wholesale use of executive
sessions . . . to debate, discuss, and share views concerning the
evolving revisions of the Regulations . . . went far beyond
strategizing with its counsel about potential litigation.” Id.
Public bodies are not permitted to evade the requirements of the
open meeting law by nominally invoking one of the statutory
exceptions for executive session. See Att’y Gen. Op., 96-IB32
(Oct. 10, 1996) (“consensus votes in executive session are
prohibited”) (citing Levy v. Board of Education of Cape Henlopen
School District, Del. Ch., C.A. No. 1447 (Oct. 1, 1990)
(Chandler, V.C.)). The whole executive session on June 19, 1997
was to deliberate the merits, which in turn led to a consensus
vote.
The discussion at the executive session extended well beyond
legal advice regarding pending or potential litigation. A
legitimate argument may be made that the Board of Ethics should
be entitled to deliberate in private because of the sensitive
nature of the subjects before it. If the Board, however, believes
that the requirements of the open meeting law “unreasonably
infringe[s] upon their deliberative processes, such grievances
must be directed to the General Assembly which has made the
policy decision to enact the sunshine law in its present form.”
Levy, 1990 WL 154147, at p. 6. Indeed, the General Assembly has
excepted, by statute, certain public bodies from the requirement
of the open meeting law to deliberate in public. See, e.g., 29
Del. C. Section 10004(h); House Bill 205 (effective July 1997)
(Industrial Accident Board, Human Relations Commission, Tax
Appeals Board).
That leaves us with the issue of remedy. You have asked our
Office to invalidate the decision made by the Board of Ethics in
violation of FOIA. The City responds that holding the hearing
again would not change the result. “The Board of Ethics has
rejected Ms. Tarrant’s claims of ethical violations by Councilman
Godwin. That rejection has been accepted by the City Council. The
Council has further elected not to rescind that acceptance based
on any alleged impropriety by its staff.”
We do not believe, however, that the City committed a mere
“technical” violation of FOIA for which no remedy might be
necessary. We find that the Board’s closed deliberations affected
“substantial public rights” by depriving “members of the public
with an intense interest in the subject of the Board’s action” an
opportunity to view a critical step in the process of
adjudicating ethics charges against a City councilman. Ianni v.
Department of Elections of New Castle County, Del. Ch., 1986 WL
9610 (Aug. 29, 1986) (Allen, C.).
Even though the City Council accepted the Board of Ethics’
recommendation to dismiss the ethical charges, that acceptance
does not cure the FOIA violation. In Levy, Vice Chancellor
Chandler rejected the school district’s argument that a later
public vote validated any action taken at a meeting in violation
of FOIA. The court, however, declined to enjoin the
implementation of the student reassignment plan, which had
already been fully implemented, because of the toll on the
students involved.
In this case, no similar hardship would be involved if the Board
of Ethics were to hold a new hearing and this time deliberate in
public as required by law. We direct the Board to do so within
sixty days of the date of this letter, and to report back to us
in writing to confirm that this remedial action has been taken.
Conclusion
Based on your complaint, the City’s response, and the documents
provided to us, we determine that the City did not violate the
public records provisions of FOIA. Further, we determine that the
City’s Board of Ethics went into executive session on June 19,
1997 for a purpose not authorized by statute. To remedy that FOIA
violation, we direct the City to notice another hearing on the
ethics charges filed against City Councilman Godwin which shall
be open to the public. Further, if the Board of Ethics votes to
go into executive session at any time during that hearing, it
must be for a purpose authorized by FOIA, and any discussion
during executive session shall be limited to that authorized
purpose.
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, Esquire
Chief Deputy Attorney General
Roger A. Aiken, Esquire
Chrystyna Lafferty
Opinion Coordinator

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