Del. Op. Atty. Gen. 02-IB12 (Del.A.G.), 2002 WL 1282812
Office of the Attorney General
State of Delaware
Opinion No. 02-IB12
May 21, 2002
Re: Freedom of Information Act Complaint Against Fenwick Island Town Council
*1 Civil Division-Kent County
Chief George H. Dickerson, Jr.
Fenwick Island Police Department
800 Coastal Highway
Fenwick Island, DE 19944
Dear Chief Dickerson:
Our Office received your Freedom of Information Act (“FOIA”) complaint on March 20, 2002 alleging that the Fenwick Island Town Council (“the Council”) violated the open meeting and public records requirements of FOIA.
By letter dated March 26, 2002, we asked the Council to respond to your complaint. We granted an extension of time for their response, which we received on April 17, 2002.
You allege seven violations of FOIA: (1) the Council failed to give the public notice of its intent to go into executive session at a meeting on February 8, 2002; (2) the Council improperly went into executive session at that meeting to discuss pay raises for police officers; (3) the Council failed to give adequate notice to the public that it would go into executive session at a meeting on February 22, 2002; (4) the Council improperly went into executive session at that meeting to discuss police department problems; (5) the Council failed to give adequate notice to the public of its intent to go into executive session at a meeting on March 16, 2002; (6) the Council impermissibly went into executive session at that meeting to discuss personnel and legal problems involving the police department; and (7) the Council violated FOIA by not providing you with copies of the minutes of executive sessions.
 
Relevant Statutes
 
FOIA requires that every meeting of a public body “shall be open to the public” except for executive sessions authorized by the statute. 29 Del. C. §10004(a). FOIA authorizes a public body to go into executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.” Id. §10004(b)(9). FOIA also authorizes executive session for “[s]trategy 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 when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.” 29 Del. C. § 10004(b)(4).
FOIA requires that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C § 10002(a). FOIA exempts from disclosure the minutes of executive sessions “so long as public disclosure would defeat the lawful purposes for the executive session, but not longer.” Id. §10004(f).
 
Legal Analysis
 
A. February 8, 2002 Meeting
 
1. Agenda
 
*2 The agenda for this meeting listed “Executive Session to Discuss Personnel.” We find that notice sufficient for FOIA’s generalized requirements for an agenda.” FOIA “simply requires public bodies to disclose the purpose of the executive session in the agenda.” Common Cause of Delaware v. Red Clay Consolidated School District, Del. Ch., C.A. No. 13798 (Dec, 5, 1995) (Balick, V.C.). The act does not require the public body to “specify what legal, personnel or other subjects are discussed in executive session.” Id.
We have previously determined that “it is not necessary to identify the personnel in convening an executive session to constitute personnel matters.” Att’y Gen. Op. 97-IB23 (Dec. 23, 1997). “But it may be necessary to identify the individual involved and the nature of the personnel matter in the minutes of executive session to be sure what the public body actually discussed.” Att’y Gen. Op. 02-IB02 (Jan. 14, 2001).
 
2. Executive Session
 
We have reviewed in camera the minutes of the executive session of the February 9, 2002 meeting. The Council discussed police salaries and the emergency situation caused by the resignation of several police officers. These are not the type of “personnel matters” authorized by FOIA for discussion in executive session.
The “personnel” exception for executive session in Delaware’s FOIA is limited to matters “in which the names, competency and abilities of individual employees or students are discussed….” 29 Del. C § 10004(b)(9). The discussion must “directly involve the consideration of individual employees by name, competency, and ability.” Att’y Gen. Op. 96-IB32 (Oct. 10, 1996). This limitation “reflects the Legislature’s judgment of the appropriate balance between the public interest in open discussion of governmental issues and the rights of individuals, such as state employees, to have their work performance considered in private and to avoid injury to the individual’s reputation.” Meyer v. Board of Regents, Neb. App., 510 N.W.2d 450, 454 (1993). The “private discussion of an individual’s job performance evaluation does not significantly prevent or impair the public’s knowledge or understanding of the people’s business, and it is in the public interest to promote efficient personnel management and maintain employee morale.” Baker v. Town of Middlebury, Ind. App., 753 N.E.2d 67, 72 (2001).
In San Diego Union v. City Council of San Diego, 146 Cal.App.3d 947 (1983), the city council met in executive session to discuss and determine the salaries for various city officials, including the city manager, city auditor, and city clerk. The California appeals court held that the meeting did not fall within the personnel exception under the state open meeting law. Salaries and other terms of compensation constitute municipal budgetary matters of substantial public interest warranting open discussion and eventual electoral public ratification. Public visibility breeds public awareness which in turn fosters public activism politically and subtly encouraging the governmental entity to permit public participation in the discussion process. It is difficult to imagine a more critical time for public scrutiny of its governmental decision-making process than when the latter is determining how it shall spend public funds. 196 Cal.Rptr. at 49. The city council could meet in executive session to evaluate an individual employee’s performance on the job. But once the council determined an employee was deserving of a salary increase, “various other factors must be considered such as available funds, other city funding priorities, relative compensation of similar positions within the city and in other jurisdictions, before determining the salary increase. Each of these considerations is of acute public interest. Id. at 49-50. See also Floyd County Board of Education v. Ratliff, Ky. Supr., 955 S.W.2d 921, 924 (1997) (“The personnel exemption to the Open Meetings Act does not allow a general discussion concerning a school reorganization plan when it involves multiple employees.”).
*3 From the minutes of the executive session on March 8, 2002, it does not appear that the Council discussed the competency or ability of any individual police officer. Although one officer is named, it is in the context of raising his salary to match a competing offer from another police department. We determine that the Council violated FOIA by meeting in executive session to discuss matters not authorized by statute.
 
B. February 22, 2002 Meeting
 
1. Agenda
 
The agenda for the February 22, 2002 meeting of the Council listed “Executive Session to Discuss Personnel.” For the reasons set for in Part A. of our opinion, we find that this satisfied FOIA’s generalized requirements for an agenda.
 
2. Executive Session
 
We have reviewed in camera the minutes of the executive session held at the February 22, 2002 meeting. It does not appear that the Council discussed the competency or ability or any individual police officer, but rather problems with the police department such as town coverage and work schedules. These topics of discussion are not within the “personnel matters” exception. We determine that the Council violated FOIA by meeting in executive session for a purpose not authorized by statute.
 
C. March 16, 2002 Meeting
 
1. Agenda
 
The Council posted the agenda for this meeting on February 27, 2002 listing two items for discussion: “1. Goals – Direction for Budget 2. Coffee Shops.” On March 16, 2002, the Council amended the agenda to add “Ex. Session – Personnel.”
FOIA requires the posting of a notice and agenda for a public meeting at least seven days in advance. See 29 Del. C. § 10004(e)(2). FOIA permits a public body to amend an agenda up to six hours before a meeting to add items “not available as of the time of the initial posting of the public notice” but “the reasons for the delay in posting shall be briefly set forth in the agenda.” Id. §10004(e)(5). The Council admits that it did not amend the agenda until “the morning of March 16, 2002, just prior to the meeting” and there is no stated reason for the delay.
The Council contends that these FOIA violations were “technical” and “did not result in any harm since the matter of an executive session is not a matter that is open to the public.” We do not agree.
 
2. Executive Session
 
a. Personnel Matters
 
We have reviewed in camera the minutes of the March 16, 2002 executive session, and there is no indication that the Council discussed the competence or ability of any individual police officer. Rather, the Council discussed general issues concerning the police department. These topics of discussion are not within the “personnel matters” exception. We determine that the Council violated FOIA by meeting in executive session for a purpose not authorized by statute.
 
b. Pending/Potential Litigation
 
The Council contends that it could meet in executive session on March 16, 2002 for legal advice from the Town’s attorney. The attorney-client privilege, however, is limited by the open meeting requirements of FOIA. FOIA is “a statutory public waiver of any possible privilege of the public client in meetings of governmental bodies except in the narrow circumstances stated in the statute.” District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, Mass. Supr., 481 N.E.2d 1128, 1131 (1985).
*4 Delaware’s FOIA limits the attorney-client privilege for public bodies to legal advice “with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.” 29 Del. C. § 10004(b)(4). These limitations were designed “to prevent potential abuse” and do not permit “a public body to hold an executive session to receive legal advice about any issue or matter under discussion so long as it had not yet taken a stand or reached a conclusion about the issue.” Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch. C.A. No. 1216-K (May 19, 1994) (Jacobs, V.C.).
We have reviewed in camera the minutes of the executive session on March 16, 2002, and there is no indication that the Town Attorney gave legal advice with respect to pending or potential litigation the disclosure of which would have an adverse effect on the Town’s litigation position. Rather, the minutes simply state the Town Attorney “was present to inform the Council on legal issues pertaining to the police department.” It is true that FOIA does not require a public body “to summarize the subjects discussed with any degree of specificity in the minutes of executive session.” Red Clay, supra. “But the minutes of executive session must be sufficient to allow our Office to make an in camera determination whether the subject(s) discussed during executive session are authorized by FOIA.” Att’y Gen. Op. 02-IBO1 (Jan. 14, 2002). Otherwise, the public body may fail to meet its burden to prove that the topics discussed during executive session are authorized by law.
The exemption for executive session applies only “to matters commonly inherent in litigation, such as preparation, strategy or tactics…. The exception should not be construed to apply any time the public agency has its attorney present or where the possibility of litigation is still remote.” Ratliff, 955 S.W.2d at 924.
“In our litigious society, a governmental agency always faces some threat of suit. To construe the term ‘potential litigation’ to include an unrealized or idle threat of litigation would seriously undermine the purpose of the [open meeting law].” Claxton Enterprise v. Evans County Board of Commissioners, Ga. App. 549 S.E.2d 870, 874 (2001).
Like the court in Claxton, we think that the potential litigation exception for executive session applies when there is a “realistic and tangible threat of litigation” based on “objective factors.” Some indicia of such a situation might include a written demand letter, notice of intent to sue, or “previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims.” 549 S.E.2d at 874.1 We do not find any such objective factors here, and determine that the Council did not have grounds to meet in executive session to consult with the Town’s attorney.
 
D. Minutes of Executive Session
 
*5 FOIA exempts from the definition of a “public record” the minutes of “discussions held in executive session pursuant to subsections (b) and (c) of Section 10004 of this title.” 29 Del. C. § 10002(d)(10). Since we have already found that the Council did not meet in executive session in accordance with the open meeting law, the minutes of the February 8, February 22, and March 16, 2002 meetings are not exempt records under FOIA.
 
Conclusion
 
For the foregoing reasons, we conclude that the Council violated the open meeting requirements of FOIA when it went into executive session to discuss matters of public business at its meetings on February 8, February 22, and March 16, 2002. We also conclude that the Council violated the agenda requirements of FOIA by amending the agenda just prior to the meeting on March 16, 2002, and without stating the reason for the delay. Finally, we conclude that the Council violated the public records requirements of FOIA by denying access to the minutes of executive sessions which were not authorized by law.
The Council contends that no remediation is appropriate because it did not take any formal action on police salaries at the three executive sessions. But the Council admits that as a result of the executive session on February 8, 2002, there was “a raise for Sergeant Bruette and a general increase for new hires in the [Fenwick Island Police Department].” We direct the Council to schedule a special meeting in compliance with FOIA’s public notice requirements to discuss and approve any salary increases for the police department. We also direct the Council in the future to comply with the executive session requirements of FOIA, and to go into executive session only
for a purpose authorized by the statute. Finally, we direct the Council to make available to any citizen who requests copies of the minutes of the executive sessions for February 8, February 22, and March 16, 2002.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
 
Approved
 
Malcolm S. Cobin
State Solicitor

Footnotes
1	We note that this list of objective factors is not exhaustive. Whether there is a realistic and tangible threat of litigation must be decided on a case-by-case basis.

 
Del. Op. Atty. Gen. 02-IB12 (Del.A.G.), 2002 WL 1282812

End of Document

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