June 1, 2004
Civil Division – Kent County (739-7641)
Ms. Kathleen H. Harvey Ms. Jeanette Reed
P.O. Box 318 P.O. Box 152
Odessa, DE 19730 Odessa, DE 19730
Re: Freedom of Information Act Complaints Against Town of Odessa
Our Office received your Freedom of Information Act (“FOIA”) complaints on February 25 and March 11, 2004 alleging that the Town of Odessa (“the Town”) violated the open meeting requirements of FOIA: (1) by allowing a member of the Town Planning Commission to participate by speaker phone in meetings on January 29 and February 24, 2004; and (2) by not allowing a member of the public to speak at the Planning Commission meeting on January 29, 2004.
By letter dated February 26, 2004, we asked the Town to respond to the first complaint. We received the Town’s response on March 10, 2004. According to the Town, on January 29 and February 24, 2004 “Commissioner and Councilman William Allen joined the Planning Commission via conference call from his work in New York. . . . At each of these meetings the Commission used a conference phone, that is, a phone that allowed the speaker and the listeners to hear and speak with each other. . . . Mr. Allen and the public as well as the other Commissioners participated in the discussion with questions and comments addressed directly to Mr. Allen.” The subject of discussion at both meetings was a re-zoning request. According to the Town, there was no vote on the request at the January 29, 2004 meeting, but the Commission did vote at the February 24, 2004 meeting “to deny their recommendation for re-zoning of the subject property for the present. All Commissioners voted in favor of this position.”
By letter dated March 12, 2004, we asked the Town to respond to the public participation issue raised in Ms. Reed’s complaint. We received the Town’s response on March 26, 2004. According to the Town, the meeting of the Planning Commission on January 29, 2004 was “a working session to discuss the complicated background on a parcel and the impact a proposed new use ordinance might have on it.” The Town explains that the Commission listened to two previous owners of the property and the current owners and their real estate agent, but did not allow Ms. Reed to speak because “there would be public comment once the Commission understood the confusion in the Town vs. County data and worked through the question of the need for a re-zoning.” The Town contends that designated members of the public (property owners within 100 feet of the lot in question) had ample opportunity to comment on this matter of public concern at the next meeting on February 24, 2004 before the Commission voted on the re-zoning request.
FOIA requires “Every meeting of all public bodies shall be open to the public except those closed” for an executive session authorized by statute. 29 Del. C. § 10004(a). As emphasized in FOIA’s Declaration of Policy: “It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have an opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; . . . .” Id. § 10001.
At the meetings on January 29 and February 24, 2004, four of the five Commissioners were physically present at the meeting place in Odessa, and Commissioner Allen participated in the meeting by speaker phone from New York. The Town contends that because a quorum was physically present, the open meeting requirements of FOIA were met and FOIA did not preclude one member’s participating by telephone.
We have previously determined that “the open meeting law does not only apply to a physical gathering in a single place or time. Otherwise, the public would not have the opportunity to monitor and observe the discussion of public business if the discussion takes place by way of the telephone, e-mails, or other electronic communications.” Att’y Gen. Op. 03-IB11 (May 19, 2003). In that earlier opinion, we determined that an exchange of e-mails by the three-members of a nominating committee amounted to a meeting of a public body, and violated FOIA because there was no opportunity for the public to monitor and observe the discussion of matters of public business.
We distinguish that earlier opinion because all of the members of the committee participated electronically, so there was no opportunity for members of the public to go to a physical location to observe the discussion. Here, four of the five members of the Planning Commission were physically gathered at one location in Odessa, and only Commissioner Allen participated by telephone. By way of a speaker-phone, the public could near Commissioner Allen’s remarks, and they could pose questions directly to him.
Like the open meeting laws in some other states, there is nothing in Delaware’s FOIA “which specifically prohibits conducting a meeting by telephone conference.” Freedom Oil Co. v. Pollution Control Board, Ill. App., 655 N.E.2d 1184, 1189 (1995). We believe that FOIA’s requirement of openness is satisfied if a quorum of a public body is physically present and “the absent members are able to hear the comments of and speak to all those present at the meeting and all those present at the meeting are able to hear the comments of and speak to such absent members contemporaneously. Participation by speaker telephone clearly satisfies this mandate.” Babac v. Pennsylvania Milk Marketing Board, Pa. Supr., 613 A.2d 551, 553 (1992).
At least a quorum of the public body, however, must be physically present for the meeting.
Our conclusion is supported by FOIA’s requirement that all public bodies must hold regularly scheduled meetings “within the geographic jurisdiction of that public body.” 29 Del.C. §10004(g). Similarly, “[a] public body serving any political subdivision of that State, including but not limited to, any city, town or school district, shall hold all such other meetings within its jurisdiction or the county in which its principal office is located.” Id. § 10004(g)(1). The open meeting requirements of FOIA apply to a gathering of a “quorum of the members of any public body” (29 Del. C. § 10002(e)), and under FOIA a quorum must meet in a single geographic place.
Some state legislatures have resolved any uncertainty in their open meeting laws by amending the law to specifically authorize public bodies to meet by teleconference Other states have prohibited the practice. Other states permit video-conferencing, but not teleconferencing. Other states permit electronic meetings by state agencies, but not by local government.
It is clear that there are competing public policy interests. On the one hand, citizens may enjoy an “enhanced opportunity to observe their government in action through new technologies.” Att’y Gen. Op. 03-IB11 (May 19, 2003). On the other hand, there are legitimate concerns whether electronic public meetings will push citizens farther from living, breathing contact with their government, and whether the same level of emotion and sincerity can accompany electronic or virtual participation.
We believe that the Delaware General Assembly, like the legislatures in other states, is the appropriate branch of government to decide whether to place limits on participation in public meetings by teleconference or other electronic means when a quorum of a public body is physically gathered in one geographic place. Only the General Assembly, as the elected representatives of the people, can weigh the competing public policy concerns.
We determine that FOIA, as currently written, does not prohibit a member of public body from participating by telephone if a quorum is physically present in one geographic place. It is incumbent on the public body, however, to make sure that any member of the public body participating by telephone is clearly audible to the other members of the public body and the public in attendance. See Sovich v. Shaughnessy, Pa. Cmwlth., 705 A.2d 942, 946 (1998) (open meeting law might be violated if “the microphone and speaker were inadequate” or if “extraneous noise made it difficult to hear the Council’s proceedings” or if “people in the overflow facility repeatedly asked Council members to speak louder and more clearly into the microphone”).
B. Public Participation
We have previously determined that “FOIA entitles citizens to have notice and attend meetings of public bodies to watch the discussion of public business, but does not afford the public any right to participate in the meetings.” Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003). “If a public body chooses to allow public participation in a meeting, however, then it must treat members of the public fairly and even-handedly.” Id.
The agenda for the Planning Commission’s January 29, 2004 meeting did not include a period for public comment. We determine that the Planning Commission acted reasonably and consistent with FOIA when it gathered information from current and former owners of the property at issue as part of the Commission’s factfinding process, without allowing general commentary from the public at large. See Att’y Gen. Op. 02-IB17 (Aug. 6, 2002) (“FOIA allows a public body to invite individuals to attends an executive session to provide information related to the subject matter for which the executive session is authorized”). Our determination, however, turns on two key facts: (1) the Commission did not vote on the re-zoning request variance until the next meeting on February 24, 2004; and (2) the agenda for the February 24, 2004 meeting provided for “Comments from the public (five minute limit per person).”
W are sensitive that government has to work, and so we have said that “a public body can impose reasonable time, place, and manner restrictions on public participation.” Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003). We respectfully suggest that if a public body intends to limit public participation, it should make that clear in the agenda or at the start of the meeting, so it does not appear to other members of the public that they are being shut out.
For the foregoing reasons, we determine that the Town did not violate the open meeting requirements of FOIA by allowing a member of the Planning Commission to participate by speaker phone in meetings on January 29 and February 24, 2004 when a quorum of the Commission was physically gathered in a single geographic place.
We determine that the Town did not violate FOIA by hearing only from current and past owners of the property at issue at the Planning Commission’s meeting on January 29, 2004. The Commission reasonably listened only to persons with personal knowledge relating to the subject matter of the re-zoning request as part of the factfinding process before voting at the Commission’s next meeting on the re-zoning request after allowing the public an opportunity to speak.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Clifford B. Hearn, Jr., Esquire
Mayor Rebecca W. Tulloch
P.O. Box 111
Odessa, DE 19730
Mr. Phillip G. Johnson, Opinion Coordinator