October 18, 2004
Civil Division-Kent County (739-7641)
Robert I. Hicks, Jr.
County Auditor
City/County Building
800 N. French Street, 8th Floor
Wilmington, DE 19801
Re: Freedom of Information Act Complaint
Against New Castle County Council
Dear Mr. Hicks:
On July 20, 2004, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that the New Castle County Council (“the Council”) violated FOIA by meeting to discuss matters of public business without notice to the public and without being physically present in one place.
This dispute arises out of the recent work stoppage by Wilmington police officers. The City of Wilmington sued in Chancery Court, and on July 14, 2004 Vice Chancellor Parsons granted the City’s request for a temporary restraining order to enjoin police officers and their union from engaging in “concerted work stoppages and any failure or refusal to report for work.” Transcript of Oral Argument on Plaintiff’s Motion for a Temporary Restraining Order/Preliminary Injunction and Rulings of the Court (July 14, 2004) at p.31. The Chancery Court found there was sufficient evidence “to establish that there is irreparable harm being threatened to the public safety in Wilmington by the current action of the sick-out by members of FOP No. 1. The police are obviously critical to safety and good order in our city. . . . [T]he availability of county police officers and state police officers to fill in for officers of the FOP No. 1 who are reporting in sick is problematic and, therefore, we could very well find ourselves in a situation where inadequate public safety personnel are available in the next couple of days absent an injunction.” Id. at pp. 29-30.
After the hearing in Chancery Court, a “meeting was hastily called on Wednesday, July 14th attended by the Mayor and his staff, County Executive Gordon, Chief Administrative Officer Sherry Freebery, County Council President Chris Coons, City Council President Ted Blunt, [Councilman Robert Woods] and Ron Morris from the [New Castle County] Finance Department, as well as Chiefs of Police for both the County and the City.” Memorandum dated July 19, 2004 from J. Robert Woods, Public Safety Committee Chairman, to all members of the Council. “Discussions were positive and resulted in the understanding that New Castle County would structure an offer for the City of Wilmington to consider as quickly as possible.” Id.
According to the Woods memorandum, Councilman Woods met with Mr. Morris of the County Finance Department on July 15, 2004 “to frame an acceptable offer for the City’s consideration. After speaking with members of Council, the following attachment represents a consensus, I believe, on the issue.” We understand that a quorum of the Council reached a consensus in a series of one-on-one telephone calls between Councilman Woods and five other members of the Council.
The attachment to the Woods’ memorandum was a proposal to “allocate five million dollars for the implementation of Community Policing by the Wilmington Police Department to initiate a take-home vehicle policy for Wilmington police officers.” The proposal also called for “an additional ten million dollars to the City of Wilmington specifically for the sole purpose of law enforcement.”
In his July 19, 2004 memorandum, Councilman Woods asked the other Council members “to sign this proposal, if acceptable to you, so that we may contact the Mayor of Wilmington with this plan as urgently as possible; thus, he can seek City Council approval expeditiously as well. This will allow the City of Wilmington to renew the serious business of police contract negotiations, now with the financial means to sustain those negotiations. Obviously, further official discussion and County Council action will follow; but delaying any longer an immediate response, as we are now doing, may be flirting with disaster given the mood of the city’s police union, and the violence in the City.”
The copy of the proposal to commit $15 million of County funds to the City of Wilmington which you provided to us is signed by four of the seven members of the Council. You allege that “[a]ll four signatures were physically affixed by two legislative aides. In fact, none of the ‘signers’ were [sic] physically present; at least one Councilman was out of the state.” You question whether FOIA permits members of the Council to “vote on County business without being physically present.”
By letter dated July 21, 2004, we asked the Council to respond to your complaint within ten days. We granted the Council’s request for a brief extension of time, and received the Council’s response on August 4, 2004. We asked for and received supplemental information from the Council on August 19, 23 and 26, 2004.
The documents provided to us by the Council show that the Public Safety Committee noticed a public meeting for July 26, 2004. The Council posted notice of that meeting at least seven days in advance (on July 16, 2004) as required by FOIA. The agenda listed in the items to be discussed “New Castle County Assistance to Wilmington Police Department.” The Council also gave the public notice of the meeting July 26, 2004 Public Safety Committee meeting in The News Journal on July 17, 2004.
The Committee posted a revised agenda at 10:15 a.m. on July 26, 2004 for the meeting scheduled that afternoon. According to the Council, the “agenda items did not change from the date of the July 16th posting” but the notice was revised “to reflect a different time and meeting place since a different meeting time and place were listed in the newspaper.” The time noticed in the newspaper for the meeting was 3:00 p.m. The time noticed in the original notice posted on July 16, 2004 was 2:00 p.m. The place of the meeting was changed from the 8th Floor Conference Room to Council Chambers on the ground floor due to ongoing renovations of the
City/County Building. According to the Council, signs were posted on both the ground and eighth floors to inform citizens and the media of the change in location for the meeting. The sign-up sheet for the July 26, 2004 meeting of the Public Safety Committee shows that 112 citizens attended the meeting. The minutes of that meeting show extensive discussion by the Council and the public (including yourself) whether to provide financial assistance to the City of Wilmington for law enforcement.
On July 17, 2004, the Council noticed a public meeting for July 27, 2004 in compliance with FOIA. The agenda for the July 27, 2004 meeting listed for discussion, under “Other Resolutions,” “04-119: Amend the Grants Budget: Appropriate $15,000,000 to the City of Wilmington.” The minutes of the July 27, 2004 Council meeting show that “Councilman Woods moved for the introduction of Ordinance 04-119. The motion was seconded and the ordinance was introduced.”
The Council noticed meetings of the Finance Committee and Council for August 24, 2004 to consider, among other things, Ordinance 04-119. In addition to complying with the notice and agenda requirements of FOIA, the Council also published notices in The News Journal on July 31 and August 7, 14, and 21, 2004. At a public meeting on August 24, 2004 the Council adopted Ordinance 04-119.
Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session as authorized by statute. 29 Del. C. §10004(a). Public bodies must “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.” 29 Del. C. §10004(e)(2). “When an agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda.” Id. §10004(e)(5).
The public notice requirements of FOIA do “not apply to an emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, . . .” 29 Del. C. §10004(e)(1).
FOIA requires that “[e]very regularly scheduled meeting of a public body shall be held within the geographic jurisdiction of that public body” but that geographic limitation does “not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to a meeting held by a public body outside of its jurisdiction which is necessary for the immediate preservation of the public financial welfare.” 29 Del. C. §10004(g)(3).
Legal Authority
A. July 26, 2004 Public Safety Committee Meeting
The Public Safety Committee met on July 26, 2004. The Committee posted public notice and the agenda for that meeting on July 16, 2004 in compliance with FOIA. The Committee also published notice in The News Journal on July 17, 2004.
The Committee revised the notice for the July 26, 2004 meeting at 10:15 a.m. on the day of the meeting. The Committee changed the time for the meeting (from 2:00 to 3:00 p.m.) to conform to the time noticed in the newspaper, and to change the location (from the 8th Floor Conference Room at the City/County Building, to the Council Chambers on the ground floor).
The Committee violated FOIA by posting the revised notice and agenda less than six hours in advance without stating the reasons for the delay. We understand that the renovations of the City/County Building have been ongoing and that the Council may not have known for sure if the 8th Floor Conference Room would be ready for a public meeting when the notice of the Public Safety Committee’s July 26, 2004 meeting was first posted. FOIA, however, closes the window for posting an agenda six hours prior to the scheduled meeting. See Att’y Gen. Op. 03-IB22 (Oct. 6, 2003) (school district only learned of the need for a contract change order the morning of the scheduled meeting, “but it did not avail itself of this exception by posting an amended agenda six hours in advance”).
We do not require remediation for this FOIA violation. The change in the time and place of the meeting did not deprive the public of an opportunity to attend the meeting (112 citizens attended). The time of the meeting was moved one hour later, not earlier, and to attend the public only had to wait an hour. The location of the meeting remained at the City/County building so that citizens were only a short walk from the actual venue. It does not appear that the rights of interested citizens who wanted to intend the July 26, 2004 meeting were impaired by the change in the time and place of the meeting, so remediation is unnecessary.
We do not mean to suggest, however, that last-minute changes in the time and location of a public meeting in violation of FOIA will not be found to require remediation, only that under the specific circumstances of this case remediation is not necessary.
B. Telephone Discussions by Council Members
The record shows that on July 19, 2004, Councilman Woods circulated a written proposal among the seven members of the Council to allocate $15 million to the City of Wilmington for law enforcement. Mr. Woods states in his cover memorandum that the proposal “represents a consensus” based on his “speaking with members of Council.”
We understand that Mr. Woods telephoned five other members of the Council sometime between the joint meeting with City and County officials on July 14, 2004 and Mr. Woods’ memorandum dated July 19, 2004 attaching the proposal to allocate $15 million to the City of Wilmington for law enforcement. We find that those serial telephone calls amounted to a meeting of a quorum of the Council in violation of the open meeting requirements of FOIA.
In Att’y Gen. Op. 03-IB11 (May 19, 2003), we 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.” In that earlier opinion, the three members of a nominating committee exchanged a series of e-mails over two days resulting in a consensus of names to submit to the city council. “These exchanges of e-mails involved all three members of the Nominating Committee. The discussions were about public business – the nominees for the City’s design, special events, and merchants committees. And there was an ‘active exchange of information and opinions in these e-mails, as opposed to the mere passive receipt of information.’ We find that these exchanges of e-mails constituted a meeting for purposes of FOIA.” Att’y Gen. Op. 03-IB11 (May 19, 2003) (quoting Wood v. Battle Ground School District, Wash. App., 27 P.3d 1208, 1218 (2001)).
In Att’y Gen. Op. 03-IB11, all three members of the nominating committee (a quorum) exchanged e-mails with the other two members. Here, only two members of the Council (less than a quorum) were part of each electronic “loop.” But like the e-mails in Att’y Gen. Op. 03-IB11, there was an “active exchange of information and opinions” in the telephone calls between Council man Woods and other members of the Council (as evidenced by the “consensus” reached), not just a “passive receipt of information.” Wood, 956 P.2d at 1218. We determine that the serial telephone calls between Councilman Woods and five other members of the Council to discuss an important matter of public business constituted a “meeting” subject to FOIA. Since the public did not have any opportunity to monitor or observe that meeting, the meeting was in violation of FOIA.
The Council relies on Tryon v. Brandywine School District, Del. Ch., C.A. No. 11161 (Apr. 20, 1990 ) (Hartnett, V.C.), where the president of the school board called individual members on the telephone to see if they were prepared to vote on a student assignment plan at the next meeting of the school board. The Chancery Court held that the serial phone calls did not amount to a meeting of the board because all of the conversations were one-on-one, and the president did not try “to convince any Board member to adopt a particular point of view.” His only purpose was to see if the board members “would be ready to vote at the Board meeting scheduled for September 25, 1989.”
Tryon is distinguishable. Councilman Woods did not just ask the other members of the Council if they were ready to vote to allocate $15 million to the City of Wilmington at the upcoming meeting of the Public Safety Committee noticed for July 26, 2004. He sought the support of the other Council members and their agreement to sign his funding proposal which necessarily involved discussion of the merits of the proposal. The signatures of four of the seven Council members on the proposal reflect the consensus agreement of a quorum of the Council. “One purpose of the sunshine laws is to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance” and that citizens have a right to observe a public body’s “decisional process based on inquiry, deliberation and consensus building.” Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. 1447 (Oct. 1, 1990) (Chandler, V.C.).
We appreciate that there was a sense of urgency back in July 2004 to resolve the law enforcement crisis in the City of Wilmington. FOIA permits a public body to meet in private when “necessary for the immediate preservation of the public peace, health or safety, . . . .” 29 Del. C. §10004(e)(1). FOIA also waives the public notice requirements and geographic limitations on public meetings “for any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety.” Del. C. §10004(g)(3). We do not have to decide whether a true state of emergency existed in this case, however, because we believe that a public body can invoke the emergency meeting exception of FOIA only when the matter is so urgent that it must be addressed in less than twenty-four hours. Otherwise, FOIA requires a public body to call a special meeting with 24-hours’ notice to the public and a brief explanation why the normal seven-days’ notice to the public could not be given. See 29 Del. C. §10004(e)(3).
In Town of Lebanon v. Wayland, Conn. Super., 467 A.2d 1267 (1983), the town board of selectmen held an emergency meeting without notice to the public on March 16, 1981 to discuss a premium increase in the town’s liability insurance coverage. The board had to resolve this pressing issue before coverage expired on March 19, 1981. Like Delaware’s FOIA, the Connecticut public information law provides for 24-hours’ notice for a special meeting, but waives that requirement for an emergency meeting. The court in Wayland held that “the circumstances which permit an emergency meeting occur only rarely and only when there is no time for a special meeting notice to be posted twenty-four hours in advance.” 467 A.2d at 1270. “The board of selectmen had more than twenty-four hours before its perceived March 19, 1981 deadline in which it could have posted notice for a special meeting on the issue of [insurance coverage].” Id. at 1271.
The Council’s Public Safety Committee had adequate time to notice a special meeting to begin preliminary discussion of allocating money to the City of Wilmington for law enforcement. The Council posted notice of its first public meeting on the issue ten days in advance (on July 16, 2004). If the City of Wilmington law enforcement crisis required earlier discussion prior to that meeting, the Council could have noticed a special meeting with only 24-hours notice.
We do not require any remediation for this FOIA violation. The public had notice and an opportunity to observe and participate in the discussion of financial aid to the City of Wilmington at the Public Safety Committee meeting on July 26, 2004, and at two public meetings of the Council: on August 7, 2004 (the introduction of Ordinance 04-119) and on August 24, 2004 (the adoption of the ordinance). In effect, the Council has already remediated its FOIA violation by holding public hearings on the financial aid issue, which were well attended by the public who had a full and fair opportunity to monitor and observe the process before the Council took official action.
This is the third time in the last year that our Office has had to address the impact of electronic technologies on the open meeting requirements of FOIA. On the one hand, these technologies hold the possibility of expanding the scope of citizen involvement in the government process to strengthen democracy by holding public officials accountable. On the other hand, these technologies may be used in such a way as to shield government officials from public scrutiny. We caution all public bodies to be careful not to discuss matters of public business by electronic means in such a way as could violate the open meeting requirements of FOIA.
Conclusion
For the foregoing reasons, we determine that the Council violated the notice requirements of FOIA by posting a revised agenda for a meeting of the Public Safety Committee on July 26, 2004 less than six hours before the meeting. We do not believe that any remediation is necessary. The public was not deprived of an opportunity to attend the meeting because the time was moved one hour forward and the place moved to another floor of the same building, so that over one hundred citizens were able to attend the meeting.
We determine that the Council violated FOIA by discussing by telephone whether to allocate money to the City of Wilmington for law enforcement without notice to the public or an opportunity for the public to observe the discussion of public business. We do not believe that remediation is necessary for this violation either, because the Council noticed the matter to the public and held three public hearings on the matter. The public had a full and fair opportunity to monitor and observe the discussion of this important matter of public concern before the Council voted to adopt Ordinance 04-119.
We caution the Council to comply strictly with the requirements of the open meeting law
in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Lawrence W. Lewis, Esquire
Deputy Attorney General
Carol J. Dulin, Esquire
Phillip G. Johnson
Opinion Coordinator

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