October 13, 2005
Civil Division-Kent County (739-7641)
05-IB29
Mr. Richard Alexander                 Mr. David G. Lawson
207 Cobblecreek Curve                5105 N. DuPont Highway
Newark, DE 19702                          Dover, DE 19901
Mr. Michael S. Bundek
230 Main Street Little Creek
Dover, DE 19901

Re: Freedom of Information Act Complaint
        Against Town of Cheswold

Gentleman:
On July 8, 2005, our Office received complaints from Messrs. Alexander and Bundek
alleging that the Town of Cheswold (“the Town”) violated the open meeting and public records
requirements of the Delaware Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”). On
July 11, 2005, our Office received a complaint from Mr. Lawson making many of the same
allegations. *1
The three complaints allege the following violations of FOIA: (1) the Town Council did not
post timely public notice of a meeting held on July 7, 2005; (2) the venue for the July 7, 2005
meeting of the Council was too small to accommodate the public; (3) the Town Council met in
executive session on July 7, 2005 for purposes not authorized by law; (4) the Town Council
reached a consensus on matters of public business in executive session before voting on those
matters in public without any further discussion; (5) the Town did not prepare and maintain
minutes of the July 7, 2005 meeting; and (6) the Town did not provide Mr. Bundek with access to
the minutes of prior Council meetings.
By letter dated July 9, 2005, we asked the Town to respond to your complaints by July 20,
2005 and “provide us with a copy of the notice, agenda, and minutes for the meeting held on July
7, 2005, including the minutes of any executive session which we will review in camera and treat
confidentially.”
By letter dated July 29, 2005, the Town Solicitor advised that he had “been unable to check
the record, and therefore I am requesting a ten (10) day extension of time to respond to the
complaints.” We received the Town’s response on July 26, 2005 including the draft minutes of the
July 7, 2005 Council meeting. The Town noted that “these minutes have not been approved by
Council and will not be considered until their next meeting, which is August 1, 2005.”
On August 24, 2005, we asked the Town for a copy of the approved minutes of the July 7,
2005 Council meet, which we received on September 6, 2005.
On October 3, 2005, we asked the Town for additional information regarding any discussions
of the Town’s 2005-2006 budget. We received that information on October 5, 2005.
According to the Town, the Town Clerk posted the notice and agenda for the July 7, 2005
meeting on June 27, 2005 on the door of the Town Hall at least seven days in advance as required
by FOIA. The copy of the notice and agenda provided to us by the Town confirms this fact. We
determine that the Town did not violate the public notice requirements of FOIA with respect to the
July 7, 2005 meeting of the Town Council.
Mr. Bundek’s complaint alleged that he requested copies of minutes of prior Town Council
meetings sometime during the week of July 1- July 7, 2005. According to the Town, “Mr. Bundek
was one of five persons who requested [minutes of prior meetings]” during that week (which
included the July 4 holiday weekend) and the Town Clerk “simply did not have the time or resources
to produce copies, which covered approximately 45 pages, upon short notice. . . . Subsequently,
copies have been made for all five persons who made the request.” It appears that Mr. Bundek’s
public records complaint is resolved so we will not address it further in this opinion. *2
Mr. Lawson alleged that the Town Council did not provide reasonable access to the public
to attend the meeting on July 7, 2005 because the Town Hall “has a meeting space limited to twelve
persons.” The Town responds that “Mr. Lawson does not indicate that anyone was excluded because
of lack of space nor is there any indication that he or anyone else made any complaint at the Council
meeting to this effect. Cheswold Town Hall is an old home but it has the ability to accommodate
more than 12 persons as spectators to the meeting.”
Your complaints acknowledge that, in addition to Messrs. Lawson and Bundek, there were
a number of citizens who attended the July 7, 2005 meeting: Mrs. Harmon, Mrs. Durham, Drew
Volturo of the State News, Harvey Reed, and six other persons identified only by first name,
occupation, residence, age or gender. There is nothing in the record to show that members of the
public who wished to attend the July 7, 2005 Town Council could not because of the size of the
meeting room. We determine that the Town did not violate FOIA’s requirement that a public body
provide reasonable access to the public to attend the Council meeting on July 7, 2005. See Att’y
Gen. Op. 02-IB09 (Apr. 12, 2002) (nothing in the record to show that members of the public “were
turned away or unable to participate in the discussion of public business” because of the size of the
town council chambers). *3
The Council has provided for our in camera review a copy of the minutes of the July 7, 2005
executive session of the Town Council. Mr. Lawson’s allegation that the Town did not prepare
minutes of that meeting in violation of FOIA is unfounded.
The remaining allegation for our consideration is whether the Town Council met in executive
session on July 7, 2005 to discuss matters of public business for a purpose or purposes authorized
by FOIA?
Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except
those closed pursuant to subsections (b),(c), (d), or (g) of this section.” 29 Del. C. §10004(a).
Subsection (b) of Section 10004 authorizes a public body to meet in executive session to
discuss nine subject matters, including “[p]ersonnel matters in which the names, competency and
abilities of individual employees or students are discussed, unless the employer or student requests
that such a meeting be open.” Id. §10004(b)(9).
“Executive sessions may be held only for the discussion of public business, and all voting
on public business must take place at a public meeting and the results of the vote made public.” Id.
§10004(c).
FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members
of any public body for the purpose of discussing or taking action on public business.” Id. §10001(e).
FOIA provides that “the burden of proof shall be on the . . . public body to justify a decision
to meet in executive session . . . .” Id. 10005(c).
LEGAL AUTHORITY
According to the Town, “it is obvious from reading the minutes of the [July 7, 2005] executive session that the primary purpose of the same was to consider police department personnel
issues, which would be permissible under §10004(b)(9). It does not appear that the other issues
noted were ‘discussed’ and these matters should not have been listed as part of the executive session
minutes.”
Our in camera review of the minutes of the July 7, 2005 executive session shows that the
Council addressed four matters: (1) police department personnel issues; (2) real estate taxes; (3) the
hiring of a new code enforcement officer and building inspector; and (4) the proposed budget for the
2005-06 fiscal year. *4
According to the Town, Items 2, 3, and 4 were informational announcements only and “no
discussion followed.” The Town does not contend that FOIA authorized the Council to meet in
executive session to discuss Items 2, 3, or 4. Rather, the Town contends that these issues were not
“discussed” and “should not have been listed as part of the executive session minutes.”
Unless authorized by statute for executive session, the open meeting requirements of FOIA
apply to any “meeting,” defined as “the formal or informal gathering of a quorum of the members
of any public body for the purpose of discussing or taking action on public business.” 29 Del. C.
§10001(d) (emphasis added). FOIA does not define “discussing” but the statute distinguishes the
term “discussing” from the term “taking action” by using the disjunctive “or.” See Att’y Gen. Op.
IB24 (Aug. 18, 2005) (“The public meeting requirements of FOIA do not turn on whether a public
body took official action. Otherwise, ‘there would be no remedy to deter Board members from
privately meeting for discussion, investigation or deliberation about public business so long as the
Board reached no formal decision at that private meeting.’”) (quoting Levy v. Board of Education
of Cape Henlopen School District, C.A. No. 1447, 1990 WL 154147, at p.6 (Del. Ch., Oct. 1, 1990)
(Chandler, V.C.)).
We have not had previous occasion to determine what level of interaction among the
members of a public body is necessary to amount to “discussing” a matter of public business to
trigger the open meeting requirements of FOIA. We do not have to resolve that issue for purposes
of this case, however, because the Town: (1) failed to meet its burden of proof whether the Council
“discussed” matters of public business (real estate taxes and code enforcement) at the July 7, 2005
executive session; and (2) the record shows that the Town discussed the 2005-2006 Town budget
prior to the July 7, 2005 executive session and reached a consensus vote in executive session to
approve the final figures without any public discussion.
A. Burden of Proof
Under FOIA, “the burden of proof shall be on the . . . public body to justify a decision to meet
in executive session.” 29 Del. C. §10005(c).
In “our investigations and determinations under Section 10005(e) of FOIA, we must hold
public bodies to their burden of proof to justify going into executive session for a purpose authorized
by statute. If the minutes of the executive session (as here) are cursory, and the public body does not
provide us with affidavits from those in attendance specifying in more detail the matters discussed,
then the public body may not meet its burden of proof, as in this case.” Att’y Gen. Op. 03-IB23 (Oct.
20, 2003). “Our Office will hold public bodies to high standards in satisfying their burden of proof
to go into executive session. To meet that burden, a public body will have to prepare minutes of
executive session that are sufficiently detailed to allow our Office to determine exactly what the
public body discussed in executive session.” Att’y Gen. Op. 03- IB16 (July 14, 2003).
The minutes of the July 7, 2005 executive session are cursory. Item 2 states: “It was
announced there would be no new Real Estate Taxes this year and a resolution regarding an assessor
was ready to be signed.” Item 3 states: “It was announced a new Code Enforcement Officer and
Building Inspector would be hired and Mr. Ryan, Town Manager would be Senior Code
Enforcement Officer.” FOIA did not authorize either of these matters of public business for
discussion in executive session, so the public body bears an even heavier burden of proof to show
that, in fact, there was no “discussion” at all (which calls into question why the matter was listed in
the executive session minutes in the first place). We determine that the Town failed to meet its
burden of proof that there was no discussion of these two matters real estate taxes and new
employees in executive session.
With regard to Item 1 listed in the minutes of the July 7, 2005 executive session, the Town
contends that FOIA authorized the Council to discuss in executive session “police department
personnel issues.” FOIA’s personnel exemption only applies when a public body discusses the
“names, competency, and abilities of individual employees.” 29 Del. C. §10004(b)(9).
We have previously determined that a town council cannot meet in executive session under
FOIA to discuss general issues concerning the police department such as town coverage and work
schedules. See Att’y Gen. Op. 02-IB12 (May 21, 2002). It is not clear from the cursory minutes of
the Town Council’s July 7, 2005 executive session exactly what police department matters the
Council discussed. The minutes simply state: “Police Department personnel issues were discussed
in great detail.”
Under other circumstances, we would be inclined to determine that the Town has not met its
burden of proof to justify meeting in executive session on July 7, 2005 to discuss the names,
competency and abilities of individual police officers. We will give the Town the benefit of the
doubt that in the executive session on July 7, 2005 the Council discussed those issues in light of the
recent termination of Police Chief Vann.
B. 2005-2006 Town Budget
The minutes of the July 7, 2005 executive session state that “[t]he 2005-2006 Budget has
been presented to all Council members prior to meeting. Council was asked if they had any
questions — no questions or discussion followed.”
According to the Town, the “Council was given a draft of the 2005-06 budget seven to ten
days prior to the July 7, 2005 meeting. The budget was not discussed at a public meeting other than
by the Town Manager who had approached all of the Town Council members during the months
preceding the meeting for their input into the budget process. The budget was not discussed at the
special meeting. The Town Manager merely ran the final figures by members of Town Council so
they could determine if discussion was needed at the open part of the meeting whether to vote to
accept or reject the budget.”
Even if, in fact, there was no substantive discussion of the 2005-2006 budget during
executive session on July 7, 2005, the Town has acknowledged that there were non-public
discussions of the budget prior to July 7, 2005. As a result, at the executive session on July 7, 2005,
all that was left to do was review the final figures to decide whether to vote to accept or reject the
budget, without any public discussion being required.
We believe that the process by which the Town Council came to approve the 2005-2006
budget violated the open meeting requirements of FOIA. We have previously determined that FOIA
does not permit “straw polling” nor does FOIA “allow public bodies to reach ‘consensus votes’
which they strive later to ratify.” Att’y Gen. Op. 96-IB15 (May 10, 2996). The record shows that
the process by which the Town Council came to approve 2005-2006 Town budget at the July 7,
2005 meeting violated FOIA because it deprived the public of any opportunity to monitor and
observe the budget approval process.
We note that the record reveals a close nexus between the matters listed in the minutes
of the discussed by the Town Council’s executive session on July 7, 2005, and the matters voted on
in public session after the Council came out of executive session. The minutes of the executive
session list: (1) the hiring of a new code enforcement officer and building inspector; (2) retaining
the professional services of a new real estate assessor; and (3) the 2005-06 budget. After the Council
returned to public session it voted, without any discussion, to: (1) approve a code enforcement
department; (2) hire an independent real estate appraiser to reassess all the real estate in Town; and
(3) pass the proposed 2005-2006 fiscal year budget. It could appear to the public as your
complaints suggest that the Council discussed and acted on matters of public business without any
opportunity for the public to monitor and observe the Council’s decision-making process.
C. Remediation
In the past when we found a violation of the open meeting law we directed remediation if a
public body has taken action on a matter affecting “substantial public rights.” Ianni v. Department
of Elections of New Castle County, 1986 WL 9610, at p.6 (Del. Ch., Aug. 29, 1986) (Allen, C.). We
have previously determined that substantial public rights were affected by: (1) the expenditure of
public money (Att’y Gen. Op. 02-IB12 (May 21, 2002) (increase the salaries of police officers); (2)
hiring key personnel (Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003) (officer-in-charge of the police
department); (3) actions affecting land use (Att’y Gen. Op. 02-IB23 (Dec. 23, 2002) (conditional use
exception for senior citizen retirement community).
We determine that the Town Council’s violations of FOIA affected substantial public rights:
the 2005-2006 fiscal year budget involved the expenditure of public funds; code enforcement
involved the hiring of key personnel; and the new real estate appraiser affected land use. As
remediation, we direct the Town within thirty (30) days of the date of this letter to notice a meeting
open to the public to discuss in public and vote again on the these three matters of public business:
(1) code enforcement; (2) real estate taxes; and (3) the 2005-06 fiscal year budget.
Conclusion
For the foregoing reasons, we determine that the Town did not violate FOIA because the
Town: (1) posted timely public notice of a meeting held on July 7, 2005; (2) provided the public
with reasonable access to attend the July 7, 2005 meeting; (3) prepared and maintained minutes of
the July 7, 2005 meeting; and (4) provided reasonable access to minutes of previous meetings of the
Town Council.
We determine that the Town violated FOIA by privately discussing the 2005-2006 budget
prior to the July 7, 2005 meeting and then approving the budget without any discussion in public
thereby depriving the public of the opportunity for the public to monitor and observe the budget
approval process. We also determine that the Town failed to meet its burden of proof that it did not
discuss two other matters of public business (code enforcement and real estate taxes), neither of
which matters FOIA authorized for private discussion.
As remediation, we direct the Town within thirty (30) days of the date of this letter to notice
a meeting open to the public to discuss in public and vote again on these three matters of public
business (code enforcement, real estate taxes, and budget). We direct the Town Solicitor to report
back to us in writing within ten days after the Town has completed remediation.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin
State Solicitor
cc:
The Honorable M. Jane Brady
Attorney General
Lawrence W. Lewis, Esquire
Deputy Attorney General
Nicholas H. Rodriguez, Jr., Esquire
Phillip G. Johnson
Opinion Coordinator
FOOTNOTES
*1 Mr. Lawson also complained about a business license fee recently imposed by the
Town: “Not only did we only get two days notice that this fee was due” but the “letter was not
even signed by the tax collector, Robert Sign. Furthermore, the letter did not include when this
ordinance was passed.” Those issues are outside our jurisdiction under FOIA.
*2 We note that the “‘reasonable access’ requirement of FOIA” does not “mean that a
public body must provide access, on short-notice demand, at any time or place. The FOIA
Declaration of Policy states that citizens should have ‘easy access’ to public records. 29 Del. C.
§10001. It does not say that they must have instantaneous access.” Att’y Gen. Op. 97-IB14 (July
29, 1997). We have previously determined that, as a general rule, FOIA requires the custodian of
a public record to make it available within ten days of a request. Att’y Gen. Op. 03-IB26 (Nov.
13, 2003).
*3 We note “that if a public body has reason to know that a large number of citizens
is likely to attend a meeting, then FOIA requires the public body to find another, larger place for
the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning
the meeting to another time at a facility that can accommodate all of the interested citizens.”
Att’y Gen. Op. 02-IB09 (Apr. 12, 2002).
*4 When we refer to minutes of executive session provided to us in camera, we are
careful not to disclose any substantive information that FOIA authorizes for private discussion.
For matters not authorized for executive session, any portions of the minutes reflecting
discussion of those matters are not protected by FOIA and we feel free to refer to those portions
of the minutes in greater detail.

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