June 19, 2006
Civil Division-Kent County (739-7641)
Mr. Robert G. Ritter
606 North State Street
Dover, DE 19901
Re: Freedom of Information Act Complaint
Against City of Dover
Dear Mr. Ritter:
On May 4, 2006, our Office received your complaint alleging that the City of Dover (“the
City”) violated the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by meeting in
executive session on February 24, 2006 to interview candidates for the position of Director of
Planning and Inspections. You “question whether names of people, employees, or their position/title,
as being interviewed for a public position and/or the interviews of this position fall under executive
session Guidelines.” You also allege that the City violated your First Amendment right of free speech
by censuring you on March 13, 2006 for statements you made at a public meeting on February 27,
2006 criticizing the City Council.
By letter dated May 9, 2006, we asked the City to respond to your complaint in writing within
ten days. We received the City’s response on May 18, 2006. On May 31, 2006, we asked the City
for copies of the notice, agenda, and minutes of the February 24, 2006 executive session of the City
Council, which we received that same day.
The City noticed a special meeting of the Council for February 24, 2006. Listed on the
agenda for that meeting were: “Executive Session Personnel Matters A. Final Interviews
Candidates for Director of Planning and Inspections. B. Retitling and Regrading of Positions
Discussion of Abilities of Incumbents.” The City provided us with a copy of the minutes of the
February 24, 2006 executive session for our in camera review.
According to the minutes, one of the three final candidates for Director of Planning and
Inspections withdrew his name from consideration. The Council interviewed the two remaining
candidates. After the interviews, ” Council President Williams asked each member to relay their
choice of candidate for the position, which indicated that there were six (6) in favor of offering the
position to [Candidate A] and three (3) in favor of offering the position to [Candidate B].” The
minutes then reflect that “[s]ince a majority of the members felt that [Candidate A] should be offered
the position, Mr. DePrima stated that he would contact [Candidate A] to negotiate a salary, within
budget, . . . Official action on the appointment would be scheduled for the Regular Council Meeting
on February 27, 2006.” 1
The minutes of the February 24, 2006 executive session show that the Council also discussed
the reorganization of the Planning and Inspections Department and the qualifications of two city
employees to assume the new positions of Public Services Manager and Public Utilities Manager.
After that discussion, the minutes show “that official action regarding the retitling and regrading of
the Electric and Public Works positions is scheduled for the Regular Council Meeting on February
Item 9 of the agenda for the Council’s February 27, 2006 meeting listed for discussion: “Retitling
and Re-grading of Current Electric Director and Public Works Director Positions.” The
minutes reflect that during that portion of the agenda, you made the following remarks:
[Mr. Ritter] stated that he could not support the action
because the Public Works Director would be in charge
of the Planning Department, and that person does not
have those specific qualifications. Mr. Ritter stated that
the Public Works Director applied for the position of the
City Planning Director, but backed out because this new
position would put him over the Planning Director. . . .
The two new positions will be making just about $93,300
after the upward movement. Mr. Ritter suggested that
other cuts could be made without reorganizing and that
the city should not create new positions for the sake of
creating new positions or who has been promised what.
The inequity of the hiring process is not ethically right
and does not satisfy the equal employment opportunity.
Mr. Ritter states that this gives the impression of special
treatment and preference given to friends or colleagues;
therefore, he could not support the action.
The minutes show that the Council voted to approve the two new positions “by a roll call vote of
eight (8) yes and one (1) no (Mr. Ritter).”
Item 10 of the agenda for the Council’s February 27, 2006 meeting listed for discussion:
“Appointment of Director of Planning and Inspections.” The minutes of the meeting show that you
made the following remarks during that portion of the agenda:
The hiring process was flawed because we had
one Councilman giving tips to a candidate that was
being interviewed. We have also changed the position
of the Director of Planning while in the middle of the
interviewing process, so this position we advertised will
not be the same as the position we are hiring for now. . .
[T]he process has been severely flawed and tainted
during this round of applicants. This position should be
re-advertised with a new job description so that the City
does not give the appearance of giving people in the
“buddy system” favors.
The minutes show that after further discussion Councilman Hogan “moved to appoint Ann Marie
Townsend to serve as Director of Planning and Inspections at a salary of $73,000, beginning March
20, 2006. The motion was seconded by Mr. Carey. The motion . . . carried by a roll call vote of eight
(8) yes, one no (Mr. Ritter).”
The City noticed a regular meeting of the Council for March 13, 2006. Item 10 of the agenda
for that meeting listed: “Proposed Resolution Censure of Councilman Robert G. Ritter.” The
minutes of the March 13, 2006 meeting show that the Council voted 8-1 to adopt a resolution to
censure you “for violating the spirit and purpose of the Executive Session held on February 24, 2006,
by referring to facts which should have been and remained confidential and should not have been
divulged to the public by Councilman Ritter.” Specifically, the censure resolution cited statements
you made at the public meeting on February 27, 2006 “pertaining to the identity and qualifications
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except
those closed” for executive session for a purpose authorized by statute. 29 Del. C. §10004(a).
FOIA authorizes a public body to meet in executive session to discuss “an individual citizen’s
qualifications to hold a job or pursue training unless the citizen requests that such a meeting be
open.” Id. §10004(b)(1).
“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.
A. February 24, 2006 Executive Session
FOIA authorizes a public body to meet in executive session to discuss an applicant’s
“qualifications to hold a job.” 29 Del. C. §10004(b)(1). In Att’y Gen. Op. 99-IB03 (Apr. 28, 1999),
our Office determined that the town council lawfully met in executive session to discuss the hiring
of a new town manager. “For sound policy reasons, job applicants have a right of privacy to
information disclosed during the application process, at least until they are hired.” Id.
In Att’y Gen. Op. 05-IB12 (May 9, 2005), the county council met in executive session to
interview and discuss the qualifications of two finalists for the position of legal counsel. Our Office
determined that the council did not violate the open meeting requirements of FOIA because “the two
applicants had a reasonable expectation of privacy until such time as the Council voted to hire one
of them and extend an offer of employment.” Att’y Gen. Op. 05-IB12. “For privacy reasons, FOIA
does not require a public body to identify by name in the agenda the candidates for a job whose
qualifications can lawfully be discussed in executive session. By the same rationale, we determine
that FOIA does not require, in the case of a new job applicant, that the public body disclose the name
of the individual candidates at the time of the vote in public session. When the job offer is extended
and accepted, the name of the job applicant necessarily will become public, and the public will
know, from the minutes, which members of the public body voted to hire that applicant.” Id.
In Att’y Gen. Op. 05-IB12, the county council returned to public session before voting on the
two candidates (using code names to protect their privacy). Here, in contrast, the City Council
reached a consensus vote in executive session (6-3) in favor of one of the two finalists for the
Director of Planning and Inspections. Our Office has previously determined that “‘FOIA does not
permit ‘straw polling’ nor does FOIA ‘allow public bodies to reach ‘consensus votes’” during
executive session. Att’y Gen. Op. 05-IB29 (Oct. 13, 2005) (quoting Att’y Gen. Op. 96-IB15 (May
10, 1996)). See Att’y Gen. Op. 96-IB32 (Oct. 10, 1996) (“consensus votes in executive session are
The minutes of the February 24, 2006 meeting show that after voting on the two finalists for
Director of Planning and Inspections the Council discussed personnel matters that FOIA authorized
for executive session. After moving out of executive session, the Council voted to adjourn the
meeting. The Council did not vote in public session on the two final candidates for the Director of
Planning and Inspections before adjourning the February 24, 2006 meeting. 2
FOIA provides that “[e]xecutive 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.” 29 Del. C. §10004(c). We determine that the City Council violated the open
meeting requirements of FOIA at the February 24, 2006 meeting by voting in private on the two
finalists for Director of Planning and Inspections. The Council had a legitimate reason to maintain
the privacy of the two candidates until the successful candidate accepted an offer of employment.
See Att’y Gen. Op. 05IB12. The Council, however, could have maintained their privacy by using
code names while voting on the two candidates in public session as required by FOIA.
B. March 13, 2006 Censure
Our Office has “determined that there is a nexus between the procedural requirements of the
open meeting laws, and the First Amendment right of free speech.” Att’y Gen. Op. 05-IB01 (Jan.
3, 2005). FOIA does not require a public body to allow citizens to comment at a public meeting, but
“‘[i]f a public body chooses to allow public participation in a meeting’ it cannot discriminate on the
basis of the content of the speech . . . First Amendment rights of free speech ‘inhere in the definition
of an ‘open meeting’ under Delaware’s FOIA when a public body allows for a period of public
participation.’” Att’y Gen. Op. 05-IB01 (quoting Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003)).
Accord Reeder v. Department of Insurance, C.A. No. 1553-N, Mem. Op. at 27, 2006 WL 510067
(Feb. 24, 2006) (Strine, V.C.) (“If a public body seeks comments, . . . the First Amendment might
preclude the body from choosing to hear comments only from certain citizens, and not others,
depending on the reason given for the distinction drawn.”).
“Under the proper circumstances, we believe our Office has authority to interpret the open
meeting requirements of FOIA by taking into consideration a citizen’s First Amendment rights of
free speech when a public body is required by the open meeting law to notice a meeting to the public
thereby creating a limited public forum for discussion of matters of public business noticed in the
agenda.” Att’y Gen. Op. 05-IB01 (Jan. 3, 2005). In Att’y Gen. Op. 05-IB01, our Office determined
that the school board violated the open meeting requirements of FOIA by imposing prior restraints
on what citizens could discuss during a public commentary portion of the meeting.
At the Council’s February 27, 2006 meeting, you spoke at length criticizing the process by
which the Council selected the Director of Planning and Inspections and the reorganization to create
the new positions of Public Utilities Manager and Public Services Manager. The Council did not
abridge or restrict the content of the statements you made criticizing the other members of the
Council. A constitutional violation, however, “may arise from the deterrent, or ‘chilling effect’ of
governmental resolutions that fall short of a direct prohibition against the exercise of First
Amendment rights.” Laird v. Tatum, 408 U.S. 1, 12-13 (1972).
In Phelan v. Laramie County Community College Board of Trustees, 235 F.2d 1243, 1247
(10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001), the board of trustees censured one of its
members for violating the board’s ethics policy. The federal appeals court held “the Board’s censure
is clearly not a penalty that infringes Ms. Phelan’s free speech rights. In censuring Mr. Phelan,
Board members sought only to voice their opinion that she violated the ethics policy and to ask that
she not engage in similar conduct in the future. Their statement carried no penalties; it did not
prevent her from performing her official duties or restrict her opportunities to speak, such as her right
as a Board member, her ability to speak before the Board, or her ability to speak to the public.” 235
F.3d at 1248.
“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm.” Laird, 408 U.S. at 13-14. The City
Council’s March 13, 2006 censure of you did not carry any penalty. There is no evidence in the
record that it prevented you from performing your official duties as a member of the Council, or
restricted your opportunities to speak before the Council or the public. You have not provided any
evidence that the Council’s censure had such a chilling effect on you have not been able to speak out
about other matters of public business at Council meetings.
We determine that the other members of the City Council did not violate the open meeting
requirements of FOIA by expressing their own views in the form of a censure in response to
statements you made at the February 27, 2006 meeting. “Although the government may not restrict,
or infringe, an individual’s free speech rights, it may interject its own voice into public discourse.”
Phelan, 235 F.3d at 1247. A legislative body “does not violate the First Amendment when some
members cast votes in opposition to other members.” Zilich v. Longo, 34 F.3d 359, 364 (6th Cir.
1994) (resolution by the city council expressing disapproval of a former council member “contains
no punishment or penalty” and therefore does not “violate plaintiff’s First Amendment rights”).
For the foregoing reasons, we determine that the City did not violate the Freedom of
Information Act by meeting in executive session on February 24, 2006 to interview two candidates
and discuss their qualifications for Director of Planning and Inspections. We determine that the City
violated FOIA by voting during that executive session to appoint one of the two candidates to the
position subject to salary negotiation. We do not direct any remediation for that violation because
the Council noticed the issue for discussion at the February 27, 2006 meeting and voted in public
to appoint Ann Marie Townsend as the Director of Planning and Inspections.
We determine that the City Council did not violate the open meeting requirements of FOIA
by resolving to censure you at the March 13, 2006 meeting. There is no evidence in the record that
the censure had an actual chilling effect on your right to speak at public meetings as a member of the
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Lawrence W. Lewis, Esquire
The Honorable Carl C. Danberg
Malcolm S. Cobin, Esquire
Chief Deputy Attorney General
Keith R. Brady, Esquire
Assistant State Solicitor
William W. Pepper, Sr., Esquire
Deputy City Solicitor
Phillip G. Johnson