OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 11-IB08
May 5, 2011
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950

RE:  Freedom of Information Act Complaint Against Sussex County Council

Dear Mr. Kramer:
By letters of March 23, 2011 and March 26, 2011, you have asked for an Attorney General’s determination as to whether the Sussex County Council (“Council”) violated the Freedom of Information Act, 29 Del. C. ch. 100 (FOIA), concerning the Search Committee process for a new Sussex County Administrator.   The Council responded by letter of April 4, 2011.   This is the Delaware Department of Justice’s determination pursuant to 29 Del. C. § 10005(e).

FACTS

You allege that on January 18, 2011, the Council violated FOIA by meeting in executive session to discuss the resignation of the County Administrator.  According to the minutes of that executive session, three topics were discussed:

“Personnel Matters

Sussex County Land Use Planner 

The applicant that was being considered for the position of Land Use Planner has declined the County’s offer. The position will be readvertised.

Sussex County Administrator

The County Administrator position will be advertised. Mr. Baker will announce his retirement today when the Regular Session of the Council meeting reconvenes following this Executive Session.

[Portions of these minutes have been redacted because the matter is ongoing.]”

You allege that a search committee appointed to find a new County Administrator violated FOIA when it did not post agendas for its executive sessions of February 8, 22, 23 and March 15, 2011. You point out that 25 applicants were reduced to 8 finalists interviewed on February 22 and February 23, 2011, and note that therefore decisions were made in executive session.  The Council held several public meetings between March 15 and April 5, 2011, at which it described to the public and publically ratified what had happened in the executive sessions.  You complain that the search committee consisted of, among others, all members of Council, and assert that the search committee should have been “stand alone.”  However, because FOIA does not address the makeup of committees, that issue will not be addressed here.
You allege that on March 24, 2011 the Council posted an amended agenda for the March 29, 2011 meeting, without giving a valid reason for the short notice.  According to the Council, the amended items were removed from the agenda at the beginning of the meeting.   Yon also requested that the search committee be required to hold their meetings “before or after the regular scheduled meeting held by the County Council not at the same time, as they have been doing.” FOIA does not speak to when an executive session or committee meetings must be held, in relation to the meetings of the entire public body; therefore, that issue will not be addressed here.

RELEVANT STATUTES

All meetings of a public body must take place in public, unless the meeting is for one of the nine purposes listed in 29 Del. C. § 10004(b). Section 10004(b)(I) permits executive session (closed to the public) for “[d]iscussion of an individual citizen’s qualifications to hold a job … unless the citizen requests that such a meeting be open.”  Section 10004(b)(9) allows a public body  to  meet  in  executive  session  to  discuss  “[p]ersonnel  matters  in  which  the  names, competency and abilities of individual employees … are discussed, unless the employee … requests that such a meeting be open.”  In addition, a public body must go into executive session from a public meeting, and the all voting must occur at a public meeting. 29 Del. C. § 10004(c).
Every meeting of a public body must be preceded by the posting of a notice of the date, time and place of the meeting, and an agenda, if one is available. 29 Del. C. § 10004(e)(2). At least 7 days notice must be given of a regularly scheduled meeting. ld.  Just as when an agenda must be late-posted because it was not available 7 days before the meeting, when an amended agenda is late-posted, it must include “the reasons for the delay in posting[.]”.  29 Del.  C. § 10004(e)(5).

DISCUSSION

The January 18, 2011 Executive Session

The Council has not offered any explanation as to the redacted portion of the January 18 minutes. Public bodies are required to keep complete minutes of executive sessions, although they may be redacted before being made publically available, if disclosure would defeat the purpose of the executive session. 29 Del. C. § 10004(f).   The burden is on the public body to prove that it has complied with FOIA.  Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ, 1995 WL 733401, at * 4 (Del Ch.). Because the Council has not provided this office with the complete minutes of the January 18 minutes, we determine that the January 18 discussions of “personnel matters” were not properly held in executive session. Moreover, the neither of the other matters discussed on January 18 appear to have concerned any of the nine purposes for executive session.   However, the public meetings held between March 15 and April 5, 2011 remedied the violations.

Failure to Post Agendas for Search Committee Meetings

The Council has not produced any agendas for the search committee meetings that took place between February 22 and March 15, 2011.   However, failure to post an agenda for an executive session is a technical violation that does not involve substantial public rights, because the public cannot observe the executive session. See Att’y Gen. Op. IB-12, 2010 WL4154564, *2 (Del. A.G.). Therefore, no remediation is necessary.  Amended Agenda for March 29, 2011 Meeting
The amended agenda for the March 29 meeting did not contain an explanation for the late posting, in violation of 29 Del. C. § 10004(e)(5); Att’y Gen. Op. 05-IBI5, 2005 WL 2334344, *3 (Del. A.G.).  However, as the amended matters were removed from the agenda at the beginning of the meeting, no remediation is necessary.

CONCLUSION

While the Council did violate FOJA in the conduct of executive sessions of the search committee, it remedied the violations by holding public meetings that went through the matters covered in the executive sessions.  Although the Council failed to post agendas for the executive sessions of the search committee, that is a technical violation that does not require remediation. Finally, the Council violated FOIA by omitting to state on a late-posted agenda the reason for the late posting.  However, the violation was remedied because the Council removed the late-added items from the agenda.
Although no remediation is necessary, it appears that the Council does not understand FOIA’s procedural requirements for executive sessions.  First, the Council must post an agenda of the meeting from which they will go into executive session, and. the agenda must state the purpose of the executive session.    There is a difference between the purposes in 29 Del. C. § 10004(b)(I) (job qualifications) and (b)(9) (personnel matters); the former applies to applicants for employment, the  latter to current  employees.  While it is a technical violation only, it misleads the public to state in an agenda that there will be an executive session to discuss personnel matters when the actual purpose is to discuss job applicants’ qualifications.  Second, public bodies must go into executive session from a public meeting, on a recorded vote by a majority of the members present.  Third, they cannot vote on matters discussed in executive session until they have returned to public meeting.  Finally, while the public version of executive session minutes might be subject to redaction, the public body must keep complete minutes of all executive sessions.
Very truly yours,
/s/ Judy Oken Hodas
Judy Oken Hodas
Deputy Attorney General
/s/ Lawrence W. Lewis
Lawrence W. Lewis
State Solicitor
cc:  J. Everett Moore, Jr., Esquire
Opinion Coordinator

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