OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 16-IB01

January 7, 2016

 
VIA EMAIL
Mr. Daniel Kramer
8041 Scotts Store Road
Greenwood, DE 19950
djmjkramer@gmail.com
 
Dear Mr. Kramer,
The Delaware Department of Justice (“DOJ”) received your letter alleging that the Sussex County Personnel Board (“Board”) and the Sussex County Council (“Council”)  violated the open meeting provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”).  We treat this letter as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the “Petition”).  29 Del. C. § 10005(e).  For the reasons detailed below, we conclude that neither the Board nor Council violated FOIA’s open meeting provisions.

FACTS[1]

            On or about March 30, 2015, the Board held a public hearing to discuss and consider the Sussex County Pay Plan for Fiscal Year 2016.  Notice for the meeting was posted on March 12, 2015 at the Board’s principal office and on the first floor of the County Administration Building.[2]  The Board also provided notice of the meeting online on Sussex County’s website and in two newspapers of record: the Delaware State News on March 14, 2015, and the Wilmington News Journal on March 15, 2015.  At that meeting, the Board recommended that the County Administrator review the proposed Pay Plan and present it to the Council for consideration.  The Board’s recommendation was made in public at the March hearing.  The County Administrator then reviewed the Pay Plan and incorporated it into the proposed budget for Fiscal Year 2016.
As part of the budgeting process, the Council held a budget workshop on April 23, 2015.  The Petition alleges that during the April 23, 2015 meeting, a Sussex County employee stated that pay grades and salaries could not be discussed during the public session portion of the workshop and needed to be discussed in executive session.
On May 12, 2015, the Council held a meeting to discuss, among other things, the impact of the pay plan on specific County employees.  According to the May 12 executive session meeting minutes, the Council discussed, among other things, the competency and abilities of these employees during the executive session portion of that meeting.
The public hearing to approve the 2016 budget ordinance was advertised on May 18, 2015 in the newspapers of record in Sussex County (the News Journal and the Delaware State News).  The public hearing regarding the budget was held on June 16, 2015 and the Council voted to approve the 2016 budget ordinance during the public session portion of the meeting.  According to the Council, the pay plan was incorporated into the budget ordinance and was briefly referenced in the discussions that took place during the June 16, 2015 hearing.

POSITION OF THE PARTIES

            The Petition raised several questions: (1) whether the County Administrator presented the new pay grades and job descriptions to Council for approval;[3] (2) why discussion of pay grades and job descriptions was conducted in executive session; (3) why pay grades and job descriptions were not discussed in public at the May 12, 2015 Council meeting when they had been discussed at the March 30, 2015 Board meeting; (4) whether Council could vote on pay grades and job descriptions at the June 16, 2015 meeting when they were not specifically listed in the budget;[4] (5) whether the executive session minutes for the May 5, 2015 and May 12, 2015 Council meeting were public documents under FOIA;[5] and (6) whether the March 30, 2015 Board meeting was properly noticed.
We received responses from counsel to the Board and Council on August 5, 2015 and September 29, 2015.  The Board and the Council each generally deny that it held any meetings that violated FOIA’s open meeting requirements.

RELEVANT STATUTES

           FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed [for a permitted reason].”[6]  Pursuant to 29 Del. C. § 10004(b), public bodies may “call for an executive session closed to the public” only for purposes permitted by the statute.  For example, section 10004(b)(9) permits public bodies to meet in executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.”  However, a public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.”[7]

LEGAL DISCUSSION

I. The Council’s May 12, 2015 Executive Session Meeting

            The Petition challenges the Council’s May 12, 2015 executive session discussion of “pay grades and job descriptions.”  The Council’s August response letter clarified that the Council held executive session discussions on May 12, 2015 to discuss, among other things, the impact of the pay plan on specific County employees, as well as the employees’ competencies and abilities.  The agenda for the May 12, 2015 meeting also confirms that the Council intended to discuss “Personnel, Pending/Potential Litigation, and Land Acquisition” in executive session.
Based on our review of the notice and agenda for the May 12, 2015[8] meeting, and the executive session minutes for that meeting, we conclude that the May 12, 2015 executive session discussion concerning specific County employees complied with FOIA.  Pursuant to 29 Del. C. § 10004(b)(9), a public body may call an executive session to discuss “personnel matters in which the names, competency and abilities of individual employees or students are discussed.”  The May 12, 2015 meeting minutes indicate that the Board discussed “Personnel-Questions Concerning Proposed Salary Structure with respect to specific employees” during that portion of its meeting.  This type of executive session discussion is permitted by FOIA.[9]
The Petition also questions why the Board discussed the pay plan and job descriptions in executive session during the May 12, 2015 portion of the County’s meeting when it discussed the same topic in public during the March 2015 Board meeting.  From our review of the record, it does not appear that the Board discussed confidential information concerning the competencies or abilities of any specific employee during the March meeting.[10]  Rather, the Board generally discussed the pay plan and its impact on the County’s budget.  Therefore, we conclude that this allegation does not state a FOIA violation.
 
II. Notice of March 30, 2015 Board Meeting
The Petition questions whether the Board’s notice of its March 30, 2015 Board meeting complied with FOIA.  Section 10004(e)(4) of FOIA requires the Board to conspicuously post meeting notices at its principal office.  In its September 29, 2015 letter, counsel for the Board explained that the meeting notice and agenda were posted at the Board’s principal office on March 12, 2015.  The notice and agenda were also posted on the first floor of the County Administration Building, online, and published in both the Delaware State News and Wilmington News Journal at least seven days in advance of the March 30 meeting.   Therefore, the Board has demonstrated that the March 30, 2015 meeting was properly noticed pursuant to 29 Del. C. § 10004(e)(4).
 

CONCLUSION

            For the foregoing reasons, it is determined that neither the Council nor the Board violated FOIA as alleged in the Petition.
 
 
Very Truly Yours,
/s/ Katisha D. Fortune
                                      
Katisha D. Fortune
Deputy Attorney General
 
Approved:
/s/ Aaron R. Goldstein
                                 
Aaron R. Goldstein
State Solicitor
 
 
cc: Michael P. Stafford, Esq., attorney for Sussex County Council (via email)
 
 
[1] We base our factual findings on the allegations included in the Petition, dated July 14, 2015, the Council’s Response to the Petition, dated August 5, 2015, the rebuttal submitted by Mr. Kramer, dated August 11, 2015, and the Council’s additional response, dated September 29, 2015.
[2] According to counsel for the Board, the principal office of the Board is located at the County Administration Building.  The notice was posted on the bulletin board in front of the human resources office at this location.
[3] Whether the County Administrator presented the new pay grades and job class descriptions to the County Council for approval does not state a FOIA violation. Nonetheless, the Council’s August 5, 2015 response letter answered this question, explaining that “the County Administrator reviewed the Pay Plan and incorporated it into the proposed budget for the Fiscal Year 2016.”
[4] This allegation does not state a FOIA violation, but a question regarding the Sussex County budget process.  In its August 5, 2015 letter, the Council explained that the Pay Plan was incorporated into the Budget Ordinance that was approved at the June 16, 2015 Council meeting.  The Council accurately concluded that it is not required by FOIA to “separately notice or individually discuss each and every line item comprising the Budget.”
[5] Specifically, the Petition alleges that the executive session minutes for the May 5, 2015 and May 12, 2015 meetings had been requested but not received.  In its August 5, 2015 letter, the Council included the requested minutes for our review and also stated that they had been provided to Mr. Kramer. The Council explained in subsequent communications with this office that Mr. Kramer requested the minutes on July 6, 2015, and the minutes were provided to Mr. Kramer on July 23, 2015.  See 29 Del. C. §10003(h)(1) (“The public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof . . . .”).  We find no FOIA violation regarding Mr. Kramer’s request for the executive session meeting minutes.
[6] 29 Del. C. § 10004(a).
[7] 29 Del. C. § 10004(c).
[8] We note that both the notice and agenda for the executive session portion of the May 12, 2015 meeting complied with the relevant sections of FOIA.  See, e.g., 29 Del. C. §10004(c); (e)(2).
[9] See 29 Del. C. §10004(c)(9) (permitting executive session discussion closed to the public for purposes of discussing “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.”).
[10] In order to investigate this matter, we reviewed the meeting notice and agenda, minutes, and audio recording of the March 2015 Board meeting, all of which are available at https://www.sussexcountyde.gov/personnel-board-meeting-0.

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