Civil Division – New Castle County
May 10, 1996
Del. Op. Atty. Gen. 96-IB15 (Del.A.G.), 1996 WL 254946
(holding that, in order to ratify prior illegal acts, public bodies must list on an agenda the specific acts to be ratified in open session and review and approve the matters de novo)
Gretchen Ann Bender, Esquire
Common Cause of Delaware
1800 North Broom Street, Suite 207
Wilmington, DE 19802
Re: Freedom of Information Act Complaint – Town of Georgetown
Final Written Determination – 29 Del. C. §10005(e)
Dear Ms. Bender:
Please consider this the decision of the Attorney General pursuant to 29 Del. C. §10005(e) in the above-referenced Complaint.
On February 7, 1996, Common Cause (alternatively “the Complainant”) filed the instant Complaint against the Georgetown Town Council (“the Council” or “the Town Council”). The specific allegations of the Complaint naming specific allegations of the Freedom of Information Act, 29 Del. C. ch. 100 (“the Act”) against the Council appear at page 3 through 14 of its Complaint. In separate letters dated March 7, 1996, March 14, 1996, March 25, 1996 and in an undated letter from John A. Mancus, Vice President of Common Cause, the February 7, 1996 Complaint was amended. These amendments shall also be addressed in this written determination. The Attorney General has completed its investigation as required by 29 Del. C. §10005(e). The allegations as they appear in the Complaint may be summarized as follows in chronological order.(1)
Count I
Common Cause of Delaware alleged in Count I of its Complaint that on Tuesday, September 5, 1995 a public notice was posted for a special meeting scheduled for September 7, 1995 at 1:30 p.m. to be held at Town Hall (Exhibit “B”).(2) It was be held at 1:30, but according to the meeting minutes required to be kept by 29 Del. C. §10004(f) the meeting was allegedly held at 3:30 p.m. Common Cause alleged a violation of 10 Del. C. §10004(e)(2) because the meeting was held at a time other than stated in the public notice. Common Cause also alleged that the special meeting’s public notice failed to offer a legitimate explanation as to why the seven day posting requirement had not been met. See 29 Del. C. §10004(e)(3). Finally, Common Cause questioned whether an agenda was posted in a timely fashion. See 29 Del. C. §10004(e)(2).
Second, in Count I Common Cause alleged on September 8, 1995, that the Mayor made a written request for a special meeting to be held on Tuesday, September 12, 1995 at 1:00 p.m. to hold an executive session to discuss personnel matters regarding the Town Manager. Common Cause alleged in Count I of its Complaint that the letter did not indicate that there were any time concerns that would warrant a Council meeting within seven (7) days of the meeting request. Common Cause alleged further that on September 9, 1995, that Council member and Secretary Calhoun sent a memorandum to the Council members and the Town Manager stating that there would be a special meeting on September 12, 1995 at 1:00 p.m. to hold an executive session to discuss the Town Manager personnel matter. Common Cause alleged further in Count I that on September 8, 1995 a public notice was posted stating that there would be a special meeting of the Town Council at Town Hall on September 12, 1995 to “discuss personnel matters regarding the Town Manager.” According to the public notice, the meeting notice could not be given within seven days because “the Special Meeting needs to be held less than seven days after the scheduling decision was to be made.” Common Cause questioned whether this public notice was sufficient public notice for a special meeting under 29 Del.  C. §10004(e)(3).
Count II
Common Cause questioned whether the Secretary and Town Council complied with the procedure set forth in the Town charter regarding notification of the meeting for September 12, 1995. This allegation and the facts discussed at pages 3 and 4 of the Complaint are outside the scope of the Act, and will not be addressed by the Attorney General in this written determination rendered pursuant to 29 Del. C. §10005(e).
Second, Common Cause questioned why the special meeting held Tuesday, September 12, 1995 could not have been noticed seven days in advance as there was nothing to indicate that any issues to be discussed were “time sensitive” (Exhibit “C”).
Count III
Common Cause alleged that a regular Town Council meeting was held September 13, 1995 but there was no indication of when the public notice for the meeting was posted. (Exhibit “E”). According to the Complaint, Common Cause’s understanding was that on September 12, 1995, the public notice was first posted, just one day before the meeting. The Complaint alleged that the meeting was subsequently moved from Town Hall to the Court of Common Pleas Courtroom in the Sussex County Courthouse. Common Cause alleged further that later in the meeting, Council member Calhoun presented a formal written resolution previously drafted by attorney John Sergovic, Esquire to terminate the Town Manager and that the motion was seconded by Council member Hovington and carried by a 3-2 vote.(3) Common Cause alleged further in Count III that the resolution appeared at pages 16-23 of the meeting minutes for the September 12, 1995 meeting and that after the vote, the Mayor noted the Town Manager did not have “previous access” to the charges and therefore advised the Town Manager that the Town Manager has a right to a public hearing. (See, meeting minutes for the September 12, 1995 meeting at pages 23-24.)
Based upon these facts, Common Cause alleged that the regular September 13, 1995 meeting of Council may have been held in violation of the Act because Town Council had allegedly failed to properly publicly notice the September 12, 1996 meeting pursuant to 29 Del. C. §10004(e)(1) and (2) and that the public body “should established that by now.” Common Cause alleged further that it could not determine whether the meeting agenda required by 29 Del. C. §10004(e)(2) was posted seven days before the actual meeting which also allegedly violated the Act. Finally, Common Cause alleged that the existence of a formal resolution drafted by Mr. Sergovic prior to the September 13, 1995 regular meeting raised concern as to whether the Town Council members met to discuss and decide public business outside of a public meeting. Common Cause requested that the current Town Council fully disclose the circumstances which led up to and culminated in the retention of Mr. Sergovic as special counsel. Specifically, Common Cause asked “who did it; how and why was it done; did council members meet and/or discuss the issue either in person; by telephone; did they come to a consensus to hire Mr. Sergovic; if so, when were these discussions held; who was involved; and did the personal or telephone meeting satisfy the requirements of the Act?” Common Cause asked further whether the Town Council violated the Act in reaching a decision to retain Mr. Sergovic. Finally, Common Cause requested that the billing records of Mr. Sergovic be provided to the Attorney General to review the various conversations and meetings that Mr. Sergovic had with the Council during and prior to the preparation of the resolution to terminate the Town Manager. Common Cause questioned whether the termination resolution was already decided prior to the formal vote on the resolution and if so, was the decision made outside the scope of a public meeting.
Count IV
Common Cause alleged that there was a meeting of the Town Council on September 27, 1995 and that public citizens have allegedly attempted to find copies of the public notice required by 29 Del. C. §10004(e)(1) for the meeting. (Exhibit “F”). Common Cause asked when the notice of the meeting was posted as it believed that the Town Manager’s practice of posting the agenda only two days before the regular meeting violated of the Act.
Count V
Common Cause referenced a special meeting of Wednesday, October 4, 1995. (Exhibit “G”). Common Cause alleged that the meeting minutes indicated a special meeting consisting of an executive session was allegedly held on October 4, 1995 at 9:00 a.m. However, Common Cause stated it is not clear whether the meeting was ever publicly noticed pursuant to 29 Del. C. §10004(e)(2) or whether an agenda was actually posted. See 29 Del. C. §10004(e)(1). Common Cause requested that the Council provide public meeting documents to indicate whether it had complied with the Act.
Common Cause indicated further that the minutes of the meeting held on October 4, 1995 indicated that the special meeting concerned the appointment of a new town solicitor and that the appointment was not formally approved. Common Cause requested that the Town Council respond to whether a public policy decision was made behind closed doors without proper notice to the public because it believed the motion for a new solicitor failed.
Count VI
Common Cause alleged that a public hearing was held on October 18, 1995 regarding the termination of the Town Manager at 7:00 p.m. (Exhibit “H”). In that regard, Common Cause alleged that on September 28, 1995 a public notice was posted at the request of the Town Manager indicating a public hearing before the Town Council at Town Hall on October 18, 1995 to address the reasons for his termination as set forth in the “preliminary” resolution by Council on September 13, 1995. Common Cause alleged that no specific agenda was posted at that time. See 29 Del. C. §10004(e)(2).
Common Cause alleged further in Count VI of the Complaint that on October 18, 1995 at 12:15 an “Addition” to the September 28, 1995 public notice was posted at Town Hall. Common Cause alleged that this “Addition” was in fact the agenda for the October 18, 1995 public hearing held later that night. Common Cause alleged that the agenda stated that it was “not available until today given legal constraints in obtainment of agreement as to the procedures.” Common Cause alleged that given the fact that the notice had been posted nearly three weeks in advance of the hearing, “[i]t is problematic that the actual agenda, for whatever reasons, was posted only six hours prior to the actual meeting.”
Common Cause further alleged that at about 2:00 a.m. during the public hearing the Mayor announced that the hearing would “reconvene at the call of the chair pending the availability of the Court transcripts.” Hopefully, according to the Mayor, “it will reconvene next Wednesday at our regular Council meeting.” (Exhibit “H”).
Common Cause alleged further that instead, the public hearing regarding the termination was not reconvened at the next Council meeting on October 25, 1995 even though there was a meeting on that date. (See Exhibit “J”, amended agenda). Instead, as Common Cause alleged, the Town considered the issues at a closed executive session on November 9, 1995 in violation of the Act. Common Cause therefore alleged that the public hearing on October 18, 1995, continued as an executive session on November 9, 1995, violated “the basic principles in spirit, if not the specific provisions of the Act.”
Count VII
Common Cause alleged that there was a regular Town Council meeting on October 25, 1995 and the public notice was posted on September 28, 1995. (Exhibit “I”). Common Cause alleged that that no agenda was posted at that time and that the public notice required by 29 Del. C. §10004(e)(2) stated that “the agenda will follow when information is available to Town Manager.” The Complaint further alleged that no reason was given as to why the agenda could not have been prepared, an apparent violation of the Act. See 29 Del. C. §10004(e)(3). Common Cause alleged further that the agenda was posted on Monday, October 23, 1995 and amended on October 24, 1995 at 12:00 p.m. deleting as an agenda item the executive session to discuss legal and personnel matters.
Count VIII
Common Cause alleged that a special meeting was held on Thursday, November 9, 1995. (Exhibit “J”). Common Cause alleged that on November 7, 1995 Council member Mabel Givens made a written request to Council Secretary Calhoun that a special meeting of the Town Council be held on Thursday, November 9, 1995 at 1:00 p.m. Based upon that request, Common Cause alleged that “the purpose of that meeting would be discussing [sic] and vote on the termination of the Town Manager.” Common Cause alleged that it was clearly improper to vote in executive session, citing 29 Del. C. §10004(c).
With regard to Count VIII, Common Cause addressed three letters dated November 7, 1995: one from Councilperson Givens to Council Secretary Calhoun seeking a special meeting on November 9, 1995 to discuss and vote on the termination of the Town Manager, one from Councilperson Hovington to Council Secretary Calhoun asking for a special meeting to be adjourned to executive session regarding personnel and one from Council Secretary Calhoun to the Mayor requesting a special meeting in the conference room of Tunnell & Raysor, a local law firm, to discuss the termination of the Town Manager. Finally, Count VIII alleged that on November 7, 1995 at 11:00 a.m., a public notice was posted at Town Hall noticing a special meeting for November 9, 1995 to be held at the law offices of Tunnell & Raysor. Common Cause alleged that the public notice did not include an agenda, as required by 29 Del. C. §10004(e)(2) although it did state that there would be an executive session to discuss the termination of the Town Manager. Common Cause alleged that the notice stated that “public notice seven days prior to this special meeting could not be given because the special meeting is to be held less than seven days after the scheduling decision was made.” The Complaint alleged that “[i]ts difficult to imagine why the meeting could not have been scheduled so that seven days notice could have been given.” See 29 Del. C. §10004(e)(3).
Common Cause alleged further in Count VIII that on November 8, 1995, at 11:36 a.m. an “Addition” to the public notice required by 29 Del. C. §10004(e)(2), (3) was posted. This included an agenda of the special meeting and stated that the meeting would be held at a different location, the Chancery courtroom at the Courthouse, and that the Town Council intended to go into executive session. Common Cause stated that the agenda provided that it was “not available until today given legal constraints.” Again, according to the Complaint, Common Cause alleged this statement “did not make any sense” given that a similar notice with an agenda statement was posted the day before and similar issues had been raised in connection with the October 18th public hearing. Common Cause further stated that the agenda posted on November 8, 1995 did not state (or provide an agenda item) that the Town Council intended to vote on the Town Manager’s termination. Common Cause stated that it is Common Cause’s understanding that privately, the Mayor and the Town solicitor advised legal counsel for the Town Manager that no termination vote would be taken. Nevertheless, Common Cause stated that it was Common Cause’s understanding that when the Town Council came out of executive session it then voted to terminate the Town Manager. Common Cause alleged that it appeared that the Council illegally met in executive session on November 9, 1995 and that the issue had already been discussed at a public hearing which had been promised to be continued in a public forum and public hearing. The Complaint concluded that the “personnel” exemption to the Act had been waived when the Town Manager had requested and the Council previously conducted a partial public hearing. See 29 Del. C. §10004(b)(8),(9). Finally, Common Cause alleged that the citizens have been unable to find a copy of the signed termination resolution in the Town Council meeting minutes book and that in sum, the November 9, 1995 “special meeting” and its executive session appeared to be in violation of the Act. Common Cause requested that the vote to terminate the Town Manager be declared null and void. See 29 Del. C. §10005(a).
Count IX
With regard to Count XI, Common Cause alleged that a workshop meeting was held on Friday, November 10, 1995 (Exhibit “K”). Common Cause stated that on November 6, 1995, a public notice was posted that a “Workshop” meeting for the Mayor and all Council members would be held on Friday, November 10, 1995 at 3:00 p.m. Common Cause alleged further that this public notice did not meet the seven day posting requirement of the Act, nor was explanation given as to why the seven day posting requirement could not be met. See 29 Del. C. §10004(e)(2), (3). Common Cause alleged further that changes to the agenda were made on November 9th at 3:35 p.m. and to the best of its knowledge, no minutes of this meeting were taken or kept by the Council in violation of the Act. See 29 Del. C. §10004(f).
Count X
Count X of the Complaint alleged that a regular Town Council meeting was held on Wednesday, November 15, 1995. (Exhibit “L”). Common Cause alleged that the public notice of the meeting was posted October 27, 1995, seven days prior to the meeting. However, as noted at the bottom of the public notice, it provided that the “agenda will follow when the information is made available to the Town Manager.” The Complaint noted that the Town Manager was terminated in the interim time period and in this case, the agenda failed to indicate when it was posted. Common Cause alleged that a witness stated that Council member Hovington posted the agenda at approximately 5:00 p.m. on November 15, 1995, the day of the meeting. Count X of the Complaint concluded that the agenda was not posted six hours prior to the meeting in violation of the Act. See, 29 Del. C. §10004(e)(5).
Count XI
Count XI of the Complaint alleged that a workshop meeting was held on Tuesday, December 5, 1995 at 8:30 a.m. (Exhibit “M”). On November 30, 1995 a workshop of the Council was noticed for December 5, 1995 according to the Complaint. Common Cause alleged that the public notice required by 29 Del. C. §10004(e)(2), (3) failed to meet the seven day notice requirement of the Act and that no reason was set forth as to why the seven day notice requirement had not been met. The Complaint alleged further that the meeting went forward but that Common Cause has not been able to find any minutes for the meeting which would appear to violate the Act. See, 29 Del. C. §10004(f).
Count XII
In Count XII of the Complaint, Common Cause alleged that an executive session scheduled for Tuesday, December 5, 1995 at 10:30 a.m. was “postponed.” On November 30, 1995 an executive session was noticed for December 5, 1995 to discuss personnel matters and that meeting was canceled because the notice had been deemed inadequate under the Act. No specific violation of the Act was alleged. (Exhibit “N”).
Count XIII
Count XIII of the Complaint alleged that an executive session was held on Thursday, December 7, 1995 at 1:00 p.m. (Exhibit “O”). The Complaint states that on November 30, 1995 an executive session was “noticed” for December 7, 1995 but allegedly was not posted on that date. Instead, it was allegedly posted on December 6, 1995. Common Cause alleged that one document dated November 30, 1995 indicated that the changes to the agenda were made on December 6, 1995 at 8:20 a.m. and at 3:30 p.m. respectively. Common Cause further alleged that the next document, also dated November 30, 1995 incorporated the revisions of the previous public notice and indicated that it was posted on December 6, 1995 at 9:30 a.m. Common Cause therefore alleged that the public documents in question do not state why the agenda could not have been posted seven days prior to the meeting; nor do they state that it was a revision of the prior notice, all in violation of the Act. See 29 Del. C. §10004(e)(2),(3).
Count XIV
Count XIV of the Complaint alleged that a workshop of the Town Council was noticed for December 17, 1995 that was postponed. No specific violation of the Act was alleged.
Count XV
Count XV of the Complaint alleged that the Town Council held a regular Town Meeting on Wednesday, December 13, 1995 (Exhibit “Q”). Common Cause alleged that the public notice of the meeting was posted on Monday, December 11, 1995 and that it is Common Cause’s understanding that the agenda was posted at the same time. The Complaint therefore alleged that “[i]t appears the seven day posting requirement set forth in the Act was not met.” See 29 Del. C. §10004(e)(3).(4)
Count XVI
Count XVI of the Complaint alleged that the Council held a Town meeting on Wednesday, January 10, 1996 (Exhibit “R”). Common Cause alleged that the regular Council meetings for January 10, 24; February 14 and 28, 1996 were all noticed together and that no agenda were posted at that time. Common Cause alleged the public notice required by 29 Del. C. §10004(e)(2) stated the agenda would follow when information was made available to the Town Mayor. Common Cause alleged further that the January 10, 1996 Council meeting was posted on Friday, January 5, 1996 at the Town and due to a severe storm the Town Hall was closed to the public on Monday, January 8th and Tuesday, January 9, 1996. Common Cause alleged that “[t]o date citizens have not been able to find copies of the minutes to that meeting and therefore a lack of meeting minute requirements of the Act is alleged.” See 29 Del. C. §10004(f).
Count XVII
Count XVII of the Complaint alleged that a special meeting was held on Friday, January 12, 1996 at 2:00 p.m. (Exhibit “S”). Common Cause alleged that the January 5, 1996 public notice was posted in the Town Hall regarding a special meeting and an executive session to “discuss personnel matters relating to the position of the Town Clerk.” Common Cause alleged that the Town Clerk, Lynn DeLeon, left the Town office at 4:45 p.m. on Friday, January 5, 1996, and at that time, the public notice was not posted as required by 29 Del. C. §10004(e)(2),(3). According to the complaint, Ms. DeLeon returned to work on Wednesday, January 10, 1996 and at that time the public notice for the January 12, 1996 meeting was still not posted on the Town Hall bulletin board. See 29 Del. C. §10004(e)(3). Common Cause alleged that this is a factual dispute but that Ms. DeLeon is willing to state her observations by affidavit and submit the same to the Attorney General.
Common Cause also alleged that on January 11, 1996 at 3:45 p.m. Ms. DeLeon, through her legal counsel, requested that the meeting regarding her personnel evaluation be made open to the public. See 29 Del. C. §10004(b)(9). Common Cause alleged that the Town Council never changed the public notice or the agenda for this meeting so as to advise the public that the meeting, originally scheduled for a closed executive session, would be completely open to the public. See 29 Del. C. §10004(e)(9). Common Cause further alleged that the Town Council went into public session, later discussed the Town Clerk issues in public, and then voted to demote her in public. Common Cause alleged that the public meeting of the Town Council therefore was never properly publicly noticed as being open to the public, and that to date citizens have not been able to find copies of the minutes of the meeting in the Town Council’s meeting minute book. See, 29 Del. C. §10004(e)(2)(3); 29 Del. C. §10004(b)(9).
Count XVIII
With regard to Count XVIII, Common Cause alleged that a regular Town Council meeting occurred on Wednesday, January 24, 1996 (Exhibit “T”). Common Cause alleged that the public notice for this meeting was posted on January 3, 1996 but the agenda was not properly posted until January 23, 1996 (Exhibit “R & T”). See 29 Del.  C. §10004(e)(2). Common Cause further alleged that no reasons were stated for the delay in posting the agenda stated on public notice. See, 29 Del. C. §10004(e)(5). Common Cause alleged that the Town Council voted 3-2 to pay the nearly $15,000 legal bill of Mr. Sergovic at this meeting in violation of the Act.
Count XIX
Finally, in Count XIX of the Complaint, Common Cause alleged that a special meeting was held on Friday, February 2, 1996. According to Common Cause, on January 30, 1996 a public notice was posted indicating that there would be a Special Session Meeting between Town Council and the staff to discuss the staff pay procedure. Common Cause stated that “[p]resumably this meeting went forth.” However, Common Cause alleged that it appears the Town Council had failed to meet the seven day notice requirement of the Act and that minutes should have been taken at that meeting. See, 29 Del. C. §10004(e)(1) and/or (2).
These are the allegations in violation of the Act in total as asserted by Common Cause.
On March 20, 1996 the Town Council filed its answer to the instant Complaint.(5)
The Town Council in its March 20, 1996 answer argued that fourteen of Common Cause’s nineteen specific allegations occurred in excess of sixty days prior to the date of the Complaint and therefore are barred by the provisions of 29 Del. C. §10005(a). The Attorney General shall address this issue below.
The Town Council asserted that none of the nineteen complaints constituted a violation of the Act. To the extent any statutory violations were committed, Town Council argued they were technical and that the public was not prejudiced as a result. Relevant public documents required by the record keeping provisions of the Act, including public notices, agenda, meeting minutes and other public documents were attached to the Town Council’s answer. See, 29 Del. C. §10004; §10005.
On March 25, 1996, Common Cause filed a reply to the Town Council’s answer setting forth why the violations of the Act should be sustained by the Attorney General.
On April 8, 1996 the Town Council filed a reply answer and memorandum to Common Cause’s letters dated March 7, 1996; March 14, 1996; March 25, 1996 and an undated letter from John A. Mancus.
THE AMENDMENTS: March 7, 14, 25, 1996 and updated letter from John A. Mancus, Vice President of Common Cause
(i) The March 7, 1996 Amendment by Common Cause
For purposes of this written determination pursuant to 29 Del. C. §10005(e), the relevant facts in the above-referenced Common Cause amendments are as follows. The March 7, 1996 amendments stated that Common Cause “learned that Town Council has noticed a special meeting, including an executive session for March 4, 1996.” Common Cause noted that the Town Council intended to approve the minutes of a November 9, 1996 executive session and questioned whether this may be done at an executive session where no vote can be taken. Common Cause also alleged that the minutes for that meeting “already were approved at the regular meeting of November 15, 1995.” Common Cause also asked that if Town Council again approved the November 9, 1996 minutes, it would like copies of the same to compare it with the approved number on November 15, 1995. (¶4,5 p. 1,2).
Second, Common Cause in its March 7, 1995 amendment stated that on the day that Town Council received [its February 7,1996] FOIA Complaint, “the Town Clerk, Lynn DeLeon was notified orally that she was terminated, although her letter of termination was not sent for several weeks.” (¶2, p.2). Common Cause requested “that Town Council specifically outlined the circumstances, including any meetings, telephone calls or conferences, that concerned Ms. DeLeon’s termination.”(6) Specifically, Common Cause wanted to know (including a specific time) when “Town Council determined Ms. DeLeon would be terminated, who participated in that decision and how that decision was made (i.e. at a meeting or through telephone calls and conferences).”
(ii) The March 14, 1996 Amendment by Common Cause
The relevant facts contained in the March 14, 1996 Common Cause amendment allege that the Town Council met again on Friday, March 8, 1996. According to the amendment:
“Two citizens who are willing to swear to such in affidavits, on the morning of March 8th, just before the subject meeting, they both carefully checked the meeting notice posted at the Town Hall. They noticed the meeting notice was dated February 23, 1996 not February 29, 1996. They read the notice carefully and recall that it referred only to the March 4th meeting. It is their belief that the original notice of the March 4th meeting had been posted, but that no notice of the March 8th meeting had been posted prior to that meeting. Neither notice contains a handwritten date or posting time as is the usual Town Council custom.”
Common Cause therefore alleged that the March 4th and March 8th meeting notices were nearly identical except the March 8th meeting notice purported to apply to a “March 4th” special meeting, not a March 8th meeting. Common Cause alleged that the new “date and time can only be found in the body of the notice and are not highlighted” (¶4, p. 1,2).
Common Cause questioned when the March 8th meeting notice was posted and requested that the Town Council submit an affidavit from the individual who posted the notice of the March 8th notice stating when the noticed dated February 29, 1996 was posted a the Town Hall. Common Cause alleged that the factual record suggested that the March 8th agenda did not adequately notify the public of the items upon which Town Council would vote and that an executive session was noticed for the meeting. Common Cause stated that the minutes from the November 9, 1995 executive session “would be approved and that litigation strategy would be discussed.” (¶2, p.2). According to the Complaint, the agenda further noted that the Council would resume public session “to vote on the matters discussed in Executive Session.” Common Cause noted that the agenda did not list the specific items upon which Council would vote in public session. (¶2, p.2).
Ultimately, Common Cause requested an answer as to why the March 8, 1996 meeting did not violate the Act, and most importantly, whether the Town Council violated the Act by voting on items that were not specifically on the meeting agenda. See 29 Del. C. §10004(e)(2). In other words, “did the February 29, 1996 notice adequately notify the public of the rescheduled meeting?” Common Cause alleged that the Town Council violated the Act by voting in executive session to approve the minutes of the November 9, 1995 executive session and that Town Council did not vote on such an item in executive session. Common Cause questioned whether the agenda stated “they had planned to do so.” (¶2, p.3).
(iii) The March 25, 1996 Amendment by Common Cause
In the above-referenced amendment to the February 7, 1996 Complaint, Common Cause requested that the Attorney General “flatly reject the Town’s characterization of these violations as merely ‘technical’.” (¶3, p.1).
Common Cause also addressed the legal arguments raised by Town Council and asserted that the burden of proof rests squarely on the public body, not Common Cause, to disprove the FOIA violations. See e.g., News Journal Company, Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977); see, 29 Del. C. §10005(c).
Common Cause also asserted that the instant Complaint is not barred by the sixty day statute of limitations. Common Cause alleged that the FOIA statute does not specify a period of limitations for filing a complaint with the Attorney General and that 29 Del. C. §10005(a) seems to apply citing, In re: Patterson, Informal Attn’y Gen. Op. No. 94-IO-16 (April 7, 1994).
Common Cause correctly argues that under 29 Del. C. §10005(a) there is a six month statute of limitations applicable to a complaint filed before the Attorney General. (Town Council’s Exhibit “A”). Common Cause alleged that §10005(a) “provides that a suit may be filed with the Chancery Court ‘within sixty days of learning of such action, but not later than six months of the date of such action.'” See 29 Del. C. §10005(a). Since all of the challenged conduct occurred within six months of the date Common Cause filed the instant Complaint, the Complaint is not time barred.
Finally, the remainder of Common Cause’s March 25, 1996 amendment contained legal argument and a reply to the Town Council’s answer to the Complaint. All of these legal and factual arguments shall be addressed in the written decision below.
(iv) Vice President John A. Mancus’ Amendment (Undated Letter)
Mr. Mancus stated in his amendment to the Complaint that Common Cause supplemented its response of March 25, 1996 with one more evidentiary item. (Exhibit “W”). Mr. Mancus asserted that the Town Council represented that it did not vote, but instead reached a consensus to hire John A. Sergovic, Esquire at its executive session on September 12th. Mr. Mancus noted that in Common Cause’s reply, the facts are otherwise as Town Council member Calhoun informed the press that the Town obtained a majority vote to retain Mr. Sergovic through a telephone poll of Council. (¶2, p.1).
Mr. Mancus provided a videotape of a television report of December, 1995 wherein Council members Givens, Hovington and Calhoun stated that Council had voted to retain Mr. Sergovic. Mr. Mancus noted that Council member Warren claimed no such vote occurred. (¶3, p.1).
Mr. Mancus concluded that the evidence seemed to confirm the print media account of the telephone poll (Common Cause Exhibit “U”) and that it appeared that the Town Council’s representation “is flawed” and that Mr. Sergovic was retained pursuant to an illegal “meeting” of a majority of Council. Mr. Mancus asserted that because the Town Council failed to disclose all of the pertinent information relative to the decision to terminate the Town Manager and to retain Mr. Sergovic, “we do not know when the illegal “meeting(s) took place.” Ultimately, Mr. Mancus concluded that Town Council “violated FOIA in retaining Mr. Sergovic, (and possibly in terminating the Town Manager)” through non-public meetings.
(iv) The Town Council’s Answer to the Amended Complaint
During the investigation required by 29 Del. C. §10005(e), the Attorney General reviewed all responses from Town Council, all amendments filed by Common Cause, as well as a myriad of public documents, notices, agenda, meeting minutes, Council resolutions and other public documents either required to be kept by the Act or maintained by Town Council. Each Count of the Complaint will be addressed below in this written.
(i) The Town of Georgetown’s Response to Common Cause’s March 7, 1996 Amendment
The Town Council stated that although the minutes of the special meeting held on November 9, 1995 were approved, the minutes of the executive session that took place at the November 9, 1995 special meeting “were not” because there is a fundamental difference between the minutes of the special meeting and the minutes of any executive session that occurred at the special meeting, both of which are required to be kept under 29 Del. C. §10004(f). The Town Council stated, inter alia, that the approval of executive session minutes and executive session is consistent with the Act’s provision concerning the confidentiality of matters discussed in executive session and therefore the approval of the executive session minutes is not a vote on public business under a fair reading of 29 Del. C. §10004(c).
In response to Common Cause’s allegations that Ms. DeLeon was terminated on the date that the Town Council received Common Cause’s initial February 7, 1995 FOIA Complaint, the Town Council stated that Ms. DeLeon was transferred from the position of Town Clerk on January 12, 1996, nearly a month before. The Town Council takes the position that Ms. DeLeon abandoned her employment with the Town by refusing to accept the transfer to a clerical position within the Town’s police department. The Town Council also argued that Ms. DeLeon deliberately refused to comply with the applicable law, rules and regulations prior to the assumption of her responsibilities in the police department which included a criminal background check. Therefore, the Town Council stated any nexus between Ms. DeLeon’s termination and the Common Cause’s FOIA Complaint is specifically denied.
(ii) The Town Council’s Response to Common Cause’s March 14, 1996 Letter
The Town Council stated that a notice for the March 8, 1996 Special Town Meeting was posted on the bulletin board in Town Hall by the Town’s Secretary, Ann Bush, on February 29, 1996 at 5:00 p.m. and in the absence of an affidavit to the contrary there was no legitimate dispute as to when the notice was posted. The Town Council also argued that no action was taken on the March 8, 1996 special meeting concerning the matters addressed in the Attorney General’s February 13, 1996 opinion regarding Ms. DeLeon’s first FOIA complaint and that the press report is inaccurate.
(iii) Town Council’s Response to Common Cause’s March 25, 1996 Amendment
The Town Council argued that the authorities cited by Common Cause regarding the burden of proof in the present case and statutory limitations provisions contained in 29 Del. C. §10005(a) do not support its contention. The Town Council argued that the case of News Journal Company v. McLaughlin, Del. Ch., 377 A.2d 258 (1977), dealt with a private meeting of a quorum of the Wilmington City Council. The Town Council argued that it did not dispute that a public body has the burden of proof to justify to meet in executive session. However, the Town Council recognizes that the burden of proof is placed on the public body to justify a denial of access to records. However, the Georgetown Town Council argues that any other alleged violation of the Act, places the burden of proof on the public body only in the circumstances where a violation of the Act has been established (not alleged).
Next, the Town Council argued that there is a fundamental difference between a statute of limitations and a statute of repose and that only a statute of repose cuts off a claim after a specified period whether or not the cause of action has accrued. The Town Council argued that the portion of §10005(a) which requires a citizen to file suit within sixty (60) days of the citizen’s learning of a disputed action (i.e., the date of accrual) is a statute of limitation and that portion of the statute which restricts the filing of the claim to no later than six months after the disputed action was taken is unquestionably a statute of repose.
Third, the Town Council filed a further response to the nineteen allegations raised in Common Cause’s original February 7, 1996 FOIA Complaint. They will be addressed subsequently in this opinion.
Fourth, with regard to the undated amendment by John A. Mancus, Vice President of Common Cause, the Town Council argued that the “facts” relied on Mr. Mancus consist solely of an inaccurate press report and an except from a video tape interview with a local television station during which three members of the Council were presented with Mr. Sergovic’s final bill for the first time. The Town Council argued that Mr. Sergovic was not retained by Council vote on one occasion. Instead, the Town Council argued that Mr. Sergovic was independently solicited by Mrs. Calhoun and publicly provided professional services with the “implied consent of the full Council for almost two months.” The Town Council argued that the terms of this engagement were explained to the full Council on September 12, 1995 and were confirmed in writing on September 13, 1995. Under these circumstances, the Town argued that it was “legally obligated to pay Mr. Sergovic’s bill, even in the absence of a specific vote.”
THE LAW
§ 10001. Declaration of policy.
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
§ 10002. Definitions.
(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.
(b) “Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power.
(c) “Public funds” are those funds derived from the State or any political subdivision of the State.
(d) “Public record” is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced. For purposes of this chapter, the following records shall not be deemed public:
(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy;
(2) Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature;
(3) Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue;
(4) Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of his personal criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature;
(5) Intelligence files compiled for law-enforcement purposes, the disclosure of which could constitute an endangerment to the local, state or national welfare and security;
(6) Any records specifically exempted from public disclosure by statute or common law;
(7) Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor;
(8) Any records involving labor negotiations or collective bargaining;
(9) Any records pertaining to pending or potential litigation which are not records of any court;
(10) Subject to subsection (f) of § 10004 of this title with respect to release of minutes of executive sessions, any record of discussions held in executive session pursuant to subsections (b) and (c) of § 10004 of this title;
(11) Any records which disclose the identity or address of any person holding a permit to carry a concealed deadly weapon; provided, however, all records relating to such permits shall be available to all bona fide law-enforcement officers;
(12) Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used;
(13) Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department’s custody; or
(14) Investigative files compiled or maintained by the Violent Crimes Compensation Board.
(e) “Meeting” means 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.
(f) “Agenda” shall include but is not limited to a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor under subsection (b) of § 10004 of this title.
(g) “Public body,” “public record” and “meeting” shall not include activities of the University of Delaware and Delaware State University, except that the Board of Trustees of the University and the Board of Trustees of the University shall be “public bodies,” and University and University documents relating to the expenditure of public funds shall be “public records,” and each meeting of the full Board of Trustees of either institution shall be a “meeting.”
§ 10003. Examination and copying of public records.
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.
§ 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
(b) A public body may call for an executive session closed to the public pursuant to subsections (c) and (e) of this section, but only for the following purposes:
(1) Discussion of an individual citizen’s qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open. This provision shall not apply to the discussion by a licensing board or commission which is subject to the provisions of § 8810 of this title, of an individual citizen’s qualifications to pursue any profession or occupation for which a license must be issued by the public body in accordance with Delaware law;
(2) Preliminary discussions on site acquisitions for any publicly funded capital improvements;
(3) Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension;
(4) Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body;
(5) Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor;
(6) Discussion of the content of documents, excluded from the definition of “public record” in § 10002 of this title where such discussion may disclose the contents of such documents;
(7) The hearing of student disciplinary cases unless the student requests a public hearing;
(8) The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing;
(9) Personnel 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.
(c) A public body may hold an executive session closed to the public upon affirmative vote of a majority of members present at a meeting of the public body. The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section. 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.
(d) This section shall not prohibit the removal of any person from a public meeting who is willfully and seriously disruptive of the conduct of such meeting.
(e) (1) This subsection concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to the General Assembly.
(2) All public bodies shall 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. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.
(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.
(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.
(5) When the 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 on the agenda.
(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.
(g) Every regularly scheduled meeting of a public body shall be held within the geographic jurisdiction of that public body. All such other meetings shall be held as follows:
(1) A public body serving any political subdivision of the State, including, but not limited to, any city, town or school district, shall hold all such other meetings within its jurisdiction or the county in which its principal office is located.
(2) For the purposes of this subsection, a “regularly scheduled meeting” shall mean any meeting of a public body held on a periodic basis.
(3) The provisions of this subsection, insofar as they are not practicable, shall 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.
(h) This section shall not apply to the proceedings of:
(1) Grand juries;
(2) Petit juries;
(3) Special juries;
(4) The deliberations of any court;
(5) The Board of Pardons and Parole; and
(6) Public bodies having only 1 member.
OPINION AND ORDER
Before addressing the statutory violations of the Act as alleged in the Complaint, the Attorney General shall highlight applicable case law which applies to the instant Complaint. “. . . [O]pen meeting laws promote the free flow of information so that the news media may report events accurately, rather than being forced to rely on biased or inaccurate leaks.” Delaware Solid Waste Authority v. News Journal Co., Del. Supr., 480 A.2d 628, 631 (1984). Established case law in Delaware, as well as the actual policy statement contained in 29 Del. C. §10001, is that the Act and open meeting laws are to be liberally construed in favor of the citizens. News Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977); 29 Del. C. §10005(c). Fundamental to the purpose of the Act is the public body’s underlying accountability to its citizens;
These general requirements stem from a recognition that ‘public entities as instruments of the government, should not have the power to decide what is good for the public to know.’ Delaware Solid Waste Authority v. News Journal Co., Del. Supr., 480 A.3d 628, 631 (1984) citing C.S. Rhye, The Law of Local Government Operations, §9.1 at 135 (1980).
See also, e.g., Mark Levy v. Bd. Of Education of Cape Henlopen School District, et al., Ch. Ct., C.A. No. 1447, Chandler, V.C. (October 1, 1990). As stated in Beebe v. Certificate of Need Appeals Board et al., Del. Super., C.A. NO. 94A-01-004, Terry, J. (June 30, 1995).
“The [Delaware] Code provides that actions taken at a meeting in violation of this Chapter [100] may be voidable by the Court of Chancery. 29 Del. C. §10005(e). It appears from a review of case law that Superior Court can entertain allegations of FOIA violations. See, e.g. East Coast Resorts, Inc. v. Board of Adjustment, Del. Super., C.A. No. 91A-10-002, Lee, J. (June 17, 1993).
For the following reasons, based upon the required investigation pursuant to 29 Del. C. §10005(e), the Attorney General finds the following violations of 29 Del. C. ch. 100 by the Georgetown Town Council.(7)
The Attorney General finds a violation in Count I of the Complaint regarding the Town Council meeting held Thursday, September 7, 1995. Although there is a factual discrepancy as to whether the September 7, 1995 meeting was held at 3:30 p.m. or 1:30 p.m., the Town Council asserts that the meeting did take place at 3:30 p.m. The public notice misled the public, albeit inadvertently, that a public meeting was to be held at 1:30 p.m., not 3:30 p.m. as actually convened. The Town Council meeting minutes are dated September 7, 1995 and were approved at the regular meeting on September 13, 1995. These meeting minutes specifically listed the approval of minutes for the special meeting held on September 7, 1995. Therefore, we find a violation of 29 Del. C. §10004(e)(2) as no public notice has been produced by Town Council documenting compliance with 29 Del. C. §10004(e)(2) indicating the correct time for the actual public meeting.
The Attorney General shall not address the alleged Town Charter violations in Count II of the Complaint as they are clearly outside the jurisdiction of 29 Del. C. ch. 100. We find no violation of the Act here because, although the Town Council held a special meeting with public notice less than seven days prior to the special meeting, it did in fact post a reason, however vague, which notice met the requirements of 29 Del. C. §10004(e)(3). Applying plain meaning rules of statutory construction, we find that 29 Del. C. §10004(e)(3) requires only a reason, not a specific detailed factual basis why the seven day requirement could not be met. See e.g., Chrysler Corp. v. State, Del. Supr., 457 A.3d 345 (1983) (where a statute is plain and unambiguous, courts should give it effect without referring to traditional aids of statutory interpretation). Although the policy statement set forth in 29 Del. C. §10001 provides that the Act is to be liberally construed, there is nothing in the Act that sets forth explicit standards or requires factual detail if an agency cannot meet the seven day notice requirement. The fundamental rule of statutory construction is to ascertain and give effect of the intention of the General Assembly. Alfieri v. Martelli, Del. Supr. 647 A.2d 52 (1994); Hudson Forms, Inc. v. McGrellis, Del. Supr., 620 A.2d 215 (1993); Murphy v. Board of Pension Trustees, Del. Supr., 442 A.2d 950 (1982). Hence, the General Assembly only requires a basic, not a factually detailed reason why the seven day requirement could not be met.
However, with regard to Count II, it appears that the Town Council discussed the retention of Mr. Sergovic at the September 12, 1995 executive session without properly noticing the executive session. This is bolstered by the fact that the Council explained in its answer to former Mayor Booth’s FOIA Complaint that the Town Council had reached “a consensus to retain Mr. Sergovic” at the September 12, 1995 executive session. Town Council’s Exhibit “H” provides, in pertinent part, that Mr. Sergovic met with the entire Council at the special meeting on September 12, 1995 and during that executive session he explained the terms under which he would agree to represent the Town as special counsel. The Town’s answer indicated that although no vote was taken, there was a “general consensus” to retain Mr. Sergovic and that he was substantiality retained as special counsel. Mr. Sergovic’s letter of September 13, 1995 outlining his proposal to act as special counsel is attached as Exhibit “B”. (Town Council’s Exhibit “H”, ¶ 2). Since this executive session was not properly noticed and a formal vote under the Act had not been taken, it appears that the Council “took action” by “reaching such a consensus” and either discussed or took action on public business as defined in the Act in executive session without properly posting the same on the agenda. See 29 Del. C. §10004(e)(2). The Town Council met and took a straw poll vote to retain Mr. Sergovic’s legal services indicated to a de facto vote, i.e., a consensus vote was taken without listing the same as an agenda item.
Town Council therefore took action in executive session without a formal vote in open public, also a violation of the Act. See 29 Del. C. §10004(a); §10004()c), and §10004(e)(3). We believe therefore, that the Council violated the Act and specifically all sections listed above by failing to properly post on the agenda for the executive session consideration of retaining Mr. Sergovic by the Council to act as a special counsel to the Town, voting in open session to retain him, properly posting a public notice with an agenda item to vote on the issue to retain Mr. Sergovic. There is no “straw pulling” allowed in executive sessions by a public body in the Act, nor does the Act allow public bodies to reach “consensus votes” which they strive to later ratify. See, Mark H. Levy v. Cape Henlopen School District, supra.
In Mark H. Levy v. Cape Henlopen School District, supra., the Chancery Court in rejecting the school board’s “narrow construction of the term ‘action’,” noted as follows:
. . . One purpose of sunshine laws is to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance, [since] rarely could there be any purpose to a non-public pre-meeting conference except to conduct some part of the decisional process behind closed doors, and . . . a sunshine statute, being for the benefit of the public, should be construed so as to frustrate all such evasive devices. News Journal v. McLaughlin, 377 A.2d at 362. (Emphasis supplied.)
With regard to Count III, the Town Council admitted in its answer that it has no way of proving or disproving that the public notice and agenda for the September 13, 1995 regular meeting were properly posted as the records are missing from the Council’s files. However, the Town Council admitted that it posted the public notice and agenda for this meeting only two days prior to the meeting in violation of the Act. Therefore, the Attorney General finds a violation of the Act, specifically 29 Del. C. §10004(e) (2), by failing to timely post the public notice and agenda, as well as a violation of §10004(f) by failing to keep proper minutes of the public meeting as amended.
With regard to Count IV, the Town Council conceded that the public notice and agenda for the September 27, 1995 regular meeting was not among the Town records. However, based upon the investigation the public notice and agenda were posted only two days before the regularly scheduled meeting. Therefore the Attorney General finds that a violation of 29 Del. C. §10004(e)(2) was committed by the Town Council for failing to timely post the same.
With regard to Count V, notwithstanding the fact that the meeting was held on October 4, 1995, the public notice was posted only six days in advance. Common Cause challenged the propriety (i.e. insufficience) of the reason for this special meeting which the Town Council’s search was not less than seven days after the scheduling decision was made as inadequate. However, the statute in question, 29 Del. C. §10004(e)(3) only requires that the Town state a reason for the short notice. See, Count I. For the reasons enumerated above, we find no violation of the Act.
With regard to Count VI of the Complaint dealing with the public hearing concerning the termination of the Town Manager, Wednesday, October 18, 1995 at a 7:00 P.M. (Exhibit “H”), both parties agree that the agenda was posted only six hours before the actual hearing notwithstanding the meeting notice was posted nearly three weeks prior to the hearing and the termination issues had already been voted upon at the September 13, 1995 regular meeting, This is in plain violation of the Act, 29 Del. C. §10004(e)(2). There was also a statutory violation of 29 Del. C. §10004 because no meeting minutes have been produced to date by the Town Council. The Attorney General therefore finds a violation of the Act for failure to maintain public records as required. See 29 Del. C. §10003.
With regard to Count VII, there is a violation of 29 Del. C. §10004(e)(4) as the Town Council concedes that there is no reason that the agenda was not posted with the notice. This is a statutory requirement of the Act. See, 29 Del. C. §10004(e)(2). We specifically find that the Town Council’s argument that no prejudice occurred to its citizens is without merit. Applying the policy statement in 29 Del. C §10001 that the Act should be liberally construed in favor of the citizens, we find that not complying with a material statutory term may not be construed as “no prejudice” to Town citizens. We therefore find a statutory violation of the Act.
With regard to Count VIII, we find violations of 29 Del. C. §§10004(a), (e)(2), and (3) for the following reasons. The Mayor at the November 9, 1995 special meeting, which included an executive session, informed the public that “[t]his hearing will reconvene at the call of the Chair pending availability of Court transcripts. Hopefully, it will reconvene next Wednesday at our regularly Council meeting. Thank you.” (Common Cause’s Exhibit “H”). This statement led the public to believe that there would be a regular town meeting, not a closed executive session held at a later date. There was also a violation of 29 Del. C. §10004(e)(3) because the agenda was posted only two days in advance of the meeting and no reason was stated why the agenda could not be posted within seven calendar days. There is also an additional violation of 29 Del. C. §§10004(e)(2) and (3) because Council failed to list a notice for the actual vote on the issue of the termination of the Town Manager on the agenda. (Common Cause’s Exhibit “J”). The public was therefore not notified of the Termination Vote as an agenda item on which the Council took official action. Therefore the November 9, 1995 special meeting and executive session was in violation of the Act.
With regard to Count IX dealing with the workshop meeting Friday, November 10, 1995 (Common Cause’s Exhibit “K”), we find a violation of 29 Del. C. §10004(e)(3) because the public notice for the special or rescheduled meeting of the Council failed to include an explanation as to why the regular notice could not be given seven days in advance. This is a violation of the requirements of the Act. See, 29 Del. C. §10004(e)(3).
With regard to Count X, the regular Council meeting on Wednesday, November 15, 1995, Council admitted that the agenda failed to contain the statement as to why it was not posted with the notice or within seven days of the public meeting in violation of 29 Del. C. §10004(e)(3). Hence the Attorney General finds a violation of the Act. Id.
With regard to Count XI, the Workshop meeting held Tuesday, December 5, 1995 at 8:30 A.M. (Exhibit “M”) by Town Council, we find a violation of 29 Del. C. §10004(e)(3) because the notice lacked an explanation why the seven day notice requirement could not be met as required by the Act.
The Attorney General finds no violation of the Act with regard to Count XII for an executive session because the session was postponed because the notice failed to comply with the Act.
With regard to Count to XIII of the Common Cause’s Complaint, the Attorney General finds no violation of the Act.
With regard to Count XIV, no violation of the Act is alleged and no violation is found by the Attorney General.
With regard to Count XV, the Town Council conceded that the December 13, 1995 regular meeting appeared to have been noticed in technical violation of 29 Del. C.§10004(e)(2) in that it was posted two days prior to the meeting. We again find that this is a statutory violation of the Act notwithstanding the Mayor’s “usual practice” to announce the date of the next regular meeting at every regular meeting. We encourage the Mayor to cease this practice as it conflicts with the Act and is a direct contradiction of the statutory time frame for posting public notices for a public body. See 29 Del. C. §10004(e)(2). The Attorney General shall not address the Town Charter or violations as they are outside the jurisdiction of the Complaint filed pursuant to 29 Del. C. §10005(e).
With regard to Count XVI of the Complaint, the Town Council admitted that it is not in position to confirm or deny Common Cause’s allegations that the agenda was posted on January 5, 1996 for the regular Town Meeting held Wednesday, January 10, 1996. (Exhibit “R”). Since the agenda was posted only six hours before the meeting without explanation of the delay, the Attorney General finds a violation of 29 Del. C. §10004(e)(3).
With regard to Count XVII of the Complaint dealing with the special meeting held on Friday, January 12, 1996 at 2:00 P.M. (Exhibit “S”), we find a violation of 29 Del. C. §(e)(2), (3) because the Town Council failed to notify the public by listing on the agenda that it was going to discuss and vote on the Town Clerk termination issue. The notice and agenda did not state that such items would be publicly discussed or voted upon. Hence this is a violation of 29 Del. C. §10004(e)(3). There is also an additional violation of the Act because the Town Council failed to amend its agenda pursuant to 29 Del. C. §10004(e)(2) after the Town Clerk requested a public hearing. The Town Council clearly failed to list, as an agenda item, that the matter would be an open public hearing following the Town Council’s request for an open meeting.
With regard to Count XVIII, for the regular Town Council meeting scheduled for Wednesday, January 21, 1996 (Common Cause Exhibit “T”), the Town Council failed to amend its public notice when it provided an amended agenda. Hence a violation of 29 Del. C. §10004(e)(2).
With regard to Count XIX, the special meeting held Friday, February 2, 1996, this meeting was canceled. We therefore find no violation of the Act.
There are several issues that must be addressed before concluding this written determination as required by 29 Del. C. §10005(e). We believe the Complainants in this instance are correct in citing established case law in Delaware that “public entities, as instruments of the Government, should not have the power to decide what is good for the public to know.” Delaware Solid Waste Authority v. The News Journal Co., Del. Supr., 480 A.2d 628, 631 (1984). See also, Mark Levy v. Bd.. Of Education of Cape Henlopen School District, et al., Ch. Ct. C.A. No. 1447, Chandler, V.C. (October 1, 1990). We believe the statutory violations set forth in this written decision pursuant to 29 Del. C. §10005(e) point out that fundamental procedural changes must occur if the Town Council is to comply with the basic law and the spirt of the Freedom of Information Act, 29 Del. C. ch. 100. The Act’s requirements for public notices, agenda and record keeping may not be honored in the breach. The Act’s requirements must be complied with in both form and substance.
We also find that the instant Complaint is not barred by the sixty day statute of limitations as alleged by the Town. Twenty-Nine Del. C. §10005(a) sets forth a six month period of limitations and provides that a suit may be filed with the Chancery Court “within sixty (60) days of learning of such action, but no later than six months after the date of action.” See IN RE: Patterson, Att’y Gen. Op. No. 94-IO6 (Town Council, Exhibit “A”). All of the instance challenge conduct occurred within the six month statutory period and therefore is not time barred. The Town’s legal argument in opposition to this finding is unpersuasive and without merit.
TOWN COUNCIL’S REMEDIAL ACTION
We also must address further violations as a result of the investigation required by 29 Del. C. §10005(e) resulting from the Town Council’s remedial action which took place on March 8, 1996. A notice for that meeting was purportedly posted on the bulletin board in Town Hall by Town Secretary Ann Bush on February 29, 1996 at 5:00 p.m. (Exhibit “S”). The Town Council attempted to ratify all illegal actions taken at any prior meetings that did not meet the public notice, agenda, meeting minutes, and other record keeping provisions of the Act that were questioned by Common Cause in the instant Complaint. The Town also sought to “ensure strict compliance, with all the requirements of the Act” by that notice and meeting. While the notice included an agenda, as well as notice of an executive session, new violations of the Act were committed by the Town Council because it failed to list, as an agenda item, all of the acts which the Council conceded to be in violation of the Act and to be ratified at the meeting. In point of fact, the March 4, 1996 special meeting notice (that notes the Monday, March 4, 1996 meeting as rescheduled to Friday, March 8, 1996 at 10:00 a.m.) merely lists as an agenda item: No. 2 “Executive Session for legal and litigation related matters — Closed to the Public.” This illegal ratification manifests a fundamental misunderstanding of the Act’s open meeting requirements as outlined in 29 Del. C. §10001. If the Town Council was attempting to ratify the illegal acts outlined in this opinion, it should have identified each of such items on the agenda and public notice with an indication whether or not any or all of such items were subject to public comment and vote. A closed executive session cannot be scheduled on issues of Freedom of Information Act compliance. See 29 Del. C. §10004(c)(2), (3); §10004(e). The open meeting would have given the public and the citizens of Georgetown the opportunity to observe their town officials properly attending to public business as defined in the Act. See, 29 Del. C. §10002(b). Exceptions to the closed executive session provisions of the Act (29 Del. C. §10004) are strictly interpreted. Delaware Solid Waste Authority v. News Journal Co.; see also E. McQuillan, Law of Municipal Corporations, §13.07(a)(1979). As Vice Chancellor Chandler ruled in Mark H. Levy v. Board of Education of Cape Henlopen School District, a later public vote to ratify a previous private meeting of a public body must meet several conditions;
The Board’s theory that a later public vote remedies earlier technical violations of the Act is a different and more subtle argument. No authority has been offered for it either, but it is analogous, I think that the harmless violation doctrine by which some authorities have said that a later public meeting may validate a private meeting provided that the later public meeting functions as a true de novo consideration of the challenged action. See McQuillin, Municipal Corporations, §13.07(b)(3rd Ed. 1989 Cum.Supp.). Under the harmless violation doctrine, Courts must determine whether there is a substantial reconsideration of the challenged decision and, if not, whether invalidation of the government decision is a proper remedy. Brookwood Area Homeowner’s Association v. Municipality of Anchorage, Alaska Supr., 702 P.2d 1317, 1322 (1985). Additionally, it seems appropriate for the Court to consider the nature of the infractions, i.e., whether the violation was unintentional or deliberate and whether it was an isolated incident or an ongoing pattern of infractions. (Emphasis supplied.)
Based upon the Town’s response, it appears, albeit not intentional, that the ratification plan violated the statutory provisions of the Act cited above. In addition, discussing the items to be ratified in executive session, closed to the public cannot be “a true de novo” consideration of the challenged action. The ratification was therefore void ab initio and must be re-done subject to all record keeping requirements of the Act. See, 29 Del. C. §10004(e)(2)(3) and §10004(f).
This office specifically finds that in order for a public body to ratify illegal acts, that the former illegal acts and/or action taken by the Town Council in previous public meetings and hearings, must be listed on the agenda and public notice for the meeting in order to provide notice to the public as to what items are being ratified in open session. This does not preclude an executive session, but the Council must comply with the Act if it is to conduct an executive session. See 29 Del. C. §10004(c); §10004(e), (2), (3) and (4); §10004(f) and §10004(g)(2).
While the Town Council has provided and set forth several resolutions dealing with such matters as the removal of the Town Manager and appointment of Richard F. Stokes, Esquire as Town Solicitor to serve through May 15, 1996, none of these items were actually listed on the agenda so that the public were aware of what actions the Town Council was ratifying. Nor did the Town Council discuss these matters in executive session or afford the citizens of Georgetown an opportunity to publicly discuss such issues or have and an opportunity to observe their elected public officials in an open forum. See 29 Del. C. §10001. For instance, the Town Council provided a copy of a resolution dated March 8, 1996 by the full Council and Mayor ratifying its retention of and payment to Sergovic & Ellis, P.A. of $14,720.88 for professional services rendered by John A. Sergovic as special counsel to the Town of Georgetown. However, these items were not listed as agenda items on the March 4, 1996 special meeting notice and the public would have been unaware of those items by reviewing the agenda and/or public notice for the meeting. Therefore, we find the all actions taken by the Town Council on March 8, 1996 at 10:00 a.m. to be void because the public was not informed of what action was taken. See 29 Del. C. §10004(e)(2),(3) and (4).
Finally, Common Cause has requested that the Attorney General invalidate or void other substantive actions of the Town Council. While the Attorney General has ruled on the alleged violations, we look to matters such as the hiring of John Sergovic, the firing of the Town Manager, and the firing of the Town Clerk separately.
The Town Council has signed and adopted a resolution hiring and agreeing to pay Mr. Sergovic. This item should be placed on the agenda at the next meeting with proper public notice. Assuming proper notice and ratification vote, irrespective of the outcome, this item would then be removed from the Attorney General’s purview.
Because there is pending legal action between Ms. DeLeon and the Town, the Attorney General declines to void any public hearing or rule on any issue concerning Ms. DeLeon beyond the limited issues dealing with FOIA compliance in this matter. Ms. DeLeon did, in fact, receive a due process hearing. While the agenda appeared not to be amended to indicate the public hearing was open, Ms. DeLeon did receive due process and under the harmless violation doctrine, any alleged violations were corrected and do not require that this office void the action taken by the Town.
With regard to the firing of the Town Manager, Mr. Kahula was given a due process hearing before the Town Council with his attorney. To the extent the Town Council committed FOIA violations, we believe that under the “harmless violation” doctrine outlined in Levy v. Cape Henlopen School District, Mr. Kahula was given true de novo consideration of the Town’s actions and the violations have been rectified.
The Attorney General directs the Town Council to properly correct the above violations in open session as outlined in this opinion by renoticing the same through a regular or special meeting. The Town must list all of the agenda items that the Town Council intends to ratify which have been deemed in violation of the Act in this Opinion. If the Town Council declines to take this remedial action as outlined in this Opinion, the Attorney General may invoke the enforcement provisions of the Act outlined in 29 Del. C. §10005(e). The Attorney General takes notice of the fact that the Town Council posted a notice of remedial action for all of the violations noted in this opinion. That notice was posted on May 6, 1996 for a meeting on May 14, 1996. Any action taken by this office will be stayed pending the outcome of that meeting.
Very truly yours,
John K. Welch
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor
JKW/jb
Enclosure
cc: Ms. Elizabeth A. Bacon, Opinion Administrator
1. The Attorney General in two (2) separate opinions dated August 5, 1996 and February 131, 996 (as amended and upheld in a written dated determination dated March 20, 1996 pursuant to 29 Del. C. §10005(e) after Town Council filed a Motion for Reconsideration) respectively Attn’y Gen. Op. No.96-IB11 and Attn’y Gen. Op. No. 96-IB05 ruled that the Georgetown Town Council violated the Act on two separate occasions as a result of complaints filed by citizens pursuant to 29 Del. C. §10005(e). On April 11, 1997, through its counsel, the Council refused to correct the statutory violations outlined in the Attorney General’s second opinion as reconsidered on March 20, 1996.
2. All references to Exhibits unless otherwise noted are to the lettered exhibits to Common Cause’s Complaint dated February 7, 1996.
3. Common Cause stated that the meeting minutes of the September 12, 1995 at page 16 confirm the 3-2 vote on the written resolution to terminate the manager.
4. Again, the allegation in Count XV dealing with alleged violations by Council of its charter shall not be addressed in this written determination pursuant to 29 Del. C. §10005(e) as the Attorney General lacks jurisdiction over such violations.
5. The Town Council apparently asserts in its formal answer to the Complaint that any information contained in the response concerning communications between any member of Council and an attorney representing the Town or between any attorneys themselves is protected from disclosure. The Attorney General views these as public records filed pursuant to a formal investigation required pursuant to 29 Del. C. §10005(e). These documents are public documents submitted to the Attorney General to determine whether a violation of the Act has occurred. As such, they are not privileged and confidential and are part of the public record in this public investigation of a citizen’s complaint.
6. Common Cause noted that “It was well known among Town Council members that Ms. DeLeon was helping Common Cause and she was specifically referenced in our complaint.”
7. The Attorney General has reviewed all the “pleadings” filed by the respective parties in this case, as well as the public documents provided to the Attorney General during the process of investigating the Complaint. As stated above, the public documents violated include the public notices, agendas, meeting minutes, resolutions, and other relevant public documents either required by 29 Del. C. ch. 100, or compiled as a result of complying with the Act.

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