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Delaware Department of Justice
Attorney General
Kathy Jennings




 Pages Categorized With: "10002(a) Agenda"

11-IB01: RE: Freedom of Information Act Complaint Against City of New Castle

Mayor of City of New Castle objected to County Council’s December 14, 2010 meeting on three bases – (i) agenda for executive session was insufficient; (ii) procedures for selecting a new city solicitor were improperly discussed in executive session; and (iii) the executive session was held before the public meeting was scheduled to begin. Opinion held that (i) agenda for executive session was sufficient; (ii) although Council violated FOIA by discussing more in executive session than it should have, this was remediated by a later special meeting in which these items were discussed; and (iii) although Council violated FOIA by going into executive session without a vote at a public meeting, no remediation was necessary because of the later special meeting in which all items were discussed.

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10-IB12: RE: Freedom of Information Act Complaint Against Sussex County Board of Adjustment

Complainant asserts that County violated FOIA open meetings requirements by identifying roads under consideration on agenda by number instead of name and by sometimes moving away from microphones at meetings and out of the hearing of the public. HELD: County’s identification of roads by numbers on agenda does not violate FOIA. The agendas adequately draw the public’s attention to the fact that a specific important subject will be treated. There is no evidence that board members knowingly avoided public monitoring of meetings by moving away from the microphones at meetings.

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08-IB08: RE: Freedom of Information Act Complaint Against City of Rehoboth Beach

Complainant alleged that City violated FOIA’s open meetings requirements when it adopted ordinance reducing number of members and term limits of Rehoboth Beach Planning Commission (“RBPC”) by not properly including those matters on agenda and discussed matter privately in serial emails with a quorum of City Commissioners. Agenda referred to RBPC as a “committee” and not “commission,” and did not list issue of term limits. HELD: Definition of “committee” and “commission” are not identical and possibility of confusion exists. Issue of term limits was also not properly noticed because it was neither on agenda nor did it arise at time of meeting. City violated FOIA by not clarifying that commissions and boards, as well as committees, would be discussed at meeting and not including term limits as a matter to be discussed. Emails complained of do not constitute closed meeting of a quorum in violation of FOIA. Emails did not stimulate discussion or any action by City Commissioners in advance of public meeting. No remediation necessary because departures from FOIA did not rise to level of egregiousness to warrant the very serious sanction of invalidating votes.

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08-IB07: RE: Freedom of Information Act Complaint Against Town of Middletown

Complainant alleges that Town violated FOIA regarding the Middletown Action Network (“MAN”) and amendments to town charter. Among other things, Complainant alleges that (i) the Mayor improperly appointed two additional MAN members’ (ii) Middletown held non-public MAN meetings; and (iii) an amendment of the Middletown charter was formulated without public notice and the amendment was not mentioned in Mayor’s oral remarks at the public meeting. Town acknowledged that MAN was created by ordinance on October 1, 2007 and held two or three meetings after its creation, but prior to the approval of their bylaws, but that Mayor did not appoint two additional members. Therefore, MAN meetings were not subject to FOIA. Town further acknowledged that charter amendment removed a $4 million debt limit and that amendment was properly and timely notice for a public meeting. HELD: Mayor not required to hold public meeting to take executive action even if he chose to add members to MAN. The MAN meetings were held in violation of FOIA. MAN became a public body when ordinance creating it was passed. However, FOIA violations are those of MAN, not the Town. With respect to Mayor’s comments about charter amendment at public meeting, FOIA does not concern itself with content of public meeting unless the meeting fails to conform to proposed agenda. Accordingly, Mayor’s oral remarks are not a FOIA issue.

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08-IB02: RE: Freedom of Information Act Complaint Against Town of Cheswold

Complainant alleged Town violated open meeting requirements of FOI by meeting in executive session to discuss impact fees for development. Town asserted executive session was brief strategy session concerning impact fees. Agenda contained no reference to executive session. HELD: Town violated FOIA by not providing public with advance notice of executive session on agenda. Executive sessions may be called in two limited contexts: pending/potential litigation and collective bargaining, but only when an open meeting would have an adverse impact on bargaining or litigation position of public body. Town violated FOIA by going into executive session for a purpose not authorized by law.

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07-IB24: Re: Freedom of Information Act Complaints Against Town of Dewey Beach

The Complainant alleged the Town Council of Dewey Beach (the “Council”) violated the Freedom of Information Act (“FOIA”) by: (1) not providing the public with adequate notice about the building height of a Ruddertowne development proposal discussed at a series of meetings in May-July 2007; and (2) not providing the public with updated and complete copies of the Town’s draft Comprehensive Plan. Held: the Council provided adequate notice that the development proposal and building height would be discussed at the meetings, and copies of the Comprehensive plan were available for inspection as required by FOIA.

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07-IB20: Re: Freedom of Information Act Complaint Against Town of Cheswold

The Complainant alleged the Town Council of Cheswold (the “Council”) violated the Freedom of Information Act (“FOIA”) by meeting in executive session during a public meeting to discuss a “Personnel Matter,” after which the Council reconvened in public to vote to fire a member of the Cheswold Planning Commission.” Held: The agenda for the Council meeting satisfied the notice requirements of FOIA by stating the purpose of the executive session listed in the agenda: to discuss a personnel matter. FOIA did not require the Council to name the person in the agenda who was to be the subject of that private discussion.

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07-IB08: RE: Freedom of Information Act Complaints Against Town of Bethel

The Complainant alleged the Town Council of Bethel (the “Council”) violated the “open meetings” provisions of the Freedom of Information Act (“FOIA”) as follows: (a) the agenda for the Town’s September 5, 2006 meeting did not adequately notify the public that the Town would discuss discontinuing its Comprehensive Plan and disbanding the Planning Commission; (b) the Town decided to re-schedule its November 7, 2006 meeting until November 9, 2006 without meeting in public; (c) the agenda for the November 9, 2006 meeting did not notify the public that the Town would consider a subdivision application; (d) the Town re-noticed its January 2, 2007 meeting to January 9, 2007 without prior notice to the public; (e) a quorum of the Council met privately without notice to the public on February 12, 2007 to discuss a matter of public business (voter eligibility for the upcoming Town election on February 24, 2007); (f) the Council did not give timely notice to the public of a “special emergency” meeting held on February 14, 2007; (g) the Council did not honor the Complainant’s request to be placed on the agenda for the March 6, 2007 meeting to discuss the application of Robert’s Rules of Order; and (h) on several occasions the Council did not post notices for its meetings at its principal place of business or the place where the Council regularly holds its meetings. Held: (a) the Council violated FOIA by not posting the notices and agendas for its meetings held on November 9 and December 5, 2007 and on January 9, February 6 and March 13, 2007 at the place where the Council’s meetings are regularly held; (b) the Council violated FOIA by not adequately informing the public in the agenda for its September 5, 2006 meeting that the Council would discuss discontinuing the Comprehensive Plan and disbanding the Planning Commission; and (c) the remainder of the alleged FOIA violations by the Council were not supported by the record.

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07-IB03: Re: Freedom of Information Act Complaint Against Town of Cheswold

The Complainant alleged the Town Council of Cheswold (the “Council”) violated the “open meetings” provisions of the Freedom of Information Act (“FOIA”) by: (a) meeting on without adequate notice to the public in the agenda to discuss changing the basis for property tax assessments; and (b) meeting without adequate notice to the public in the agenda to rescind an earlier resolution to forgive real estate taxes to elderly citizens if those citizens were exempt from Kent County taxes. Held: (a) the Council violated the open meeting requirements of FOIA by failing to alert the public that it would discuss changing the basis for property tax assessments; and (b) the Council did not rescind an earlier resolution at the meeting in question — it merely amended the minutes of an earlier meeting to accurately reflect that the Council did not resolve to reinstate a property tax exemption for the elderly.

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07-IB01 Re: Freedom of Information Act Complaint Against Town of Milton

The Complainant, Senator Karen E. Peterson, asked whether the public record requirements of the Delaware Freedom of Information Act (“FOIA”), apply to the courts of the State of Delaware. Held: the General Assembly intended to exclude the judiciary from the application of FOIA. The language of FOIA demonstrates a legislative intent to respect the independence of the judiciary as a separate, co-equal branch of government and the judiciary’s right to control access to its records and proceedings by court rule.

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