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Delaware Department of Justice
Attorney General
Kathy Jennings




 Pages Categorized With: "10002(g) Meeting"

10-IB02 01/25/10 FOIA Opinion Letter to Ms. McCoy re: FOIA Complaint Concerning the Town of Bethel

Complainant asserts that Town violated FOIA open meetings requirements when it held executive session to discuss subdivision applications. Town’s agenda properly posted and noticed the executive session but did not state the purpose. Town asserted that executive session was for purpose of receiving legal advice. After going into executive session and receiving legal advice, the Council discussed the applications for about an hour and voted on the applications before coming out of executive session. They re-voted at the public continued public meeting. Meeting minutes did not reflect legal advice. HELD: Executive Session was held for the proper purpose of receiving legal advice. However, Council violated FOIA by not listing the purpose of the executive session on the agenda, discussing applications during executive session and not properly reflecting legal advice in minutes.

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09-IB10 RE: Freedom of Information Act Complaint Against Town of Dewey Beach

Complainant asserts Town violated FOIA by privately (i) discussing whether to accept certain funds from DelDot; (ii) going into executive session to discuss transferring capital improvement funds to a litigation defense fund; and (iii) refusing to permit public comment at public meeting/ Town asserts (i) Town Manager and not Town Commission has authority to determine whether to accept funds and that Town Manager’s request for individual input from Commissioners does not constitute private meetings in violation of FOIA; (ii) executive session was properly noticed and for a proper purpose; (iii) Mayor’s refusal to accept public comment at meeting did not violate FOIA; HELD: (i) FOIA does not apply to Town Manager who had authority to accept or reject DelDot Funds; (ii) executive session was properly noticed and discussion of litigation resources was proper for executive session; (iii) FOIA provides no right for the public to speak at a public meeting.

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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-IB04 RE: Freedom of Information Act Complaint Against Delaware State University

Complainant alleged that DSU Board violated FOIA open meeting requirements in noticing and conducting a meeting via teleconference. Agenda was timely posted and reflected that meeting would be conducted via teleconference, but did not state the place where meeting would be held. Board by-laws permit board meetings by teleconference. HELD: DSU Board violated FOIA when it noticed meeting by not including the place where meeting would be held. DSU Board did not violate FOIA because by-laws expressly permit board meetings by teleconference.

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08-IB03 Re: Freedom of Information Act Complaint Against Kent County Levy Court

Complainant alleged Levy Court violated FOIA open meeting requirements by holding series of meetings with County planning staff and members of working group without notice to the public. Levy Court admitted that series of meetings were held but asserts they were not subject to FOIA because a quorum was not present. The Levy Court further admitted that meetings were planned in advance to build a consensus on updating County’s comprehensive Plan in a way that the commissioners were not “on stage” and felt the need to talk to crowds. HELD: Levy Court violated FOIA when all seven members met privately in a series of five subquorum meetings without notice to the public. The nature, timing and substance of those communications amounted to meeting of a constructive quorum without notice to the public.

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07-IB25 RE: Freedom of Information Act Complaint Against Town of Bethel

The Complainant alleged the Town Council of Bethel (the “Council”) conducted an “open meeting” in violation of the Freedom of Information Act (“FOIA”) by deciding to contract with Atlantic Well Drilling and issue the necessary permits without first discussing the matter in a public meeting. Held: the “open meeting” law was not violated because approval was given by less than a forum of the Council; approval may have been ultra vires, but it did not implicate FOIA.

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07-IB13RE: Freedom of Information Act Complaint Against Delaware State University

The Complainant alleged the Board of Trustees of Delaware State University (“the Board of Trustees”) violated the Freedom of Information Act (“FOIA”) by not providing the Complainant with a copy of the agenda and minutes for a “retreat” held in Phoenix, Arizona. Held: The Board did not hold a “meeting,” as defined by FOIA, at the national conference in Phoenix, to discuss any matter of public business specific to Delaware State University. Since there was no “meeting” for purposes of FOIA, the Board was not required to notice the conference to the public or prepare minutes. The Board did not violate the public record requirements of FOIA by denying the Complainant access to the agenda and minutes because FOIA did not require the Board to post an agenda or prepare minutes.

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07-IB09: RE: Freedom of Information Act Complaint Against Town of Bethel

The Complainant alleged the Elections Committee of the Town of Bethel (the “Committee”) violated the “open meetings” provisions of the Freedom of Information Act (“FOIA”) by twice meeting with less than seven days’ notice to the public as required by FOIA. Held: (a) that FOIA authorized the Committee to post the notice of a “special meeting” three days in advance – rather than the normal seven days required by FOIA – because the Committee had a compelling reason to do so; (b) the Committee violated FOIA by not explaining in the notice for the “special meeting” why the Committee could not give seven days’ notice to the public; and (c) the Committee did not violate FOIA by posting the notice for an intended second “special meeting” meeting one day in advance because a quorum of the Committee did not meet, so FOIA did not apply.

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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-IB04 RE: Freedom of Information Act Complaint Against Delaware State University

The Complainant alleged the Board of Trustees of Delaware State University (“the Board of Trustees”) violated the “open meetings” provisions of the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by meeting for dinner at a private club without notice to the public. Held: the Board of Trustees did not violate the open meeting requirements of FOIA when seven appointed and elected members of the Board (less than a quorum) gathered for dinner at a private club.

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