AG’s Office scolds South Bethany for FOIA violation in staff firing

Date Published: 
July 21, 2017

In the Town of South Bethany, the town manager oversees staff and day-to-day operations. He or she serves at the pleasure of the town council and can be fired for any reason.

But after former town manager Melvin Cusick’s contract with the Town was terminated in January, he asked the Delaware Attorney General to investigate South Bethany’s potentially violation of the Freedom of Information Act (FOIA).

This month, although the AG’s Office agreed that the Town didn’t completely follow FOIA law when terminating Cusick’s contract, the State didn’t recommend major remediation, besides improving the public notification process.

On Friday, Jan. 6, South Bethany had announced that a special council meeting would be held Monday, Jan. 9. That day, during an executive session closed to the public, the council was to discuss employment matters.

And on that day they voted unanimously (with two council members absent), after a 22-minute discussion, to end Cusick’s contract after he had spent more than a decade in the position. (The issue is considered a personnel matter, and South Bethany officials have not publically stated the reason for ending the contract.)

However, the AG’s Office concluded that the council had violated FOIA by not providing sufficient notice to the public of the special meeting.

FOIA law requires all public bodies to post an agenda one week beforehand, listing all the general issues to be discussed at a public meeting. If seven days’ notice cannot be given, “the reasons for the delay in posting shall be briefly set forth in the agenda.”

“We conclude that the Council violated FOIA by failing to provide an explanation in its … meeting notice as to why it could not give seven days’ notice of the meeting,” the AG’s Office wrote. “Since the meeting was, by definition, a special meeting of the Council, the Council was required to include in the notice an explanation as to why seven days’ notice could not be given.”

The Town never specifically stated why they scheduled a meeting sooner than seven days.

Although they suggested that the meeting date was based on council members’ winter travel plans, “The Council also appears to suggest that additional notice might have been possible,” the AG stated. “Here, the Council has failed to demonstrate exigency or a compelling need to justify holding a special meeting.”

As for not stating a proper reason in the agenda, the Council responded that this was due to an administrative oversight and that “[i]nstructions have [since] been given to the Town’s FOIA coordinator to include an appropriate explanation on any future notices for special or rescheduled meetings regarding why seven days’ notice could not be provided,” the AG’s Office reported.

“It’s interpreting FOIA,” said Councilman Frank Weisgerber. “Now we know, so we add it to our agenda, or add it to the notes.”

There was no major penalty or remediation required by the AG’s Office.

“While we recognize that any action taken at a meeting held in violation of FOIA may be voidable by the Court of Chancery, we do not believe that the circumstances warrant any remedial action. … We note that the Council retains the right to remove the Town Manager from office ‘for any reason whatsoever,’” the AG’s Office stated.

It’s also considered unlikely that a court would force the council to reconvene to deliberate Cusick’s employment with proper notice given.

The AG’s Office didn’t take up Cusick’s other claims that the Town violated FOIA by allegedly failing to timely notify him of the meeting; allegedly failing to provide him the option of an open public meeting; or allegedly deciding to terminate his employment before the Jan. 9 meeting.

Cusick wasn’t notified that he was the subject of the meeting until Monday morning, in a private meeting with Mayor Pat Voveris and Weisgerber.

“When we discussed it with our lawyer, that was the advice we got,” Weisgerber said. “We’re volunteers. You know what we do? We called the lawyer [and asked,] ‘How do we handle this?’ He tells us. … And — we do the best we can.”

“Of course, we recognize that an employee cannot request that a discussion be open to the public unless the employee is aware that he or she is the subject of the discussion,” the AG’s Office acknowledged.

But FOIA law is for the public and does not detail employee rights. So, if that last-minute notice to Cusick violated any law, it wasn’t FOIA.

Although Cusick already knew his right to an open meeting, the AG’s Office determined that he did not specifically request a public meeting. Moreover, “FOIA does not require that a public body affirmatively present an employee with the option to have their personnel matter discussed in open session,” the AG’s Office stated.

According to the AG’s Office, Cusick stated that he chose not to attend the meeting because he “did not have sufficient time to seek legal representation if [he] chose to do so.”

The council also denied having decided Cusick’s fate beforehand. Voveris told the AG’s Office that she had discussed his employment with council members on an individual basis, to determine their interest in a special meeting and when to schedule it, based on their winter traveling plans.

She held that she did not persuade council members to take a certain position beforehand, although one council member “had the impression that other Council members supported exercising the option to terminate [his] employment, based upon his conversation with the Mayor,” the AG’s Office noted.

Ultimately, there was no council quorum formed or vote held before the Monday meeting, the AG’s Office decided.

Cusick did not respond to the Coastal Point’s request for comment on this story.