AG's Office finds Dewey commissioners in violation of FOIA

On July 13, the Delaware Attorney General’s Office released an opinion regarding the Freedom of Information Act (FOIA) and how it relates to public bodies holding executive sessions.

The opinion was in response to a petition filed by former Dewey Beach mayor Dell Tush, who said she believed that the Dewey Beach Town Council was in violation of FOIA, in that the council did not properly notice the executive sessions or properly list them on the meetings’ agendas.

“We contend that any actions purported to have been taken by the Council at those meetings, whether in executive session or open meetings, were unlawful and are voidable,” wrote Deputy Attorney General Kent Walker, in his opinion.

Walker stated that the council used agendas that simply said, “Executive Session — Personnel and Litigation,” and thus, “fell far short” of FOIA’s agenda requirements, even for the closed meetings.

Delaware Code requires that: “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…” and requires that the agenda include, “a statement of intent to hold an executive session and the specific ground or grounds therefore…” requiring that “the purpose of such executive sessions shall be set forth in the agenda.”

Now public bodies must properly notice and place an executive session on an agenda, detailing the topic of the session. As an example, an agenda could read, “Executive Session to discuss the hiring of a town administrator.”

Opinion could impact how more local towns deal with agendas

Attorney Dennis Schrader — who serves as town solicitor for a number of local municipalities — explained that executive sessions are used for “very limited purposes, which are: qualifications to hold a job, site acquisitions for public projects, law enforcement activities, strategy sessions involving legal advice with an attorney-at-law on potential or pending litigation, discussions that would disclose the identify of a contributor of a bona fide charitable contribution, contents of documents that are not of public record, disciplinary cases, employee dismissal disciplinary cases and personnel matters in which the names, competency and abilities of individuals are discussed.

“On the agendas published from this date forward, there will be more disclosure as to what the subject matter of the executive session is,” explained Schrader of the Department of Justice order.

“I think what it means is that, in the future, all the towns and the town attorneys and the town clerks are going to make sure that they carefully abide by the Attorney General’s opinion and will be more careful in providing the public with information about executive sessions.”

Public bodies will be strictly limited to what they are allowed to discuss and may only discuss what has been specifically noted on the agendas, he said.

“When a public body proposes to conduct public business behind closed doors, the public is entitled to know in advance what that specific business will be,” opined Walker.

Walker went on to write that agendas noting the discussion and possible voting on matters relating to executive-session discussions of personnel and litigation in “no way satisfy FOIA requirements of agenda notice.”

According to an earlier AG’s Office opinion, dated April 11, 2005, “An agenda served the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, so that members of the public can decide whether to attend the meeting and voice their ideas or concerns.”

The opinion also states that agendas may no longer be “subject to change, to include additional items,” due to those items not having been properly noticed, and that such an additional item cannot be said to “arise at the time of the public body’s meeting,” requiring seven days’ public notice.

Schrader said that he believes the opinion will make all public bodies in the state of Delaware review how they prepare agendas and call to the attention of citizens to take a closer look at governmental happenings.

“I don’t think that past acts are going to be challenged on the basis of this new opinion,” he said. “But I think that you will find that there are those people in this world — sometimes citizens, sometimes newspaper reporters — who like to file complaints with the Department of Justice. And I think when you have an opinion like this, you’ll see that there could be some extra filings that might not have been there before for a while.

“I think it’s an opinion that’s going to mean a lot more to the people who are in government who prepare and use agendas, and gives us guidance as to where we need to be in the future to stay in compliance with FOIA… It refines our understanding of the rights and duties of our citizens and our governments.”

Walker’s opinion concluded that remedies to the FOIA violation may include an injunction, declaratory judgment, writ of mandamus and/or other appropriate relief, noting that the burden of proof will be on the public body to justify a decision to meet in an executive session without complying with Delaware Code.

“As this Office has often opined, the intent of FOIA is not merely to encourage transparency in government, but to require it.”

Dewey mayor

says meetings held

for proper purposes

Tush’s initial complaint had focused on the commission’s decision to pay for Mayor Diane Hanson’s legal bills associated with a Public Integrity Commission finding that she had violated state ethics laws by participating in votes involving the redevelopment of the Ruddertowne complex. Hanson is appealing that finding, using the private attorney.

The commission had initially split 2-2 on paying the private attorney’s fees for Hanson, but the subsequent town election unseated the commission members who had voted against doing so. A 4-0 vote, with Hanson abstaining, later approved the Town paying the attorney’s fees.

Tush complained that approximately 20 meetings since early 2011 had violated FOIA. The DoJ’s review found all but one of those meetings had violated FOIA and found additional violations related to other meetings — 28 total.

In his opinion, Walker states that the Town can avoid more serious remedies in response to the violations by complying with a half-dozen requirements, such as filing its meeting agendas with the AG’s Office in advance for the next year, providing the DoJ with minutes of meetings held since November and agreeing not to amend meeting agendas without advance consent of the AG’s Office.

Hanson this week issued a statement in response to the opinion, asserting the commission’s intent to comply with the law.

“At this point in time, it is important to stress that there is no finding in the AG’s opinion that any executive session was held for an improper purpose,” she said. “In the coming days, we will study the AG’s opinion with the goal of aligning our technical compliance to match our commitment to open government.

“It is now and remains this Town Council’s intent to fully comply with the Freedom of Information Act and to operate in an open and public manner,” Hanson said. “To ensure this, all of our meeting agendas are prepared with the advice of legal counsel, and almost all of the meetings in question were prepared with the approval of our previous attorney, who represents several towns and has advised three Dewey mayors and five Dewey Town Councils on the necessary wording for meeting agendas, including the complainant.

Hanson said the executive sessions had involved subject legitimately covered by FOIA.

“We had numerous executive sessions to hire several people, some of whom would have not wanted their employers to know that they were looking for another job; we resolved at least three potential lawsuit threats in executive session; and we discussed current litigation facing the town, which we could not have done in open public meetings,” she said.