If a city committee adds a known issue to its meeting agenda at the last minute, does a later public vote by the city council fix the problem?

Official title

01-IB13 Re: Freedom of Information Act Complaint Dover Safety Advisory Committee

Plain-English summary

An attorney complained that the City of Dover's Safety Advisory Committee added, at its June 25, 2001 meeting, a discussion of a proposed waste transfer facility and the Dover Air Force Base's objections to it, without listing that topic on the meeting's posted agenda. The Committee then voted to recommend that the City Council formally oppose the facility, and the Council did so at its July 9 meeting, this time with the item properly on the agenda.

The AG found the Committee violated FOIA's notice requirements, because the issue (a May 30 letter from the Air Force Base commander) had arisen well before the June 25 meeting and could have been included in the agenda with proper notice, or handled through a special meeting on 24 hours' notice, rather than added on the spot. The AG rejected the City's argument that the Council's later public vote fixed the problem, reasoning that the public still lost the chance to observe the Committee's own fact-finding and deliberation, which is part of what the open meeting law protects. Because the ultimate approval authority over the waste facility rested with the county, not the city, the AG concluded no further remediation was needed, since ordering a do-over of the city's non-binding proclamation would not change anything the city actually controlled.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a public body add an item to its meeting agenda on the spot if it already knew about the issue days in advance?

No, according to this opinion. FOIA lets an agenda change to include items that "arise at the time of the public body's meeting," but the AG found this Committee could not use that exception because it had known about the underlying issue, a letter from the Air Force Base commander, well before the meeting and had other options, like a properly noticed regular or special meeting, to address it.

If a city council later takes a public vote on an issue, does that erase an earlier open-meeting violation by one of its committees?

No, based on this opinion. The AG rejected the argument that the Council's public vote cured the Committee's earlier notice violation, holding that citizens have a right to observe not just the final decision but also the fact-finding and deliberation that leads up to it.

Does a matter have to be within a city's own decision-making power for open-meeting notice rules to apply to a discussion of it?

Not necessarily, according to this opinion. Even though the actual permit decision belonged to the county, the AG found the city's discussion still counted as "public business" because the city's proclamation was meant to influence a decision that would affect the city, giving the city body its own jurisdiction over whether to weigh in.

Background and statutory framework

Delaware's FOIA requires that meetings of public bodies be open, with public notice of regular meetings given "at least 7 days in advance," 29 Del. C. § 10004(a), § 10004(e)(2), though an agenda may be amended for items "which arise at the time of the public body's meeting." Id. FOIA defines a "meeting" as a quorum gathering to discuss "public business," 29 Del. C. § 10002(e), and defines "public business" as any matter over which the public body has "supervision, control, jurisdiction or advisory power." Id. § 10002(b). The AG relied on its own earlier opinions holding that a body cannot claim an issue "arose at the time of the meeting" if it already knew about the issue in advance, and could instead have called a special meeting on 24 hours' notice under § 10004(e)(3). On the ratification argument, the opinion applied Levy v. Board of Education of Cape Henlopen School District for the principle that the public has a right to observe the "fact gathering, deliberations and discussions" that shape a decision, not just the final vote, and The News-Journal Co. v. McLaughlin for treating a body's persuasive, non-binding action on a matter within its practical concern as "public business" even when final authority rests elsewhere.

Citations

• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)
• 29 Del. C. § 10004(e)(2) (seven-day meeting notice; agenda amendment only for items arising at the meeting)
• 29 Del. C. § 10002(e) (definition of "meeting")
• 29 Del. C. § 10002(b) (definition of "public business")
• Del . C . § 10004(e)(3) (special or rescheduled meeting on 24 hours' notice)
• Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 6 (Oct. 1, 1990) (public has a right to observe fact-finding and deliberation, not just final decisions)
• The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977) (persuasive, non-binding action on a matter of concern to the body counts as "public business")

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/08/09/01-ib13-re-freedom-of-information-act-complaint-dover-safety-advisory-committee/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 01-IB13 (Del.A.G.), 2001 WL 1593113

Office of the Attorney General

State of Delaware

Opinion No. 01-IB13

August 9, 2001

Re: Freedom of Information Act Complaint Dover Safety Advisory Committee

*1 John W. Paradee, Esquire

Prickett, Jones & Elliott

11 North State Street

Dover, DE 19901

Dear Mr. Paradee:

By letter dated June 25, 2001, you alleged that the City of Dover Safety Advisory Committee ("the Committee") violated the open meeting requirements of the Freedom of Information Act, 29 Del . C . Ch. 100 ("FOIA"). Specifically, you allege that the Committee failed to notice in the agenda for a meeting on June 25, 2001 a discussion of a municipal waste transfer facility operated by Eastern Shore Environmental, Inc. ("ESE") and the objections of the Dover Air Force Base to the location of that facility.

By letter dated June 27, 2001, we asked for the City's response, which we received on July 5, 2001. According to the City, the "City Clerk received correspondence regarding a pending conditional use application filed by ESE. This correspondence was given to each of the members of the Committee and the agenda was amended to include discussion of this correspondence." The Committee voted to recommend to the City Council at its next meeting on July 9, 2001 to go on record opposing the conditional use application.

Relevant Statutes

FOIA requires every "meeting of all public bodies" to be "open to the public except those closed" for executive session as authorized by statute. 29 Del. C. § 10004(a). As a general rule, public bodies must "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." Id. § 10004(e)(2). "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 of the deletion of items including executive sessions which arise at the time of the public body's meeting." Id.

FOIA defines a "meeting" of a public body as "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." 29 Del. C. § 10002(e). FOIA defines "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power." Id. § 10002(b).

Legal Analysis

A. Amending the Agenda

By letter dated May 30, 2001, the Commander of the Dover Air Force Base wrote to Constance C. Holland, Director of Planning for the Kent County Regional Planning Commission, about the conditional use site plan review of ESE's municipal solid waste transfer station. "As the adjacent landowners to ESE, the Dover Air Force Base has a number of concerns with the operating of a that transfer station less than 1500 feet from our primary runway, and just down the road from Gate 5, the hazardous cargo entrance to the base."

*2 The agenda for the Committee's June 25, 2001 meeting did not list the municipal solid waste transfer station as an item for discussion. At the meeting on June 25, 2001, the Committee voted to add to the agenda a discussion of the Base Commander's letter (which the Mayor had brought to the meeting). According to the minutes of that meeting, "Mayor Hutchinson advised members that negotiations are currently occurring with ESE and Dover Air Force Base regarding this matter and that the Regional Planning Commission has recommended approval. This matter is now being presented to Kent County Levy Court for final approval. Since the City of Dover has always been an avid supporter of Dover Air Force Base, he requested that members consider issuing a proclamation or resolution in support of the Dover Air Force Base regarding this issue." The Committee voted unanimously to approve the resolution.

FOIA permits changes in the agenda "to include additional items … which arise at the time of the public body's meeting." 29 Del. C. § 10004(e)(2). This Office has previously determined that "[i]f a public body knows that an item of public interest will be addressed at a meeting, it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA." Att'y Gen. Op. 97-IB20 (Oct. 20, 1997).

The issue of the Base Commander's letter "arose well prior to the meeting" which took place on June 25, 2001, and "could have been included in the agenda posted for that meeting outside the seven days required by law." Att'y Gen. Op. 99-IB11 (June 25, 1999). The Committee suggests that it had to act quickly in order to make a recommendation to the City Council, but the Council's next meeting was not until July 9, 2001. The Committee had other options to comply with FOIA: to notice another regular meeting within seven days, or a special or rescheduled meeting within 24 hours. See Del . C . § 10004(e)(3). Compare Att'y Gen. Op. 01-IB02 (Jan. 30, 2001) (town held a special meeting to decide whether to appeal an adverse court decision).

B. Ratification

The City Council met on July 9, 2001. The agenda for that meeting listed for discussion: "Proposed Expansion of [Municipal Solid Waste] Transfer Site (ESE) Kent county Site Plan Review. After discussion, the Council issued a written proclamation in support of the Dover Air Force Base's position. The Council also voted to present "copies of this proclamation to members of the Kent County Levy Court for consideration during their meeting on July 10, 2001."

The City contends that the public vote at the Council's July 9, 2001 meeting remedied the earlier violation of FOIA by the Safety Advisory Committee. We do not agree because "citizens have the right to monitor decisions of public officials in formulating public policy." Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 6

*3 (Oct. 1, 1990). The public has a right to be involved not only in final agency action, but also in "fact gathering, deliberations and discussions, all of which surely influence the public entity's final decision." Id.

C. Public Business

Although the Committee did not raise the issue, we must address whether expansion of the ESE waste transfer facility was a matter of "public business" to trigger the open meeting laws. FOIA defines "public business" as any matter of which the public body has "supervision, control, jurisdiction or advisory power." The authority to grant a conditional use permit to ESE lies with the Kent County Levy Court, not the City of Dover. Nevertheless, the City Council's proclamation opposing the permit "was not merely for academic discussion" on the grant or denial of the permit "which would have no effect upon the City." The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977). The decision by the Levy Court will have an impact on waste removal in the Dover, a matter "over which the City Council clearly had control, supervision and jurisdiction." Id. The purpose of the Council's proclamation was "to persuade" the Levy Court not to grant ESE a conditional use permit. Id. at 360.

We conclude that the discussion of the ESE waste transfer facility at the Council's July 9, 2001 meeting was a matter of "public business." Although the agenda for that meeting listed the transfer facility, the public did not have notice of the earlier discussions by the Safety Advisory Committee. The City violated the open meeting law because the public was not involved in the "fact finding, deliberations and discussions, all of which surely influence the public entity's final decision." Levy, supra%u.

D. Remediation

We decide that remediation is unnecessary. ESE's conditional use permit is before the Kent County Levy Court. The Levy Court will take the matter up again at its next meeting. Because the City Council does not have ultimate supervision, control, or jurisdiction over the permit, we do not believe that any remedial purpose would be served by causing the Council to reconsider its non-binding proclamation against the permit. See McLaughlin, supra (Chancery Court did not order any remediation for the violation of the open meeting laws by the Wilmington City Council).

Conclusion

For the foregoing reasons, we determine that the meeting of the Committee on June 25, 2001 violated FOIA by failing to include in the agenda, despite the opportunity, that the Committee would discuss the Base Commander's letter expressing concerns about the ESE waste transfer facility. We do not believe that any remediation is necessary because it is ultimately for the Kent County Levy Court to approve or disapprove ESE's conditional use permit. The Committee, we hope, will find this opinion instructive so in the future it may strictly comply with all of the requirements of the open meeting laws.

Very truly yours,

*4 W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 01-IB13 (Del.A.G.), 2001 WL 1593113