Can a Delaware county subcommittee limit a public meeting to invited officials and refuse to hear from the general public?

Official title

06-IB19 RE: Freedom of Information Act Complaint Against NNC Council Economic Development Subcommittee

Plain-English summary

A resident complained that a New Castle County Council subcommittee wouldn't let her speak at a June 2006 meeting on open space and economic development. The meeting's agenda listed four outside speakers, but none showed up; the subcommittee chairman instead invited several county and outside officials to a "round table" discussion of land-use and development issues. After about thirty minutes, a council member moved to adjourn, and when the resident asked to be recognized, the subcommittee declined to hear from her or anyone else in the audience and voted to adjourn.

The AG found no violation. Delaware's open meeting law doesn't require a public body to accept public comment at all, and the key legal question is only whether a body that does open the floor then discriminates based on the content of what a speaker wants to say. Here, the subcommittee never opened the meeting to public comment in the first place; the round-table participants were public officials and invited experts speaking in that capacity, not members of the general public invited to comment. Distinguishing them from ordinary citizens was a distinction based on status and subject-matter expertise, not viewpoint, which the opinion found reasonable given the meeting's purpose. The AG also found nothing wrong with substituting the actual round-table participants for the speakers originally listed on the agenda, since FOIA allows a body to adjust who addresses closely related agenda items that come up at the meeting itself.

Currency note

This opinion was issued in 2006. 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

Does Delaware's open meeting law require a public body to let citizens speak at every meeting?

No, according to this opinion. FOIA does not require a public body to accept public comment; a body only runs into trouble under the First Amendment once it opens the floor and then discriminates based on what a speaker wants to say.

Can a Delaware public body invite specific officials or experts to speak while declining to hear from the general public?

Yes, according to this opinion, so long as the body never opened the meeting to public comment in the first place and the distinction is based on the speakers' status or expertise rather than the viewpoint they might express.

Can a public body swap out the speakers listed on a meeting agenda if the originally listed guests don't show up?

Yes, according to this opinion, so long as the substitute discussion is closely related to the business already noticed on the agenda; FOIA allows a body to add items that arise at the time of the meeting itself.

Background and statutory framework

The AG's own precedent recognizes "a nexus between the procedural requirements of the open meeting laws, and the First Amendment right of free speech": once a public body chooses to allow public participation, it cannot discriminate based on the content of a speaker's views. But that principle only applies once a public body actually opens a period of public comment. Here, following the Delaware Court of Chancery's Reeder v. Delaware Department of Insurance, which held that FOIA "does not mandate that public bodies allow for public comments," the AG found the subcommittee's round-table discussion with invited officials, never opened to the floor, wasn't subject to First Amendment content-neutrality scrutiny in the first place.

Even assuming a limited-forum analysis applied, the opinion applied the U.S. Supreme Court's Perry Education Association v. Perry Local Educators' Association for the rule that a forum may reasonably distinguish speakers "on the basis of subject matter and speaker identity," so long as the distinction is grounded in status rather than viewpoint, and the Third Circuit's Eichenlaub v. Township of Indiana for the standard requiring content restrictions in a limited forum to be reasonable and viewpoint-neutral. The AG contrasted this case with its own prior opinion involving a school board that had opened a formal public-comment period and then cut off a speaker's specific viewpoint, finding that situation, unlike this one, crossed the line into unlawful content discrimination. On the substituted speakers, the AG applied FOIA's allowance for adding agenda items "which arise at the time of the public body's meeting."

Citations

• 29 Del. C. §10004(e)(2) (public body may add agenda items that arise at the time of the meeting)
• Reeder v. Delaware Department of Insurance, C.A. No. 1553-N, Mem. Op. at pp. 26, 27 (Del. Ch., Feb. 24, 2006) (Delaware state court; FOIA does not require a public body to accept public comment, but cannot act arbitrarily against those who attend if it does)
• Eichenlaub v. Township of Indiana, 2004 WL 2093439 (3rd Cir., Sept. 21, 2004) (federal appeals court; limited-forum content restrictions must be reasonable and viewpoint-neutral)
• Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 49 (1983) (U.S. Supreme Court; a forum may reasonably distinguish speakers based on status rather than viewpoint)

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/09/05/06-ib19-re-freedom-of-information-act-complaint-against-nnc-council-economic-development-subcommittee/
• Original PDF: not linked from landing page

Original opinion text

September 5, 2006

Kent County - Civil Division (739-7641)

06-IB19

Ms. Nancy V. Willing

5 Francis Circle

Newark, DE 19711

RE: Freedom of Information Act Complaint

Against New Castle County Council

Economic Development Subcommittee

Dear Ms. Willing:

On July 21, 2006, we received your complaint alleging that the New Castle County Council Economic Development Subcommittee ("the Subcommittee") violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), by denying you the opportunity to speak at a public meeting on June 19, 2006.

By letter dated July 27, we asked the Subcommittee to respond to your complaint by August 7, 2006. We granted the Subcommittee's request for a brief extension of time, and received the Subcommittee's response on August 11, 2006.

The Subcommittee provided us with a copy of the agenda and minutes for its June 19, 2006 meeting and a CD-ROM recording of the meeting. The agenda listed four topics for discussion: "Steve Lefebvre, Exec. V.P., Home Builders Association of Delaware . . . will address Council on the issue of Open Space and the new State Resources Areas"; "John Hughes, Secretary of DNREC, and Robert Zimmerman, Director of External Affairs, DNREC will address Council on the issue of Open Space and the new Resource Areas"; "Karl Kallbacher, NCC Economic Redevelopment Director will update Council"; and "NCC Economic Development Council update. Speaker: Dale Ervin, Executive Director." The agenda did not provide for any period of public commentary.

According to the Subcommittee, at the start of the June 19, 2006 meeting Subcommittee chairman Councilman Robert Weiner noted that none of the four individuals [Lefebrve, Hughes, Zimmerman, and Kallbacher] who were listed on the agenda as being scheduled to make presentations at the Meeting were in attendance. Chairman Weiner invited County Chief Administrative Officer, David Singleton, County Department of Land Use General Manager, Charles Baker, Brad Killian, Director of Projects and Planning for Delaware Greenways and Dale Ervin, Director of NCC Economic Development to join the Subcommittee members who were present at the conference room table.

The minutes of the June 19, 2006 meeting show that Messrs. Ervin, Killian, and Baker discussed various development issues including Smart Growth, Delaware Greenway's plan for southern New Castle County, and the Land Protection Act. According to the Subcommittee, each of these invitees "was questioned only by members of the Subcommittee. At no time was the Meeting opened to the public for questions or comments. Although Councilman Weiner had entertained the idea of opening the Meeting to the public, he did not do so because of time considerations."

The CD-ROM recording of the June 19, 2006 confirms that the Subcommittee never opened up the meeting for public commentary. Councilman Weiner invited Messrs. Singleton, Baker, Killian, and Ervin to join the other members of the Subcommittee for a "round table" discussion of open space issues. About thirty minutes into the meeting, Councilman Weiner stated: "Before we open up to the public, I want to get input from the administration, from David Singleton and Charlie Baker on how the economic incentives tend to preserve open space in compact development and the relationship of the Comprehensive Plan." After thirty minutes of round table discussion, Councilman Clark moved to adjourn the meeting. At that point, you asked to be recognized to speak. The Subcommittee decided not to hear from you or any other members of the public and voted to adjourn.

LEGAL ANALYSIS

Our Office has "determined that there is a nexus between the procedural requirements of the open meeting laws, and the First Amendment right of free speech." Att'y Gen. Op. 05-IB01 (Jan. 23, 2005). FOIA does not require a public body to allow citizens to comment at a public meeting, but "'[i]f a public body chooses to allow public participation in a meeting' it cannot discriminate on the basis of the content of the speech . . . First Amendment rights of free speech 'inhere in the definition of an 'open meeting' under Delaware's FOIA when a public body allows for a period of public participation.'" Att'y Gen. Op. 05-IB01 (quoting Att'y Gen. Op. 03-IB06 (rev. Feb. 11, 2003)). Accord Reeder v. Delaware Department of Insurance, C.A. No. 1553-N, Mem. Op. at pp. 26, 27 (Del. Ch., Feb. 24, 2006) ("FOIA does not mandate that public bodies allow for public comments" but if they do they cannot "act arbitrarily or invidiously against citizens who attend their meetings").

"'Under the test 'for reviewing limited forum restrictions, content-based restraints are permitted, so long as they are designed to confine the 'forum to the limited and legitimate purposes for which it was created.'" Att'y Gen. Op. 05-IB01 (quoting Eichenlaub v. Township of Indiana, 2004 WL 2093439, at p.4 (3rd Cir., Sept. 21, 2004)). Implicit in this concept "is the right to make distinctions in access on the basis of subject matter and speaker identity." Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 49 (1983).

In Perry, the Supreme Court upheld the school district's policy of granting exclusive access to teachers' mailboxes to the union which was their exclusive collective bargaining representative. "We believe it more accurate to characterize the access policy as based on the status of the respective unions rather than their views. . . . The touchstone for evaluating these distinctions is whether they were reasonable in light of the purpose which the forum at issue serves." 460 U.S. at 49 (footnote omitted).

In Reeder, the Defensive Driving Credential Committee held a disciplinary hearing which was open to the public. The "DDCC limited itself to interacting with the charged party and answered questions from the charged party, while declining to hear from members of the public at that stage of the meeting. Nothing in the text of FOIA condemns the distinction the DDCC made, which on its face is a rational one." Mem. Op. at 27-28.

In Att'y Gen. Op. 04-IB01 (Jan. 28, 2004), our Office determined that the board of adjustment could limit participation to the parties and their counsel and did not have to allow members of the general public to speak. 1 In Att'y Gen. Op. 04-IB13 (June 1, 2004), our Office determined that "the Planning Commission acted reasonably and consistent with FOIA when it gathered information from current and former owners of the property at issue as part of the Commission's factfinding process, without allowing general commentary from the public at large."

Att'y Gen. Op. 05-IB01, which you rely on in your complaint, is inapposite. The agenda for the school board's meeting provided for a period of public commentary (two minutes per speaker). The board president cut off one of the speakers when he began to comment on certain personnel matters with the intent to identify the employees by name. Our Office determined that the "restriction on your speech was not 'viewpoint neutral' and was not 'reasonable in light of the purpose served by the forum.'" Id. (quoting Eichenlaub, 2004 WL 2093439, at p.4). The "School Board violated FOIA when, after inviting the public to speak, it tried to restrict [a citizen's] speech based on its content." Att'y Gen. Op. 05-IB01.

At its meeting on June 19, 2006, the Subcommittee did not open the meeting for public comment and discriminate against the content of any citizen's viewpoint. The persons invited to speak were all public officials who spoke in that capacity and not as members of the general public. The Subcommittee invited them to speak "based on their status . . . rather than their views." Perry Education Association, 460 U.S. at 49. We believe that the Subcommittee reasonably limited the speakers at the June 19, 2006 in keeping "with the intended purpose of the [meeting]." Id.

We also determine that the Subcommittee did not violate the public notice requirements of FOIA by substituting speakers during the June 19, 2006 meeting. In Att'y Gen. Op. 03-IB16 (July 14, 2003), the school board's agenda listed for public discussion a new superintendent. When it turned out, at the time of the meeting, that there was no new information to share with the public, the school board changed the agenda to conduct a workshop on the selection process. Our Office determined that the school board did not violate "FOIA by changing the agenda to include a workshop on the selection process, particularly since this matter was closely related to the public business that was properly noticed to the public in advance and did not result in any official action on an important matter of public concern." 2

FOIA permitted the Subcommittee to include additional items to the agenda "which arise at the time of the public body's meeting." 29 Del. C. §10004(e)(2). We believe that the Subcommittee properly added substitute speakers at its June 19, 2006 meeting after it realized that several of the guest speakers were not able to attend.

CONCLUSION

For the foregoing reasons, we determine that the Subcommittee did not violate FOIA by denying you an opportunity to speak at a meeting on June 19, 2006. FOIA did not require the Subcommittee to give you an opportunity to speak at that meeting. The Subcommittee never opened up the meeting for public comment or discriminate as between individual members of the public based on their viewpoint. The Subcommittee reasonably limited the persons invited to speak to public officials based on their status and not on the content of their views.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Lawrence W. Lewis, Esquire

State Solicitor

cc:

The Honorable Carl C. Danberg

Attorney General

Malcolm S. Cobin, Esquire

Chief Deputy Attorney General

Keith R. Brady, Esquire

Assistant State Solicitor

Leonard E. Collins, Jr., Esquire

Assistant Counsel to Council

Phillip G. Johnson

Opinion Coordinator