Did a Delaware county council violate open-meetings law by hiring a new administrator through closed-door committee sessions?

Official title

11-IB08 05/05/11 FOIA Opinion Letter to Mr. Kramer re: FOIA Complaint Concerning the Sussex County Council

Plain-English summary

Daniel Kramer complained that Sussex County Council violated FOIA in its process for hiring a new County Administrator. He pointed to a January 18, 2011 executive session on the outgoing Administrator's resignation, where the minutes were partly redacted without explanation; to a Search Committee (made up largely of Council members) that held several executive sessions without posting agendas while narrowing 25 applicants down to 8 finalists; and to an amended meeting agenda posted late without an explanation for the delay.

The AG found several real, if largely technical, violations. Because the Council never provided a complete, unredacted version of the January 18 minutes to justify withholding part of them, the AG could not confirm the personnel discussion was properly closed to the public, and none of the topics actually described in the minutes appeared to fit any of the nine statutory reasons for going into executive session. That violation, though, was cured by later public meetings where the Council walked through and ratified what had happened. The Search Committee's failure to post agendas for its executive sessions was a violation too, but only a technical one, since the public cannot observe an executive session regardless of whether an agenda was posted, so no fix was required. The late-posted amended agenda should have explained the delay and did not, but because the disputed items were removed from the agenda before the meeting even started, no remedy was needed there either. The AG declined to address two of Kramer's other concerns, that the Search Committee should have been a separate body from the Council, and that its meetings shouldn't overlap with regular Council meetings, because FOIA does not regulate committee membership or meeting scheduling. The opinion closed by walking through, for the Council's benefit, the basic procedural rules for executive sessions it appeared to be getting wrong.

Currency note

This opinion was issued in 2011. 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

Did Sussex County Council violate FOIA in how it hired a new County Administrator?

Yes, in part, according to this opinion, though most of the violations were technical and did not require any fix. The Council improperly redacted executive-session minutes without explanation and held an executive session that didn't fit any statutory purpose, but later public meetings cured that; its hiring committee's missing agendas for executive sessions were violations too, but only technical ones.

Does a public body have to explain why it redacted part of its executive-session minutes?

Under this opinion, in effect yes: because the Council did not provide a complete, unredacted version of its minutes to justify the redaction, the AG could not confirm the discussion belonged in executive session at all, and treated the session as improperly closed.

Is it a serious violation if a hiring committee doesn't post agendas for its closed-door sessions?

Not under this opinion, which called it a "technical violation" that "does not involve substantial public rights," reasoning that the public cannot observe an executive session in any event, whether or not an agenda was posted, so no remediation was required.

Did FOIA require Sussex County's Administrator search committee to be a separate body from the Council?

No. This opinion declined to address that question because FOIA does not regulate the composition of committees, only their compliance with the open-meetings and records rules.

Background and statutory framework

Delaware's FOIA generally requires public bodies to meet in public, allowing executive session only for one of nine specific purposes, including discussing an individual's qualifications for a job, 29 Del. C. § 10004(b)(1), or discussing the "names, competency and abilities" of current employees, 29 Del. C. § 10004(b)(9). A public body must vote to enter executive session at a public meeting and cannot vote on matters discussed there until returning to public session, 29 Del. C. § 10004(c). Meetings require advance notice and an agenda, generally seven days out, 29 Del. C. § 10004(e)(2), and a late-posted agenda must state the reasons for the delay, 29 Del. C. § 10004(e)(5). Public bodies must also keep complete minutes of executive sessions, though the public version may be redacted where disclosure would defeat the purpose of the closed session, 29 Del. C. § 10004(f); the burden is on the public body to prove it complied with FOIA, Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401, at *4 (Del. Ch.).

Applying these rules, the AG found the Council's unexplained redaction meant it had not carried its burden on the January 18 session, and that the described topics did not obviously match any of the nine executive-session purposes, but the subsequent public ratification meetings cured the defect. On the missing search-committee agendas, the AG followed its own precedent that failing to post an agenda for an executive session is a technical violation because the public has no right to observe the closed session anyway, Att'y Gen. Op. IB-12, 2010 WL 4154564, 2 (Del. A.G.). On the late-posted amended agenda, the AG found a violation of the reason-for-delay requirement, consistent with a prior opinion applying the same rule, Att'y Gen. Op. 05-IB15, 2005 WL 2334344, 3 (Del. A.G.), but required no remedy because the disputed items never actually reached the floor.

Citations

• 29 Del. C. § 10004(b) (nine permitted purposes for executive session)
• 29 Del. C. § 10004(b)(1) (executive session for an individual's job qualifications)
• 29 Del. C. § 10004(b)(9) (executive session for personnel matters involving current employees)
• 29 Del. C. § 10004(c) (vote to enter executive session, and all voting, must occur at a public meeting)
• 29 Del. C. § 10004(e)(2) (meeting notice and agenda requirements; seven-day rule)
• 29 Del. C. § 10004(e)(5) (late-posted agenda must state reasons for the delay)
• 29 Del. C. § 10004(f) (public bodies must keep complete minutes of executive sessions)
• Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401, at *4 (Del. Ch.) (Delaware Court of Chancery; burden on public body to prove FOIA compliance)
• Att'y Gen. Op. IB-12, 2010 WL 4154564, *2 (Del. A.G.) (missing executive-session agenda is a technical violation)
• Att'y Gen. Op. 05-IB15, 2005 WL 2334344, *3 (Del. A.G.) (late-posted agenda must explain the delay)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/05/05/11-ib08-050511-foia-opinion-letter-to-mr-kramer-re-foia-complaint-concerning-the-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 11-IB08

May 5, 2011

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

RE:  Freedom of Information Act Complaint Against Sussex County Council

Dear Mr. Kramer:

By letters of March 23, 2011 and March 26, 2011, you have asked for an Attorney General’s determination as to whether the Sussex County Council (“ Council ”) violated the Freedom of Information Act, 29 Del. C. ch. 100 (FOIA), concerning the Search Committee process for a new Sussex County Administrator.   The Council responded by letter of April 4, 2011.   This is the Delaware Department of Justice’s determination pursuant to 29 Del. C. § 10005(e).

FACTS

You allege that on January 18, 2011, the Council violated FOIA by meeting in executive session to discuss the resignation of the County Administrator.  According to the minutes of that executive session, three topics were discussed:

“ Personnel Matters

Sussex County Land Use Planner

The applicant that was being considered for the position of Land Use Planner has declined the County’s offer. The position will be readvertised.

Sussex County Administrator

The County Administrator position will be advertised. Mr. Baker will announce his retirement today when the Regular Session of the Council meeting reconvenes following this Executive Session.

[Portions of these minutes have been redacted because the matter is ongoing.]”

You allege that a search committee appointed to find a new County Administrator violated FOIA when it did not post agendas for its executive sessions of February 8, 22, 23 and March 15, 2011. You point out that 25 applicants were reduced to 8 finalists interviewed on February 22 and February 23, 2011, and note that therefore decisions were made in executive session.  The Council held several public meetings between March 15 and April 5, 2011, at which it described to the public and publically ratified what had happened in the executive sessions.  You complain that the search committee consisted of, among others, all members of Council, and assert that the search committee should have been “stand alone.”  However, because FOIA does not address the makeup of committees, that issue will not be addressed here.

You allege that on March 24, 2011 the Council posted an amended agenda for the March 29, 2011 meeting, without giving a valid reason for the short notice.  According to the Council, the amended items were removed from the agenda at the beginning of the meeting.   Yon also requested that the search committee be required to hold their meetings “before or after the regular scheduled meeting held by the County Council not at the same time, as they have been doing.” FOIA does not speak to when an executive session or committee meetings must be held, in relation to the meetings of the entire public body; therefore, that issue will not be addressed here.

RELEVANT STATUTES

All meetings of a public body must take place in public, unless the meeting is for one of the nine purposes listed in 29 Del. C. § 10004(b). Section 10004(b)(I) permits executive session (closed to the public) for “[d]iscussion of an individual citizen’s qualifications to hold a job … unless the citizen requests that such a meeting be open.”  Section 10004(b)(9) allows a public body  to  meet  in  executive  session  to  discuss  “[p]ersonnel  matters  in  which  the  names, competency and abilities of individual employees … are discussed, unless the employee … requests that such a meeting be open.”  In addition, a public body must go into executive session from a public meeting, and the all voting must occur at a public meeting. 29 Del. C. § 10004(c).

Every meeting of a public body must be preceded by the posting of a notice of the date, time and place of the meeting, and an agenda, if one is available. 29 Del. C. § 10004(e)(2). At least 7 days notice must be given of a regularly scheduled meeting. ld.   Just as when an agenda must be late-posted because it was not available 7 days before the meeting, when an amended agenda is late-posted, it must include “the reasons for the delay in posting[.]”.  29 Del.  C. § 10004(e)(5).

DISCUSSION

The January 18, 2011 Executive Session

The Council has not offered any explanation as to the redacted portion of the January 18 minutes. Public bodies are required to keep complete minutes of executive sessions, although they may be redacted before being made publically available, if disclosure would defeat the purpose of the executive session. 29 Del. C. § 10004(f).   The burden is on the public body to prove that it has complied with FOIA.  Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ , 1995 WL 733401, at * 4 (Del Ch.). Because the Council has not provided this office with the complete minutes of the January 18 minutes, we determine that the January 18 discussions of “personnel matters” were not properly held in executive session. Moreover, the neither of the other matters discussed on January 18 appear to have concerned any of the nine purposes for executive session.   However, the public meetings held between March 15 and April 5, 2011 remedied the violations.

Failure to Post Agendas for Search Committee Meetings

The Council has not produced any agendas for the search committee meetings that took place between February 22 and March 15, 2011.   However, failure to post an agenda for an executive session is a technical violation that does not involve substantial public rights, because the public cannot observe the executive session. See Att’y Gen. Op. IB-12 , 2010 WL4154564, *2 (Del. A.G.). Therefore, no remediation is necessary.  Amended Agenda for March 29, 2011 Meeting

The amended agenda for the March 29 meeting did not contain an explanation for the late posting, in violation of 29 Del. C. § 10004(e)(5); Att’y Gen. Op. 05-IBI5 , 2005 WL 2334344, *3 (Del. A.G.).  However, as the amended matters were removed from the agenda at the beginning of the meeting, no remediation is necessary.

CONCLUSION

While the Council did violate FOJA in the conduct of executive sessions of the search committee, it remedied the violations by holding public meetings that went through the matters covered in the executive sessions.  Although the Council failed to post agendas for the executive sessions of the search committee, that is a technical violation that does not require remediation. Finally, the Council violated FOIA by omitting to state on a late-posted agenda the reason for the late posting.  However, the violation was remedied because the Council removed the late-added items from the agenda.

Although no remediation is necessary, it appears that the Council does not understand FOIA’s procedural requirements for executive sessions.  First, the Council must post an agenda of the meeting from which they will go into executive session, and. the agenda must state the purpose of the executive session.    There is a difference between the purposes in 29 Del. C. § 10004(b)(I) (job qualifications) and (b)(9) (personnel matters); the former applies to applicants for employment, the  latter to current  employees.  While it is a technical violation only, it misleads the public to state in an agenda that there will be an executive session to discuss personnel matters when the actual purpose is to discuss job applicants’ qualifications.  Second, public bodies must go into executive session from a public meeting, on a recorded vote by a majority of the members present.  Third, they cannot vote on matters discussed in executive session until they have returned to public meeting.  Finally, while the public version of executive session minutes might be subject to redaction, the public body must keep complete minutes of all executive sessions.

Very truly yours,

/s/ Judy Oken Hodas

Judy Oken Hodas

Deputy Attorney General

/s/ Lawrence W. Lewis

Lawrence W. Lewis

State Solicitor

cc:  J. Everett Moore, Jr., Esquire

Opinion Coordinator