Can town council members discuss an issue informally over several public meetings without violating the open meetings law?

Official title

14-IB01 01/13/14 FOIA (Informal) Opinion Letter to Mr. Welch and Mr. Schrader re: FOIA Complaint Concerning Frankford Town Council

Plain-English summary

A resident challenged the Frankford Town Council's vote to send a proposed charter amendment, removing a cap on how much of the town's payroll could go toward employee health and pension benefits, to the state legislature, arguing the vote happened "without discussion" at a December 2013 meeting, which suggested the council had already worked it out privately beforehand. The AG disagreed. The record showed the underlying issue, the town's benefit costs exceeding the charter's 15% cap, had been raised and discussed in general terms at multiple earlier public council meetings going back to mid-2013, including one the resident himself attended and at which he raised the issue. The town's auditor had also recommended the change in a public management letter, and the amendment was placed on the public agenda before the vote.

The key legal question was whether a quorum of the council had privately discussed or reached agreement on the amendment outside public view, either through an in-person gathering or through a series of one-on-one or serial discussions that add up to a quorum discussing an item behind closed doors. The AG found no evidence of either. Because the issue had been aired at prior public meetings, and there was no allegation of any private gathering or serial discussions, the AG concluded that the council's brief, undiscussed vote to move the amendment forward did not itself amount to a hidden meeting, and did not violate FOIA.

Currency note

This opinion was issued in 2014. 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 a public body violate FOIA if it votes on something without discussing it at that meeting?

Not necessarily, according to this opinion. If the underlying issue was genuinely aired and discussed at earlier public meetings, and there is no evidence members privately reached consensus outside public view, a quick vote at a later meeting does not by itself show a hidden "meeting" occurred.

What counts as a "meeting" under Delaware's open meetings law?

The opinion applies FOIA's definition: a formal or informal gathering of a quorum of a public body's members to discuss or take action on public business, which can happen in a single in-person gathering or through a "constructive quorum" built up from serial one-on-one discussions or calls.

What would have made this a FOIA violation?

Evidence that a quorum of council members met privately, in person or through a chain of individual discussions, to actually work out or agree on the charter amendment before the public vote. The opinion found no such evidence here.

Can a small town like Frankford change its own charter on its own?

No. The opinion notes Frankford lacks home rule, so a charter amendment like this one requires approval from the Delaware General Assembly. The council's vote here only authorized sending the proposal to the town's state legislators.

Background and statutory framework

FOIA defines a "meeting" as a formal or informal gathering of a quorum of a public body's members to discuss or take action on public business, 29 Del. C. § 10002(g). The opinion reiterated that this quorum requirement can be satisfied not only by a single gathering but by a "constructive quorum," built through serial sub-quorum discussions or calls that collectively let members "receive and comment on other members' opinions and thoughts, and reach a consensus on action to take," Op. Att'y Gen. 08-IB03. Applying that framework, the opinion found the record showed the substance of the charter amendment, the town's benefit costs exceeding the 15% payroll cap, had been discussed in general terms across several public council meetings from mid-2013 onward, and that nothing in the record suggested a private quorum gathering or a chain of serial discussions among council members outside public view. The petition was brought under 29 Del. C. § 10005(e), which allows a citizen to ask the Attorney General to determine whether a public body violated FOIA, 29 Del. C. §§ 10001-10006.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10002(g) (defines "meeting" as a gathering of a quorum to discuss or act on public business)
• 29 Del. C. § 10005(e) (citizen petition to the Attorney General for a FOIA determination)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2014/01/13/14-ib01-011314-foia-informal-opinion-letter-to-mr-welch-and-mr-schrader-re-foia-complaint-concerning-frankford-town-council/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General (Informal) Opinion No. 14-IB01

January 13, 2014

VIA EMAIL AND REGULAR MAIL

Gregory S. Welch

13 Thatcher Street

Frankford, DE  19945

[email protected]

Dennis L. Schrader, Esquire

Morris James Wilson Halbrook & Bayard LLP

107 West Market Street

P.O. Box 690

Georgetown, DE 19947

[email protected]

RE:  FOIA Complaint Concerning Frankford Town Council

Dear Mr. Welch and Mr. Schrader:

I write with our determination with respect to Mr. Welch’s petition dated December 10, 2013 (the “ Petition ”). For purposes of this determination we are treating the Petition as a request pursuant to 29 Del. C. §10005(e) for a determination whether the Frankford Town Council (the “ Council ”) violated the open meeting provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“ FOIA ”), in connection with a proposed amendment to the town charter striking a provision of Section 18 “that any annual appropriation which is made by the [Council] under any . . . pension plan or any health and welfare plan, or both, shall not exceed a maximum amount of Fifteen percent (15%) of the total annual payroll of the Town . . . .”  The proposed amendment was approved without discussion by vote taken at the December 2 nd meeting.  For the reasons set forth below, this Office has determined that the Council does not appear to have discussed or reached consensus on the proposed amendment outside of public view, and it therefore did not violate FOIA in approving the proposed amendment.

Mr. Welch acknowledges in the Petition that the Council has been aware since its June 23, 2013 Budget Hearing that the fifteen percent threshold has been exceeded each year since 2009. Mr. Schrader, the Town Solicitor, states “the Town Secretary noted that she had looked into reducing the costs of health insurance and had a discussion with [the Town Solicitor] to ‘. . . revise the Charter to reflect the increase in premiums.’” Mr. Schrader states Mr. Welch was in attendance at the meeting, which statement Mr. Welch does not deny. Mr. Welch also acknowledges he raised the issue at the July 1, 2013 Council meeting, but no further action was taken on the issue until the December 2 nd meeting. Mr. Schrader further states that matters related to the cost of insurance and retirement plans and the effects of current federal health insurance laws have been discussed in general terms in several Council meetings since the July 1st meeting.

Mr. Schrader has submitted a copy of a “Management Letter” dated November 21, 2013, from Jefferson, Urian, Doane & Sterner, P.A., the Town’s auditors, to the Council. The Management Letter notes the limitation on employee health and pension benefits and recommends revision of the Town Charter to reflect the increase in health insurance premiums.  Mr. Schrader states that, as a result of the general discussions at Council meetings, the Management Letter, and his advice, a draft charter amendment was prepared for consideration by the Council for submission to the General Assembly. He states that the proposed amendment was forwarded to the Council for inclusion in their meeting packets, and the topic was placed on the agenda for the Council’s December 2 nd meeting. The agenda included the following agenda item under the heading “New Business”:

Review/Consider possible Charter Amendment entitled “AN ACT TO REINCORPORATE THE TOWN OF FRANKFORD” relating to Employee Benefits – (vote required to authorize Dennis Schrader to send it to Sen. Gerald Hocker and Rep. John Atkins for adoption by the General Assembly).

The Town does not have home rule, and it therefore cannot unilaterally amend its charter. In order to become effective, the proposed amendment requires the approval of the General Assembly.

At the beginning of the December 2 nd meeting, the Council took public comment with respect to posted agenda items.  There was no objection to the proposed amendment. During the “New Business” portion of the meeting, without discussion, a motion was made and approved to authorize Mr. Schrader to forward the proposed amendment to the local legislative representatives for action by the General Assembly.

The legal issue presented in this matter is whether the Council held a non-public “meeting” to discuss the proposed amendment in violation of FOIA’s open meeting requirements.  That term is defined as a “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(g).  The dispositive question is whether a quorum of the Council gathered to discuss or reach agreement on issues related to the proposed amendment outside of public view.  We answer that question in the negative.

As we have previously determined, the quorum requirement in section 10002(g) may be satisfied by a single in-person meeting involving a quorum of the members of a public body, or through a “constructive” quorum involving a series of sub-quorum meetings or telephone calls that collectively involve a quorum.  See Op. Att’y Gen. 08-IB03 (“[A] public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body ‘to receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take.’”).  The record in this case reflects, and we find, the issue the Council has attempted to address through the proposed amendment was discussed informally at several prior public meetings, at least some of which Mr. Welch attended. Mr. Welch himself brought the issue to the Council’s attention at least once. There is no allegation or evidence that there was any meeting of a quorum of the Council to discuss the proposed amendment outside of public view, nor is there any allegation or documentation of “serial discussions” about the proposed amendment that could constitute a meeting in violation of FOIA. On this basis, we conclude that the Council met and discussed the proposed amendment in public view and not in violation of FOIA.

Sincerely,

/s/ Edward K. Black

Edward K. Black

Deputy Attorney General

cc: Allison E. Reardon, State Solicitor (via e-mail)

Gregory S. Welch (via e-mail