Can a county council discuss how a new pay plan affects specific employees in a closed executive session?

Official title

16-IB01 1/7/2016 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council

Plain-English summary

A resident challenged how Sussex County's Personnel Board and County Council handled a new employee pay plan for fiscal year 2016. The Personnel Board publicly discussed and recommended the pay plan at a March 2015 hearing, and the County Administrator later folded it into the proposed county budget. At a May 2015 Council meeting, the Council discussed the pay plan's impact on specific employees, including their competency and abilities, in executive session rather than in public. The resident asked why that discussion happened behind closed doors when the plan itself had been discussed openly two months earlier, and also questioned the notice given for the March Board meeting and whether the Council could approve the pay plan as part of the broader budget ordinance without separately itemizing it.

The AG found no violations. The March meeting discussed the pay plan in general terms, its overall budget impact, not any specific employee's competency or abilities, so it did not need to be closed. The May meeting, by contrast, specifically addressed how the plan affected named employees, which fits squarely within FOIA's personnel-matters exception for discussing the names, competency, and abilities of individual employees. The Board's March meeting notice was properly posted at its principal office, on the county building, online, and in two newspapers well more than seven days in advance. Finally, the Council was not required to separately notice or vote on every line item of the budget; folding the pay plan into the overall budget ordinance, which was itself properly noticed and publicly voted on, was sufficient.

Currency note

This opinion was issued in 2016. 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 county council discuss a new pay plan publicly at one meeting and then discuss its effect on specific employees privately at a later meeting?

Yes, according to this opinion, as long as the two discussions are actually different. Discussing a pay plan's general budget impact is not a personnel matter that requires secrecy, but discussing how that plan affects the competency, abilities, or specific circumstances of named employees can properly happen in executive session.

Does a county have to hold a separate public vote on every line item in its budget, like a new pay plan?

No. The opinion confirms that a public body is not required to "separately notice or individually discuss each and every line item" of a budget. Incorporating a component, like a pay plan, into the overall budget ordinance and voting on that ordinance publicly is enough.

What does a public body have to do to properly notice a meeting under Delaware's open meetings law?

Based on this opinion, posting the notice and agenda conspicuously at the body's principal office at least seven days before the meeting satisfies FOIA, and additional steps like posting online or publishing in local newspapers, while not strictly required everywhere, further support that notice was adequate.

If I request meeting minutes and they arrive a few weeks later, does that violate FOIA?

Not automatically. The opinion notes that FOIA requires a response "as soon as possible, but in any event within 15 business days," and found no violation where minutes were provided within that window after a request.

Background and statutory framework

FOIA requires that every meeting of a public body be open to the public except for permitted closed sessions, 29 Del. C. § 10004(a), and allows a public body to call an executive session only for purposes the statute lists, 29 Del. C. § 10004(b), including "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open," 29 Del. C. §10004(b)(9). Any vote on public business must still occur in public, 29 Del. C. § 10004(c). Meeting notices generally must be conspicuously posted at a public body's principal office, 29 Del. C. § 10004(e)(4), with related agenda and timing requirements set out elsewhere in the statute, 29 Del. C. §10004(e)(2).

Applying this framework, the opinion distinguished the Personnel Board's March 2015 discussion, which covered the pay plan's general effect on the county budget without touching any specific employee's competency or abilities, from the Council's May 2015 executive session, which the agenda and minutes confirmed was limited to "Personnel-Questions Concerning Proposed Salary Structure with respect to specific employees." Because the later discussion fit within the personnel-matters exception, holding it in executive session did not violate FOIA even though the general subject (the pay plan) had been aired publicly earlier. On the notice question, the opinion found the Board's March meeting notice, posted at its principal office and the County Administration Building, published online, and printed in two newspapers of record more than seven days before the meeting, satisfied 29 Del. C. § 10004(e)(4). On the budget process question, the opinion confirmed a public body need not separately notice or vote on individual budget line items, since the pay plan was properly folded into the broader budget ordinance that the Council did publicly notice and vote on. Finally, on the records-request timing question, the opinion applied the 15-business-day response deadline in 29 Del. C. §10003(h)(1) and found no violation where the requested minutes were produced within that window.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10005(e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)
• 29 Del. C. § 10004(b) (permitted purposes for executive session)
• 29 Del. C. §10004(b)(9) (personnel-matters exception covering an employee's or student's competency and abilities)
• 29 Del. C. § 10004(c) (all votes on public business must occur at a public meeting)
• 29 Del. C. § 10004(e)(4) (meeting notice must be conspicuously posted at the public body's principal office)
• 29 Del. C. §10004(e)(2) (additional notice and agenda timing requirements)
• 29 Del. C. §10003(h)(1) (public body's 15-business-day deadline to respond to a records request)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/01/07/1887/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 16-IB01

January 7, 2016

VIA EMAIL

Mr. Daniel Kramer

8041 Scotts Store Road

Greenwood, DE 19950

[email protected]

Dear Mr. Kramer,

The Delaware Department of Justice ("DOJ") received your letter alleging that the Sussex County Personnel Board ("Board") and the Sussex County Council ("Council") violated the open meeting provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this letter as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the "Petition"). 29 Del. C. § 10005(e). For the reasons detailed below, we conclude that neither the Board nor Council violated FOIA's open meeting provisions.

FACTS[1]

On or about March 30, 2015, the Board held a public hearing to discuss and consider the Sussex County Pay Plan for Fiscal Year 2016. Notice for the meeting was posted on March 12, 2015 at the Board's principal office and on the first floor of the County Administration Building.[2] The Board also provided notice of the meeting online on Sussex County's website and in two newspapers of record: the Delaware State News on March 14, 2015, and the Wilmington News Journal on March 15, 2015. At that meeting, the Board recommended that the County Administrator review the proposed Pay Plan and present it to the Council for consideration. The Board's recommendation was made in public at the March hearing. The County Administrator then reviewed the Pay Plan and incorporated it into the proposed budget for Fiscal Year 2016.

As part of the budgeting process, the Council held a budget workshop on April 23, 2015. The Petition alleges that during the April 23, 2015 meeting, a Sussex County employee stated that pay grades and salaries could not be discussed during the public session portion of the workshop and needed to be discussed in executive session.

On May 12, 2015, the Council held a meeting to discuss, among other things, the impact of the pay plan on specific County employees. According to the May 12 executive session meeting minutes, the Council discussed, among other things, the competency and abilities of these employees during the executive session portion of that meeting.

The public hearing to approve the 2016 budget ordinance was advertised on May 18, 2015 in the newspapers of record in Sussex County (the News Journal and the Delaware State News). The public hearing regarding the budget was held on June 16, 2015 and the Council voted to approve the 2016 budget ordinance during the public session portion of the meeting. According to the Council, the pay plan was incorporated into the budget ordinance and was briefly referenced in the discussions that took place during the June 16, 2015 hearing.

POSITION OF THE PARTIES

The Petition raised several questions: (1) whether the County Administrator presented the new pay grades and job descriptions to Council for approval;[3] (2) why discussion of pay grades and job descriptions was conducted in executive session; (3) why pay grades and job descriptions were not discussed in public at the May 12, 2015 Council meeting when they had been discussed at the March 30, 2015 Board meeting; (4) whether Council could vote on pay grades and job descriptions at the June 16, 2015 meeting when they were not specifically listed in the budget;[4] (5) whether the executive session minutes for the May 5, 2015 and May 12, 2015 Council meeting were public documents under FOIA;[5] and (6) whether the March 30, 2015 Board meeting was properly noticed.

We received responses from counsel to the Board and Council on August 5, 2015 and September 29, 2015. The Board and the Council each generally deny that it held any meetings that violated FOIA's open meeting requirements.

RELEVANT STATUTES

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed [for a permitted reason]."[6] Pursuant to 29 Del. C. § 10004(b), public bodies may "call for an executive session closed to the public" only for purposes permitted by the statute. For example, section 10004(b)(9) permits public bodies to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." However, a public body must vote at a public meeting to move into executive session, and "all voting on public business must take place at a public meeting and the results of the vote made public."[7]

LEGAL DISCUSSION

I. The Council's May 12, 2015 Executive Session Meeting

The Petition challenges the Council's May 12, 2015 executive session discussion of "pay grades and job descriptions." The Council's August response letter clarified that the Council held executive session discussions on May 12, 2015 to discuss, among other things, the impact of the pay plan on specific County employees, as well as the employees' competencies and abilities. The agenda for the May 12, 2015 meeting also confirms that the Council intended to discuss "Personnel, Pending/Potential Litigation, and Land Acquisition" in executive session.

Based on our review of the notice and agenda for the May 12, 2015[8] meeting, and the executive session minutes for that meeting, we conclude that the May 12, 2015 executive session discussion concerning specific County employees complied with FOIA. Pursuant to 29 Del. C. § 10004(b)(9), a public body may call an executive session to discuss "personnel matters in which the names, competency and abilities of individual employees or students are discussed." The May 12, 2015 meeting minutes indicate that the Board discussed "Personnel-Questions Concerning Proposed Salary Structure with respect to specific employees" during that portion of its meeting. This type of executive session discussion is permitted by FOIA.[9]

The Petition also questions why the Board discussed the pay plan and job descriptions in executive session during the May 12, 2015 portion of the County's meeting when it discussed the same topic in public during the March 2015 Board meeting. From our review of the record, it does not appear that the Board discussed confidential information concerning the competencies or abilities of any specific employee during the March meeting.[10] Rather, the Board generally discussed the pay plan and its impact on the County's budget. Therefore, we conclude that this allegation does not state a FOIA violation.

II. Notice of March 30, 2015 Board Meeting

The Petition questions whether the Board's notice of its March 30, 2015 Board meeting complied with FOIA. Section 10004(e)(4) of FOIA requires the Board to conspicuously post meeting notices at its principal office. In its September 29, 2015 letter, counsel for the Board explained that the meeting notice and agenda were posted at the Board's principal office on March 12, 2015. The notice and agenda were also posted on the first floor of the County Administration Building, online, and published in both the Delaware State News and Wilmington News Journal at least seven days in advance of the March 30 meeting. Therefore, the Board has demonstrated that the March 30, 2015 meeting was properly noticed pursuant to 29 Del. C. § 10004(e)(4).

CONCLUSION

For the foregoing reasons, it is determined that neither the Council nor the Board violated FOIA as alleged in the Petition.

Very Truly Yours,

/s/ Katisha D. Fortune

Katisha D. Fortune

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc: Michael P. Stafford, Esq., attorney for Sussex County Council (via email)

[1] We base our factual findings on the allegations included in the Petition, dated July 14, 2015, the Council's Response to the Petition, dated August 5, 2015, the rebuttal submitted by Mr. Kramer, dated August 11, 2015, and the Council's additional response, dated September 29, 2015.

[2] According to counsel for the Board, the principal office of the Board is located at the County Administration Building. The notice was posted on the bulletin board in front of the human resources office at this location.

[3] Whether the County Administrator presented the new pay grades and job class descriptions to the County Council for approval does not state a FOIA violation. Nonetheless, the Council's August 5, 2015 response letter answered this question, explaining that "the County Administrator reviewed the Pay Plan and incorporated it into the proposed budget for the Fiscal Year 2016."

[4] This allegation does not state a FOIA violation, but a question regarding the Sussex County budget process. In its August 5, 2015 letter, the Council explained that the Pay Plan was incorporated into the Budget Ordinance that was approved at the June 16, 2015 Council meeting. The Council accurately concluded that it is not required by FOIA to "separately notice or individually discuss each and every line item comprising the Budget."

[5] Specifically, the Petition alleges that the executive session minutes for the May 5, 2015 and May 12, 2015 meetings had been requested but not received. In its August 5, 2015 letter, the Council included the requested minutes for our review and also stated that they had been provided to Mr. Kramer. The Council explained in subsequent communications with this office that Mr. Kramer requested the minutes on July 6, 2015, and the minutes were provided to Mr. Kramer on July 23, 2015. See 29 Del. C. §10003(h)(1) ("The public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof . . . ."). We find no FOIA violation regarding Mr. Kramer's request for the executive session meeting minutes.

[6] 29 Del. C. § 10004(a).

[7] 29 Del. C. § 10004(c).

[8] We note that both the notice and agenda for the executive session portion of the May 12, 2015 meeting complied with the relevant sections of FOIA. See, e.g., 29 Del. C. §10004(c); (e)(2).

[9] See 29 Del. C. §10004(c)(9) (permitting executive session discussion closed to the public for purposes of discussing "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.").

[10] In order to investigate this matter, we reviewed the meeting notice and agenda, minutes, and audio recording of the March 2015 Board meeting, all of which are available at https://www.sussexcountyde.gov/personnel-board-meeting-0.