Does a county violate open meetings law by voting to promote someone to department director without disclosing it on the agenda?

Official title

17-IB28 07/19/2017 FOIA Opinion Letter to Mr. Dan Kramer re: FOIA Complaint Concerning Sussex County Council

Plain-English summary

At its October 4, 2016 meeting, Sussex County Council went into executive session to discuss the retirement of its longtime Planning and Zoning Director and, in the same session, decided to promote the department's then-Manager to the position, both as an immediate "Director Appointee" and eventually as Director once the retirement took effect. The Council then returned to open session and voted 5-0 to approve the promotion with essentially no discussion. The problem, according to a resident's petition, was that the meeting agenda never mentioned any of this. It described only a generic executive session for "personnel" matters and noted the Council might take action on unspecified items discussed there, without giving any hint that a major leadership succession decision for a department overseeing land use across the county was on the table.

The AG agreed. FOIA requires an agenda to include a general statement of the major issues a public body expects to discuss, and a vague reference to an undefined personnel matter did not satisfy that requirement given how significant this particular vacancy and its planned resolution were. The Council's written response to the petition sidestepped this specific issue entirely, addressing only whether it was proper to discuss the new director's qualifications in executive session (which wasn't in dispute) rather than whether the public was adequately warned in advance. The AG stopped short of ordering the county to undo the vote, given the time that had passed since the meeting, but recommended the Council revisit the matter in a public forum and explain its reasoning for choosing the new director.

Currency note

This opinion was issued in 2017. 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

Q: Does a vague "personnel matter" line on a meeting agenda satisfy Delaware's open meetings law before a major leadership vote?
A: Not necessarily, according to this opinion. The AG found that a generic personnel-matter reference didn't give the public adequate notice when the Council intended to discuss and vote on filling a significant department director vacancy; the significance of the vacancy mattered to the analysis.

Q: If a county violates FOIA's agenda notice requirements, does the AG automatically undo the vote taken at that meeting?
A: Not always. In this case, the AG found a violation but declined to order the vote invalidated because of how much time had passed since the meeting, instead recommending the county revisit the decision publicly and explain its reasoning.

Q: Does every individual personnel action or appointment need to be spelled out on a public meeting agenda?
A: Not necessarily, per this opinion. The AG limited its determination to the facts of this case, driven by the significance of the vacancy at issue, and noted that it wasn't requiring every routine personnel or licensing item that a public body regularly approves to be separately itemized on the agenda.

Background and statutory framework

Delaware's FOIA requires public bodies to give advance public notice of meetings, 29 Del. C. § 10004(e)(2), and that notice must include an agenda with a general statement of the major issues expected to be discussed, along with a statement of intent to hold an executive session and its grounds, 29 Del. C. § 10002(a). Discussing a personnel matter involving the competency and abilities of an individual employee is a proper subject for executive session, 29 Del. C. §§ 10004(b)(9), 10004(c), but that authority is separate from the question of whether the agenda adequately warned the public that the topic, and any related vote, would come up. Sussex County's Planning and Zoning Commission and its supporting office are creatures of state and county law, 9 Del. C. §§ 6101(2), 7002; 9 Del. C. §§ 6803(a), 6807(a); Sussex County Code § 29-3B.(1)(a).

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 9 Del. C. §§ 6101(2), 7002, establishing Sussex County government and its departments
• 9 Del. C. §§ 6803(a), 6807(a), establishing the Planning and Zoning Commission's advisory role
• 29 Del. C. § 10004(b), permitted purposes for executive session
• 29 Del. C. §§ 10004(b)(9), 10004(c), personnel matters as an executive session topic and the procedure for entering executive session
• 29 Del. C. § 10004(e)(2), meeting notice and agenda requirement
• 29 Del. C. § 10002(a), requirement that an agenda state the major issues expected to be discussed
• Sussex County Code § 29-3B.(1)(a), county administrator's oversight of the Planning and Zoning Office

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/20/17-ib28-07192017-foia-opinion-letter-mr-dan-kramer-re-foia-complaint-concerning-sussex-county-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB28.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB28
July 19, 2017

VIA U.S. MAIL & EMAIL

Daniel J. Kramer

8041 Scotts Store Rd
Greenwood, DE 19950
[email protected]

RE: November 28, 2016 FOIA Petition Regarding Sussex County Council

Dear Mr. Kramer:

We write in response to your correspondence, dated November 28, 2016, alleging that
Sussex County Council violated the open meeting provisions of Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you allege that the agenda
for County Council's October 4, 2016 regularly scheduled meeting failed to provide adequate
notice to the public that County Council would vote on a succession plan for leadership at the
Sussex County Planning and Zoning Office. We conclude that County Council violated FOIA's
open meeting requirements as alleged and recommend that County Council reconsider the issue at
a subsequent public meeting.

BACKGROUND

Sussex County government consists of County Council, a five-member legislative body,
several advisory bodies and various administrative departments charged with providing sewer,
public safety, business development, planning and zoning and other vital services.[1] The Planning
and Zoning Commission of Sussex County is a seven-member appointive panel that acts as an
advisory body to County Council on various land use and zoning matters.[2] The Planning & Zoning
Office supports the Planning and Zoning Commission and County Council on land-use matters.[3]
The Planning and Zoning Office manages all land use applications and schedules public hearings
on subdivision, zoning and other land-use requests.[4] The Planning and Zoning Office, like other
county-level departments, is overseen by a County Administrator appointed by County Council.[5]
Day-to-day operations are managed by a Director who also serves at the pleasure of County
Council.[6]

On October 4, 2016, County Council conducted a public meeting. During the meeting,
County Council convened in executive session to discuss the retirement of Lawrence Lank, the
former Director of Planning and Zoning, and the appointment of Janelle Cornwell, then-Planning
and Zoning Manager, as the new Director. According to the minutes of the October 4, 2016
meeting (the "Minutes"), upon return to regular session, the County Administrator referenced the
impending retirement of Mr. Lank and further noted that, as a result of the discussion in executive
session, he (the County Administrator), Mr. Lank and County Council "recommend filling that
position with the current Planning and Zoning Manager, Janelle Cornwell."[7] Immediately
thereafter, a motion was made to promote Ms. Cornwell to "Director Appointee," effective
immediately, and then as Director, effective upon the retirement of Mr. Lank.[8] County Council
members voted unanimously (5-0) in support of the motion, with little or no discussion preceding
the vote.[9]

The agenda for the October 4, 2016 meeting (the "Agenda")[10] did not expressly state that
County Council intended to discuss and vote on succession planning for top management at the
Planning and Zoning Office. Instead, the Agenda included a statement of County Council's intent
to convene in executive session to discuss a "personnel" issue and other sensitive matters, as
permitted under 29 Del. C. § 10004(b). The Agenda also indicated that County Council might
take action on one or more items discussed in executive session.[11]

[1] See 9 Del. C. §§ 6101(2), 7002.

[2] See 9 Del. C. §§ 6803(a), 6807(a).

[3] See https://www.sussexcountyde.gov/planning-zoning-commission (last accessed July 19, 2017).

[4] See id.

[5] See Sussex County Code § 29-3B.(1)(a).

[6] See id. at § B.(1)(e).

[7] Minutes at pp. 9-10. The Minutes are available online and may be reviewed or downloaded at
the following address: https://www.sussexcountyde.gov/sites/default/files/minutes/100416.pdf
(last accessed July 19, 2017).

[8] Minutes at p. 10.

[9] See id.

[10] The Agenda is available online and may be reviewed or downloaded at the following address:
https://www.sussexcountyde.gov/sites/default/files/agendas/100416.pdf (last accessed July 19,
2017).

[11] See Agenda at p. 2. While outside the scope of this matter, we note that we previously addressed
complaints about County Council's use of such recurring action items. See Del. Op. Att'y Gen.
13-IB02, 2013 WL 2477026, at *2-3 (May 1, 2013) (criticizing County Council's longstanding
practice of using recurring "action" items, including "Possible Action on Executive Session
Items," notwithstanding that County Council had no intention of taking any such action when the
agenda was posted).

POSITIONS OF THE PARTIES

You allege that County Council violated FOIA because the Agenda failed to put the public
on notice that County Council would discuss Mr. Lank's retirement and select his replacement.

County Council's response does not address, directly or indirectly, whether the Agenda
adequately disclosed the possibility that County Council would discuss or take action on
succession planning for the Director of the Planning and Zoning Office. County Council's
response addresses solely whether County Council properly convened in executive session to
discuss Ms. Cornwell's competency and ability to succeed Mr. Lank, as permitted under 29 Del.
C. §§ 10004(b)(9), 10004(c). That question is not before us.

RELEVANT FOIA REQUIREMENTS

FOIA generally requires public bodies to provide the public with advance notice of public
meetings.[12] FOIA further requires that each notice contain an "agenda."[13] By definition, each
agenda must include "a general statement of the major issues to be discussed at a public meeting,
as well as a statement of intent to hold an executive session and the specific ground or grounds
therefor."[14]

DISCUSSION

We agree that the Agenda failed to comply with FOIA's open meeting requirements. The
Agenda did not include a "general statement" of all "major issues" that County Council expected
to discuss at the October 4, 2016 meeting, as required by 29 Del. C. § 10002(a). The Agenda
included no reference to an anticipated vacancy in the top position at the Planning and Zoning
Office. Nor did it disclose any plan to fill that vacancy at the October 4, 2016 meeting.[15] County
Council's disclosure of the possibility that it might take action on unspecified matters discussed in
executive session was not sufficient to put the public on notice of expected discussions and action
on an important topic in open session. Accordingly, the agenda did not satisfy the requirements
of 29 Del. C. § 10002(a).[16]

[12] See 29 Del. C. § 10004(e)(2).

[13] See id.

[14] 29 Del. C. § 10002(a).

[15] The record shows and we find that County Council, at the time it posted the Agenda, intended
to discuss and vote on Ms. Cornwell's accession at the October 4, 2016 meeting.

[16] This determination is limited to the facts of this case, and is based in large part on the significance
of the vacancy in question. We are aware that some public bodies routinely approve or ratify large
numbers of personnel actions or licensing or other applications at regular meetings. This
determination is not meant to imply that each individual matter must be separately noticed on a
public agenda in order to comply with FOIA.

REMEDIATION

In light of the passage of time since the filing of the petition, as well as other factors, we
do not believe that invalidation is an appropriate remedy in this case. We nonetheless suggest that
County Council, in the spirit of transparency, revisit its October 4, 2016 vote regarding the
Planning and Zoning Office and explain, in a public forum, its reasons for selecting Ms. Cornwell
as Mr. Lank's successor.

CONCLUSION

For the reasons discussed above, we conclude that County Council violated FOIA's open
meeting requirements in connection with its October 4, 2016 meeting. County Council is
encouraged to take remedial action as suggested herein.

Very truly yours,

W. Staib
Deputy Attorney General

Aaron R. Goldstein, State Solicitor

cc: J. Everett Moore, Esq. (via email)
Michelle E. Whalen, Deputy Attorney General (via email)