If a quorum of a town council shows up at a properly noticed committee meeting but does not discuss public business among themselves, is that a separate open-meeting violation under Delaware FOIA?

Official title

18-IB41 8/28/2018 FOIA Opinion Letter to Mr. Craig O'Donnell and Ms. Shannon McNaught re: FOIA Complaint Concerning the Dewey Beach Town Council

Plain-English summary

Two Dover Post reporters complained that the Dewey Beach Town Council violated Delaware's open meeting law when four of its five commissioners (a quorum) showed up at a public Audit Committee meeting on August 3, 2018. The Committee meeting itself had been properly noticed; the reporters argued that once a quorum of the Council was in the room, the Council itself had effectively held an unnoticed meeting.

The Delaware Department of Justice rejected that argument. The AG concluded that a "meeting" under Delaware FOIA requires more than physical presence. The statute defines a meeting as a gathering of a quorum "for the purpose of discussing or taking action on public business," and the AG read that to require discussion or deliberation among the attending members themselves. Because the four commissioners had asked questions of the auditor and the Committee but had not deliberated among themselves or reached any decision, no separate Council meeting had occurred. The reporters' secondary allegation, that commissioners were texting each other during the meeting, was found too vague to support a violation finding.

Currency note

This opinion was issued in 2018. 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

What was the open-meetings issue here at the time?

Dewey Beach has a five-member Town Council. Its Audit Committee, a four-member standing committee with a Council liaison, posted a public agenda for an August 3, 2018 meeting with the Town's outside auditor. Four commissioners (a quorum of Council) showed up at that meeting, asked questions of the auditor and the Committee, and left. The reporters argued the four-commissioner attendance turned the gathering into an unnoticed Council meeting.

Why did the AG say there was no violation?

Because the FOIA definition of "meeting" requires a quorum gathered "for the purpose of discussing or taking action on public business," and the AG stated that to qualify as a meeting the quorum of members must have a discussion among the attending councilmembers. There was no allegation that the attending Commissioners discussed or deliberated among themselves, or reached a vote or consensus, on public business. The AG also noted that the public had the opportunity to observe the Committee meeting, which is FOIA's purpose.

Did the texting allegation matter?

The petitioners alleged that commissioners texted one another during the meeting, but offered only general descriptions of their conduct. The office did not find a FOIA violation on that record. The PDF's discussion uses the phrase "insufficiently vague," which is internally unclear; its conclusion remains that the Council did not violate FOIA as alleged.

What did the holding turn on?

The absence of discussion or deliberation among the attending Commissioners. The AG's conclusion rested on the undisputed fact that the four Commissioners posed questions and comments to the auditor and the Committee but did not deliberate among themselves or reach a vote or consensus on public business.

Background and statutory framework

Delaware's FOIA requires that "every meeting of all public bodies shall be open to the public," except those closed pursuant to delineated provisions of the statute. As the opinion quotes the definitions, a "meeting" is "the 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 either in person or by videoconferencing," and "public business" is "any matter over which the public body has supervision, control, jurisdiction or advisory power."

The AG added the interpretive gloss that, to qualify as a meeting under FOIA, the quorum of members must have a discussion among the attending councilmembers. Applying that, mere attendance by a quorum at the Audit Committee's properly noticed public meeting, without discussion or deliberation among the Commissioners, was not a separate Council meeting.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (Petition procedure)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/09/06/18-ib41-8-28-2018-foia-opinion-letter-mr-craig-odonnell-ms-shannon-mcnaught-re-foia-complaint-concerning-dewey-beach-town-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/09/Attorney-General-Opinion-No.-18-IB41.pdf

Original opinion text

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 18-IB41

August 28, 2018

VIA EMAIL

Craig O’Donnell, Dover Post
Shannon McNaught, Dover Post
c/o [email protected]

RE: FOIA Petition Regarding the Dewey Beach Town Council

Dear Mr. O’Donnell and Ms. McNaught:

We write in response to your correspondence received on August 9, 2018 alleging that the Dewey Beach Town Council (“Council”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. Since there was no discussion among the attending Commissioners at the Audit Committee’s public meeting, we find that the Council has not violated FOIA as alleged.

BACKGROUND

Dewey Beach Town Council has five commissioners. One of the Town Council’s standing committees, the Dewey Beach Audit Committee, held a public meeting on August 3, 2018. This Committee consists of four members plus a Commissioner Liaison. The parties do not dispute that the Committee properly posted a notice and agenda for the August 3, 2018 Committee meeting stating that it would: “[m]eet with the Town’s outside auditors, TGM Group, to review a draft of the Town’s fiscal 2018 (April 1, 2017 – March 31, 2018) audited financial statements” and “[m]eet with Town’s outside auditors, TGM Group, to review Phase II of the Agreed Upon Procedures work.” At the August 3, 2018 meeting, in addition to the Audit Committee, four Commissioners, excluding the Commissioner Liaison to the Committee, attended the meeting and posed questions and comments to the Audit committee members and the independent auditor.

You then sent a Petition to this Office, alleging that the presence of four members of Council at the Dewey Beach Audit Committee meeting violated the FOIA open meeting laws, because the meeting was not noticed as a Town Council meeting. By a letter received on August 14, 2018 (“Response”), the Town denied any violation of the open meeting laws, reasoning that the public had an opportunity to observe the discussions at the properly noticed Committee meeting, the attending Commissioners did not deliberate the matter among themselves, and the draft audit report prepared is not under the Council’s control. In your Reply, you responded that the Commissioners’ verbal comments during the meeting constituted part of the decision-making process, the conduct of the Commissioners appeared to indicate some Commissioners were texting during the meeting, and the audit report was under Council’s control.

DISCUSSION

Delaware’s FOIA requires that “every meeting of all public bodies shall be open to the public,”1 except those closed pursuant to delineated provisions of the statute.2 A “meeting” is defined as “the 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 either in person or by video- conferencing.”3 “Public business is defined as “any matter over which the public body has supervision, control, jurisdiction or advisory power.”4 This Office has found that in order to qualify as a “meeting” under FOIA, the quorum of members must have a discussion among the attending councilmembers.5

The Audit Committee meeting agenda clearly stated that the Committee members would meet with Town’s outside auditor, TGM Group, “to review Phase II of the Agreed Upon Procedures work.”6 It is undisputed by the parties that four members, or a quorum of the Council, attended and offered questions and comments to the auditor and to the Audit Committee members. However, there is no allegation by either party that the attending Commissioners discussed or deliberated among themselves or reached a vote or consensus regarding public business. The purpose of FOIA is to allow citizens to monitor the government’s public business, and the public

1
29 Del. C. § 10004(a).
2
See 29 Del. C. §§ 10004(b)-(d), (h).
3
29 Del. C. § 10002(g).
4
29 Del. C. § 10002(j).
5
Del. Op. Att’y Gen. 18-IB07, 2018 WL 1061277, at *2 (Feb. 9, 2018) (determining that a gathering of a quorum of councilmembers at a press conference did not constitute a “meeting” under FOIA since the Office had “no evidence of a discussion among the attending councilmembers during the press conference.”) (emphasis in original). 6 Response, Ex. A.

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had the opportunity to do so here.7 Thus, we do not find that the attendance of the Commissioners at this Audit Committee meeting violated FOIA as alleged.

In your Reply, you stated that Commissioners improperly shielded comments from the public during the meeting by texting each other. We find this statement is insufficiently vague when the only proffered evidence is general descriptions of the councilmembers’ conduct during the meeting.8

CONCLUSION

Based upon the foregoing, it is our determination that the Dewey Beach Town Council has not violated FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
_______
Patricia A. Davis
Acting State Solicitor

cc: Fred Townsend, Esq. (via email)

7
29 Del. C. § 10001.
8
Your Reply stated: “We believe the texting was part and parcel of the commissioners’ interactions during the meeting. Our reporter witnessed town commissioners obviously texting one another during the meeting...” In addition, you noted that you sent a FOIA request for those texts, but “Dewey Beach has claimed that there were no text messages on any topic of town business.” See also Del. Op. Att’y Gen. 16-IB18, 2016 WL 5888777, at *5 (Sept. 29, 2016) (declining to consider the allegations of passing notes since the allegations were “too vague to warrant consideration”).
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