When a Delaware town council goes into executive session about a complaint against an appointed official, what makes that closed-door discussion legal under FOIA?

Official title

18-IB42 8/30/2018 FOIA Opinion Letter to Mr. Dan Kramer re: FOIA Complaint Concerning the Frankford Town Council

Plain-English summary

Daniel Kramer alleged that the Frankford Town Council violated Delaware FOIA by holding a May 1, 2018 emergency executive session about an appointed official, and that the Council voted in that session to fire the Town Solicitor. The Council pointed to three statutory grounds: pending litigation strategy, employee discipline, and personnel matters.

The Delaware AG obtained and reviewed the executive session minutes in camera. The AG found that the Council did not vote to fire the Town Solicitor in that session, so it found no violation on that allegation. As for the executive session itself, the AG rejected the "pending litigation" justification under § 10004(b)(4) because the Council offered no explanation or evidence of a realistic threat of suit or of any adverse effect from an open meeting, but accepted the "personnel" exception under 29 Del. C. § 10004(b)(9) because the minutes confirmed the closed-door discussion involved an individual employee's competency and abilities, both in and out of that employee's presence. The opinion's footnote distinguishes an employee from an independent contractor and says there was no indication that the Town Solicitor was not an employee.

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

When did Delaware allow a public body to go into executive session?

Under 29 Del. C. § 10004(b), Delaware FOIA listed several closed-session grounds. The Frankford Council invoked three:

• (b)(4): strategy sessions tied to collective bargaining or pending/potential litigation, when an open meeting would adversely affect the body's position.
• (b)(8): hearing of employee disciplinary or dismissal cases.
• (b)(9): personnel matters in which the names, competency and abilities of individual employees are discussed.

The body had the burden of proof under § 10005(c) to justify going into executive session, and the Delaware Supreme Court in Del. Solid Waste Auth. v. News-Journal Co. directed that closed-session exceptions be "strictly interpreted to limit nonpublic meetings."

Why was the "potential litigation" justification rejected?

The AG required "objective factors" showing a "realistic and tangible threat of litigation," and gave examples: a demand letter, notice of intent to sue, or prior or ongoing litigation on similar claims. Frankford offered none of that and never explained how an open meeting would have hurt its bargaining or litigation position, so § 10004(b)(4) did not save the closed session.

Why was the "personnel" justification accepted?

After reviewing the minutes in camera, the AG concluded there was a discussion about an individual employee's competencies both in and out of that employee's presence. The AG noted that, to use the personnel exception, "a public body must establish that the private discussion directly involved the consideration of an individual employee's competency and abilities," and found that standard met, so § 10004(b)(9) applied.

Does the personnel exception automatically cover a town solicitor?

No. The opinion says the exception applies to current employees and distinguishes them from independent contractors. The petitioner argued that the Town Solicitor was not an employee, but the AG found no indication that he was an independent contractor in this case.

What did the AG do about the allegation that the Council voted to fire the Town Solicitor?

The AG requested a supplemental response and the executive session minutes, reviewed them in camera, and determined that the Council did not vote to fire the Town Solicitor in the May 1, 2018 session. It found no FOIA violation on that allegation.

Did the AG decide whether the minutes had to be released?

No. The Council cited 29 Del. C. § 10004(f), and the petitioner argued the minutes should be made available. The opinion's holding was limited to whether the executive session itself was lawful; it did not separately order release of the minutes.

Background and statutory framework

Delaware's FOIA permits executive session only under the narrow grounds in § 10004(b), and under § 10005(c) the public body bears the burden of justifying a decision to meet in executive session. The opinion quotes the Delaware Supreme Court's instruction in Del. Solid Waste Auth. v. News-Journal Co. that "open meeting laws are liberally construed, and closed session exceptions within these statutes are strictly interpreted to limit nonpublic meetings." The AG applied two prongs: the "potential litigation" exception under (b)(4), which requires a "realistic and tangible threat of litigation" based on "objective factors" such as a demand letter, notice of threat to sue, or pre-existing or ongoing litigation; and the "personnel" exception under (b)(9), which requires that the private discussion directly involve an individual employee's competency and abilities.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10004(b)(4), (8), (9) (executive session grounds)
• 29 Del. C. § 10004(f) (executive session minutes)
• 29 Del. C. § 10005(c) (burden of proof on the public body)
• Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/09/06/18-ib42-8-30-2018-foia-opinion-letter-mr-dan-kramer-re-foia-complaint-concerning-frankford-town-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/09/Attorney-General-Opinion-No.-18-IB42.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

MATTHEW P. DENN
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB42
August 30, 2018

VIA EMAIL

Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
[email protected]

Re: FOIA Petition Concerning Frankford Town Council

Dear Mr. Kramer:

On August 10, 2018, the Delaware Department of Justice ("DOJ") received your petition requesting our determination, pursuant to the Freedom of Information Act, 29 Del. C. §§ 10001- 10007 ("FOIA"), of whether the Frankford Town Council (the "Council") violated FOIA's open meetings provision by holding an emergency meeting in executive session on May 1, 2018. You attached a letter from the Council denying your FOIA request for the minutes of the meeting, citing a "personnel" issue.

By letter dated August 13, 2018, we invited the Council to submit a written response to your Petition. We received the Council's response ("Response Letter") on August 15, 2018. In its Response Letter, the Council states that in late April 2018, officials of the Town of Frankford received a verbal complaint "concerning an appointed member of the Town government" involving "serious and quite sensitive" allegations.¹ The Council further stated that it held an executive session for the purposes of discussing the allegations, citing 29 Del. C. § 10004(b)(4), (8) & (9) as well as 29 Del. C. § 10004(f).²

¹ Response Letter, p. 1.

² 29 Del. C. § 10004(b) sets forth the permitted purposes for which a public body can hold an executive session closed to the public. 29 Del. C. § 10004(f) states, in pertinent part: "Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. . . . Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer."

You then submitted a rebuttal to the Response letter, stating that the exceptions argued by the Council do not apply because the session is complete and the minutes should be made available. You further alleged that the Council voted in the aforementioned May 1, 2018 executive session meeting to fire the Frankford Town Solicitor. Based on that representation, we requested a supplemental response from the Council as well as a copy of the executive session minutes, which we reviewed in camera to determine if that allegation was correct.

After a review of the meeting minutes, we have determined that the Council did not vote to fire the Frankford Town Solicitor in the Executive Session meeting held on May 1, 2018, so we do not find a violation of FOIA on that allegation. Furthermore, we find that the executive session meeting pertained to discussion of a personnel matter, and therefore the Council did not violate FOIA's open meetings provision, for the reasons set forth below.

LEGAL ANALYSIS

As a preliminary matter, we note that under FOIA, a public body has the burden of proof "to justify a decision to meet in executive session." 29 Del. C. § 10005(c). Any exceptions to the open meeting requirements are to be construed narrowly. Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984) ("[O]pen meeting laws are liberally construed, and closed session exceptions within these statutes are strictly interpreted to limit nonpublic meetings."). The Council claims that the purposes set forth in 29 Del. C. § 10004(b)(4), (8) & (9) justify the executive session meeting, and we discuss each in turn.

Section 10004(b)(4) allows a public body to meet in executive session for strategy sessions with respect to collective bargaining or pending or potential litigation, "but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body."³ The "potential litigation exception for executive session applies only when there is a 'realistic and tangible threat of litigation' based on 'objective factors.'"⁴ Some indicia of such a situation might include a written demand letter, notice of threat to sue, or "previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims."⁵ There was no explanation presented nor evidence submitted to support the Council's claimed justification under 29 Del. C. § 10004(b)(4). The Council did not state that this executive session was for the purposes of a strategy session connected to collective bargaining, nor any pending or potential litigation; the Council also did not state that the an open meeting on the matters discussed on May 1, 2018 would have had an adverse effect on any bargaining or litigation position. Therefore, we cannot find that this stated exception to the open meetings requirements of FOIA applies.

³ 29 Del. C. § 10004(b)(4).

⁴ Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224, at *9 (Aug. 6, 2002).

⁵ Del. Op. Att'y Gen. 02-IB12, 2002 WL 1282812, at *4 (May 21, 2002) (quoting Claxton Enterprise v. Evans County Board of Commissioners, Ga. App., 549 S.E.2d 870, 874 (2001)).

The other claimed exceptions, 29 Del. C. § 10004(b)(8) and (9), pertain to "the hearing of employee disciplinary or dismissal cases" and "[p]ersonnel matters in which the names, competency and abilities of individual employees . . . are discussed," respectively. While it is true that FOIA permits a public body to discuss personnel matters in executive session, "a public body must establish that the private discussion directly involved the consideration of an individual employee's competency and abilities."⁶ In the case at hand, the Council claims that after receiving a verbal complaint about an "appointed member of Town Government," they met in executive session to broach the allegations with the individual in a "confidential setting."⁷ After a thorough review of the provided minutes, we conclude that there was a discussion about an individual employee's competencies both in and out of that employee's presence, and so the exception set forth in 29 Del. C. § 10004(b)(9) applies.⁸

⁶ Del. Op. Att'y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013).

⁷ Response Letter, p. 1.

⁸ We note that your Petition asserts that the Town Solicitor is not an employee, and the personnel exception at 29 Del. C. § 10004(b)(9) does not apply, citing to Del. Op. Att'y Gen. 06-ID22, 2006 WL 3387935 (November 16, 2006), which dealt with an executive session meeting called to discuss the hiring of land use consultants. In that opinion, we found that the Sussex County Council had violated FOIA because the "job applicant" exception for open meetings found at Section 10004(b)(1) did not apply to "contractors marketing their credentials in order to do public business." Here, the Council is claiming the "personnel" exception, which only applies to current employees. Although we have previously issued an opinion where a public body attempted to claim the personnel exception for a City Solicitor and Deputy Solicitor who were designated as independent contractors (see Del. Op. Att'y Gen. 05-IB02, 2005 WL 120844, at 2 (January 12, 2005)), that opinion does not stand for the blanket proposition that a Solicitor may never be an "employee" for the purposes of FOIA, but that there is a difference between an employee of a public body and an individual who does contractual work for a public body. Prior opinions applying the "job applicant" exception have discussed the difference between the discussion of a specified individual and a discussion of the selection process for a specific job. See Del. Op. Att'y Gen. 02-IB17, 2002 WL 31031224 (Aug. 6, 2002). There is no indication that Mr. Lingenfelder, whose termination was the subject of your Petition, was not an employee of the Town of Frankford, and the Council has not specified that he is an independent contractor. See also Del. Op. Att'y Gen. 05-IB14, 2005 WL 1449427, at 3 (June 8, 2005) ("A vendor or independent contractor does not share the same privacy concerns as an individual public employee or prospective public employee.").

CONCLUSION

For the reasons stated above, we conclude that the Council did not violate FOIA when it discussed an individual employee's competency and abilities in executive session at the May 1, 2018 meeting.

Very truly yours,

Zoe Plerhoples
Deputy Attorney General

Approved:

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

cc: Scott Chambers, Esq. (via email)