Does the Delaware open meeting law cover an informal gathering of a town manager, an audit committee chair, contract accountants, and an outside auditor to talk about audit issues?

Official title

18-IB47 10/8/2018 FOIA Opinion Letter to Mr. David Moskowitz re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

Dewey Beach Commissioner-elect David Moskowitz challenged a September 18, 2018 meeting between the Town Manager, the Audit Committee chair, the Town's contract accountants, and the Town's independent auditor as an unnoticed public meeting in violation of FOIA. He argued that the Audit Committee was the public body responsible for audit issues and its members should have been included, and that the substantial public interest in the meeting required transparency.

The AG applied Delaware's two-part test for a "public body." The first prong asks whether the entity was established or appointed by the General Assembly or another public body, or otherwise empowered by a state governmental entity. The gathering at issue (a town employee, a committee chair acting individually, and two private-sector financial professionals) failed that prong. It was not a quorum of any existing public body and it was not itself an established body. The opinion held FOIA's open-meeting requirements did not apply.

The AG also addressed broader complaints, holding that whether the Audit Committee chair was duty-bound to call a formal meeting or whether the Town complied with its own Town Charter and Audit Committee Charter were "issues of municipal law" outside FOIA's scope. And public interest in a topic, by itself, does not transform a non-public-body gathering into one requiring open-meeting compliance.

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 does Delaware FOIA mean by "public body"?

Under 29 Del. C. § 10002(h), a public body is generally a regulatory, administrative, advisory, executive, appointive, or legislative body of the state or a political subdivision, including groups or panels established by act of the General Assembly or appointed by a state body. The AG's office has consistently applied a two-part test: (1) is the entity established/appointed by the right kind of authority, and (2) does it spend public funds or have implied/specific duties to advise, report, or recommend? Both prongs must be met.

Why didn't the September 18 gathering meet the first prong?

The gathering was an ad hoc working session, not a body of any kind. The Town Manager was a single employee; the Audit Committee chair was attending without the rest of the Committee; the contract accountants and outside auditor were private parties. The AG said no evidence showed that the General Assembly, Town Council, or another public body established or appointed this group. It therefore failed the first part of the public-body test.

Could the Audit Committee chair have triggered FOIA by attending?

The AG found that this group, which included one Audit Committee chair, was neither a quorum nor an ad hoc committee of an existing public body. The opinion did not decide whether the chair had a separate duty under municipal law to invite other committee members.

What about the Town Charter saying the Committee handles audit matters?

The AG said FOIA "does not give this Office the authority to review questions of the Town's compliance with its own charter or other legal authorities." Whether the Town followed its own internal rules is a question of municipal law, outside the AG's FOIA jurisdiction.

Could public interest alone require an open meeting?

The petitioner argued that the public interest in the Town audit called for an open meeting. The AG answered that FOIA requires meetings of public bodies to be open but does not compel a public body to hold a meeting on a particular topic. It found no violation on this record.

Background and statutory framework

Delaware's FOIA opens with a policy statement at 29 Del. C. § 10001 favoring an informed citizenry, but the operative open-meeting requirement at § 10004(a) is keyed to the defined terms "meeting" and "public body." "Meeting" requires a quorum of a public body's members gathered to discuss or take action on public business. "Public body" is a structurally limited concept under § 10002(h), requiring formal establishment or appointment, plus a public-funds or advisory-duty element.

The opinion found no evidence that the group was established or appointed by a public body, and it did not represent a quorum or ad hoc committee of one. It also held that complaints about whether a town official exceeded charter authority are questions of municipal law that fall outside the AG's FOIA jurisdiction.

Citations

• 29 Del. C. § 10002(g) (definition of "meeting")
• 29 Del. C. § 10002(h) (definition of "public body")
• 29 Del. C. § 10002(j) (definition of "public business")
• 29 Del. C. § 10004(a) (open meetings requirement)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/11/18-ib47-10-8-2018-foia-opinion-letter-mr-david-moskowitz-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB47-Posted.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-IB47

October 8, 2018

VIA EMAIL
Mr. David Moskowitz
Dewey Beach Commissioner-elect
[email protected]

RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Commissioner-elect Moskowitz:

We write in response to your correspondence alleging that the Town of Dewey Beach (“Town”) 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. Because the attendees at the September 18, 2018 meeting did not constitute a public body and the subject of the meeting did not require compliance with open meeting requirements, we find that the Town has not violated FOIA as alleged.

BACKGROUND

According to your Petition, you were recently elected as a Dewey Beach Commissioner, and you spoke with the Town’s independent auditor about a meeting scheduled for September 18, 2018 between him, the Town’s contract accountants, Town Manager, and the Audit Committee chair regarding the Town’s audit issues. Subsequent to this discussion, you sent a Petition to this Office alleging that this upcoming meeting would violate FOIA because the rest of the Audit Committee must be invited to the meeting, and the meeting must conform to open meeting requirements. On September 20, 2018, the Town Solicitor sent a letter (“Response”) indicating that the meeting had occurred on September 18, 2018 as scheduled but denying any violation of FOIA. The Town argued that the meeting was not conducted by a “public body,” and FOIA’s open meeting requirements were inapplicable. Further, the Town asserted that the Town Manager may

meet with the auditor about administrative matters outside a public meeting and the question of whether the Audit Committee should call another meeting is outside the scope of FOIA.

In your correspondence of September 24, 2018 (“Reply”), you stated that “reading the plain language of the FOIA statute, and reflecting on the manner in which public business has been conducted in the Town of Dewey Beach over the last few years- this citizen sees the spirit of the law being violated.”1 The Reply also noted that Mr. Larry Silver is not the former chair of the Audit Committee as the Response stated, but instead, has been continuing to act as the chair of the Committee. You argued that this misstatement demonstrates the need for governmental transparency through public meetings. You identified at least four questions in your Petition for this Office’s review:

… Some of the questions are:

1. Whether a meeting of the Town Manager, the town auditors and the Chair of the Audit Committee triggers public notice requirements;
2. Whether the Chair of the Audit Committee is duty-bound to provide an opportunity for Audit Committee members to attend a meeting that involves the public business of the Committee (and when a quorum is thus met, trigger public notice requirements);
3. Whether a meeting about a public business that is set up with the purposes of circumventing public notice requirements has the result of triggering those requirements; and
4. Whether when an issue is so clearly of great interest to the citizenry of the jurisdiction the Elected Public Servants of that jurisdiction have the responsibility to be completely transparent and provide notice and opportunity for the public to observe that meeting.2

Next, you argued that the Audit Committee is the public body charged with audit responsibilities, and the members should have been invited to attend an open meeting on this subject. As support, you cited the Town Charter and Audit Committee Charter.

On September 25, 2018, the Town Solicitor sent a second letter to this Office to amend its Response (“Supplemental Response”), stating that Mr. Silver resigned earlier this year but suspended that resignation and has continued to act as the Committee chair during the time period in question. However, the Solicitor maintained that Mr. Silver’s role is not relevant to the Town’s alleged FOIA violations.

On September 26, 2018, you sent an additional submission (“Supplemental Reply”) which pointed to another factual error in the Town’s Supplemental Response regarding a vote at the

1
Reply, p. 1.
2
Reply. p. 3 (emphasis in original).

August 17, 2018 Audit Committee meeting. Based upon your personal knowledge, you alleged that no such vote took place at that meeting.

DISCUSSION

We find that the Petition presents two primary legal questions: 1) whether the group that met on September 18, 2018 constitutes a public body which would trigger open meeting requirements; and 2) whether the subject of that meeting required compliance with open meeting provisions under FOIA.3

The September 18, 2018 meeting was not a meeting of a “public body” which triggered open meeting requirements.

Delaware’s FOIA requires that “every meeting of all public bodies shall be open to the public,”4 except those closed pursuant to delineated provisions of the statute.5 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.”6 “Public business is defined as “any matter over which the public body has supervision, control, jurisdiction or advisory power.”7

Only public bodies are subject to the open meeting requirements, and to determine whether a group is a public body as defined by FOIA, a two-part test must be met.8 First, we must determine whether the entity is a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State,” which includes a “group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any

As noted above, your Reply identified four specific questions for this Office’s review and implied the Petition raised other questions. Reply, p. 2. The first and fourth questions are addressed in this Opinion. The second question relates solely to the obligations of the Audit Committee chair, which is a question of municipal law outside of this Office’s scope of review. See FN 13 infra. The third question presupposes that Town intentionally circumvented FOIA laws by conducting the September 18, 2018 meeting; this allegation is not adequately supported by the factual record. The remaining questions of municipal law, including those concerning audit responsibilities, are also outside the scope of FOIA. 4 29 Del. C. § 10004(a).
5
See 29 Del. C. §§ 10004(b)-(d), (h).
6
29 Del. C. § 10002(g).
7
29 Del. C. § 10002(j).
8
Del. Op. Att’y Gen. 18-IB28, 2018 WL 2994706, at *1 (June 1, 2018).

body or public official of the State or otherwise empowered by any state governmental entity.”9 If this first part is satisfied, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or is impliedly or specifically charged to advise or to make reports, investigations, or recommendations. Both parts of this test must be met in order for an entity to be considered a “public body” under FOIA.10

The parties agree that the attendees at the September 18, 2018 meeting were the Town Manager, the Audit Committee chair, the Town’s contract accountants, and the Town’s independent auditor. This gathering does not meet the first prong of the analysis to qualify as a public body. No evidence has been presented that this group was established or appointed by the General Assembly, Town Council, or any other public body. These individuals, or a combination thereof, do not represent a quorum or ad hoc committee of any existing public body.11 Thus, we find that the attendees at the September 18, 2018 meeting do not constitute a “public body” and FOIA’s open meeting requirements therefore do not apply. The Town has not committed a FOIA violation in this respect.

FOIA does not require the Town to hold an open meeting for the topic discussed at the September 18, 2018 meeting.

The September 18, 2018 meeting included discussions related to the Town’s audit. In the Petition, you argued that the audit discussions at the September 18, 2018 meeting must be conducted as an open meeting, due to the significant public interest and due to the requirements of the Town Charter and Audit Committee Charter. FOIA requires that every meeting of a public body to discuss or take action on public business be open to the public unless it meets a statutory exception,12 but FOIA does not compel a public body to hold open meetings for certain topics, nor does it give this Office the authority to review questions of the Town’s compliance with its own charter or other legal authorities.13 Based upon this record, we find that the Town did not violate FOIA in conducting the September 18, 2018 meeting.

9
29 Del. C. § 10002(h).
10
Del. Op. Att’y Gen. 12-IIB05, 2012 WL 1244481, at 2 (Mar. 27, 2012) (stating that an entity is not a public body unless both parts of the two-part test are met). 11 Del. Op. Att’y Gen. 18-IB08, 2018 WL 1061278, at 1-2 (Feb. 12, 2018) (analyzing a gathering of individuals under the first prong of the two-party test for a “public body” under FOIA). 12 29 Del. C. § 10004(a).
13
See 29 Del. C. § 10004; Del. Op. Att’y Gen. 16-IB13, 2016 WL 3462344, at 6 (June 8,
2016) (“To be clear we offer no opinion as to whether a Council meeting should have been held in connection with either action. While we note that the Sussex County Code might require Council approval of certain executive decisions, whether the County Administrator exceeded his authority under the Sussex County Code is an inquiry beyond the scope of FOIA.”); Del. Op. Att’y Gen. 15- IB06, 2015 WL 5014135, at 10 (Aug. 19, 2015) (“FOIA does not carry with it the power to police town’s compliance with their charters or any other applicable law.”); Del. Op. Att’y Gen. 07-IB25, 2007 WL 4941957, at *2 (Dec. 27, 2007) (stating that this Office cannot determine whether a Town official exceeded his authority, because it was “an issue of municipal law which is outside our Office’s jurisdiction under FOIA.”).

                                    CONCLUSION

   Therefore, it is our determination that the Town has not violated FOIA as alleged.




                                                Very truly yours,

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

Approved:

/s/ Allison E. Reardon
_______
Allison E. Reardon
State Solicitor

cc: Fred Townsend, Esq. (via email)