DE 19-IB52 2019-09-17

If a Delaware town commissioner blurts out a personnel comment in open session, does FOIA make that a violation?

Short answer: No. The Delaware AG ruled the Town of Dewey Beach did not violate FOIA when a Town Commissioner briefly mentioned concerns about the Police Chief's effectiveness during an open meeting. The Town Manager, Mayor, and Solicitor immediately cut off any substantive discussion. FOIA permits but does not require executive session for personnel topics.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB52 9/17/2019 FOIA Opinion Letter to Mr. Kevin Madden re: FOIA Complaint Concerning the Town of Dewey Beach

(Note: the petition was filed by Police Chief Sam Mackert. The opinion is addressed to Chief Mackert, not Kevin Madden, despite the URL slug referencing Madden. The slug appears to be a clerical mismatch from the original DE AG site indexing; the substantive subject is the petition by Chief Mackert.)

Plain-English summary

At the August 9, 2019 Town Council meeting in Dewey Beach, a Town Commissioner reading from a police-matters report stated that the report indicated "some degree of concern about the current effectiveness" of the Town's Police Chief and proposed asking the Town Manager to begin advertising for a new chief. The Town Manager said the conversation needed to end. The Mayor cut off the Commissioner. The Town Solicitor advised that personnel topics belonged in executive session. Police Chief Mackert then petitioned, alleging the Town violated FOIA by (1) not posting his position on the agenda, and (2) failing to reserve the personnel discussion for executive session.

The AG denied the petition. The agenda must include a "general statement of the major issues" expected to be discussed; the Commissioner's brief, immediately-cut-off remark did not amount to a "major issue" that should have been previewed. More fundamentally, FOIA's executive-session provisions permit but do not require closed-door treatment of personnel matters: § 10004(b) speaks of what a public body "may" discuss in executive session, not what it "must." So even if the personnel topic had been discussed in open session, FOIA would not have forbidden it.

Currency note

This opinion was issued in 2019. 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

Are personnel discussions required to be in executive session?

No. FOIA at § 10004(b) lists topics that a public body may close to the public, not topics it must close. Personnel matters are among the permitted closed topics, but a public body that prefers to discuss them in open session may do so. Other laws (employment privacy, confidentiality regulations) may impose different obligations.

What about the agenda specificity rule?

If a public body intends to discuss the police chief's performance as a "major issue," the agenda should so indicate. A spontaneous remark by a single member that is immediately cut off does not turn the meeting into one where the topic was "expected" to be discussed. The agenda specificity rule looks at the public body's intent at posting time, not what individual members might mention.

Why did the Town Solicitor cut the discussion off if it was permitted in open session?

Permitted is not the same as advisable. Public discussion of an employee's performance can carry liability and HR risks under employment law and the Delaware Rules of Professional Conduct, regardless of FOIA. Solicitors often counsel deferral to executive session to keep both options open and protect the employee's privacy.

Does FOIA give an employee a right to keep their performance private?

FOIA does not. The employee's privacy interest comes from § 10002(l)(1)'s personnel-files exemption (for FOIA records production) and from non-FOIA sources (employment contracts, collective bargaining agreements, common-law privacy). FOIA's open-meetings provisions deal with the public's right to attend and observe, not with what topics may be discussed.

Background and statutory framework

Section 10002(a) defines what an agenda must contain: "a general statement of the major issues expected to be discussed at a public meeting" along with notice of any planned executive sessions. The provision is forward-looking; it asks what the body expects to discuss, not what may incidentally come up.

Section 10004(b) lists the nine purposes for which a public body may convene executive session. Personnel matters of public officers and employees are among them. AG Opinion 13-IB01 captures the general principle: "For sound policy reasons, FOIA permits, but does not require, public bodies to discuss certain matters in private."

The Dewey Beach record showed three distinct corrective steps within seconds of the Commissioner's remark: the Town Manager said the conversation should end; the Mayor cut the Commissioner off; the Town Solicitor reserved the topic for executive session. That layered intervention left no room for a finding that a substantive discussion had occurred.

Citations

29 Del. C. § 10002(a)
29 Del. C. § 10004(b)
29 Del. C. § 10005(e)
Del. Op. Att'y Gen. 13-IB01, 2013 WL 2477025 (Mar. 26, 2013)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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 19-IB52
September 17, 2019
VIA EMAIL
Police Chief Sam Mackert
Town of Dewey Beach
[email protected]
RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Chief Mackert:

We write in response to your correspondence alleging that the Town of Dewey Beach ("Town") violated the open meeting requirements of 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. For the reasons set forth below, we find that the Town has not violated FOIA as alleged.

BACKGROUND

The Town Council held a public meeting on August 9, 2019. At the meeting, a Town Commissioner, in the course of discussing a report about police matters, stated the report indicated "some degree of concern about the current effectiveness" of the Town's Police Chief and stated that the Town Manager should be asked to place an advertisement for the position and the Town should start looking for a new police chief. The Town Manager responded that the conversation needed to be ended, and the Mayor immediately interrupted the Commissioner's further attempts to elaborate. The Town Solicitor then advised that this topic should be reserved for executive session.

This Petition asserts that the Town violated FOIA in two ways: 1) failing to post the matter of your position on the agenda; and 2) failing to reserve this personnel discussion for executive session. On September 4, 2019, the Town Solicitor sent a Response, asserting the Town has not violated FOIA. First, the Town argues that the exemptions from open meeting requirements are enacted to benefit the public and do not prohibit any topic from public discussion. Second, the Town contends that the topic of your position was not necessary to include on the agenda, as the Town Council did not have any intention to discuss this topic as a major issue and the Town Council, in fact, did not discuss the matter. The Town contends that the Commissioner "blurted out" these statements on the subject, but the Town Council did not discuss it, nor should the statement be imputed to the Town Council as a whole.

DISCUSSION

An agenda must include a "general statement of the major issues" which a public body expects to discuss. The Town has provided sufficient evidence demonstrating that a discussion of your position or performance did not take place at the August 9, 2019 meeting. The Commissioner briefly mentioned your position and performance, and the other attendees promptly ended the matter before any substantive discussions regarding these matters could occur. FOIA permits a public body to hold discussions about certain topics in executive session. However, FOIA does not prohibit a public body from discussing a topic in open session. Therefore, even if the Town had conducted a personnel discussion in open session, FOIA does not expressly forbid the Council from doing so.

CONCLUSION

Based on the foregoing, 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/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

Fred Townsend, Town Solicitor (via email)