Does Delaware's open-meetings law require a town council to let citizens set the agenda, list every visitor in the minutes, or tape every meeting?

Official title

96-IB20: FOIA-Georgetown Second Complaint

Plain-English summary

The same Georgetown resident who had already filed two prior FOIA complaints against the town council brought a third, this time alleging a grab-bag of process complaints: that a treasurer and assistant secretary were appointed without a public vote, that council members told a TV reporter a vote had occurred on hiring special counsel, that meeting minutes were being sloppily kept and omitted things like visitor names and cash receipts, that public comment was wrongly limited to agenda items, and that meetings weren't being properly taped.

The Attorney General found no FOIA violations in any of it. On the appointments, the town denied they had happened and no records supported the claim, so the count was unfounded. On the minutes, the opinion held that the Act gives a public body discretion over what corrections, additions, or deletions to make when adopting its minutes, and does not entitle citizens to dictate the agenda or require every visitor's name to appear in the record, so long as the statutory content (members present and how each voted) was there. On public comment, the opinion held that limiting citizen input to posted agenda items is a legitimate exercise of a public body's authority to control its own agenda, while encouraging the council to keep granting good-faith requests to add items. On taping, the opinion reaffirmed an earlier ruling that the Act requires taping "public hearings" but not routine "public meetings." A final vague allegation about public records management was dismissed for lack of specificity, since no records request had actually been denied.

Currency note

This opinion was issued in 1996. 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: Can citizens require a town council to add their preferred topic to the meeting agenda?
A: Not under the Act, according to this opinion. The AG found 29 Del. C. §10004(e)(2) and (3) require notice and an agenda but do not give citizens the right to set that agenda, though many bodies choose to honor good-faith requests anyway.

Q: Do meeting minutes have to list every visitor who attended?
A: No. The opinion found the Act's minutes requirement in 29 Del. C. §10004(f) is satisfied by recording who was present and how each member voted; it doesn't require listing attendees, cash receipts, or other details beyond that.

Q: Does Delaware's open-meetings law require every public meeting to be tape recorded?
A: No. The opinion reaffirmed that only "public hearings" must be taped, not ordinary "public meetings," citing the AG's earlier opinion on the same question.

Background and statutory framework

The complainant's third FOIA filing against the Georgetown Town Council raised five distinct grievances, an unauthorized appointment, contradictory statements to a television reporter, minute-keeping deficiencies, restricted public comment, and inadequate taping, plus a general complaint about public records handling. The Attorney General applied 29 Del. C. §10004(e)(2) and (3)'s notice and agenda requirements, and, citing Chrysler Corp. v. State and Opinion of Justices for the plain-meaning rule of statutory construction, found those provisions do not obligate a public body to accept citizen-proposed agenda items. It applied 29 Del. C. §10004(f)'s minutes requirement narrowly to what the statute actually lists (attendance and per-member votes), and found the public-comment restriction consistent with the council's discretion over its own agenda under the Act's policy in 29 Del. C. §10001. The taping question was resolved by reference to a prior informal opinion distinguishing "public hearings" from "public meetings," and the public-records count was dismissed under 29 Del. C. §10003(a) for lacking any specific denied request.

Citations and references

Statutes:

• 29 Del. C. §10001, declaration of policy on open, accountable government
• 29 Del. C. §10003(a), right to inspect and copy public records
• 29 Del. C. §10004(e)(2), public notice and agenda requirements for regular meetings
• 29 Del. C. §10004(e)(3), notice requirements for special or rescheduled meetings
• 29 Del. C. §10004(f), minutes requirement (attendance and per-member votes)

Cases:

• Chrysler Corp. v. State, 457 A.2d 345 (Del. 1983), on applying unambiguous statutory text according to its plain meaning
• Opinion of Justices, 290 A.3d 645 (Del. 1972), on the same plain-meaning rule of construction

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/05/20/96-ib20-foia-georgetown-second-complaint/

Original opinion text

Civil Division – New Castle County

May 20, 1996

Del. Op. Atty. Gen. 96-IB20 (Del.A.G.), 1996 WL 345801

( concluding that public bodies (a) are entitled, in their discretion, to make additions, deletions, and corrections to agendas, (b)need not list in the minutes the names of attendees and other matters not statutorily prescribed and (c) are not required to allow public input at public meetings )

Ms. Lynn M. DeLeon

307 Carolyn Street

Georgetown, DE 19947

Re: Freedom of Information Act

29 Del. C. §10005(e) – Second Complaint

Dear Ms. DeLeon:

Please consider this the Attorney General’s written decision on the above-referenced Complaint.

The operative facts are that on March 11, 1996 this office received your second Complaint filed against the Georgetown Town Council (“Town Council”) pursuant to 29 Del. C. §10005(e). The Complaint alleged that the Town Council held a public meeting and appointed Mr. Ernest Donald Coyman as Treasurer and Ms. Amy Lowe as Assistant Secretary/Assistant Treasurer without a public meeting and a vote. See 29 Del. C. §10004(e)(2)(3) and (4).

Paragraph two of the Complaint alleged that Councilpersons Calhoun, Givens and Hovington held an interview with Chris Ciffate of Channel 47 television. The Complaint stated that topics allegedly discussed were the termination of the Town Manager and the hiring of John Sergovic, Esquire by the Town Council. The Complaint alleged that all three Councilpersons, in this interview, stated for the record that there was a meeting and a vote in which Mr. Sergovic had been hired.

Paragraph three of the Complaint alleged the following. First, since the termination of the Town Manager, Ms. Hovington has assumed the responsibility for making sure the minutes are prepared. Second, it alleged that since November 15, 1995, all of the minutes have not been properly prepared and that until Mr. Coyman was hired, the minutes had been accepted as presented and no corrections had been made. Third, it alleged that the minutes failed to list visitors in attendance, left off cash receipts, building permits and when votes are taken. Fourth, it alleged that the minutes do not properly record the votes of Councilpersons. Fifth, it alleged that Town Council has restricted public comment to pertain only to items on the agenda and has not permitted questions and/or discussion of issues that the public would like to be addressed. Finally, it alleged in paragraph three that meetings have not been taped properly.

Paragraph four of the Complaint alleged that resolutions are not being added to the minutes and being placed in minute books for the public to review. The Complaint stated that the public has been “kept in the dark” since January, 1995 as to how “much money has come in” and how much money has been disbursed to pay bills. The Complainant enclosed copies of the minutes from the October 25, 1995, November 9, 1995, November 15, 1995, December 13, 1995, January 10, 1995 and January 24, 1995 meetings.

The Town Council filed an answer to the Complaint on April 18, 1996. The Town Council provided exhibits to its answer which included copies of the personnel policies for the Town Council. The Town Council also provided detailed answers to each one of the Complaint’s allegations.

The Law

29 Del. C. § 10004(e) provides in part:

(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.

(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.

(f) 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 shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. 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. (Emphasis supplied).

Decision and Order

For the following reasons, the Attorney General finds no violations of the Act by the Town Council.

First, with regard to the allegation that the Town Manager Sandy Coyman and Town Clerk Amy Lowe were appointed as Treasurer and Secretary/Assistant Treasurer respectively without a public meeting vote, the Town denied these charges. The Town asserted that the Complainant held the position and that the titles of Town Clerk and Secretary/Assistant Treasurer are synonymous. The Town Council stated that an appointment was not necessary and that no such appointment occurred. No public records have been produced to date to substantiate this allegation. As Exhibit “1,” the Town Council attached a copy of the personnel ordinance addressing this issue. The Town Council correctly concluded that Ms. Coyman’s appointment as Treasurer did not occur. However, the responsibilities of Town Manager in the Town Charter do not include financial responsibilities. Finally, since no meeting minutes or public notices have been supplied to this office to support this allegation, we find it unfounded.

Second, with regard to the claim that the minutes have been improperly prepared from November 15, 1995 until Mr. Coyman was hired by the Town Council, we find that a public body has the discretion to determine the agenda and to determine what corrections and deletions, if any, are required when adopting the minutes pursuant to the Act’s record keeping requirements. See 29 Del. C. §10004(e)(2) and (3). Twenty-nine Del. C. §10004(e)(2) and (3) require a public body to give public notice and provide an agenda of its regular or special meetings. Applying plain meaning statutory rules of construction, this statute does not require or allow citizens to set the agenda. See, e.g. Chrysler Corp. V. State, Del. Supr., 457 A.2d 345 (1983) (where a statute is plain and unambiguous, a court should give statute effect with referring to traditional aids of statutory construction); Opinion of Justices, Del. Supr., 290 A.3d 645 (1972) (If statute is unambiguous, courts should not construe statute other than plain meaning of statute). While this office realizes certain public bodies have adopted informal written procedures to allow public input to the agenda by citizens, 29 Del. C. §10004(e)(2) and (3) does not require the same. The Town Council stated that although the Complainant disagreed with proposed corrections, deletions and adoption of the minutes, the Town Council is complying with the Act’s requirements. See 29 Del. C. §10004(f). That section provides that minutes “shall include a record of those members present in the record, by individual members . . . of each vote taken and action agreed upon.” The Town Council stated that the minutes attached to its answer the Complaint clearly demonstrate the statutory requirements for waiving the contents of minutes have been met by the Town Council. We agree.

Third, with regard to the Complaint’s allegation that the citizens are being denied the right to comment, and that public comment is restricted to items on the agenda, the Town Council asserts correctly that this is a legitimate exercise of a public body’s authority to determine the agenda. The Town Council asserts that it routinely honors good faith requests to place items of public concern on the agenda and that to the best of its knowledge, no request has been made by the complainant. If such a request is made, we fully encourage the Town Council as a public body to approve it consistent with the procedures permissible under the Freedom of Information Act. See 29 Del. C. §10001.

Fourth, with regard to the claim concerning the taping of public meetings, the Town Council correctly cites Attn’y Gen. Op. No. 95-IO23 in which we opined that, “[w]hile the public body is general required to tape ‘public hearings’, no such duty requires the taping of “public meetings.” This is a current statement of the law. Therefore, this allegation is unfounded.

Finally, the Complaint’s allegation concerns the manner with which public records have been maintained by the Town. The Town Council correctly asserted that there is no allegation in the Complaint that a request for public record has been denied. In addition, while this count in the Complaint appears to be an alleged violation of 29 Del. C. §10003(a), it lacks specificity and must be dismissed.

Very truly yours,

John K. Welch

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

JKW/jb

cc: Brian D. Shirey, Esquire