Can a town council reopen a meeting after adjourning it to take a vote, or informally poll members by phone on a property deal?

Official title

96-IB17: FOIA-Town of Millsboro

Plain-English summary

An anonymous complaint accused the Millsboro Town Council of violating FOIA in the run-up to its purchase of the old post office building to house the police department. The AG's investigation traced the paper trail: the idea first surfaced publicly at a February meeting, a feasibility committee was appointed, and at the March 4, 1996 meeting the council discussed inspecting the building and then adjourned at 8:00 p.m. Then, according to the town's own supplemental minutes, the council reconvened at 8:50 p.m., after the public had reasonably concluded the meeting was over and left, and voted to authorize an opening offer and a bidding ceiling for the property.

The Attorney General found that reconvening after the public had left to take that vote violated the open-meetings law, though it noted the council could have properly discussed the same bid strategy in a lawfully closed executive session under the Act's exemption for property-acquisition negotiations. Separately, council members were later polled individually by telephone about their views on a specific purchase price; the AG found that was not a violation, because no quorum ever gathered together to discuss or decide anything, so it wasn't a "meeting" under the Act at all. In the end, the purchase itself went before the council again for full public discussion and a vote at the next regular meeting, which the AG treated as a genuine, fresh reconsideration that cured the earlier violation, so no further remedy was needed.

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 a town council reopen a meeting to take a vote after it has already adjourned and the public has left?
A: Not under this opinion. The AG found reconvening after adjournment, once the public had reasonably concluded the meeting was over and departed, to vote on a bid strategy violated the Act, even though the same discussion could have happened lawfully in a properly noticed executive session.

Q: Is calling council members individually by phone to ask their opinion on a deal the same as holding an illegal secret meeting?
A: No, according to this opinion. An informal poll of individual members' positions, without any quorum gathering together to discuss or decide the matter, does not meet the Act's definition of a "meeting."

Q: Can a later public vote fix an earlier open-meetings violation?
A: Yes, on these facts. The opinion found that placing the property purchase before the full council again for genuine public discussion and a vote at the next regular meeting cured the earlier reconvening violation, so no additional remedy was ordered.

Background and statutory framework

The complaint concerned the council's handling of a decision to purchase the old post office building, tracked through minutes of meetings on February 5, March 4, and April 1, 1996. The AG found the council violated 29 Del. C. § 10004(e)(2) by reconvening at 8:50 p.m. after the March 4 meeting had adjourned at 8:00 p.m. and voting to authorize a purchase offer and bid ceiling once the public had left, while noting that the same bid-strategy discussion could have been properly held in a closed executive session for real property negotiations under 29 Del. C. § 10004(b)(2). Applying the Act's definition of "meeting" in 29 Del. C. § 10002(c) (a quorum gathering to discuss or act on public business) and citing Tryon v. Brandywine School District, the opinion found a later individual telephone poll of members' views on a purchase price was not a violation because no quorum ever gathered. Citing Beebe v. Certificate of Need Appeals Board and Mark J. Levy v. Cape Henlopen School District, the AG found the violation was cured because the purchase received full public discussion and a fresh, de novo vote at the council's next regular meeting.

Citations and references

Statutes:

• 29 Del. C. § 10002(c), definition of "meeting" applied in this opinion
• 29 Del. C. § 10004(b), permissible purposes for a closed executive session
• 29 Del. C. § 10004(b)(2), executive session exemption for real property acquisition negotiations
• 29 Del. C. § 10004(e)(2), public notice and agenda requirements for meetings
• 29 Del. C. § 10005(e), Attorney General's investigation and enforcement authority

Cases:

• Tryon v. Brandywine School District (Del. Ch. Apr. 20, 1990), on informal polling not constituting a "meeting"
• Beebe v. Certificate of Need Appeals Board (Del. Super. June 30, 1995), on curing a de minimis violation through later full public discussion
• Mark J. Levy v. Cape Henlopen School District (Del. Ch. Oct. 1, 1990), on de novo reconsideration curing a prior violation

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/05/30/96-ib17-foia-town-of-millsboro/

Original opinion text

New Castle County – – Civil Division

May 30, 1996

Del. Op. Atty. Gen. 96-IB17 (Del.A.G.), 1996 WL 345778

( finding (a) a violation of FOIA where a town council reconvened after the scheduled public meeting had been adjourned, which violation was cured by a subsequent de novo consideration at a public meeting; and (b) that town council did not violate FIOA by engaging in straw polling of members to determine how members might vote on a proposed purchase of real property )

Ms. Faye L. Lingo

Town Manager

Town of Millsboro

322 Wilson Highway

Millsboro, DE 19966

RE: Freedom of Information Complaint

Dated March 21, 1996 – Town of Millsboro

Dear Ms. Lingo:

This is the Attorney General’s decision on the above reference anonymous complaint filed pursuant to 29 Del. C. § 10005 (e).

A complaint was forwarded to you alleging a Freedom of Information Act (FOIA) violation in the actions of Town Council preceding the purchase of the old post office to house the police department. You responded by letter dated April 4, 1996 with attachments including, a property assessment showing the value to be $135,800, the agenda and minutes of the February 5, 1996 Town Council meeting, and the agenda and minutes of the Council meeting of March 4, 1995. Pursuant to our request you supplemented the record on April 26, 1996 with the proposed minutes for the meeting held April 1, 1996.

Faye L. Lingo

May 30, 1996

Page Two

We have reviewed the submission as required under 29 Del. C. § 10005(e), and for the reasons stated below, we find the Board violated FOIA in connection with the gathering following the March 4, 1996 meeting. We find, however, that no remedial action’s warranted because the violation was cured at a later meeting.

The complainant alleged that a decision to purchase the old post office building we made without having had a town meeting. The topic first appeared in the minutes of the February 4, 1996 posting of the agenda at the Town Hall in accord with 29 Del. C. § 10004(e)(2). During the police report the cramped quarters were discussed and the post office building was suggested as a possible solution. A committee was appointed to do a feasibility study. (minutes p.3) At the next meeting on March 4, 1996 the minutes at p.2 indicate that the committee had not met but the suggestion was made that the entire Council should inspect the building and consider the cost of an addition to the existing Police Department. The meeting adjourned at 8:00 p.m.

The violation of FOIA occurred when the members apparently realized they needed a contingency plan. According to the supplement to the minutes, Council reconvened at 8:50 p.m. At this meeting, which also adjourned at 8:50 p.m., the members voted to offer $80,000 and authorize a bid up to $125,000 at the auction. By this time the public would have left correctly concluding that the meeting had adjourned. Parenthetically, had the members voted during the regular meeting to go into executive session under 29 Del. C. § 10004(b), discussion of the bid limit

Faye L. Lingo

May 30, 1996

Page Three

would have been a proper purpose. 29 Del. C. § 10004(b)(2). Confidentially of matters relating to acquisition of property is necessary in the negotiation stage to conserve public funds.

Subsequently, members were polled by telephone to get their individual positions on an offer of $105,000. There was no public meeting of a quorum of Council members and no violation of FOIA. Under FOIA a meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussion or taking action on public business. 29 Del. C. §10002(c). There was no gathering and no action taken. A informal poll to determine how members might vote on a proposal does not constitute a violation of FOIA. Tryon v. Brandywine School District, et al., Del. Ch., C. A. No. 11161, Hartnett, V.C. (April 20, 1990).

The purchase of the old post office was subject to public discussion and vote at the next regularly scheduled meeting on April 1, 1996 (proposed minutes p.1). Thus, the violation of FOIA was cured. (Attorney General Opinion No. 96-IB12 citing, Beebe v. Certificate of Need Appeals Board, Del. Super., C. A. No. 94A-01004, Terry, J., slip op. at 4-6 (June 30, 1995) (declining to invalidate action of public body based on violation of FOIA open meeting requirements where violation was de minimus since full public discussion occurred despite violation). The settlement on the acquisition occurred after the public meeting. In addition, pursuant to case law, a new de novo consideration of the agenda item was given by the members at the next meeting with a

proper vote. See Mark J. Levy v. Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler. V.C. (October 1, 1990).

Faye L. Lingo

May 30, 1996

Page Four

After reviewing the documents submitted it is clear that any violation was cured and no remedial action is necessary. Please feel free to contact our office if there are any other questions.

Very truly yours,

Sherry V. Hoffman

Deputy Attorney General