What happens if a town calls a special meeting on short notice without explaining why it couldn't wait seven days?

Official title

97-IB18: FOIA Complaint Against the Town of Bridgeville

Plain-English summary

A police chief complained that the Town of Bridgeville held a special meeting on June 30, 1997 without giving the seven days' notice FOIA normally requires. The AG found the town wasn't actually required to give seven days' notice here because the meeting qualified as a "special" meeting called less than seven days after the need for it arose, and FOIA only requires 24 hours' notice for those. But the town still fell short: FOIA also requires a special-meeting notice to explain why the normal seven-day notice couldn't be given, and Bridgeville's notice didn't include that explanation. The AG found this narrow violation, but ordered no remedy for it, because the substance of the meeting (an executive session about a police department personnel dispute that had already prompted a request for an AG investigation) had become moot once the Attorney General's office decided there was nothing to investigate. Separately, and more pointedly, the opinion flagged that the town used the same short-notice special meeting to also take up unrelated new business, an EDU allocation for a development project and a tax exemption clause in the town code, neither of which had anything to do with the personnel matter that justified the short notice in the first place. The AG directed the town to re-notice and formally ratify those unrelated items at a regular meeting with full seven-day notice.

Currency note

This opinion was issued in 1997. 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: Does a town have to give seven days' notice for every meeting?
A: Not under the law as it stood in 1997. FOIA distinguished a "special or rescheduled meeting," one scheduled less than seven days before it's held, which only required notice "as soon as reasonably possible" and no later than 24 hours ahead.

Q: What has to be in the notice of a special meeting?
A: At the time of this opinion, FOIA required the notice to explain why the normal seven-day notice couldn't be given. The AG found Bridgeville's notice failed that requirement because it offered no explanation at all.

Q: If a public body wins a FOIA complaint on a technicality but the outcome doesn't matter anymore, does anything happen?
A: Not necessarily. The AG found the notice violation here didn't need a remedy because the AG's office had already closed the underlying personnel investigation, making the executive-session issue moot.

Q: Can a public body use a short-notice special meeting to also handle unrelated town business?
A: The AG's view in this opinion was no, at least not without consequence. It directed Bridgeville to re-notice and ratify the unrelated items (a development EDU issue and a tax exemption clause) at a regular meeting, since nothing about those items justified skipping the normal seven-day notice.

Background and statutory framework

The complaint centered on a June 30, 1997 special meeting Bridgeville called after its police chief wrote a letter accusing the town of violating the "policeman's bill of rights" and asking the Attorney General to investigate. Applying 29 Del. C. Section 10004(e)(3)'s special-meeting notice rule and Section 10004(e)(1)'s narrow emergency-meeting exception, the AG rejected the town's argument that the meeting qualified as an emergency needing no notice at all, distinguishing it from Markowski v. City of Marlin, where an actual emergency meeting addressed a fire chief's suspension and a lawsuit already filed. Because the meeting was a "special" meeting under Section 10004(e)(3), notice was required within 24 hours, which the town met, but the notice also had to explain why seven days' notice wasn't possible, which it did not. The AG found this violated FOIA but, since the personnel matter discussed became moot when the Department of Justice closed its inquiry, ordered no remedy on that point. On the unrelated new business the town squeezed into the same meeting, the AG applied the same seven-day notice policy and directed re-notice and ratification, cautioning the town going forward that special or emergency meetings should be limited to the issues that actually justify deviating from the normal notice period.

Citations and references

Statutes:

• 29 Del. C. Section 10004(e)(1), narrow exception for emergency meetings necessary for public peace, health, or safety
• 29 Del. C. Section 10004(e)(2), general seven-day notice requirement for regular meetings
• 29 Del. C. Section 10004(e)(3), 24-hour notice rule for special or rescheduled meetings, with a required explanation for the shortened notice

Cases:

• Markowski v. City of Marlin, 940 S.W.2d 724 (Tex. App. 1997), on what qualifies as a genuine emergency meeting

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/09/02/97-ib18-foia-complaint-against-the-town-of-bridgeville/

Original opinion text

September 2, 1997

New Castle County – Civil Division

Mr. Handley J. Orr

Chief of Police

Bridgeville Police Department

302 Market Street

Bridgeville, DE 19933

RE: Freedom of Information Act Complaint

Against Town of Bridgeville

Dear Mr. Orr:

By letter dated July 15, 1997 (received by this Office on July

17, 1997), you alleged that the Town of Bridgeville (“the Town”)

had violated the Delaware Freedom of Information Act, 29 Del. C.

Sections 10001-10005 (“FOIA”), by not posting notice of a meeting

on June 30, 1997 at least seven days prior to the meeting.

By letter dated July 28, 1997, we asked the Town for its response

to your complaint. By letter dated August 7, 1997, the Town’s

attorney responded claiming that FOIA only required 24 hours’

notice for the meeting on June 30.

STATUTORY PROVISIONS

Section 10004(e)(2) of FOIA provides that “[a]ll 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.” 29 Del. C. Section 10004(e)(2).

For a “special or rescheduled meeting,” however, FOIA only

requires that the public body give notice “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 [seven days] could not be given.” 29 Del.

C. Section 10004(e)(3).

OPINION

By letter dated June 25, 1997, Chief Orr wrote to Charles R.

Singman, Town Commissioner, in response to a letter dated June

18, 1997 from Mr. Singman. Chief Orr alleged in his letter that

the Town had “violated the policeman’s bill of rights,” and

stated that he was going to “contact Attorney General M. Jane

Brady to conduct a proper investigation.” Chief Orr copied his

letter to, among others, Attorney General Brady.

According to the Town’s attorney, Chief Orr’s letter prompted the

Town to hold a special meeting on June 30, 1997. Notice of the

special meeting and the agenda were posted on June 27, 1997 at

approximately 3:45 p.m. at the Town Hall and the Bridgeville

Library. The agenda stated that the Town Commissioners would go

into executive session to discuss a “personnel” matter. The

minutes of the special meeting state that the Commissioners “held

an executive session on police department personnel and a letter

[Commissioner Singman] received June 25, 1997.” After the

executive session, the Commissioners voted to direct the Town

Attorney “to write a letter to the Attorney General of the State

of Delaware requesting any investigation the Chief of Police may

request of her.”

The only FOIA issue raised in your complaint is the timeliness of

the posting of the notice of the June 30, 1997 meeting. For

purposes of the notice provisions of FOIA, this was a “special”

meeting since it was held “less than 7 days after the scheduling

decision was made.” 29 Del. C. Section 10004(e)(3). The decision

to schedule the meeting was made after Mr. Singman received Chief

Orr’s letter dated June 25, 1997, and the meeting was held five

days later.

In its response to your complaint, the Town suggests that the

meeting on June 30, 1997 was an “emergency” meeting for which

notice is not required. See 29 Del. C. Section 10004(e)(1) (“This

subsection concerning notice of meetings shall not apply to any

emergency meeting which is necessary for the immediate

preservation of the public peace, health or safety.”). We do not

believe that the circumstances surrounding the dispute between

Mr. Singman and Chief Orr so threatened the public peace, health

or safety as to obviate the notice requirements of FOIA. Compare

Markowski v. City of Marlin, Tex. App., 940 S.W.2d 724 (1997)

(emergency meeting to meet with the city’s attorney to discuss

lawsuit filed by the fire chief who had been suspended without

pay the day before).

Section 10004(e)(3) requires that the notice of a special meeting

“shall include an explanation as to why the notice required by

paragraph (1) of this subsection [seven days’ notice] could not

be given.” The notice of the special meeting posted by the Town

on June 27, 1997 did not provide such an explanation.

In Att’y Gen. Op., 94-IO37 (July 26, 1994), a school district

posted notice of a special meeting to discuss student assignments

five days prior to the meeting. This Office found that the notice

failed “to provide any explanation whatsoever concerning the

reason why the normal seven day notice could not be given.” We

determined “that the District failed to comply with the

provisions of the Act concerning the required contents of a

public notice announcing a special meeting.” As a remedy, this

Office asked the school district to re-notice its special meeting

and “explain to the public its intention to formally ratify its

previous action.”

Accordingly, we find that the Town violated FOIA by failing to

explain in the notice of the June 30, 1997 special meeting why

seven-days’ notice could not be given. Under the circumstances,

however, we do not believe that any remedial action is necessary

in order to accomplish the purposes of FOIA.

The principal purpose of the June 30, 1997 special meeting was to

meet in executive session to discuss the dispute with the Police

Chief. As a result of that meeting, the Town Attorney wrote a

letter dated July 3, 1997 to the Attorney General stating: “I

have been asked by the Commissioners of Bridgeville to inform you

that they met on Monday morning in Executive Session, reviewed

[Chief Orr’s June 25] letter, and have directed me to write to

you confirming that they likewise seek to have an investigation

conducted by your office.”

After an exchange of correspondence seeking further factual

information, Eugene M. Hall, the Director of the Fraud and

Consumer Protection Division of the Delaware Department of

Justice, wrote a letter dated July 24, 1997 to the Town’s

attorney. Mr. Hall observed that although the Attorney General

had been copied on Chief Orr’s June 25 letter, “Chief Orr never

sent a letter of complaint to the Attorney General. Based upon

your letter, there is apparently nothing for the Department of

Justice to investigate, and the Department of Justice is closing

its interest in this matter. Hopefully, the underlying conflict

has been or will be resolved.”

Under these circumstances, it would serve not serve any purpose

to require the Town to re-notice its special meeting to consider

whether to ask for an investigation by the Attorney General’s

Office because this Office has already decided not to

investigate. The FOIA issue, as it relates to the notice of the

executive session, is now moot. The Town is cautioned that in the

future there must be an appropriate explanation in the notice of

any special or rescheduled meeting explaining why the normal

seven-days’ notice could not be given. See, e.g., Att’y. Gen. Op.

97-IB02 (Feb. 12, 1997) (“it is our opinion that it is a

sufficient explanation to state that an earlier notice was not

possible because legal opinions had not been obtained from the

City Solicitor and the Attorney General prior to the posting of

the notice”).

More troubling is the fact that at the special meeting on June

30, 1997 the Town discussed several items of new business.

Specifically, the Commissioners discussed: (1) the EDU’s for

Gateway Plaza; and (2) a clause in the Town Code pertaining to a

tax exemption for new business. Although we can appreciate that

the Town was trying to use the time already scheduled for the

police personnel matter to take up other business, there does not

appear to be any reason why these new items of business could not

have been discussed at a regularly-scheduled meeting with the

normal seven-days’ notice. We believe that it is the better

practice, consistent with the purposes of FOIA, to limit the

discussion at an emergency or special meeting of a public body

solely to those issues which justify deviating from the seven-day

notice rule.

In order to remediate this violation of FOIA, we direct the Town

to re-notice for a regularly scheduled meeting the non-personnel

matters that were discussed on June 30, 1997 to allow the public

the opportunity to have input on those matters and to ratify the

previous discussion of those matters by the Town Commissioners.

Conclusion

For the foregoing reasons, we determine that the Town violated

the notice requirements of FOIA in posting the notice of the

special meeting on June 30, 1997 three days before the meeting

without explaining in the notice the reason why it could not have

been posted sooner. Since the action taken by the Town

Commissioners during the executive session portion of that

meeting is now moot, no remediation is necessary. We direct the

Town, however, to re-notice and ratify the non-personnel matters

discussed at the meeting on June 30, 1997.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

Dennis L. Schrader, Esquire

Elizabeth A. Bacon, Opinion Coordinator