Can a city ethics board go into closed session to deliberate and reach a consensus on ethics charges, calling it a legal-advice session?

Official title

98-IB01: FOIA Complaint-City of Newark

Plain-English summary

A resident who brought ethics charges against a Newark city councilman complained about two things: that the city took too long producing a transcript of the Board of Ethics' executive session, and that the Board improperly closed that session to the public in the first place. The AG cleared the city on the transcript delay, since FOIA doesn't require tape recordings or transcripts at all, only written minutes, and the city had voluntarily gone further by preparing a full verbatim transcript, which reasonably took extra time. The executive session itself was a different story. The city argued the Board needed to meet privately with its lawyer to work through unresolved legal questions in the Ethics Code. But reviewing the seventeen-page transcript, the AG found the closed session wasn't really a legal strategy meeting; it was the Board deliberating the actual merits of the ethics charges and reaching a consensus on how each member would vote, with the city solicitor at one point suggesting they adjourn if they weren't ready to vote. FOIA's exception for legal-advice sessions is narrow and doesn't cover using a lawyer's presence as cover for closed-door deliberation on the substance of a case. Because the closed deliberation deprived the public of the chance to watch a consequential decision about a sitting councilman's conduct, the AG found this was not a mere technicality, and ordered the city to hold a new hearing on the ethics charges with the actual deliberation done in public.

Currency note

This opinion was issued in 1998. 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 FOIA require a public body to tape-record its meetings or provide a transcript?
A: No, according to this opinion. FOIA only required written minutes recording attendance and votes; a body that chooses to prepare a fuller transcript isn't held to a stricter deadline just because it took on that extra task.

Q: Can a public body go into executive session with its lawyer present and then deliberate the merits of a case?
A: Not under this opinion. The AG found that having counsel in the room doesn't convert general deliberation on the substance of a matter into a legitimate legal-strategy session; the exception is limited to actual legal advice about pending or potential litigation.

Q: If a board reaches a private consensus in executive session and then votes publicly afterward, does that cure the FOIA problem?
A: No. The opinion found that a public vote following closed-door deliberation on the merits doesn't fix the violation, because the deliberation itself, not just the final vote, is supposed to happen in public.

Q: What remedy did the AG order for the improper executive session?
A: The AG directed the city to hold a new public hearing on the ethics charges within sixty days, with any future executive session limited strictly to a purpose actually authorized by FOIA.

Background and statutory framework

The complaint concerned a June 19, 1997 Board of Ethics hearing on ethics charges against a Newark councilman, where the Board voted to enter executive session "with the assistance of legal counsel" and remained closed for over an hour. Applying 29 Del. C. Section 10004(b)(4)'s narrow exception for legal-advice and litigation-strategy sessions, and citing Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board for the principle that this exception must be construed narrowly following the General Assembly's 1985 amendment to curb potential abuse, the AG found the Board's session went well beyond legal advice into general deliberation on the ethics charges themselves, ending in a consensus on how each member would vote. Relying on Levy v. Board of Education of Cape Henlopen School District for the rule that a later public vote does not cure deliberation conducted improperly in private, and on Ianni v. Department of Elections of New Castle County for distinguishing violations of "substantial public rights" from mere technicalities, the AG ordered the city to hold a new hearing with public deliberation. On the separate transcript-timing complaint, the AG applied Section 10004(f)'s minutes requirement, noting FOIA imposes no tape-recording or transcript obligation, and found no violation. The opinion also noted Section 10004(h) as an example of the General Assembly's own mechanism for exempting specific boards from open-deliberation requirements by statute, rather than through an expansive reading of the legal-advice exception.

Citations and references

Statutes:

• 29 Del. C. Section 10004(b)(4), narrow exception for legal-advice and litigation-strategy executive sessions
• 29 Del. C. Section 10004(f), minutes requirement, with no tape-recording or transcript obligation
• 29 Del. C. Section 10004(h), statutory examples of boards specifically exempted from open-deliberation requirements

Cases:

• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch. May 19, 1994), on the narrow scope of the legal-advice exception
• Levy v. Board of Education of Cape Henlopen School District, 1990 WL 154147 (Del. Ch. Oct. 1, 1990), on a later public vote not curing improper private deliberation
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), on the "substantial public rights" standard

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/01/21/98-ib01-foia-complaint-city-of-newark/

Original opinion text

January 21, 1998

New Castle County – Civil Division

Ms. Shirley M. Tarrant

37 Old Oak Road

Newark, DE 19711

RE: Freedom of Information Act Complaint

Against City of Newark

Dear Ms. Tarrant:

This letter is the Attorney General’s written determination in

response to your complaint alleging that the City of Newark (the

“City”) violated the Freedom of Information Act, 29 Del. C.

Sections 10001-10005 (“FOIA”).

Your letter of complaint dated December 12, 1997 was received by

this Office on December 15, 1997. By letter dated December 16,

1997, we asked the City to respond to your allegations within ten

days. By letter dated December 24, 1997, we received the City’s

response.

Initially, this Office lacks jurisdiction over, and expresses no

opinion regarding, the merits of your alleged ethical violations

by a member of the City Council. Our focus is strictly on your

claim that, in connection with a hearing on those alleged ethical

violations, the City’s Board of Ethics violated FOIA.

In your letter of complaint you identify two FOIA violations:

first, the City did not timely provide you with a transcript of

an executive session held on June 19, 1997; and second, the

City’s Board of Ethics did not go into executive session on June

19, 1997 for a purpose authorized by statute. The City denies

that it violated FOIA in either regard.

FOIA does not require a public body to tape record its meetings

or executive sessions, or have a stenographer present to

transcribe the proceedings. The statute only requires that

“[e]ach 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.” 29 Del. C. Section 10004(f). This

Office has previously determined that the duty to maintain

written minutes of public meetings does not require a public body

to tape record the meeting. See Att’y Gen. Op. 94-IO23 (June 21,

1994).

Since FOIA does not require a public body to tape record its

meetings, FOIA cannot require that public body to prepare a

verbatim transcript of any meeting. In this case, the City

elected to prepare a verbatim transcript of its June 19, 1997

meeting, including the executive session. Public bodies are

required by law to prepare minutes of their meetings in a timely

fashion, consistent with the purposes of FOIA. The City prepared

a verbatim transcript in lieu of minutes at your request, which

required a longer time. Any reasonable delay encountered thereby

would not give rise to a FOIA violation.

The second issue is whether the City’s Board of Ethics went into

executive session for a purpose authorized by statute. Section

10004(b)(4) of FOIA permits a public body to go into executive

session for: “Strategy sessions, including those involving legal

advice or opinion from an attorney-at-law, with respect to

collective bargaining or pending or potential litigation, but

only where an open meeting would have an adverse effect on the

bargaining or litigation position of the public body; . . . .”

The minutes of the meeting of the Board of Ethics on June 19,

1997 show that at 5:32 p.m. the Board voted unanimously to go

“into executive session with the assistance of legal counsel.”

The Board came out of executive session at 6:47 p.m.,

approximately one hour and fifteen minutes later.

The City’s response to the alleged impropriety of the executive

session is as follows:

The motion to move into such a session was apparently driven by the fact that the Board of Ethics was confronted by various legal arguments during the hearing and was being called upon to interpret and rule upon heretofore unconstrued Ethics Code provisions. The request to meet with legal counsel was entirely in order. Since Ms. Tarrant has provided you with a verbatim transcript of the executive session discussion, you are of course free to review it and to assess the interaction between the Board and City staff.

We have reviewed the seventeen-page transcript of the executive session on June 19, 1997. Although there is some discussion of legal issues between members of the Board and the City Solicitor, most of the discussion is about the merits of the ethics charges. There is no discussion with counsel of pending or potential litigation. The only litigation discussed was litigation that occurred in 1981 involving one of the City Council members now charged with ethical violations.

Rather than a legal strategy session with counsel, the executive session was clearly to allow the Board to deliberate the merits of the ethical charges considered in the public hearing. Indeed, at one point the City Solicitor remarked: “If you’re not ready, if you’re not comfortable taking a vote on each and every one of these questions, then I think we ought to adjourn and continue our deliberations another day.” (Emphasis added.) The Board continued deliberating, and by the end of the executive session the Board members had reached a consensus on how they would vote on each of the charges after the Board came out of executive session.

In Chemical Industry Council of Delaware, Inc. v. State Coastal

Zone Industrial Control Board, Del. Ch., C.A. No. 1216-K, 1994 WL

274295 (May 19, 1994) (Jacobs, V.C.), the Chancery Court observed

that the “legal advice” exception to the open meeting law must be

given “[a] narrow, limited interpretation” consistent “with the

legislative history of the act, which the General Assembly had

amended in 1985 to narrow its scope to prevent potential abuse.”

1994 WL 274295, at p. 11. In CIC, the State Coastal Zone

Industrial Control Board met in private with counsel to discuss

proposed regulations. Even if the Board’s regulations were likely

to be the subject of litigation, the “wholesale use of executive

sessions . . . to debate, discuss, and share views concerning the

evolving revisions of the Regulations . . . went far beyond

strategizing with its counsel about potential litigation.” Id.

Public bodies are not permitted to evade the requirements of the

open meeting law by nominally invoking one of the statutory

exceptions for executive session. See Att’y Gen. Op., 96-IB32

(Oct. 10, 1996) (“consensus votes in executive session are

prohibited”) (citing Levy v. Board of Education of Cape Henlopen

School District, Del. Ch., C.A. No. 1447 (Oct. 1, 1990)

(Chandler, V.C.)). The whole executive session on June 19, 1997

was to deliberate the merits, which in turn led to a consensus

vote.

The discussion at the executive session extended well beyond

legal advice regarding pending or potential litigation. A

legitimate argument may be made that the Board of Ethics should

be entitled to deliberate in private because of the sensitive

nature of the subjects before it. If the Board, however, believes

that the requirements of the open meeting law “unreasonably

infringe[s] upon their deliberative processes, such grievances

must be directed to the General Assembly which has made the

policy decision to enact the sunshine law in its present form.”

Levy, 1990 WL 154147, at p. 6. Indeed, the General Assembly has

excepted, by statute, certain public bodies from the requirement

of the open meeting law to deliberate in public. See, e.g., 29

Del. C. Section 10004(h); House Bill 205 (effective July 1997)

(Industrial Accident Board, Human Relations Commission, Tax

Appeals Board).

That leaves us with the issue of remedy. You have asked our

Office to invalidate the decision made by the Board of Ethics in

violation of FOIA. The City responds that holding the hearing

again would not change the result. “The Board of Ethics has

rejected Ms. Tarrant’s claims of ethical violations by Councilman

Godwin. That rejection has been accepted by the City Council. The

Council has further elected not to rescind that acceptance based

on any alleged impropriety by its staff.”

We do not believe, however, that the City committed a mere

“technical” violation of FOIA for which no remedy might be

necessary. We find that the Board’s closed deliberations affected

“substantial public rights” by depriving “members of the public

with an intense interest in the subject of the Board’s action” an

opportunity to view a critical step in the process of

adjudicating ethics charges against a City councilman. Ianni v.

Department of Elections of New Castle County, Del. Ch., 1986 WL

9610 (Aug. 29, 1986) (Allen, C.).

Even though the City Council accepted the Board of Ethics’

recommendation to dismiss the ethical charges, that acceptance

does not cure the FOIA violation. In Levy, Vice Chancellor

Chandler rejected the school district’s argument that a later

public vote validated any action taken at a meeting in violation

of FOIA. The court, however, declined to enjoin the

implementation of the student reassignment plan, which had

already been fully implemented, because of the toll on the

students involved.

In this case, no similar hardship would be involved if the Board

of Ethics were to hold a new hearing and this time deliberate in

public as required by law. We direct the Board to do so within

sixty days of the date of this letter, and to report back to us

in writing to confirm that this remedial action has been taken.

Conclusion

Based on your complaint, the City’s response, and the documents

provided to us, we determine that the City did not violate the

public records provisions of FOIA. Further, we determine that the

City’s Board of Ethics went into executive session on June 19,

1997 for a purpose not authorized by statute. To remedy that FOIA

violation, we direct the City to notice another hearing on the

ethics charges filed against City Councilman Godwin which shall

be open to the public. Further, if the Board of Ethics votes to

go into executive session at any time during that hearing, it

must be for a purpose authorized by FOIA, and any discussion

during executive session shall be limited to that authorized

purpose.

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, Esquire

Chief Deputy Attorney General

Roger A. Aiken, Esquire

Chrystyna Lafferty

Opinion Coordinator