Can a Delaware city add the name of a Board nominee to a meeting agenda only a few days before the vote, without explaining the late amendment?

Plain-English summary

Rehoboth Beach posted an August 21, 2020 meeting agenda seven days in advance. It listed a nomination and vote to fill a Board of Adjustment vacancy but did not name the nominee. Petitioners Marie Hatkevich and Harvey Shulman argued that the Mayor already knew whom he planned to nominate and that the omission denied the public a meaningful opportunity to comment. The City argued that its original agenda was sufficient and said it later added a link to the nominee's application showing his name.

The AG found a violation in the amendment. The nominee's name was added less than seven days before the meeting, and the amended agenda gave no reason for that delay. The City said it posted the update on August 18; the petitioners said August 20 or later. The AG did not resolve the precise date because either date fell within seven days. Footnote 10 makes clear that the timing rule applies to changing an existing agenda item's description as well as to adding a new item. The opinion did not decide whether the original, unnamed nomination item was adequate by itself.

The petitioners sought invalidation of the vote. The AG said it could recommend appropriate remediation but could not impose injunctive or punitive relief. It found no feasible recommended remediation within its authority in these circumstances. It quoted a court decision cautioning that invalidation is a serious sanction requiring attention to substantial public rights and other legitimate public interests.

Currency note

This opinion was issued in 2020. Check current Delaware meeting-notice law and later decisions before relying on its treatment of agenda amendments or remedies.

Common questions

Did the AG require the nominee's name on the original agenda?

The petitioners argued for that result, and the City disputed it. The AG found a violation because the City later amended the agenda to add the name without stating a reason for the delay. It did not separately decide whether the original agenda was adequate.

Does the amendment rule apply when an existing item gets more detail?

Yes, according to footnote 10. The AG applied FOIA's agenda-amendment time limit to adding information to an existing item, even though prior opinions typically concerned new items.

Did the exact amendment date matter?

No. The City said August 18; the petitioners alleged August 20 at the earliest. Both were less than seven days before the August 21 meeting, and the copy supplied to the AG did not identify its posting date. The decisive missing item was a reason for the delayed addition.

What reason would have justified the late change?

The opinion does not evaluate a proposed reason because the amended agenda gave none. It quotes earlier AG guidance that the exception concerns items arising suddenly that cannot be deferred, but it does not decide how that rule would apply to a different nomination record.

Did the AG invalidate the appointment?

No. It found no feasible recommended remediation within its authority. Footnote 4 says authority to issue injunctive relief for a FOIA violation belongs to the courts, and the discussion quotes the court's caution about invalidation.

Background and statutory framework

The opinion applies 29 Del. C. § 10004(e): notice and agenda for a regular meeting at least seven days beforehand, with an amendment possible up to six hours before the meeting if the agenda briefly gives the reason for delay. It also cites 29 Del. C. § 10005(e) for the AG's written violation determination and § 10005(d) for the limits on remedies. Its conclusion is specific to the unexplained amendment of an existing nomination item.

Citations and references

• 29 Del. C. § 10001
• 29 Del. C. § 10004(e)
• 29 Del. C. § 10005(d), (e)
• Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Del. Op. Att’y Gen. 98-IB08, 1998 WL 648718 (Sept. 1, 1998)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/10/28/20-ib26-10-28-2020-foia-opinion-letter-to-ms-marie-hatkevich-and-mr-harvey-shulman-re-foia-complaint-concerning-the-city-of-rehoboth-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/11/Attorney-General-Opinion-No.-20-IB26.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 20-IB26

October 28, 2020

VIA EMAIL

Marie Hatkevich
[email protected]

Harvey Shulman
[email protected]

RE: Two FOIA Petitions Regarding the City of Rehoboth Beach

Dear Ms. Hatkevich and Mr. Shulman:

We write in response to your two separate communications alleging that the City of Rehoboth Beach violated the open meeting requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). Ms. Hatkevich submitted the first petition asserting that the August 21, 2020 City Commissioners’ meeting agenda violated FOIA (“Hatkevich Petition”) and Mr. Shulman and Ms. Hatkevich submitted a second consolidated petition (“Hatkevich and Shulman Petition”) alleging the same (collectively, “Petitions”). We treat each communication 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 and issue this combined opinion to address both Petitions.

For the reasons set forth below, we find that the City violated FOIA by improperly amending its Board of Commissioners meeting agenda for the August 21, 2020 meeting.

BACKGROUND

On August 14, 2020, the City posted an agenda for its August 21, 2020 Board of Commissioners meeting with the following item: “nomination of individual to fill remaining two year term on Rehoboth Beach Board of Adjustment vacated by Linda Kauffman and corresponding vote.”1 You allege that the Mayor selected the individual for nomination and disclosed the identity of the individual to certain citizens, but the agenda did not include the name of this individual and the City did not publicly announce the name of the individual prior to the meeting by another means.

The Hatkevich Petition argues that denying Rehoboth’s citizens the opportunity to know the name and background of this nominee, to be voted on by the Board of Commissioners, denies Rehoboth citizens’ right to know and have input in the selection of an official who will hold a two- year appointment. The Hatkevich and Shulman Petition also alleges that this agenda item violated FOIA, noting that as early as August 14, 2020, the Mayor knew who he intended to nominate, yet the meeting agenda did not disclose the name of the proposed appointee. You argue that the Ianni v. Dep’t of Elections of New Castle Cnty.2 case applies to these circumstances, and the intentional withholding of the appointee’s name, combined with the fact that this agenda item was inexplicably vague compared to the rest of the detailed agenda, failed to meet the spirit or the letter of FOIA law by drawing public attention to the individual to be nominated to this important board. Further, the Hatkevich and Shulman Petition alleges that no other FOIA exemption precludes the release of the appointee’s name, as the FOIA exemption for personnel matters is inapplicable to a board appointee. Overall, you assert that the “public’s right to contact the [City] with feedback on any proposed [Board of Adjustment] member is meaningless unless the public knows – in the meeting agenda published 7 days in advance – SPECIFICALLY WHO is being nominated and voted on.”3 The Hatkevich and Shulman Petition requested interim injunctive relief or a written warning to the City before the meeting4 and asked this Office to find that the City violated FOIA by failing to include the name of the nominee in the agenda.

The City’s counsel replied on the City’s behalf on October 8, 2020 (“Response”), arguing that its original agenda was sufficient as it gave a general statement of the subject to be discussed and alerted any member of the public with an intense interest in the subject that this matter would be discussed. The City’s counsel distinguished Attorney General Opinion 98-IB08, arguing in that case the agenda was improper--not for failing to include the nominee’s name, but for failing to include notice that a vote would occur. The Response also asserts that although the City did not initially include the nominee’s name in the agenda when it was originally posted, the City did, in fact, “supplement the agenda” with the the name of the nominee.5 Specifically, the City claims

1
Hatkevich Petition.
2
1986 WL 9610 (Del. Ch. Aug. 29, 1986).
3
Hatkevich and Shulman Petition.
4
The authority to issue injunctive relief for a FOIA violation is confined to the courts. 29 Del. C. § 10005.
5
Response.

2 the agenda item was supplemented on August 18, 2020 with a link to the nominee’s application showing his name.

DISCUSSION

As stated in 29 Del. C. § 10001, FOIA allows citizens to observe the performance of public officials and to monitor the decisions of those officials. “‘An agenda serves the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, so that members of the public can decide whether to attend the meeting and voice their ideas or concerns.”’6 FOIA requires a public body to post a notice and agenda at least seven days prior to a regular meeting but permits a public body to amend an agenda up to six hours prior to a meeting, provided that the reason for the delay is set forth briefly in the agenda.7 However, “this exception does not authorize a public body to amend the agenda prior to a meeting for any reason, but rather applies ‘to add items that come up suddenly and cannot be deferred to a later meeting.”’8

In this case, the City amended the agenda to include the name of the nominee less than seven days prior to the meeting.9 The Response included a copy of the amended agenda with the nominee’s name in a link to the nominee’s application under the agenda item; the date of posting for this amended agenda is not indicated. This amended agenda does not provide a reason for the delay in adding this information.10 As such, we find that the City violated FOIA in this regard.

The Petitions suggest that the appropriate remedy here is invalidation of the vote to nominate this Board member. In determining remediation for an improperly-noticed nomination and vote to fill a vacant Council seat, this Office has previously concluded that “the issue of electing public officials is such an important fundamental public right that violations which might be excusable under another set of circumstances are not excusable in this context.”11 Pursuant to 29 Del. C. § 10005, this Office is charged with making a written determination of “whether a

6
Del. Op. Att'y Gen. 05-IB11, 2005 WL 1209241, at 2 (Apr. 11, 2005) (citation omitted).
7
29 Del. C. § 10004(e).
8
Del. Op. Att'y Gen. 05-IB15, 2005 WL 2334344, at 2 (Jun. 20, 2005) (citation omitted).
9
The City asserts that the updated agenda was posted on August 18, 2020; the petitioners assert that this date is incorrect, alleging the agenda was updated on August 20, 2020 at the earliest. See Response; Email dated Oct. 13, 2020 from Ms. Hatkevich. 10 Although previous opinions typically involve the addition of new items to the agenda, this opinion involves the addition of information to an agenda item. We interpret FOIA’s time limitation on amending agendas to be also applicable to these circumstances where the description of an agenda item is amended. 11 Del. Op. Att’y Gen. 98-IB08, 1998 WL 648718, at *3 (Sept. 1, 1998).

3
[FOIA] violation . . . has occurred or is about to occur.”12 Although remediation may be recommended when appropriate, this Office is not vested with the authority to impose injunctive relief or punitive measures for FOIA violations.13 In Ianni v. Dep’t of Elections of New Castle Cnty., the court cautions “the remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests.”14 A court may also consider the impact of “any adverse consequences upon innocent parties.”15 Thus, although this improper notice issued for a nomination of a Board member may affect substantial public rights, we do not determine any recommended remediation within our Office’s authority is feasible at this time.

CONCLUSION

Thus, it is our determination that the City violated FOIA by improperly amending its agenda. We do not determine any recommended remediation within our Office’s authority is feasible at this time.

Very truly yours,

/s/ Dorey L. Cole
______
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein
_______
Aaron R. Goldstein
State Solicitor

cc: Glenn C. Mandalas, Attorney for the City of Rehoboth Beach

12
29 Del. C. § 10005(e).
13
29 Del. C. § 10005(d).
14
1986 WL 9610, at 7.
15
Chemical Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 15 (Del. Ch. May 19, 1994) (finding the appropriate remedy is to void the regulations, in part because they are not “presently enforced” nor has the Board shown that a brief period pending a remedial rulemaking process will harm the public).
4