If a city council secretly meets with a developer about annexing land, can it fix the violation before making a final decision?

Official title

02-IB26: FOIA Complaint Against City of New Castle

Plain-English summary

A resident complained that three New Castle City Council members, a quorum, met with representatives of Richards Apex Corporation about the company's development and annexation plans for the old Amoco/Duraco site, without any public notice. The city admitted the meeting happened, admitted it involved public business, and admitted it should have been noticed under FOIA. Rather than dispute the violation, the city voluntarily scheduled a new, properly noticed public meeting where the same presentation would be given again, substantially as it had been to the council members privately. The AG found this fixed the problem, since it brought the public into the annexation discussion before the council reached any final decision, and praised the city and its attorney for the voluntary fix, while still cautioning the city to follow the open meeting law strictly going forward.

Currency note

This opinion was issued in 2002. 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: If council members meet privately with a developer about annexing property, is that a "meeting" that needs public notice?
A: Yes, according to this opinion. The city itself admitted that a quorum of council members meeting with a developer's representatives to discuss annexation and development plans was public business requiring notice, which it had failed to give.

Q: Can a public body fix an unnoticed meeting by just holding a new meeting later on the same topic?
A: Yes, in this case. The AG found that redoing the presentation at a properly noticed public meeting, before the council reached any final decision on annexation, adequately remediated the violation.

Q: Does voluntarily fixing a violation avoid a formal finding that FOIA was violated?
A: No, based on this opinion. The AG still found that the original October 1 meeting violated FOIA's notice requirements, even while commending the city for its voluntary, prompt fix and declining to impose any further remedy.

Background and statutory framework

The complaint concerned an October 1, 2002 meeting between a quorum of New Castle City Council members and representatives of a company seeking to develop and annex property on Route 9, held without the public notice FOIA's open meeting requirements demand for discussions of public business. The city conceded the violation and remediated it by scheduling a new public meeting on October 28, 2002, noticed at least seven days in advance, at which the same development presentation was repeated for the public before any council decision on annexation was reached.

Citations and references

No statute sections or case citations appear in the original text of this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/10/28/02-ib26-foia-complaint-against-city-of-new-castle/
• Original PDF: not linked from landing page

Original opinion text

October 28, 2002

Civil Division-Kent County (739-7641)

Mr. Curt Scully

P.O. Box 5

New Castle, DE 19720

Re: Freedom of Information Act Complaint Against City of New Castle

Dear Mr. Scully:

Our Office received your Freedom of Information Act ("FOIA") complaint on October 9, 2002 alleging that the City of New Castle ("the City") violated FOIA by meeting on October 1, 2002 to discuss public business without notice to the public.

By letter dated October 10, 2002, we asked the City to respond to your complaint within ten days. We received the Town's response on October 21, 2002. The City admits that a quorum of three members of the City Council met on October 1, 2002 with "representatives from Richards Apex Corporation, the owner of the old Amoco/Duraco site located on State Route 9. The representatives of Richards Apex made a presentation regarding their development plans for the site and the City's annexation procedure was discussed." The City also admits that these were matters of "public business" so that FOIA required the meeting to be noticed to the public, which it was not.

The City has voluntarily offered to remediate this FOIA violation by publicly noticing a meeting of the Council for October 28, 2002. The agenda for that meeting (posted on October 16, 2002, at least seven days in advance in accordance with FOIA) states that "[r]epresentatives from the Richards Apex Corporation, the owner of the old Amoco/Duraco site on Route 9, will make a presentation as to their development plans for the site. Possible annexation of the site by the City will be discussed. This public presentation will be substantially the same (to the extent possible) as the presentation made to certain City officials on October 1, 2002."

We believe that this public meeting will remediate the Council's FOIA violation by involving the public in this land use issue before the crystallization of any final decision by the Council, and we commend the City and its counsel for taking this voluntary step. We caution the City, however, to comply strictly with the requirements of the open meeting law in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Gerard P. Kavanaugh, Jr., Esquire

Mr. Phillip G. Johnson, Opinion Coordinator