Can a town council secretly decide a zoning application in private meetings labeled 'legal advice' and then vote on it in public?

Official title

02-IB33: FOIA Complaint Against Town of Camden

Plain-English summary

A developer's attorney complained that the Camden Town Council secretly worked out its position on a senior-housing project's sidewalk requirements before ever discussing the matter in public. The council had noticed two meetings as "Legal Advice" executive sessions, but the AG's investigation showed the real discussion covered the merits of the sidewalk dispute itself, not litigation strategy, capped off with a council member's private notes recording a "consensus" on what relief to grant. FOIA doesn't let a public body use closed sessions as a substitute for public deliberation just by mislabeling the topic "legal advice"; the exception is narrow, tied to collective bargaining or pending or potential litigation where an open discussion would hurt the body's position. Because the council also skipped the required public vote to enter executive session and kept no minutes, and because a quorum of a three-member council committee separately discussed the same application in private, the AG found a cluster of violations serious enough to invalidate the council's later public vote denying the application entirely, ordering a fresh public meeting to reconsider it from scratch.

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: Can a public body meet privately just because its attorney is present and calls it "legal advice"?
A: No, according to this opinion. The AG found FOIA's attorney-client exception only covers strategy sessions tied to collective bargaining or pending or potential litigation where an open meeting would hurt the body's position, not general discussion of the underlying merits of an issue just because a lawyer is in the room.

Q: If a public body only discusses topics that would qualify for executive session, does it still need to open the meeting to the public first?
A: Yes, according to this opinion. The AG found FOIA doesn't allow a "stand-alone" executive session; the body must vote to go into executive session at an open meeting, and the public has a right to observe that procedural step and any public business that follows.

Q: Can members of a small committee within a larger council meet privately if they're less than a quorum of the full council?
A: Not necessarily, according to this opinion. The AG found that if the committee itself has a defined membership, a quorum of the committee (not the full council) triggers FOIA, so two members of a three-person committee meeting privately can violate the open meeting law even though they're far short of a quorum of the full five-member council.

Q: What happens to a public vote if it was preceded by improper private deliberation on the same matter?
A: In this case, the AG found the later public vote was invalid because it was tainted by the earlier unlawful executive sessions, and ordered the council to reconsider the application at a new, properly noticed public meeting.

Background and statutory framework

The complaint concerned two Camden Town Council executive sessions (May 9 and September 3, 2002) noticed only as "Legal Advice," during which the council actually discussed the merits of a conditional-use dispute over Barclay Farms' sidewalk plans, plus a separate August 21, 2002 meeting between two members of the council's three-person Review Planning Committee. Applying 29 Del. C. § 10004(b)(4) and its own opinion in Att'y Gen. Op. 02-IB12, which had quoted Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board for the rule that the attorney-client exception doesn't permit legal-advice sessions on any issue generally, the AG found the sessions exceeded their authorized scope. The AG also found the council skipped the open vote to enter executive session required by 29 Del. C. § 10004(c), never returned to open session as Att'y Gen. Op. 02-IB17 requires, and failed to keep minutes under 29 Del. C. § 10004(f), while reaching a prohibited private "consensus" under Att'y Gen. Op. 96-IB32. On the committee question, the AG applied 29 Del. C. § 10002(a) and § 10002(e) to find a quorum of the three-member committee (two of three) was itself a "public body" subject to FOIA. On records, the AG distinguished the town clerk's official summary (a public record, now producible for the settled portion of the dispute) from the solicitor's personal handwritten notes (not a public record under Att'y Gen. Op. 02-IB30), applying 29 Del. C. § 10002(d)(10). Because the underlying violations tainted the council's public vote, the AG ordered a new public hearing on the application.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), meetings of public bodies must be open except for authorized executive session
• 29 Del. C. § 10004(b)(4), narrow attorney-client/litigation-strategy exception for executive session
• 29 Del. C. § 10004(e)(2), seven-day advance notice and agenda requirement
• 29 Del. C. § 10002(e), definition of "meeting" as a gathering of a quorum for public business
• 29 Del. C. § 10004(f), minutes requirement and conditional exemption for executive-session records
• 29 Del. C. § 10004(c), requirement of an open vote to enter executive session, recorded in the minutes
• 29 Del. C. § 10002(a), definition of "public body," including committees and subcommittees
• 29 Del. C. § 10002(d)(10), exemption for records of properly-held executive-session discussions

Cases:

• Att'y Gen. Op. 02-IB17 (Aug. 6, 2002), FOIA does not permit a "stand-alone" executive session
• Att'y Gen. Op. 02-IB12 (May 21, 2002), attorney-client exception is limited to collective bargaining or litigation strategy
• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-K (Del. Ch. May 19, 1994), executive session cannot be used for legal advice on any issue generally
• Att'y Gen. Op. 96-IB32 (Oct. 10, 1996), consensus votes in executive session are prohibited
• Att'y Gen. Op. 02-IB30 (Dec. 2, 2002), personal handwritten notes are not public records

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/12/23/02-ib33-foia-complaint-against-town-of-camden/
• Original PDF: not linked from landing page

Original opinion text

December 23, 2002

Civil Division-Kent County

Michael J. Goodrick, Esquire

1122 West Street

P.O. Box 134

Wilmington, DE 19899

Re: Freedom of Information Act Complaint Against Town of Camden

Dear Mr. Goodrick:

On August 29, 2002, we received your letter alleging that the Town of Camden ("the Town") violated the Freedom of Information Act, 29 Del. C., Chapter 100 ("FOIA"). You allege that: (1) the Town Council met, without notice to the public, prior to a meeting scheduled for August 5, 2002, to discuss a conditional use application by your client, Barclay Farms; (2) two members of the Town Council met without notice to the public to discuss the Barclay Farms application on August 21, 2002; and (3) the Town denied you access to public records regarding the August 21, 2002 meeting.(1)

By letters dated September 3 and 9, 2002, you provided additional background information about your complaint. By letter dated September 16, 2002, you provided us with a copy of the transcript of the Town Council meeting on September 9, 2002.

By letter dated September 2, 2002, we asked the Town to respond to your complaint. We received the Town's response on September 13, 2002. By letter dated September 16, 2002, you made a rebuttal to the Town's response.

By letter dated September 16, 2002, we asked the Town for additional information, which we received on September 20 and 27, 2002. On October 31, 2002, we asked you and the Town to provide more information to complete our investigation. We received that information on November 4 and 7, 2002.

Relevant Statutes

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for executive session as authorized by statute. 29 Del. C. § 10004(a).

FOIA authorizes executive session for "[s]trategy 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 when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." Id. § 10004(b)(4).

FOIA requires all public bodies to "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 thereof. The notice shall include the agenda, . . . ." Id. § 10004(e)(2).

FOIA defines a "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." 20 Del. C. § 10002(e).

FOIA requires a public body to "maintain minutes of all meetings, including executive sessions, . . . Such minutes shall include a record of those members present and a record, by individual members . . . of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but not longer." Id. § 10004(f).

Legal Analysis

This FOIA complaint arises out of a dispute over the development of a senior citizen retirement community by Barclay Farms in the Town of Camden. The Town granted Barclay Farms a conditional use exception with a number of restrictions, most notable for our purposes, the construction of sidewalks.

Barclay Farms preferred to build a walking path rather than sidewalks, and applied to amend its conditional use exception. The Town Board of Adjustment denied the application on February 13, 2002. Barclay Farms filed a petition for writ of certiorari in the Superior Court on March 12, 2002 claiming that the Town Council should have considered the application at a public meeting. The parties stipulated to a dismissal of the lawsuit on October 3, 2002.

According to your complaint, several months prior to the dismissal of the lawsuit, "counsel for the Town conceded that the Town had been in error and that the matter should be set down for a public hearing before the Town Council." The Council noticed the Barclay Farms application for a public meeting on August 5, 2002. The minutes of the meeting reflect that the Town Council voted 3-1 to table the application for further consideration.

The Barclay Farms application was again on the agenda for the Council's meeting on September 9, 2002. According to the minutes, the Council voted 5-0 to require sidewalks "at least five feet wide" and "ramped at corners to facilitate handicapped access no less than two feet from the pavement of the street."

1. Pre-August 5, 2002 Meetings

You allege that the Town Council met sometime prior to its public meeting on August 5, 2002 to discuss the Barclay Farms conditional use application. You infer that "the Council, acting either individually or in concert, had met privately to review the application" based on a statement made by the Town Clerk prior to the August 5, 2002 meeting: " regardless of when we made our application we would not be receiving a vote that night and that the Council had decided this in advance." You also cite an exchange between Mayor Stewart and the Town engineer (Koenig) during the August 5, 2002 meeting of the Town Council:

MR. STEWART: Mr. Koenig, when did we meet about curb

alliance? And who else was present at the meeting when we sat down and we discussed sidewalks?

MR. KOENIG: It was myself, Mr. Stewart, Mr. Arbaugh, Mr. Plumley and Lynette Propst.

MR. STEWART: Was there anyone from Barclay Farms present at

that meeting?

MR. KOENIG: Not that I'm aware.

Transcript of August 5, 2002 meeting at pp. 50-51 (Stewart, Arbaugh, and Plumley are three of the five members of the Town Council; Lynette Propst is the Town Clerk).

The Town denies that the Council ever "met in private to decide in advance to table the Barclay Farms application." As for the statement made by the Town Clerk before the August 5, 2002 meeting, the Town says this was "nothing more than a disclosure of the 'sense of the Council' that this is a controversial matter that requires adequate reflection."

There is insufficient evidence in the record to show that the Council discussed tabling the Barclay Farms application prior to the public meeting on August 5, 2002. Our investigation, however, reveals that the Council discussed the merits of the application twice in executive session — on May 9 and September 3, 2002 — before rejecting the application at a public meeting on September 9, 2002.

The public notices for those two executive sessions listed "Legal Advice" as the reason for meeting in private The Town has not provided us with any evidence that the Council followed the required procedures for going into executive session for those two meetings. "The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes." 29 Del. C. § 10004(c).

FOIA does not permit a "stand alone" executive session. "If a public body meets to discuss only matters that are authorized for executive session, FOIA still requires that the meeting be noticed to the public. The public has a right to attend the opening of the meeting, to see that the public body follows the required procedures for going into executive session, and to observe the discussion of any public business that follows." Att'y Gen. Op. 02-IB17 (Aug. 6, 2002).

The Town Council violated FOIA by not meeting in public on May 9 and September 3, 2002 to vote to go into executive session, and by not returning to public session after the executive session. The Town Council also violated FOIA by failing to maintain minutes of its meetings on May 9 and September 3, 2002.

The Town provided us with a typewritten summary by the Town Clerk's notes of matters discussed at the May 9, 2002 meeting, and the Town Solicitor's handwritten notes of the September 3, 2002 meeting. Those are not "minutes" in any legal sense. But on the basis of those notes, we find that the Town Council also violated FOIA by meeting in executive session on May 9 and September 3, 2002 for a purpose not authorized by statute.

The Town is incorrect that FOIA authorizes an executive session to discuss "legal advice." FOIA limits the attorney-client privilege for public bodies to legal advice "with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse impact on the bargaining or litigation position of the public body." 29 Del. C.

§ 10004(b)(4). The legislature designed these limitations to prevent potential abuse and to prohibit a public body from holding "'an executive session to receive legal advice about any issue or matter under discussion.'" Att'y Gen. Op. 02-IB12 (May 21, 2002) (quoting Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., Civ.A, No. 1216-K (May 19, 1994) (Jacobs, V.C.).

The Town Clerk's typewritten summary of the May 9, 2002 private meeting show that the Council's Review Planning Committee (Arbaugh, Stewart, and Plumley) met with the Town Solicitor and the Town engineer (Koenig). The discussion began with the Barclay Farms lawsuit, but then moved into a review of the Barclay Farms sidewalk construction plans, and citizen concerns about setbacks being too close to their homes. The committee further discussed county zoning requirements and other issues relating to Barclay Farms. At the end of the meeting, one councilman "suggested that the Council should take a stand. Here are the plans which the county, public developer, owner and Town have been going by for 2 ½ years. You can't go back after the 11th hour crying foul."

The Town Solicitor's handwritten notes of the September 3, 2002 meeting show that there was discussion about Barclay Farms and a "consensus" to grant relief only from the outside sidewalk requirement. At the public meeting on September 9, 2002, the Council followed through and voted to deny Barclay Farm's conditional use application.

We find that the Town violated FOIA when it met in executive session on May 9 and September 3, 2002 to discuss matters of public business which were not authorized by statute.

We also find that the Council violated FOIA by meeting in private on September 3, 2002 to reach a consensus vote to deny the Barclay Farms application. See Att'y Gen. Op. 96-IB32 (Oct. 10, 1996) ("consensus votes in executive session are prohibited" by FOIA).

2. August 21, 2002 Meeting

You allege that on August 21, 2002, Councilman Arbaugh met with Mayor Stewart and discussed the Barclay Farms application. The Town responds that this was not a "public meeting"

subject to FOIA because the Town Council has five members and only two — less than a quorum — were present.

FOIA includes within the definition of a "public body" a "committee," "subcommittee," or "ad hoc" committee "established" or "appointed" by a public body. 29 Del. C. § 10002(a). A gathering of members of a committee of a public body is a "public meeting" if a quorum of the committee is present. See 29 Del. C. § 10002(e). If the public body has five members, and appoints a committee of three members, then a meeting of a quorum (two) members of the committee will be subject to FOIA.

On the basis of the record before us, we find that the Town Council created a Review Planning Committee consisting of three members (Arbaugh, Stewart, and Plumley). Two of those committee members (Arbaugh and Stewart) met on August 21, 2002 and discussed the Barclay Farms application which the full Council tabled at its August 5, 2002 meeting. The full Council then discussed and voted on the application at the Council's September 9, 2002 meeting. As a quorum of the Review Planning Committee, Arbaugh and Stewart constituted a public body and met in violation of the open meeting requirements of FOIA.

3. Records of Meetings

On August 19, 2002, you made a FOIA request to the Town Clerk for any records of meetings "occurring on a date unknown attended by the Mayor [Stewart], Councilman Arbaugh, Councilman Plumley, and yourself at which Mr. Koenig was likewise present at which meeting the subject under discussion was or included 'sidewalks.'"

By letter dated August 28, 2002, the Town Clerk denied your request, stating: "[T]he meeting that you are referring to was a posted executive session for legal advice held in the presence of our Town Solicitor Craig Eliassen. Those records are not available to the public."

As we determined earlier, the Town did not maintain minutes of its executive sessions on May 9 and September 3, 2002. FOIA, however, exempts from disclosure "any record of discussions held in executive session," 29 Del. C. § 10002(d)(10), which affords protection to any record of an executive session, not just minutes. FOIA allows a public body to withhold records of an executive session "so long as public disclosure would defeat the lawful purpose for the executive session, but not longer." Id. § 10004(f)

As we previously determined, the only lawful purpose for the Town Council's executive session on May 9, 2002 was to discuss litigation strategy in the pending Barclay Farms lawsuit. The Town Clerk's typewritten summary of other, unauthorized areas of discussion, are not exempt under FOIA. The portion of the summary reflecting discussion of the Barclay Farms lawsuit is now subject to FOIA. Disclosure at this time would not defeat the purpose of the litigation strategy exemption because the parties have already stipulated to the dismissal of the lawsuit.

The Town Solicitor's notes of the September 3, 2002 meeting do not have to be disclosed because they are personal notes and are not public records under FOIA. See Att'y Gen. Op. 02-IB30 (Dec. 2, 2002).(2) The Town Solicitor took handwritten notes during the Town Council's meeting for his own convenience and to refresh his memory in the future, and he maintained the notes in his personal files at his law office. In contrast, the Town Clerk prepared the typewritten summary after the May 9, 2002 meeting to memorialize what the Town Council discussed, and that summary was maintained under the Town's control for official purposes.

Conclusion

For the foregoing reasons, we determine that the Town Council violated FOIA: (1) by meeting in executive session on May 9 and September 3, 2002 for a purpose not authorized by law; (2) by not complying with the procedures required by FOIA for going into executive session at those two meetings; (3) by failing to maintain minutes of those two meetings; and (4) by failing to make publicly available records pertaining to those meetings. As a consequence of these serious FOIA violations, any action taken by the Town Council with regard to Barclay Farms at the meeting on September 9, 2002 is invalid because it was tainted by prior violations of the open meeting law.

To remediate, we direct the Council to schedule a special meeting before January 31, 2003 to consider anew the Barclay Farms application with notice to the public. The Town's counsel should report to our Office in writing within seven days of that meeting and provide a copy of the notice, agenda, and minutes of that special meeting to show that the Town has remediated.

We caution the Town to strictly comply with the requirements of FOIA in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Craig T. Eliassen, Esquire

Phillip G. Johnson, Opinion Coordinator

I:\Phil\AG-OPN\2002\02-IB33.wpd

1. You also allege that one of the members of the Town Council has a conflict of interest that should disqualify him from involvement in the discussion and vote on the Barclay Farms conditional use application. That issue is not within our jurisdiction under FOIA.

2. The Town Solicitor's personal notes do not appear to have been a confidential communication between an attorney and client, and therefore the application of that privilege under FOIA does not arise.