Can a town council let some residents speak at a public meeting while refusing to let a non-property-owner respond to criticism about him?

Official title

03-IB03: F.O.I.A. Complaint Against Town of Fenwick Island

Plain-English summary

The Fenwick Island police department's second-in-command complained that the town council refused to let him speak at a meeting where a councilman proposed hiring a retired state trooper to run the police department instead of him. The AG first explained a broader point: Delaware's open meeting law guarantees citizens the right to attend, observe, and monitor public meetings, but it doesn't require a public body to let the public comment at all, a rule echoed in courts across the country. But Fenwick Island's agenda included a "Public Participation" period, and once a public body voluntarily opens that door, First Amendment and equal protection principles kick in: the government can't let some speakers address an issue while silencing others based on who they are or what they'd say. Here, the town let a police sergeant who wasn't a Fenwick Island property owner speak on the hiring proposal, but refused to let the complaining officer, also not a property owner, respond to a councilman's comment about him personally, on the stated ground that he wasn't a property owner. The AG found that inconsistency violated FOIA, and separately found the town hadn't properly documented the vote to hire the new officer in its minutes. As a remedy, the AG ordered a new public meeting within thirty days to vote on the hire again, this time with public participation open to everyone.

Currency note

This opinion was issued in 2003. 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 Delaware's open meeting law require a public body to let citizens speak at meetings?
A: No, according to this opinion. The AG found FOIA only guarantees the right to attend, observe, and monitor a public body's meetings; it does not create any right for the public to participate or comment, a conclusion the AG found consistent with courts in several other states.

Q: If a town does allow public comment, can it limit that comment to property owners only?
A: No, according to this opinion. The AG found that once a public body opens a meeting to public participation, it must treat everyone fairly and can't restrict comment to a narrower group, like town property owners, than FOIA's citizen-wide protections allow.

Q: Can a public body let one non-resident speak on an issue but refuse to let another non-resident respond?
A: No, based on this opinion. The AG found this kind of selective silencing, allowing a sergeant to comment but refusing the same chance to another officer once the topic was already open for public discussion, violated the open meeting law's equal-treatment principle.

Q: What happens if a town's meeting minutes don't record the actual vote taken on an issue?
A: In this case, the AG found that omission violated FOIA's minutes requirement, since minutes must record each vote and action taken by individual members, and ordered the town to redo the vote at a properly documented public meeting.

Background and statutory framework

The complaint concerned a November 15, 2002 Fenwick Island Town Council meeting where the council heard a proposal to hire a new police officer-in-charge, allowed some non-property-owner speakers to comment during a "Public Participation" period, but refused to let the complaining officer respond. Applying 29 Del. C. § 10004(a) and the FOIA policy statement in 29 Del. C. § 10001, the AG relied on out-of-state authority, including City of New Carrolton v. Rogers, Sigma Construction Co. v. Guilford County Board of Education, Souder v. Health Partners, Inc., and Wyse v. Rupp, together with its own Att'y Gen. Op. 94-IO23 and Att'y Gen. Op. 94-IO36, for the rule that open meeting laws guarantee observation, not participation. But once a public body opens a public comment period, the AG applied First Amendment public-forum principles from Bonner-Lyons v. School Committee of Boston, Henrico Professional Firefighters Association v. Board of Supervisors of Henrico County, White v. City of Norwalk, and Pesek v. City of Brunswick to require even-handed treatment of speakers, while noting under Att'y Gen. Op. 96-IB01 that a body may still distinguish citizens from non-citizens for FOIA purposes. Because the town allowed one non-property-owner to speak while barring another, and failed to record the resulting vote in its minutes under 29 Del. C. § 10004(f), the AG ordered a new public vote with participation open to all.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), meetings of public bodies must be open to the public except for authorized executive session
• 29 Del. C. § 10001, FOIA's Declaration of Policy on citizens' right to observe and monitor public officials
• 29 Del. C. § 10004(f), minutes must record members present and each vote or action taken
• 29 Del. C. § 10004(d), authority to remove a person who is willfully and seriously disruptive of a meeting

Cases:

• City of New Carrolton v. Rogers, 410 A.2d 1070, 1078 (Md. Ct. Spec. App. 1980), open meeting law affords no right to participate, only to observe
• Sigma Construction Co. v. Guilford County Board of Education, 547 S.E.2d 178, 181 (N.C. Ct. App. 2001), no requirement to solicit public comment before a vote
• Souder v. Health Partners, Inc., 997 S.W.2d 140, 150 (Tenn. Ct. App. 1998), open meeting law doesn't guarantee a right to participate
• Wyse v. Rupp, 1995 WL 547784 (Ohio Ct. App. Sept. 15, 1995), no statutory requirement to let the public speak at a meeting
• Att'y Gen. Op. 94-IO23 (June 21, 1994), AG's office encourages, but does not require, public bodies to answer citizen questions
• Att'y Gen. Op. 94-IO36 (Dec. 15, 1994), meetings are public so citizens can observe and monitor, not necessarily comment
• Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir. 1973), government can't pick and choose among viewpoints once a forum is open
• Henrico Professional Firefighters Association v. Board of Supervisors of Henrico County, 649 F.2d 237, 241 (4th Cir. 1981), unequal speaking opportunities raise equal protection and First Amendment concerns
• White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990), open public-comment portions of council meetings are public forums
• Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992), government may not selectively silence a speaker at an open public-comment meeting
• Att'y Gen. Op. 96-IB01 (Jan. 2, 1996), a public body may distinguish citizens from non-citizens during public comment

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/01/21/03-ib03-f-o-i-a-complaint-against-town-of-fenwick-island/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 03-IB03 (Del.A.G.), 2003 WL 397757

Office of the Attorney General

State of Delaware

Opinion No. 03-IB03

January 21, 2003

Re: Freedom of Information Act Complaint Against Town of Fenwick Island

Civil Division-Kent County

Mr. William E. Manning

1 Blue Bell Drive

Selbyville, DE 19975

Dear Mr. Manning:

Our Office received your Freedom of Information Act ("FOIA") complaint on November 22, 2002. You allege that the Town of Fenwick Island ("the Town") violated the open meeting requirements of FOIA by not allowing you to speak at a meeting of the Town Council on November 15, 2002.

By letter dated December 4, 2002, we asked the Town to respond to your complaint. We received the Town's response on December 16, 2002. The Town denies that it violated FOIA because the statute does not have any "requirement for public participation." By letter dated January 2, 2003, we asked the Town for copies of the agenda and the minutes for the November 15, 2002 meeting of the Town Council, which we received on January 2, 2003. The agenda listed a period for "Public Participation" after the reports on various matters of public business.

FOIA requires that "[e]very meeting of all public bodies shall be open to the public" except as authorized for executive session. 29 Del. C. § 10004(a). As explained in FOIA's Declaration of Policy: "It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy;…. 29 Del. C. § 10001 (emphasis added).

The key words here are "observe" and "monitor." FOIA entitles citizens to have notice and attend meetings of public bodies to watch the discussion of public business, but "does not afford the public any right to participate in the meetings." City of New Carrolton v. Rogers, Md. App., 410 A,2d 1070, 1078 (1980). Accord Sigma Construction Co. v. Guilford County Board of Education, N.C. App., 547 S.E.2d 178, 181 (2001) (there is nothing in the text of the open meeting law "requiring the solicitation of public comment as a prerequisite to a vote on a pending motion"); Souder v. Health Partners, Inc., Tenn. App., 997 S.W.2d 140, 150 (1998) ("While the Act requires all meetings of entities subject to the Act to be open to the public, it does not guarantee all citizens the right to participate in the meetings"); Wyse v. Rupp, Ohio App., 1995 WL 547784 (Sept. 15, 1995) ("There is nothing in the statute which requires that a public body permit a member of the public to speak at the meeting.").

Our Office has always encouraged public bodies to "to have an open meeting by answering questions by the citizens at public meetings." Att'y Gen. Op. 94-IO23 (June 21, 1994)). But the plain language of FOIA does not require public participation, only that citizens have timely notice of public meetings so that they can monitor and observe their elected public officials discuss matters of public concern. "The Act clearly states that the meeting is public not so that the public may comment, but so that the public, at a minimum, may observe and monitor public officials and their decisions." Att'y Gen. Op. 94-IO36 (Dec. 15, 1994).

If a public body chooses to allow public participation in a meeting, however, then it must treat members of the public fairly and even-handedly. "[O]nce a forum is open for the expression of views" the government may not "pick and choose between those views which may or may not be expressed." Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir. 1973). "Government action permitting some to speak, but denying the opportunity to others, raises an equal protection claim that is closely intertwined with First Amendment interests." Henrico Professional Firefighters Association v. Board of Supervisors of Henrico County, 649 F.2d 237, 241 (4th Cir. 1981).

City Council meetings… where the public is afforded the opportunity to address the Council, are the focus of highly important individual and government interests. Citizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless for this reason that such meetings, once opened, have been regarded as public forums.

White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).

In Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992), the city council held a meeting to discuss the staffing of fire stations. The agenda provided for a period of public comment. During the public comment period, a firefighter raised his hand to be recognized, but the council refused to hear him, explaining that as a city employee he had to go through the city manager. The federal district court held that the city council violated the firefighters first amendment right of free speech. Once "the government had opened its doors to discussion by members of the public in general," the government "may not limit the forum to discussion by some and not to all of those who wish to speak." 794 F. Supp. at 782. The government "may not selectively prohibit a citizen from speaking at a public meeting based upon the content of the speech or upon the speaker's status." Id. at 783.

We believe that these constitutional principles inhere in the definition of an "open meeting" under Delaware's FOIA when a public body chooses to allow for a period of public participation.1

The agenda for the Town's November 15, 2002 meeting listed "Public Safety Report-Councilman Henifin." The minutes of the meeting show that Councilman Henifin recommended hiring a retired State Trooper, Glenn Hudson, as the officer-in-charge of the Town police department to replace the suspended Chief George Dickerson. According to the minutes, Sergeant Michael Bruyette of the Town police department asked about Hudson's salary, and Council Henifin said "$35,389.00 per annum, which is $17.00 an hour which is approximately the average salary for Lieutenants up and down the coast, which is the average salary for an officer with fifteen years experience."

The minutes of the November 15, 2002 meeting of the Town Council do not reflect much of what transpired at the meeting. But according to a local newspaper article (The Wave, Nov, 20, 2002), "several Fenwick Island residents in attendance demanded to know why Maj. William Manning, the police department's second in command, had been passed over for the position of officer in charge on two separate occasions. [Councilman] Henifin responded that 'there is a problem of communication and trust between the council and Major Manning.' Manning wanted to rebut that statement, but Council President Peg Baumchalk refused to let him speak as he was not a Fenwick Island property owner." According to the newspaper article, the Town Council voted to hire Hudson as officer-in-charge of the police department for six months.

All citizens of the State of Delaware have rights under FOIA, including the right to attend a public meeting. During a pubic comment period, a public body can distinguish between citizens and non-citizens. See Att'y Gen. Op. 96-IB01 (Jan. 2, 1996) (town council could refuse to answer a question from a resident of Maryland on the ground Delaware's FOIA "applies only to Delaware citizens"). But a public body cannot derogate from FOIA by affording rights to a more restrictive group of citizens, such as the owners of property within a municipality.

The agenda for the November 15, 2002 meeting of the Town Council provided for a period of "Public Participation" after discussion of various reports, including the "Public Safety Report." When Councilman Henifin proposed hiring Glenn Hudson as the officer-in-charge of the police department, the Council heard from several members of the public, including Sergeant Michael Bruyette (who, like Major Manning, does not own property in Town, as confirmed by the Town in its supplemental response).

We find that the Town violated the open meeting requirements of FOIA by restricting public comment at the November 15, 2002 Council meeting to Town property owners. The Town further violated the open meeting law by allowing some citizens who are not Town property owners to speak (Sergeant Bruyette), but refusing to let you speak on the subject of hiring Glenn Hudson when the issue was open for public discussion.

We also find that the Town did not comply with the requirements of FOIA for preparing minutes. FOIA requires minutes to "include a record of those members present and a record, by individual members… of each vote taken and action agreed upon." 29 Del. C. § 10004(f). The minutes of the November 15, 2002 meeting do not reflect the vote to hire Glenn Hudson as the officer-in-charge of the police department for six months, even though contemporaneous news accounts and people we have talked to confirm that the Town Council took that official action.

Conclusion

For the foregoing reasons, we find that the Town violated the open meeting requirements of FOIA at the November 15, 2002 Council meeting by: (1) restricting public comment to Town property owners, and then allowing some non-property owners but not you to comment on the proposal to hire Glenn Hudson as the officer-in-charge of the Town police department; and (2) by failing to prepare minutes of that meeting reflecting the vote, by individual members of the Council, to hire Mr. Hudson.

As remediation for these violations, we direct the Town to hold a special meeting within thirty days of the date of this letter to vote again whether to hire Mr. Hudson. Because the Town has previously allowed public comment on the issue, the agenda for that meeting must include a reasonable period of public participation open to all citizens.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Malcolm S. Cobin

State Solicitor

Footnotes

1 A public body can impose reasonable time, place, and manner restrictions on public participation. There is no evidence in the record, however, that anyone disrupted the November 15, 2002 Town Council meeting by "speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies" so as to prevent the Council "from accomplishing its business in a reasonable manner." City of Norwalk, 900 F.2d at 1426. See 29 Del. C. § 10004(d) (authorizing "removal of any person from a public meeting who is willfully and seriously disruptive of such meeting").Del. Op. Atty. Gen. 03-IB03 (Del.A.G.), 2003 WL 397757