Can a Delaware town call a rushed special meeting to fire its solicitor if the agenda just says "Town Solicitor"?

Official title

05-IB05: RE: F.O.I.A.Complaint Against Town of Frederica

Plain-English summary

The mayor of Frederica complained that the town council violated FOIA by discussing town business at a November 23, 2004 meeting without proper notice. The council had posted notice only three days ahead, treating it as a "special meeting" that only requires 24 hours' notice instead of the usual seven days, so long as the notice explains why the shorter timeline was necessary. The agenda for that meeting listed just four bare items, including "Town Solicitor." At the meeting, with the mayor absent on administrative leave, the council voted 3-1 to remove the town's longtime solicitor. The AG found two violations. First, the notice gave no reason at all for skipping the normal seven-day notice period, and nothing in the record showed any real urgency to justify a rushed meeting. Second, listing only "Town Solicitor" on the agenda didn't give the public any hint that the council intended to vote to fire him. Even so, the AG ordered no remedy, since by the time of this opinion the solicitor was still serving and had not actually been replaced, so redoing the vote would serve no purpose.

Currency note

This opinion was issued in 2005. 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: What does a Delaware public body have to say when it calls a special meeting on short notice?
A: According to this opinion, the notice must include a reason, though not a detailed factual basis, for why the normal seven-day notice couldn't be given; some showing of an exigent circumstance or compelling need is expected.

Q: Is it enough for a meeting agenda to just say "Town Solicitor" before voting to fire someone in that role?
A: No, according to this opinion. When a public body knows an important specific matter, like firing its solicitor, will be addressed, a bare, generic agenda label doesn't sufficiently alert the public to what's actually going to happen.

Q: If a town's vote to remove an official violated FOIA, does the person automatically get their position back?
A: Not automatically, based on this opinion. The AG found no remedy was needed because, as of the opinion date, the solicitor was still serving and had not been replaced, so ordering a redo would not have served any purpose.

Background and statutory framework

The complaint concerned a November 23, 2004 Town of Frederica special meeting, noticed only three days in advance, at which the council voted to remove the town solicitor. Applying the open-meeting requirement of 29 Del. C. § 10004(a), the standard and special-meeting notice provisions of § 10004(e)(2), and the "agenda" definition at § 10002(f), and drawing on its own prior opinions on what justifies a special meeting's shortened notice (Att'y Gen. Op. 00-IB07, Att'y Gen. Op. 01-IB02, Att'y Gen. Op. 03-IB05, Att'y Gen. Op. 03-IB09, Att'y Gen. Op. 03-IB19, Att'y Gen. Op. 94-IO37, Att'y Gen. Op. 96-IB15) and on agenda specificity (Ianni v. Department of Elections of New Castle County, Att'y Gen. Op. 92-IB20), the AG found both a notice violation and an agenda violation but ordered no remediation.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. § 10004(e)(2), regular meetings require seven days' notice; special meetings require at least 24 hours' notice with an explanation for the shortened timeline
• 29 Del. C. § 10002(f), defines "agenda" as a general statement of the major issues expected to be discussed at a meeting

Cases:

• Att'y Gen. Op. 00-IB07 (Apr. 28, 2000), a special meeting requires a showing of exigent circumstance or compelling need
• Att'y Gen. Op. 01-IB02 (Jan. 30, 2001), a special meeting was proper to consult counsel before an appeal deadline expired
• Att'y Gen. Op. 03-IB05 (Feb. 5, 2003), a special meeting was justified to discuss a civil rights lawsuit against council members
• Att'y Gen. Op. 03-IB09 (May 6, 2003), a special meeting was proper after a school roof collapsed during heavy snow
• Att'y Gen. Op. 03-IB19 (Aug. 8, 2003), a stated need to minimize delays justified a special meeting on road improvements
• Att'y Gen. Op. 94-IO37 (July 26, 1994), only a reason, not a detailed factual basis, is required for shortened notice
• Att'y Gen. Op. 96-IB15 (May 10, 1996), a notice lacking any explanation for skipping the seven-day period violates FOIA
• Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986), a vague agenda item fails FOIA when the body knows a specific important subject will be addressed
• Att'y Gen. Op. 92-IB20 (Aug. 30, 2002), "Town Charter Changes" did not sufficiently alert the public to a vote restricting voter eligibility

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/02/22/05-ib05-re-f-o-i-a-complaint-against-town-of-frederica/
• Original PDF: not linked from landing page

Original opinion text

February 22, 2004

Civil Division-Kent County (739-7641)

05-IB05

The Honorable William G. Glanden

Mayor of the Town of Frederica

P.O. Box 294

Frederica, DE 19946

Re:  Freedom of Information Act Complaint

Against Town of Frederica

Dear Mayor Glanden:

Our Office received your Freedom of Information Act (“FOIA”) complaint on December 22,

2004 alleging that the Town of Frederica (“the Town”) violated FOIA by discussing matters of

public business at a meeting on November 23, 2004 without the required advance notice to the

public. *1

By letter dated December 28, 2004, we asked the Town to respond to your complaint. We

received the Town’s response on January 14, 2004. According to the Town, the Town Council held

a public meeting on November 23, 2004 and posted the notice and agenda for the meeting on

November 20, 2004. The Town contends that it satisfied the shorter notice requirements for a

special meeting under FOIA (at least 24 hours in advance of the meeting, rather than the normal

seven days).

The Town provided us with a copy of the agenda for the November 23, 2004 meeting which

listed: Call to Order, Roll Call, Town Solicitor, and Adjournment. The Town also provided us with

a copy of the minutes of the November 23, 2004 special meeting. The minutes show that four of the

members of the Council were present, but that you were “Absent (Admin.Leave/Work).” The

minutes also show that the Council voted (three in favor, one against) to remove William W. Pepper,

Sr., Esquire as the Town Solicitor.

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).

All public bodies “shall 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 requires a public body to give notice of any special meeting “as soon as reasonably

possible, but in any event no later than 24 hours before such meeting.” Id. § 10004(e)(2). A special

meeting is defined “as one to be held less than 7 days after the scheduling decision is made.” Id.

The notice of a special meeting “shall include an explanation as to why the [normal 7 days notice]
could not be given.” Id.

FOIA defines an “agenda” as a “general statement of the major issues expected to be

discussed at a public meeting, . . . . Id. § 10002(f).

Legal Authority

A. Notice

Our Office has interpreted the shorter notice period allowed by FOIA for a special meeting

to require some showing of an “exigent circumstance or compelling need for the [public body] to

hold a ‘special’ meeting to discuss a [matter] of public business.” Att’y Gen. Op. 00-IB07 (Apr. 28,

2000). For example, in Att’y Gen. Op. 01-IB02 (Jan. 30, 2001) we found that the town properly

called a special meeting to consult with its solicitor because the time to appeal a court decision

would have expired by the time of the town’s next regularly scheduled meeting.

See also Att’y Gen. Op. 03-IB05 (Feb. 5, 2003) (town justified in calling a special meeting to

discuss the filing of a civil rights lawsuit against council members); Att’y Gen. Op. 03-IB09 (May

6, 2003) (special meeting properly called after school roof collapsed during a heavy snowfall).

FOIA requires that the notice of a special meeting “shall include an explanation as to why

the [normal 7 days notice] could not be given.” 29 Del. C. § 10004(e)(2). For example, in Att’y

Gen. Op. 03-IB19 (Aug. 8, 2003), the town held a special meeting to discuss road improvements,

and the notice stated the town had to meet “to minimize any further delays in the work.”

FOIA “requires only a reason, not a specific detailed factual basis, why the seven-day

requirement could not be met.” Att’y Gen. Op. 94-IO37 (July 26, 1994). See Att’y Gen. Op. 96-

IB15 (May 10, 1996) (finding that the notice lacked “any explanation” why the seven-day

requirement was not met). The notice posted for the Town’s special meeting scheduled for

November 23, 2004 did not state any reason why the normal seven days’ notice could not be met.

Nor is there anything in the record to suggest that there were any exigent circumstances or

compelling need for the Town Council to meet on three days’ notice to discuss the Town Solicitor.

We determine that the Town violated the open meeting requirements of FOIA by failing to

post notice of a public meeting scheduled for November 23, 2004 at least seven days in advance.

B. Agenda

While FOIA “requires only a ‘general statement’ of the subject to be addressed by the public

body, when an agency knows that an important specific aspect of a general subject is to be dealt

with, it satisfied neither the spirit nor the letter of the Freedom of Information Act to state the subject

in such broad generalities as to fail to draw the public’s attention to the fact that that specific

important subject will be treated.” Ianni v. Department of Elections of New Castle County, Del.

Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen, C.) (“Primary Election” listed in the agenda did not

sufficiently notify the public that the county might consolidate election districts).

See Att’y Gen. Op. 92-IB20 (Aug. 30, 2002) (“Town Charter Changes” listed in the agenda “did not

sufficiently alert the public that the Town would consider and vote to restrict voter eligibility”).

We do not believe that listing “Town Solicitor” in the agenda for the Town’s November 23,

2004 meeting was sufficient to inform the public that the Council would consider and vote on firing

the Town’s legal counsel. We determine that the Town violated the open meeting requirements of

FOIA by failing to adequately describe the matters of public business that would be discussed at the

meeting on November 23, 2004.

Conclusion

For the foregoing reasons, we determine that the Town violated the open meeting

requirements of FOIA by: (1) failing to post notice of a meeting scheduled for November 23, 2004

at least seven days in advance; and (2) failing to post an agenda for that meeting sufficiently alerting

the public to the matters of public business to be discussed.

We do not direct any remediation for these violations. We have confirmed with William

W. Pepper, Sr., Esquire that he continues to serve as the Town Solicitor and has not been replaced.

Directing the Town to re-notice the Town Solicitor matter would not serve any purpose.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Ms. Joan Ortiz

Secretary, Town Council of Frederica

William W. Pepper, Sr., Esquire

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 You also allege that the other members of the Council did not invite you to the

meeting on November 23, 2004, but that issue is outside our jurisdiction under FOIA. FOIA only

requires that notice be given to the general public, not to the individual members of a public body.