Can a Delaware city interview finalists for a lobbyist contract in a closed executive session the way it would for a job applicant?

Official title

05-IB14: RE: F.O.I.A. Complaint Against City of Newark

Plain-English summary

A resident complained that Newark City Council violated FOIA by meeting twice in closed executive session on March 7, 2005 to pick a lobbying firm to represent the city in Dover, rather than discussing the competing bids, their qualifications, and the vote in public. The city had solicited interest, narrowed the field to two firms, waived the usual public bidding process because of the specialized nature of the work, and then interviewed both firms behind closed doors, arguing FOIA's job-applicant and personnel exemptions protected the process the same way they would for hiring an employee. The AG disagreed and found a violation. Those exemptions exist to protect the personal privacy of individuals seeking public employment, not to shield vendors and contractors competing for a paid services contract. A business marketing itself to a public body doesn't have the same privacy interest as a job applicant, and cloaking that kind of contract decision from the public would undercut FOIA's basic purpose, especially since the city had already skipped the ordinary sunlight of a public bidding process. The AG ordered Newark to hold a new special meeting within thirty days, re-interview both firms in public, and take a public vote on which one to hire.

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: Can a Delaware public body use the job-applicant privacy exemption to interview competing vendors or contractors in secret?
A: No, according to this opinion. That exemption protects individuals seeking public employment, not businesses or contractors bidding for a services contract, which don't carry the same personal privacy interest.

Q: Does it matter that a city skipped its normal public bidding process before secretly interviewing contract finalists?
A: Yes, based on this opinion, which found that exempting a contract from bidding requirements makes public scrutiny of the selection process even more important, not less.

Q: What does a Delaware public body have to do to fix improperly closed interviews for a contract decision?
A: In this opinion, the AG ordered the city to hold a new special meeting, re-interview both finalists in public session, and vote publicly on which one to hire, all within thirty days.

Background and statutory framework

The complaint concerned two March 7, 2005 Newark City Council executive sessions held to interview and select between two firms competing for a city lobbying contract. Applying the open-meeting requirement of 29 Del. C. §10004(a), the job-qualifications and personnel executive-session exemptions at §10004(b)(1) and (b)(9), the trade-secret exemption at §10002(g)(2), and the real-estate and litigation-strategy exemptions at §10004(b)(2) and (b)(4) offered for contrast, and drawing on its prior opinions recognizing job applicants' privacy interest (Att'y Gen. Op. 99-IB03, quoting Core v. United States; Att'y Gen. Op. 05-IB12), distinguishing that interest from a vendor's lack of one (Att'y Gen. Op. 02-IB17, quoting Rowen v. Santa Clara Unified School District), applying its own ruling that contractors are not employees for personnel-exemption purposes (Att'y Gen. Op. 05-IB02), and citing out-of-state authority favoring openness in public contracting decisions (Grein v. Board of Education of the School District of Fremont), the AG found a FOIA violation and ordered 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(b)(1), executive session authorized to discuss an individual citizen's qualifications to hold a job
• 29 Del. C. §10004(b)(9), executive session authorized to discuss personnel matters involving employees, not independent contractors
• 29 Del. C. §10002(g)(2), exemption for trade secrets and confidential financial information disclosed in a contracting process
• 29 Del. C. §§10004(b)(2), executive session exemption for real estate negotiations, cited for contrast
• 29 Del. C. §§10004(b)(4), executive session exemption for collective bargaining and litigation strategy, cited for contrast

Cases:

• Att'y Gen. Op. 99-IB03 (Apr. 28, 1999), quoting Core v. United States, 730 F.2d 946, 949 (4th Cir. 1984), job applicants have a privacy right in their application process
• Att'y Gen. Op. 05-IB12 (May 9, 2005), job finalists retain a reasonable expectation of privacy until an offer of public employment is extended
• Att'y Gen. Op. 02-IB17 (Aug. 6, 2002), quoting Rowen v. Santa Clara Unified School District, 121 Cal.App.3d 221 (1981), an independent contractor's qualifications don't warrant the same concealment as a job applicant's
• Att'y Gen. Op. 05-IB02 (Jan. 12, 2005), the City Solicitor and Deputy Solicitor are independent contractors, not employees, for FOIA's personnel exemption
• Grein v. Board of Education of the School District of Fremont, 343 N.W.2d 718 (Neb. Supr. 1984), the policy favoring open meetings outweighs any discomfort to an unsuccessful bidder from public disclosure

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/06/08/05-ib14-re-f-o-i-a-complaint-against-city-of-newark/
• Original PDF: not linked from landing page

Original opinion text

June 8, 2005

Civil Division-Kent County (739-7641)

05-IB14

Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Re: Freedom of Information Act Complaint

Against City of Newark

Dear Mr. Porach:

Our Office received your Freedom of Information Act (“FOIA”) complaint on April 14,

2005. You allege that the Newark City Council (“the Council”) violated the open meeting

requirements of FOIA by twice meeting in executive session on March 7, 2005 to discuss “hiring

contract personnel.” You allege that FOIA requires the Council “to have a public discussion of the

bids received at a public meeting providing the amount of the bids and the low bidder”; to “discuss

in public the qualifications of all bidders”; and to vote in public “acceptance of the low bidder, or

give public explanation why such was not acceptable.”

By letter dated April 15, 2005, we asked the Council to respond to your complaint within ten

days. The Council asked for a brief extension of time, which we granted. We received the

Council’s response on April 29, 2005. By letter dated May 4, 2005, we received additional

information from the Council. *1

According to the Council, “[a]s a result of the direct impact of certain state legislation on the

administration of Newark government, it was determined by a majority of the Newark City Council

that the City should have a regular and effective voice in Dover in the form of a skilled and

experienced lobbyist.” The city publicly solicited candidates and received “several resumes and

letters of interest from a number of individuals. The City Manager and staff were provided with the

discretion to winnow the number of inquiries down to a ‘short list’ of candidates who would then be

interviewed by the Major and City Council.”

That process resulted in two finalists: Joseph F. Fitzgerald of Fitzgerald Consulting, Inc. and

Robert L. Maxwell of Maxwell & Associates. The Council noticed a special meeting for March 7,

2005 in accordance with FOIA. Listed on the agenda for that special meeting was “Executive

Session re Personnel.” The minutes of the special meeting show that in public session the Council

voted to go into executive session, and then returned to public session approximately fifty minutes

later. The minutes of the executive session (which the Council provided for our in camera review)

show that the Council interviewed the two candidates separately.

The Council then voted to amend the agenda to go back into executive session to discuss

“personnel issues.” The minutes of the second executive session (which the Council provided for

our in camera review) show that the Council discussed the comparative qualifications of the two

candidates and how effective they could be in advancing the City’s interests as they might be

affected by state legislation. The second executive session lasted seven minutes.

The Council contends that it lawfully met in executive session to discuss “an individual

citizen’s qualifications to hold a job,” 29 Del. C . §10004(b)(1). *2 According to the Council,”[t]he

clear rationale behind the ‘job applicant’ exemption is to provide a certain level of privacy to an

individual who is simply being considered for a position with a public body and who has not yet

been hired or retained. It may be assumed that conducting such an interview under the glare of a

public meeting of a public body would impact the breadth and candor of both questions and answers

during such an ‘interview.’”

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those” authorized by statute for executive session. 29 Del. C . § 10004(a).

FOIA authorizes a public body to meet in executive session to discuss “an individual

citizen’s qualifications to hold a job or pursue training unless the citizen requests that such meeting

be open.” Id. § 10004(b)(1).

Legal Analysis

In Att’y Gen. Op. 99-IB03 (Apr. 28, 1999), we determined that the town lawfully met in

executive session to discuss the qualifications of applicants for the position of town manager. “For

sound public policy reasons, job applicants have a right of privacy to information disclosed during

the application process, at least until they are hired. ‘[D]isclosure may embarrass or harm applicants

who failed to get a job. Their present employers, co-workers, and prospective employers, should

they seek new work, may learn that other people were deemed better qualified for a competitive

appointment.’” Att’y Gen. Op . 99-IB03 (quoting Core v. United States , 730 F.2d 946, 949 (4th Cir.

1984)).

Similarly, in Att’y Gen. Op . 05-IB12 (May 9, 2005), we determined that the New Castle

County Council lawfully met in executive session to interview the two final candidates for the

position of counsel to the Council. “[T]he two final applicants had a reasonable expectation to

privacy until such time as the Council voted to hire one of them and extend an offer of public

employment.”

In Att’y Gen. Op . 02-IB17 (Aug. 6, 2002), we determined that FOIA’s job applicant

exemption for executive session did not apply to the hiring of a search consultant. In contrast to an

applicant for public employment, the qualifications of an independent contractor “would not ‘likely

involve such sensitive matters as to require concealment from an interested public. And the fact that

contracts for special services are exempt from bidding requirements highlights the importance of

public scrutiny.’” Att’y Gen. Op . 02-IB17 (quoting Rowen v. Santa Clara Unified School Distri ct,

121 Cal.App.3d 221 (1981)).

In Att’y Gen. Op. 05-IB02 (Jan. 12, 2005), we determined that the City of Newark violated

the open meeting requirements of FOIA when the Council met in executive session to review the

hourly rates for outside legal counsel. In that case, the City claimed it was authorized to go into

executive session based on FOIA’s “personnel” exemption for executive session (29 Del. C.

§10004(b)(9)). We concluded that the “personnel” exemption did not apply. “[T]he City Solicitor

and the Deputy Solicitor are not public employees. Rather, they are independent contractors hired

by the city to provide professional legal services.”

Like the personnel exemption for executive session, FOIA’s job applicant exemption is

intended to protect the privacy of individuals, not the members of a public body. It is the right of the

individual public employee or prospective employee, therefore, to request “that such a meeting be

open.” 29 Del. C. §§10004(b)(1), (9). In contrast, other exemptions for executive session are

intended to protect the competitive position of the public body in purchasing real estate, in collective

bargaining, and in litigation strategy. See 29 Del. C. §§10004(b)(2), (4).

A vendor or independent contractor does not share the same personal privacy concerns as an

individual public employee or prospective public employee. When a business bids for work from a

public body, it is not applying for a “job” in any common sense meaning of that term. A vendor or

contractor has little if any expectation of privacy when marketing its goods or services for sale to a

public body (except to the extent the contracting process may require disclosure of trade secrets or

confidential financial information, see 29 Del. C. §10002(g)(2)). The experience, reputation, and

qualifications of vendors and contractors are subject to constant comparison in the marketplace

through advertising and the public bidding process. To construe FOIA to deem them “job

applicants” would cloak the decision-making process for the expenditure of most tax monies from

public scrutiny, a result clearly inconsistent with the purposes of FOIA.

In Grein v. Board of Education of the School District of Fremont , 343 N.W.2d 718 (Neb.

Supr. 1984), the school district met in private to discuss two bids for a boiler contract. The

Nebraska Supreme Court rejected the argument that public disclosure of why one of the bidders did

not get the contract “would needlessly injure the reputation of the contractor. . . . We believe that the

slight discomfort, if any, experienced by [one of the] bidders in the arena of public lettings is far

outweighed by the policy favoring openness in the meetings of a public body.” 343 N.W.2d at 721,

724.

Ordinarily, there will be a high degree of transparency in the award of public contracts by

virtue of the public bidding laws. The City has informed us that the City Manager waived the public

bidding requirements of the municipal code in hiring a lobbyist because of the “unique and

unprecedented position involving the provision of professional services.” The “fact that contracts

for special services are exempt from bidding requirements highlights the importance of public

scrutiny” under FOIA. Rowen, Cal.App.3d at 235.

We believe that FOIA’s job application exemption for executive session applies only when a

public body is discussing an individual’s qualifications for public employment. Like the personnel

exemption, the job applicant exemption serves “to protect the individual’s reputation, and to

establish an environment in which subtle and sensitive matters can be explored in an open and

candid manner.” Rowen, Cal.App.3d at 235. These public policies are not furthered by their

application to vendors and contractors doing business with a public body.

Conclusion

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

requirements of FOIA when it met twice in executive session on March 7, 2005 to discuss which of

two outside firms to retain to provide professional lobbying services. As remediation, we direct the

Council to hold a special meeting within thirty (30) days of the date of this letter to re-interview in

public session the two final candidates, and to vote in public which lobbying firm to retain. We

direct the City Solicitor to notify us in writing within ten (10) days after remediation is perfected.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Malcolm S. Cobin, Esquire

State Solicitor

cc:

The Honorable M. Jane Brady

Lawrence W. Lewis, Esquire

Deputy Attorney General

Roger A. Aiken, Esquire

City Solicitor

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 In its letter of May 4, 2005, the Council disputed your additional claim that the

City did not comply with the public bidding requirements of the municipal code. That issue is

outside our jurisdiction under FOIA and is not addressed in this opinion, but the fact that the

contract was not publicly bid is relevant to the open meeting issue raised in your complaint.

*2 The City also invokes FOIA’s exception for executive session to discuss

personnel matters. See 29 Del. C. §10004(b)(9) (personnel matters “in which the names,

competency and abilities of individual employees or students are discussed, unless the employee

or student requests that such a meeting be open”). The personnel exception does not apply

because a contractor is not an employee of a public body. See At’y Gen. Op. 05-IB02 (Jan. 12,

2005).