Can a Delaware county council add a contract vote and an executive session to its agenda at the start of the same meeting?

Official title

05-IB23: RE: F.O.I.A. Complaint Against Sussex County Council

Plain-English summary

A resident complained that Sussex County Council violated FOIA at a May 24, 2005 meeting by adding two items to the agenda right at the start of the meeting: approval of a change order for an airport perimeter fence contract, and a request to go into executive session to discuss land acquisitions. The county explained that both matters came to the County Administrator's attention shortly before the meeting; he learned about the urgent fence change order the day before, and about the land acquisition matters about five days before. The AG found that timing mattered. FOIA lets a public body add genuinely last-minute items to its agenda, but only by posting an amended agenda at least six hours before the meeting, with a brief reason for the delay, not by simply adding items once the meeting has already started. Because the County Administrator knew about both matters more than six hours in advance, the county should have posted an amended agenda rather than waiting. Still, the AG treated the two additions differently. For the executive session on land acquisition, the closed-door discussion itself was for a purpose FOIA plainly allows, and the council took no vote there, so requiring a redo would change nothing; no remedy was ordered. For the fence contract change order, though, real money and a public contract were on the line, so the AG ordered the county to re-notice and formally ratify that change order within thirty days.

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 add a new topic to its meeting agenda the moment the meeting starts?
A: Not if county or town staff already knew about the topic at least six hours earlier, according to this opinion. In that situation, FOIA requires posting an amended agenda with a brief reason for the delay, rather than adding it live at the meeting.

Q: If a public body improperly rushes an executive session onto its agenda, does the discussion that happens there get thrown out?
A: Not necessarily, based on this opinion. When the closed session covered a topic FOIA genuinely allows to be discussed privately and no vote was taken, the AG found no remedy was needed even though the notice itself was defective.

Q: What has to happen if a county votes to approve a contract change order without properly noticing it?
A: According to this opinion, when public money and a formal contract are involved, the AG can require the public body to re-notice the matter and hold a new vote to ratify it within a set deadline, rather than letting the earlier, improperly noticed vote stand.

Background and statutory framework

The complaint concerned a May 24, 2005 Sussex County Council meeting where an airport fence contract change order and a request for executive session on land acquisitions were both added to the agenda at the meeting's start. Applying the agenda-amendment provisions of 29 Del. C. §10004(e)(2) and §10004(e)(5), the site-acquisition executive session exemption at §10004(b)(2), and the public-voting requirement at §10004(c), and drawing on its own opinions requiring genuine six-hour advance posting for late additions and construing the "arises at the meeting" exception narrowly (Att'y Gen. Op. IB22 (Aug. 6, 2003), quoting Att'y Gen. Op. 03-IB18), on finding no remedy needed where an improperly noticed executive session was still substantively lawful (Att'y Gen. Op. IB18 (July 8, 2005)), and on directing remediation for untimely contract change order agenda items (Att'y Gen. Op. IB22 (Oct. 6, 2003)), the AG found both additions violated FOIA's notice rules but ordered a remedy only for the fence contract.

Citations and references

Statutes:

• 29 Del. C. §10004(e)(2), meeting notice must include the agenda, subject to change for items that genuinely arise at the meeting
• 29 Del. C. §10004(e)(5), an agenda not ready at initial posting may be amended at least six hours before the meeting, with reasons for the delay stated
• 29 Del. C. §10004(b)(2), executive session authorized for preliminary discussions of site acquisitions for publicly funded capital improvements
• 29 Del. C. §10004(c), executive sessions may be held only for public business, and all votes must occur at a public meeting

Cases:

• Att'y Gen. Op. IB22 (Aug. 6, 2003), a public body must actually post an amended agenda six hours in advance to add matters that come up suddenly
• Att'y Gen. Op. 03-IB18 (July 31, 2003), the agenda-amendment exception must be construed narrowly lest it swallow the notice rule
• Att'y Gen. Op. IB18 (July 8, 2005), no remediation is needed for a defective executive-session notice when the closed session itself was substantively lawful
• Att'y Gen. Op. IB22 (Oct. 6, 2003), remediation was directed where a public body failed to timely amend the agenda for a contract change order

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/08/15/05-ib23-re-f-o-i-a-complaint-against-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

August 15, 2005

Civil Division-Kent County (739-7641)

05-IB23

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

Re: Freedom of Information Act Complaint

Against Sussex County Council

Dear Mr. Kramer:

On June 20, 2005, our Office received your complaint under the Freedom of Information

Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that the Sussex County Council (“the Council”)

violated the open meeting requirements of FOIA by: (1) adding two items to the agenda during a

meeting on May 24, 2005; and (2) voting in executive session at that same meeting to approve a land

acquisition.

By letter dated June 23, 2005, we asked for the Council’s response within ten days. We

granted a ten-day extension of time to accommodate the vacation schedule of the County Attorney,

and then a second ten-day extension of time to accommodate the vacation schedule of the Clerk of

the Council. We received the Council’s response on July 25, 2005.

According to the Council, “[o]n May 24, 2005 Council added two items to the agenda prior

to the approval of the agenda at the beginning of the meeting at the request of County

Administrator, Robert L. Stickels. The first of these items dealt with approval of a fence contract for

the Sussex County Industrial Air Park and the second dealt with a request for an executive session to

hold preliminary discussions on site acquisitions.” The Council denies that any consensus vote took

place during the executive session to discuss site acquisitions.

Relevant Statutes

FOIA requires that “[a]ll 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.”

29 Del. C. §10004(e)(2). “The notice shall include the agenda, . . . however, the agenda shall be

subject to change to include additional items including executive sessions or the deletion of items

including executive sessions which arise at the time of the public body’s meeting.” Id.

“When an agenda is not available as of the time of the initial posting of the public notice it

shall be added to the notice at least six hours in advance of said meeting, and the reasons for the

delay in posting shall be briefly set forth in the agenda.” Id. §10004(e)(5).

FOIA authorizes a public body to meet in executive session to discuss “site acquisitions for

any publicly funded capital improvements.” 29 Del. C. §10004(b)(2). “Executive sessions may be

held only for the discussion of public business, and all voting on public business must take place at a

public meeting and the results of the vote made public.” Id . §10004(c).

Legal Analysis

A. Agenda Amendments

The minutes of the Council’s May 24, 2005 meeting show that at the start of the

meeting Councilman Rogers made a motion to amend the agenda: (1) to delete the grant

request from the Sussex County Employee Benefit Committee; *1 (2) to add a third item

under Michael Izzo, County Engineer, “3. Airport Perimeter Fence – Change Order No. 1″;

and (3) to add “Request for Executive Session – Land Acquisition” and “Executive Session

– Land Acquisition.” The Council unanimously (5-0) approved those changes in the

agenda.

The minutes of the May 24, 2005 meeting state “that it was necessary to add the

agenda item entitled ‘Airport Perimeter Fence – Change Order No. 1′ due to time

constraints since the Council would not be meeting on May 31st. A delay in the approval of

the change order wold result in a default of the contract.”

The Council provided us with a letter dated July 25, 2005 in which the County

Administrator further explains the reasons why the Council amended the agenda for the

May 24, 2005 meeting:

Michael Izzo, the County Engineer, asked me to

add [the airport perimeter fence issue] on May 23,

2005 to approve Change Order No. 1 on an ex-

pedited basis in order to preserve the existing funding

for the project. Although the matter had been

placed on a previous agenda of Council, it had to be

removed because the Engineering Department did not

have all of the necessary cost information to prepare

the necessary change order. By the time the Engineering

Department obtained the necessary information and

prepared the change order, there were less than 7 days

remaining before the May 24 meeting and Council

needed to approve the change order to preserve the

funding.

In his July 25, 2005 letter, the County Administrator also states that he “did not know

of the need to discuss [site acquisition matters] with Council when the agenda was posted 7

days prior to the meeting. Both of these were matters where it was necessary for the State

to approve a land transfer as to the first item and approve funding as to the second item

before I could ask Council for approval. The information discussed during the executive

session was not received by me until 5 days before the May 24, 2005 executive session.”

FOIA provides two distinct methods to amend an agenda. First, FOIA allows a

public body to change an agenda “to include additional items including executive sessions

or the deletion of items including executive sessions which arise at the time of the public

body’s meeting.” 29 Del. C . §10004(e)(2). Second, FOIA allows a public body to amend

an agenda when it “is not available as of the time of the initial posting of the public notice”

but any changes must be make “at least 6 hours in advance of said meeting, and the

reasons for the delay in posting shall be briefly set forth in the agenda.” Id . §10004(e)(5).

FOIA contemplates that matters of public business may not be known at the time of

he original posting of the agenda, and allows items to be added “at least 6 hours in

advance of said meeting, and the reasons for the delay in posting shall be briefly set forth

in the agenda.” 29 Del. C. §10004(e)(5). We accept the County Administrator’s

explanation why he did not include the airport perimeter fence and the executive session to

discuss site acquisitions in the agenda for the May 24, 2005 meeting when it was originally

posted seven days before. The County Administrator did not become aware of the need for

a change order for the fence contract until he was notified by the County Engineer on May

23, 2005. The County Administrator did not become aware of the need for an executive

session to discuss site acquisitions until five days before the May 24, 2005 meeting.

Under FOIA, the Council could have amended the agenda for the May 24, 2005

meeting at least six hours in advance to include the fence and site acquisition matters. The

problem here is that the Council “did not avail itself of this exception by posting an

amended agenda six hours in advance.” Att’y Gen. Op . IB22 (Aug. 6, 2003). “We

recognize that the business of government does not stop seven days before a public

meeting, but FOIA provides flexibility for a public body to amend the agenda up to six hours

prior to a meeting to add items that come up suddenly and cannot be deferred to a later

meeting.” Id.

The Council cannot rely on FOIA’s exemption (Section 10004(e)(2)) to amend the

agenda to include a matter of public business that arose during the May 24, 2003 meeting. We

have previously determined that a matter of public business does not “arise” at a public

meeting “by way of a motion to add the issue to the agenda. By that circular logic, there

would be no limits on what business can be discussed at the meeting of a public body, so

long as the agenda provided that it was subject to change. We have previously cautioned

that Section 10004(e)(2) of FOIA must be construed narrowly ‘lest the exception swallow

the rule.’” Att’y Gen. Op . IB22 (Aug. 6, 2003) (quoting Att’y Gen. Op . 03-IB18 (July 31,

2003) (and earlier opinions cited therein).

The County Administrator was aware of the airport perimeter fence and site

acquisitions at least six hours prior to the May 24, 2005 meeting of the Council, and so

those matters cannot be said to have come up for the first time during that meeting.

B. Executive Session

We have reviewed in camera the minutes of the Council’s executive session on May

24, 2005. They show that the five members of the Council met with the County

Administrator and the County Attorney to discuss two site acquisitions as authorized by

FOIA. There is no evidence that the Council went beyond discussing those matters of

public business and voted on them, or reached consensus vote for future official action.

C. Remediation

We do not believe that any remediation is necessary for the Council’s failure to

amend the agenda for the May 24, 2005 meeting at least six hours in advance to include

the executive session to discuss site acquisitions. Even though the Council could have

done so, the Council followed the proper procedures under FOIA for going into executive

session, “and only discussed matters which FOIA authorizes for discussion by a public

body in executive session. If the Committee had given seven days notice to the public of

the executive session, the result would not have been any different. The Committee could

still have lawfully met in executive session to discuss [site acquisitions].” Att’y Gen. Op .

IB18 (July 8, 2005).

We feel differently, however, about the Council’s failure to amend the agenda for the

May 24, 2005 at least six hours in advance to include the change order for the airport

perimeter fence. We understand that any delay in the approval of the change order could

have resulted in a default on the contract, and that the Council was not scheduled to meet

again until May 31, 2005. But the Council had other alternatives. It could have amended

the agenda for the May 24, 2005 meeting six hours in advance, or it could have noticed a

special meeting (which only requires 24 hours notice under FOIA) to consider the change

order issue.

The airport perimeter fence change order involved the expenditure of public funds, a

core governmental function, the scrutiny of which is assured by FOIA. In previous opinions,

we have directed remediation where a public body did not timely amend the agenda for a

public meeting to include a contract change order. See Att’y Gen. Op . IB22 (Oct. 6, 2003).

For this public notice violation, therefore, we direct the Council to re-notice the airport

fence perimeter change order issue for a regular or special meeting of the Council within

thirty days of the date of this letter to ratify that change order.

Conclusion

For the foregoing reasons, we determine that the Council met in executive session

on May 24, 2005 for a purpose authorized by FOIA: to discuss site acquisitions. We

determine that the Council violated FOIA when it added two items (executive session to

discuss site acquisitions, and airport perimeter fence) to the agenda for the May 24, 2005

meeting at the start of the meeting because those matters did not arise at the May 24, 2005

meeting, and came to the attention of the County Administrator before the meeting. FOIA

required the Council to have amended the agenda to include those two new matters at

least six hours in advance of the meeting.

We do not believe that any remediation is necessary for failing to amend the agenda

to include an executive session at least six hours in advance because the Council met in

executive session for a purpose authorized by FOIA.

We direct the Council to remediate the other FOIA agenda violation by re-noticing

the airport perimeter fence matter for a regular or special meeting of the Council within

thirty days of the date of this letter to ratify the change order. We direct the County

Attorney to notify us in writing within ten days after ratification that remediation has been

completed.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

James D. Griffin, Esquire

Lawrence W. Lewis, Esquire

Deputy Attorney General

Phillip G. Johnson

Opinion Coordinator

FOOTNOTE

*1 You did not take issue with the deletion of an agenda item. We note that deletion of

an item on the agenda does not raise the same concerns about public notice under FOIA than

additions to the agenda.