Does a Delaware Budget Committee violate FOIA when a quorum meets without public notice to discuss employee bonuses?

Plain-English summary

Eric Marquis asked the City of Harrington for information about a Budget Committee meeting that had been mentioned during a regular Council meeting in which employee bonuses were discussed. The City first denied any meeting occurred, calling it just an "informal" gathering of officials and two committee members. Marquis filed a FOIA petition arguing the City held a Budget Committee meeting without public notice and without keeping minutes or recordings, depriving the public of any way to observe or comment.

The City then conceded most of the facts. On February 22, 2022, the City Manager, Chief of Police, Finance Director, and two of the three Budget Committee members met to discuss using certain funds for employee bonuses. The City acknowledged that two of three Budget Committee members constituted a quorum and that the gathering was therefore a Budget Committee "meeting" under FOIA. The matter was later considered and unanimously approved by Council at a properly noticed regular meeting on March 7, 2022.

The AG concluded the City violated FOIA by failing to follow open meeting requirements (notice, agenda, minutes) for the February 22 meeting. However, the AG declined to recommend invalidating the bonuses. Two factors mattered: the matter was reconsidered at a properly noticed public Council meeting, and the courts treat invalidation as a serious sanction reserved for cases involving substantial public-rights effects with no good way to craft a narrower remedy. The Committee was cautioned to strictly follow open meeting requirements in the future. The Council had no obligation to post agendas online or record meetings.

What this means for you

If you serve on a Delaware municipal committee or subcommittee

Two members of a three-member committee is a quorum. Three of five is a quorum. If a quorum gathers and discusses public business (no matter how informal), FOIA's open meeting rules apply: advance public notice (usually seven days), an agenda, public attendance, and written minutes.

Practical guardrails:

• Treat any pre-Council "alignment" meeting between committee members as a meeting if a quorum is in the room. Even a coffee-shop conversation counts.
• If you find yourself in an unscheduled gathering where a quorum is forming, end the substantive discussion and move it to a properly noticed meeting.
• Loop in your Town Solicitor early, especially when staff and committee members are in the same room. Staff presence does not save it.

If you are a Delaware resident wanting to track committee decisions

You have less leverage than you might think. Committees are not required to post their notices and agendas online or to record their meetings. The minimum is physical posting (often a Town Hall bulletin board) and written minutes. So:

• Walk past the bulletin board regularly, or set up a routine inquiry to the Town Clerk.
• Ask for minutes in writing under FOIA after the meeting; minutes must exist for any open meeting.
• If you suspect a quorum met privately, you can file a petition under § 10005 with specific allegations (date, attendees, topic) and shift the burden to the City to prove no violation.

If you are a Delaware municipal attorney advising on remedies after a violation

The AG's office cannot invalidate a vote; only a court can. The opinion lists the factors the court weighs: substantial public rights affected, adverse consequences on innocent parties, whether there was substantial reconsideration of the decision in a public meeting, the nature of the violation, and whether it is part of a pattern. A "vote ratified at a noticed meeting after public comment" weakens the case for invalidation. An "isolated, inadvertent quorum" weakens it further. But pattern violations are vulnerable.

Common questions

Q: Two of three committee members ran into each other at City Hall and chatted about budget priorities. Is that a meeting?
A: It can be. The test is whether a quorum gathered for the purpose of discussing or taking action on public business. A truly accidental encounter that pivots to small talk is fine; a substantive discussion of agency business is not.

Q: Does the City have to post meeting agendas online?
A: No. 29 Del. C. § 10004(f) does not require online posting of notice or agenda. Bulletin board posting is generally sufficient.

Q: Does the City have to audio-record meetings?
A: No. FOIA requires written minutes, not audio or video recordings.

Q: The Committee meeting was admittedly improper, but the bonuses were voted on at a properly noticed Council meeting later. Are the bonuses still valid?
A: The AG did not recommend invalidation here. A court might still consider invalidation if a citizen sues, but factors here weighed against it: the matter was reconsidered publicly, the violation was isolated, and the committee did not actually vote (it only discussed).

Q: What is the difference between a committee that "discusses" and one that "votes"?
A: Both trigger FOIA. The statutory definition of meeting covers gatherings for "the purpose of discussing or taking action on public business." A discussion-only committee that recommends to the full body is still a public body subject to open meeting rules.

Q: Can the AG's office levy a penalty?
A: No. The AG's office can find a violation and recommend remediation. Money penalties and invalidation are court remedies under § 10005.

Background and statutory framework

FOIA's open meeting framework. 29 Del. C. § 10004 requires public bodies to give public notice of meetings, post an agenda, allow public attendance, and prepare minutes. Subsection (f) clarifies that posting notice and agenda online and recording meetings are not required. The "meeting" definition in § 10002(j) covers formal and informal gatherings of a quorum for purposes of discussing or taking action on public business.

Burden of proof. Section 10005(c) places the burden on the public body to demonstrate compliance. Judicial Watch v. University of Delaware, 267 A.3d 996 (Del. 2021), reinforces that the public body must offer sworn factual support, not just attorney representations.

Invalidation as a remedy. Ianni v. Department of Elections (Del. Ch. 1986) treats invalidation as a "serious sanction" not to be employed unless substantial public rights are affected and a tailored remedy is feasible. Levy v. Cape Henlopen School District Board of Education (Del. Ch. 1990) lists the additional factors a court weighs when a violation is followed by a public vote: substantial reconsideration, the nature of the violation, and whether it is part of an ongoing pattern.

Citations and references

Statutes:
- 29 Del. C. § 10004 (open meeting requirements)
- 29 Del. C. § 10005 (enforcement and burden of proof)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
- Levy v. Bd. of Educ. of Cape Henlopen School Dist., 1990 WL 154147 (Del. Ch. Oct. 1, 1990)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/05/05/22-ib17-05-05-2022-foia-opinion-letter-to-eric-marquis-re-foia-complaint-concerning-the-city-of-harrington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/05/Attorney-General-Opinion-No.-22-IB17.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB17
May 5, 2022

VIA EMAIL
Eric Marquis
[email protected]

RE:

FOIA Petition Regarding the City of Harrington

Dear Mr. Marquis:
We write in response to your correspondence alleging that the City of Harrington violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your
correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether
a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we
determine that the City violated FOIA by failing to follow the open meeting requirements for the
Budget Committee meeting held on February 22, 2022 in which employee bonuses were discussed.

BACKGROUND
On March 30, 2022, you sought information from the City about a Budget Committee
meeting mentioned during a regular Council meeting, in which employee bonuses were discussed.
The City initially denied that a meeting of the Budget Committee took place; instead, the City
stated that several City officials and two members of the Committee met to informally discuss
budgetary items, including the use of certain funds to give employee bonuses. You then filed this
Petition, alleging that the City held a Budget Committee in violation of FOIA by meeting without
public notice and creating no meeting minutes or recordings. In short, you contend that there was
no way for the public to observe or comment on the City's decision to spend funds on these
bonuses.

On April 6, 2022, the City, through its legal counsel, answered the Petition ("Response"),
and included the City Manager's affidavit attesting that the information in the Response and
minutes are true and correct to the best of his knowledge. The City states that this meeting with
the City Manager, Chief of Police, Finance Director and two councilmembers, both also members
of the Budget Committee, occurred on February 22, 2022 and was "administrative in nature."1
The City acknowledges that this meeting, including two of the three members of the Budget
Committee, constituted a quorum of the Budget Committee and thus, under FOIA, a Budget
Committee meeting was held. Nonetheless, the City asserts that the Budget Committee merely
makes recommendations to the entire Council and does not vote on any issues. The City states
that this matter of employee bonuses was considered at a properly-noticed, regular Council
meeting on March 7, 2022. After receiving no written or verbal comment from the public prior to
or during this meeting, the Council unanimously voted to adopt the premium pay for employees at
the Council meeting. The City notes that it prepared minutes of this February 22, 2022 meeting
from the recollection of the staff in attendance and attached a copy to the Response. The City
committed to make these minutes available for public inspection. Finally, the City states that it is
not required by FOIA to post minutes to its website or make audio recordings of meetings.

DISCUSSION
A public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 FOIA mandates that public
bodies meet specific requirements related to meetings, including advance notice and the
preparation of meeting minutes. 4
In this instance, the City acknowledges that the Budget Committee is a public body, and a
quorum of this public body conducted a meeting without following the open meeting requirements.
As these facts are not in dispute, we determine that the City violated FOIA by failing to comply
with the open meeting requirements for this February 22, 2022 meeting, in which employee
bonuses were discussed. However, the Committee has no obligation to make recordings of its
meetings or to post its minutes to its website. 5

1

Response.

2

29 Del. C. § 10005(c).

3

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

4

29 Del. C. § 10004.

5

Id.
2

When our Office finds a violation of the open meeting requirements, we may recommend
remediation when appropriate. 6 However, the authority to invalidate a public body's action or
impose other injunctive relief is reserved for the courts, and the courts have emphasized that the
"remedy of invalidation is a serious sanction and ought not to be employed unless substantial
public rights have been affected and the circumstances permit the crafting of a specific remedy
that protects other legitimate public interests." 7 In determining whether invalidation is
appropriate, the court will consider the impact of "adverse consequences upon innocent parties."8
When a public body violates FOIA by privately discussing a matter that is later voted upon at a
public meeting, the court, when evaluating a remedy, also may consider "whether there was a
substantial reconsideration of the challenged decision," the nature of violation, and "whether it
was an isolated incident or an ongoing pattern of infractions." 9
In this case, evidence has been presented of a committee meeting that the City admits was
inadvertently held in violation of FOIA, and the matter of employee bonuses was later considered,
discussed, and voted on at a public City Council meeting. The City prepared minutes of the
Committee meeting for public inspection. There is no information in the record about the status
of implementing these pay increases, but a court also may consider whether steps to implement
these pay increases have been taken and the impact of any remedy on the City and its employees.
Based on this record, there is not a sufficient basis to conclude that a court is likely to find that the
serious sanction of invalidating the City's decision to adopt the employee bonuses is appropriate.
However, we emphasize that "citizens have the right to monitor decisions of public officials in
formulating public policy and . . . discussions or deliberations, as well as action, on public business
shall be conducted openly." 10 The Committee is cautioned to strictly follow the open meeting
requirements for its meetings in the future.

6

Del. Op. Att'y Gen. 21-IB17, 2021 WL 3609560, at 3 (July 23, 2021); see also Del. Op.
Att'y Gen. 05-IB15, 2005 WL 2334344, at 4 (Jun. 20, 2005); (citing Ianni v. Dep't of Elections
of New Castle Cnty., 1986 WL 9610, at *6 (Del. Ch. Aug. 29, 1986)).
7

Ianni, 1986 WL 9610, at *7.

8

Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL
274295, at *15 (Del. Ch. May 19, 1994).
9

Levy v. Bd. of Educ. of Cape Henlopen School Dist., 1990 WL 154147, at *7 (Del. Ch. Oct.
1, 1990).
10

Id. at *6.
3

CONCLUSION
For the foregoing reasons, we conclude that the City violated FOIA by failing to comply
with the open meeting requirements for the February 22, 2022 Budget Committee meeting in
which employee bonuses were discussed.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Dianna E. Stuart, Attorney for the City of Harrington

4