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 opinion also noted the Committee had no obligation to post its minutes to a website or make audio recordings of meetings.

What this means for you

If you serve on a Delaware municipal committee or subcommittee

The opinion treats a gathering of a quorum to discuss public business as a "meeting" subject to FOIA's open meeting requirements, even when the committee only makes recommendations and does not vote. Here, two of the three Budget Committee members were a quorum, so their February 22 discussion with City staff was a Budget Committee meeting that needed notice, an agenda, and minutes. The opinion holds that the "administrative in nature" label and the presence of City staff did not change that result.

If you are a Delaware resident wanting to track committee decisions

The opinion confirms two limits on what FOIA requires of the Committee: it does not have to post its minutes to a website, and it does not have to make audio recordings of its meetings. What FOIA does require for an open meeting is notice, an agenda, public attendance, and written minutes. The opinion also restates that residents may file a petition under § 10005 asking this office to determine whether a violation occurred, and that the public body then carries the burden of showing it complied.

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

The opinion holds that the AG's office can find a violation and recommend remediation, but only a court can invalidate a public body's action. It sets out the factors a court weighs before invalidating: whether substantial public rights were affected, the adverse consequences on innocent parties, whether there was a substantial reconsideration of the decision at a public meeting, the nature of the violation, and whether it was isolated or part of an ongoing pattern. On this record, the opinion concluded a court was not likely to find invalidation appropriate, because the bonus matter was later considered and voted on at a properly noticed Council meeting and the violation was inadvertent.

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 the Committee's meeting minutes online? A: No. The opinion states the Committee is not required to post its minutes to its website. FOIA still requires that written minutes be prepared and made available for public inspection.

Q: Does the City have to audio-record meetings?
A: No. The opinion states FOIA does not require the Committee to make audio recordings of its meetings.

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: The Budget Committee only recommends to Council and does not vote. Does FOIA still apply? A: Yes. The opinion rejected the argument that a recommend-only committee is exempt. It treated the Budget Committee as a public body and found that a quorum discussing public business triggered the open meeting requirements, even though the Committee does not take final votes.

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, prepare an agenda, allow public attendance, and keep minutes. The opinion applies these requirements to a quorum of a committee that gathers to discuss public business, and notes that the same section does not require the body to post its minutes to a website or make audio recordings of its meetings.

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