Can a Delaware city council take a discussion of police overtime, vacation, and city-vehicle use into a private executive session, and does the council have to put detailed background materials in the public meeting packet?

Official title

22-IB41 11/14/2022 FOIA Opinion Letter to Andrew West and Randall Chase re: FOIA Complaints Concerning the Dover City Council

Plain-English summary

On October 10, 2022, Dover City Council had a public meeting that included Item 27 on the agenda: "Discussion of Special Event Overtime, Vacation, and City Vehicle Usage. Background of Special Event Overtime, Vacation, and City Vehicle Usage Topic – 2015B. Future Alternatives/Payment Methods. HR – Guidelines for Exempt and Non-Exempt Employees Henceforth." The Council talked about this for over forty minutes. At the end, the Council voted to defer further discussion to a future executive session.

Two journalists, Andrew West (Executive Editor, Delaware State News) and Randall Chase (Associated Press), filed separate FOIA petitions. Chase argued the Council was using executive session to talk freely about compensation matters that should be public. West argued the Council had also failed to provide adequate written background; the meeting packet had nothing on Item 27, and the issue was never clearly outlined to the public.

Dover responded that no executive session had actually been scheduled yet. Specific slices of Item 27 might fit the executive-session grounds: a police officer had filed a grievance and could sue the City for festival pay (legal-strategy); past compensation may have been improperly paid to specific named employees (personnel matter). The Council's vote to defer was just a vote to defer.

The AG combined both petitions into a single opinion. On the executive-session question, the AG laid out the rule: general discussions of compensation policy and FLSA compliance do not fit any executive-session ground. Legal advice on specific potential litigation must use § 10004(b)(4)'s narrow framework. Personnel-matter discussions must "directly involve the consideration of individual employees by name, competency, and ability." Because Dover had not yet held the executive session, the AG found no violation had occurred. The AG recommended Dover's solicitor scope the executive session narrowly to genuinely qualifying topics.

On the meeting-packet question, the AG ruled cleanly for Dover: FOIA requires a notice and an agenda with general statements of major issues. It does not require a meeting packet, a detailed background outline, or topic-by-topic explanations. Plain comprehensible language and a public-on-notice standard control.

What this means for you

For Delaware city councils and other municipal bodies. The opinion holds that general discussions of employee compensation, leave, and vehicle usage, which involve the expenditure of public funds, do not fall under any executive-session exception. It also holds that a public body may not enter executive session merely to receive legal advice on a matter of public business; consultation with counsel about pending or potential litigation must meet § 10004(b)(4). And the personnel-matter exception applies only where the discussion will "directly involve the consideration of individual employees by name, competency, and ability," not whenever an employee's name might be mentioned.

For city solicitors and outside counsel for public bodies. The opinion's operative recommendation is that the Council review FOIA precedent and discuss in executive session only the aspects of Item No. 27 that meet one of the enumerated exceptions in § 10004(b). The City's own counsel identified two slices that might qualify: a focused legal-strategy discussion tied to the officer's grievance and possible suit (under § 10004(b)(4)), and a personnel discussion of named employees who may have received compensation they were not entitled to.

For journalists covering Dover and other Delaware cities. The opinion resolves two distinct claims. On executive session, the AG found no completed violation because the Council had only voted to defer Item No. 27 and had sworn it took no action to schedule a closed session; FOIA petition jurisdiction reaches violations that "occurred or are about to occur." On the meeting-packet claim, the AG ruled for the Council: FOIA requires a notice and an agenda, not a meeting packet or a detailed outline.

For municipal employees affected by compensation discussions. The opinion holds that general Council discussion of compensation, leave, and vehicle usage belongs in public session. The personnel-matter exception reaches only discussion of individual employees by name, competency, and ability.

Common questions

Why did the AG warn Dover but not find a violation?
Because the executive session had not happened. FOIA petition jurisdiction covers violations that "occurred or are about to occur." The Council had only voted to defer Item No. 27 to a future executive session, and the City provided sworn testimony that it had taken no action to schedule one. The AG used the opinion to set out the standards for whatever the Council does next.

What does the personnel-matter exception require?
The opinion states that executive-session discussion under the personnel-matter exception must "directly involve the consideration of individual employees by name, competency, and ability." A discussion that mentions employees only generically, or that is really about compensation policy, does not qualify.

When can a public body go into executive session for legal advice?
The opinion states that a public body may not hold an executive session to receive legal advice on any matter of public business. To consult counsel about pending or potential litigation, the body must meet the requirements of § 10004(b)(4).

Does FOIA require a written meeting packet?
No. The opinion holds FOIA requires a notice and an agenda, not a separate meeting packet or a detailed outline. The agenda must include a "general statement of the major issues" in "plain and comprehensible language." If a body is uncertain which components of a complex proposal it will take up, the agenda "need not disclose each specific component of that proposal, so long as the agenda clearly and directly discloses the broader subject."

What about the special-event overtime grievance the City mentioned?
The City told the AG that, unknown to Council at the meeting, an officer had filed an internal grievance to obtain festival pay and "could certainly file a lawsuit against the City for compensation." The City argued that slice could support a focused legal-strategy executive session under § 10004(b)(4). It would not justify a general overtime, policy, and FLSA discussion behind closed doors.

Background and statutory framework

29 Del. C. §§ 10001-10007 is Delaware's FOIA. Under § 10004(b), meetings of a public body are open to the public subject to limited exceptions. The opinion notes that open-meeting laws are liberally construed and closed-session exceptions strictly interpreted, with the public body bearing the burden of justifying a decision to meet in executive session.

Two § 10004(b) exceptions were at issue. Section 10004(b)(4) governs strategy sessions involving legal advice about pending or potential litigation; the opinion holds a body cannot enter executive session simply to get legal advice on a matter of public business. The personnel-matter exception applies only where the discussion will "directly involve the consideration of individual employees by name, competency, and ability."

On the agenda question, the opinion holds FOIA requires a notice and an agenda with a "general statement of the major issues" in "plain and comprehensible language," and that the agenda need not break out every component of a complex proposal so long as it discloses the broader subject. The point of the agenda "is to put the public on notice, not to answer every question about the agenda item." A meeting packet or detailed outline is not required. The petitions were brought under § 10005.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10004(b), § 10004(b)(4): open-meetings rule and executive-session grounds
• 29 Del. C. § 10005: petition for determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/14/22-ib41-11-14-2022-foia-opinion-letter-to-andrew-west-and-randall-chase-re-foia-complaints-concerning-the-dover-city-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB41-1.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB41

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB41

November 14, 2022

VIA EMAIL

Andrew West, Executive Editor
Delaware State News
[email protected]

Randall Chase
Associated Press
[email protected]

RE: FOIA Petitions Regarding the Dover City Council

Dear Mr. Chase and Mr. West:

We write in response to your correspondence alleging that the Dover City Council violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this correspondence as two Petitions for determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. We issue this combined Opinion to address both Petitions. As discussed more fully herein, we conclude that the Council may commit a violation of FOIA by discussing Item No. 27 in executive session, but we find no evidence that this alleged violation has occurred to date. Therefore, we recommend that the Council review FOIA precedent and discuss only the aspects related to Item 27 in executive session that meet one of the exceptions in Section 10004(b). In addition, we determine that the Council did not violate FOIA by failing to provide information in its meeting packet or a detailed outline about Item No. 27 before or during the October 10, 2022 meeting.

BACKGROUND

On October 10, 2022, the City Council held a public meeting to discuss multiple items of public business, including Item No. 27:

Discussion of Special Event Overtime, Vacation, and City Vehicle Usage.

Background of Special Event Overtime, Vacation, and City Vehicle Usage Topic – 2015B.

Future Alternatives/Payment Methods.

HR – Guidelines for Exempt and Non-Exempt Employees Henceforth.

At the meeting, the Council engaged in a lengthy discussion on this topic. At the conclusion of the discussion, the Council voted to defer discussions on Item No. 27 to a future executive session.

Both Petitions followed. Mr. Chase alleges that the Council wanted to meet in executive session so they could continue their discussions and "talk freely" without the public present. This Petition contends that no exception permits a private discussion of special event overtime or any other financial compensation or benefits, such as vacation and the use of government-owned vehicles. This Petition argues that such a discussion would be a violation of FOIA.

Mr. West also filed a Petition regarding Item No. 27. He alleges that the Council's discussions were improper under FOIA, as the Council's discussions centered on policy matters, definitions of extra duty pay and eligibility, and whether the City complied with the Fair Labor Standards Act. This Petition alleges that these topics do not fall under of one of FOIA's reasons for an executive session. In addition, he questions whether the Council provided adequate information for this item, stating that the meeting packet had no additional information and at no time during or in advance of the meeting was the issue clearly outlined.

The City's counsel replied to Mr. Chase's Petition on October 26, 2022 ("Response"). The City argues that the Petition merely alleges a future violation but not a present violation of the law. The City asserts that the discussion of Item No. 27 lasted over forty minutes and ended with a motion to defer. The City's counsel states that the vote on this motion may be construed as vote to defer discussions to a future executive session, but the City did not vote at that time for an executive session, as contemplated by FOIA. In addition, the City's counsel believes that certain portions of the discussions related to Item No. 27 would qualify for executive session. The Mayor assigned police staff to a recent festival, and the City's counsel states that, unknown to Council at the time, one of the officers, at the time of this meeting, had already filed a grievance with the City to obtain pay for the festival. The City notes that the police officer, if the grievance is not settled, "could certainly file a lawsuit against the City for compensation." The City also contends that certain aspects of the discussions may fall under the personnel exemption, as "certain employees of the City may have received compensation in the past, which they were not entitled to receive so that Subsection 9 could be applicable, which would involve personnel matters where the names of individual employees would be discussed." The affidavit of the Council President was also attached, in which he swore that he had reviewed the attached response from counsel and to the best of his knowledge and belief, the facts stated by counsel were accurate.

DISCUSSION

Meetings of a public body, with certain limited exceptions, are open to the public. "[O]pen meeting laws are liberally construed, and closed session exceptions within these statutes are strictly interpreted to limit nonpublic meetings." A public body has the burden of "justify[ing] a decision to meet in executive session."

In this case, after engaging in a public discussion about Item No. 27, the Council voted to defer this topic to a future executive session. However, the item involves discussions about employee compensation, leave, and vehicle usage. These types of general discussions involving the expenditure of public funds do not fall under one of the exceptions. Moreover, a public body may not hold an executive session to receive legal advice on any matter of public business. Instead, when considering consultation with its attorney about pending or potential litigation, the public body must meet the requirements of Section 10004(b)(4). Nor does the public body have the ability to enter executive session when an employee's name will be mentioned; executive session discussions under the personnel matter exception must "directly involve the consideration of individual employees by name, competency, and ability."

The City provided sworn testimony that it has taken no action to schedule such an executive session. Accordingly, we find no evidence that a violation has occurred to date. Rather than discussing the totality of Item No. 27 in executive session, we recommend that the Council review FOIA precedent and only discuss items that meet one of the enumerated reasons for an executive session in Section 10004(b).

Finally, the second claim in the Petitions is that the Council did not provide enough information about Item No. 27 in its meeting packet or by outlining the issues during or before the meeting. FOIA does not require that a public body include information in a separate meeting packet or provide a detailed outline of any matter expected to be discussed. Rather, FOIA requires that a public body provide a notice and agenda for a public meeting. The notice must include the time, date, and place of the meeting and whether it will be held virtually, and the agenda must include a "general statement of the major issues" which a public body expects to discuss. The agenda is to be worded in "plain and comprehensible language" and "[i]f a public body is uncertain as to what specific provisions or components of a complex proposal it will consider at an upcoming meeting, the agenda need not disclose each specific component of that proposal, so long as the agenda clearly and directly discloses the broader subject of which the components are a part." "[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item." Reviewing a meeting notice and agenda should allow members of the public to determine if they wish to attend a meeting. Specific information in a meeting packet or a detailed outline is not required, and thus, we find that the Council did not violate FOIA by not providing these additional items before or during the October 10, 2022 meeting.

CONCLUSION

For the reasons set forth above, we find that that the Council may commit a violation of FOIA by discussing all matters contained in Item No. 27 in executive session, but we find no evidence that this alleged violation has occurred to date. Therefore, we recommend that the Council review FOIA precedent and discuss only the aspects related to Item No. 27 in executive session that meet one of the exceptions in Section 10004(b). In addition, we conclude that the Council did not violate FOIA by failing to provide information in its meeting packet or a detailed outline about Item No. 27 before or during the October 10, 2022 meeting.

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Nicholas H. Rodriguez, City Solicitor