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 temptation to "take it offline into executive session" when a discussion gets sensitive is precisely what FOIA's open-meetings rule forbids. Three concrete cautions: (1) "compensation policy" alone does not justify executive session; (2) "we may need to consult our lawyer about whether we have liability exposure" is not enough on its own, you need to invoke § 10004(b)(4) properly with a specific potential-litigation grounding; (3) the personnel-matter exception is about named-individual deliberation, not generic discussion of any employee group.

For city solicitors and outside counsel for public bodies. Use this opinion as the script when you advise the council. Before the council goes into executive session on a topic that has a public-policy dimension, force the council through a checklist: (a) Which specific 10004(b) ground applies? (b) Does the discussion plan directly serve that ground? (c) Are we discussing named individuals (personnel) or threatened/pending litigation strategy? If the answer is "we want to talk freely without the public there," shut it down.

For journalists covering Dover and other Delaware cities. This opinion is a useful template. You can challenge a planned executive session before it happens by writing to the council solicitor and citing 22-IB41. The AG will not order an injunction, but the threat of a follow-up petition (and the fact that the AG has already articulated the standards) will frequently produce a narrower closed session. The packet-substance question, by contrast, is a loss: FOIA does not require detailed packets, only adequate agendas in plain language.

For municipal employees affected by compensation discussions. This opinion confirms that Council debate over your compensation as a class is required to happen in public. If you suspect Council is taking that debate behind closed doors, file a FOIA petition. The personnel-matter exception only applies when individual employees are being discussed by name.

Common questions

Why did the AG warn Dover but not find a violation?
Because the executive session had not happened yet. FOIA petition jurisdiction covers violations that "occurred or are about to occur." Dover's vote to defer was not a final decision to hold the executive session, and Dover's affidavit confirmed nothing had been scheduled. Without an actual closed-door meeting, there was no completed violation. The AG used the warning to set out the rules for whatever happens next.

What's the personnel-matter executive-session ground?
29 Del. C. § 10004(b)(9) (cited in this context as the "personnel" exemption) allows executive session for the discussion of personnel matters where the discussion will "directly involve the consideration of individual employees by name, competency, and ability." A meeting that mentions employees only generically, or that mentions one named person but is really about policy, does not qualify. AG opinion 02-IB12 says discussion of police salaries during a resignation crisis is not a "personnel matter."

What's the legal-advice executive-session ground?
29 Del. C. § 10004(b)(4) covers "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation." Chemical Industries Council v. State Coastal Zone Industrial Control Board (Del. Ch. 1994) cabined this narrowly: a public body cannot meet in executive session simply to receive legal advice on any matter of public business. There has to be a strategy session about pending or potential litigation specifically.

Does FOIA require a written meeting packet?
No. FOIA requires a notice and an agenda. The agenda must include "a general statement of the major issues expected to be discussed at a public meeting" in plain comprehensible language. It does not require a full background paper, exhibits, draft language, or position statements. Many Delaware municipalities provide packets as a courtesy, but FOIA does not compel it. (Federal sunshine laws differ; do not confuse the federal frame with Delaware's.)

What about the special-event overtime grievance the City mentioned?
The City told the AG that, unbeknownst to Council at the meeting, an officer had filed an internal grievance to obtain festival pay and could sue if the grievance was not resolved. That fact pattern would qualify a focused legal-strategy executive session under § 10004(b)(4), but only on the grievance-handling slice. It would not justify a general overtime/policy/FLSA discussion behind closed doors.

Background and statutory framework

29 Del. C. § 10004(a)-(b) establishes the rule and the nine narrow exceptions for executive session. Section 10004(b)(4) (legal-strategy) and § 10004(b)(9) (personnel matters about named individuals) are the two most often invoked.

29 Del. C. § 10004(e) governs the agenda requirement. Section 10002(a) defines the agenda's required content as a "general statement of the major issues" and a "statement of intent to hold an executive session and the specific ground or grounds." The Court of Chancery in Chemical Industries Council confirmed that an agenda need not disclose every specific component of a complex proposal, so long as it discloses the broader subject. Lechliter v. DNREC (Del. Ch. 2017) and Ianni v. Department of Elections (Del. Ch. 1986) confirm the public-on-notice standard.

29 Del. C. § 10005(c) places the burden on the public body. Section 10005(e) limits the AG's jurisdiction to FOIA violations.

The "compensation discussions cannot all hide in personnel" line traces to AG 22-IB27 (Aug. 19, 2022) and AG 02-IB12 (May 21, 2002), both cited in this opinion's footnote 9.

Citations

• 29 Del. C. § 10002(a): agenda content
• 29 Del. C. § 10004: open meetings rule
• 29 Del. C. § 10004(b), § 10004(b)(4): executive session grounds
• 29 Del. C. § 10004(e): agenda timing
• 29 Del. C. § 10005, § 10005(c), § 10005(e): petition; burden; jurisdiction
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Del. Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984): open-meeting laws liberally construed
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
• Lechliter v. Del. Dep't of Natural Res. & Env't Control, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017)
• Ianni v. Dep't of Elections of New Castle Cty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Del. Op. Att'y Gen. 22-IB27 (Aug. 19, 2022): compensation in executive session
• Del. Op. Att'y Gen. 02-IB12 (May 21, 2002): police salaries not personnel matters
• Del. Op. Att'y Gen. 10-IB12 (Sept. 28, 2010): agenda function

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