Can a Delaware city council go into executive session and pick a replacement for a vacant council seat by secret written ballot, then return to open session for a unanimous public vote?

Plain-English summary

The Wilmington City Council had two vacancies in 2022-2023: an At-Large Council seat and a First District Council seat. Under the City Charter, Council appoints replacements to serve the remainder of the term.

The Council's Committee of the Whole handled both selection processes. At each, the public-facing parts looked clean: press release announcing the vacancy, public solicitation of candidates, public interviews of candidates at a Committee meeting, public comment period. Then the Committee went into executive session. In executive session, the members assigned identifiers to each candidate (Candidate A, Candidate B, etc.), wrote their choices on secret ballots, and submitted them to the Council President. The Council President tallied them and verbally announced who had received the most votes. The selections were not unanimous. After returning to open session, the Council President moved a motion to recommend the chosen candidate; that motion passed unanimously, as did the eventual resolution at the full Council to appoint each candidate.

The City defended the practice as a "technical violation" cured by the public unanimous votes. The City cited member concerns that ballot-box votes in open session would risk colleagues seeing each other's choices on private candidates, but conceded that the secret-ballot mechanism was improper.

The AG ruled the Committee violated FOIA. Section 10004(c) is unambiguous: "all voting on public business must take place at a public meeting and the results of the vote made public." Section 10004(f) requires per-member recording. The actual selection of candidates happened in executive session via secret ballot. The unanimous open-session votes that followed merely ratified a decision the public had not seen made.

The AG cited Op. 19-IB63 (paper secret ballot at open meeting violated FOIA), Op. 21-IB17 (email "polling" of council violated FOIA), and Ianni v. Dep't of Elections (Del. Ch. 1986) (electoral-process decisions affect substantial public rights). The AG recommended that the secret-ballot votes be repeated in open session at a future Committee meeting.

What this means for you

If you serve on a Delaware city council, school board, or other public body

The opinion holds that the Committee of the Whole violated FOIA by voting via secret written ballot in executive session to select candidates for the vacant seats. It quotes § 10004(c): 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." It reads § 10004(f), which requires minutes to record "a record, by individual member ... of each vote taken," as not permitting a secret ballot. The opinion treats the later unanimous open-session motions and resolutions as insufficient: the actual selection happened in executive session by secret ballot, where neither the public nor the other members could observe how each member voted.

If you are a candidate for an appointed Delaware office

The opinion holds that selecting candidates to fill open Council seats "impacts substantial public rights." Both selections here were made by secret ballot and were not unanimous, even though the open-session motions that followed passed unanimously. The opinion recommends that the Committee's voting on these candidates be repeated in a future open-session meeting.

If you are a Wilmington resident or political observer

The opinion does not invalidate the appointments. It states that the authority to invalidate a public body's action or impose injunctive relief is reserved for the courts, and that this Office lacks authority to impose the petitioner's requested removal of candidates or invalidation of Council actions. Citing Ianni, the opinion notes invalidation "ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy." Its recommendation is prospective: re-do the votes in open session.

Common questions

Q: Can a public body vote in executive session?
A: Under the opinion, no. Section 10004(c) provides that executive sessions are "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."

Q: Why is a secret ballot prohibited?
A: The opinion reads § 10004(c) (results "made public") together with § 10004(f) (minutes record "a record, by individual member ... of each vote taken") as not permitting a vote by secret ballot. A secret ballot hides how each member voted, which the opinion says these provisions do not allow.

Q: The City said the secret votes were a harmless "technical violation" because the open-session votes were unanimous. Did the AG agree?
A: No. The opinion found a violation. It noted the executive-session votes did not let the public, or even the other members, observe how each member voted, and that neither selection was actually unanimous. The later unanimous public motions did not cure the violation.

Q: Does the violation invalidate the appointments?
A: No. The opinion states the authority to invalidate a public body's action or impose injunctive relief is reserved for the courts, and that this Office lacks authority to impose the requested removal or invalidation. Its recommendation is to repeat the votes in open session.

Background and statutory framework

Public voting requirement. Section 10004(c) of FOIA states: "Such [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." This is one of FOIA's core categorical rules.

Per-member recording. Section 10004(f) requires meeting minutes to include "a record, by individual member . . . of each vote taken and action agreed upon" (with limited exceptions for town assemblies). Together with § 10004(c), this prohibits secret-ballot voting at open meetings.

Op. 19-IB63. The opinion cites Del. Op. Att'y Gen. 19-IB63 (Nov. 8, 2019) for the point that a violation occurred when a public body took a vote in open session by secret ballot.

Electoral-process invalidation standard. The opinion cites Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986), for the rule that the invalidation remedy "ought not to be employed unless substantial public rights have been affected," and that when a decision involves the electoral process the public's rights "take on an enhanced importance." It cites Op. 03-IB17 (July 31, 2003) (declaring a councilman's office forfeited and replacing him affected substantial public rights) and Op. 98-IB08 (Sept. 1, 1998) (public's right to be heard on the manner in which they are governed) to the same effect.

Remediation authority. The opinion cites Op. 21-IB17 (July 23, 2021) and Op. 05-IB15 (June 20, 2005) for the AG's authority to recommend remediation, and states that invalidation and injunctive relief are reserved for the courts under § 10005.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10004 (Open meetings, voting, minutes)
• 29 Del. C. § 10005 (Enforcement)

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)

Prior AG opinions:

• Del. Op. Att'y Gen. 19-IB63 (Nov. 8, 2019) (paper secret ballot violated FOIA)
• Del. Op. Att'y Gen. 21-IB17 (July 23, 2021) (email polling violated FOIA)
• Del. Op. Att'y Gen. 05-IB15 (June 20, 2005) (remediation framework)
• Del. Op. Att'y Gen. 03-IB17 (July 31, 2003) (council seat forfeiture / electoral process)
• Del. Op. Att'y Gen. 98-IB08 (Sept. 1, 1998) (right to determine governance)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/03/22/23-ib09-03-22-2023-foia-opinion-letter-to-dr-christopher-t-curry-re-foia-complaint-concerning-the-wilmington-city-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/03/Attorney-General-Opinion-No.-23-IB09.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB09
March 22, 2023

VIA EMAIL
Dr. Christopher T. Curry
The Source
[email protected]

RE:

FOIA Petition Regarding the Wilmington City Council

Dear Dr. Curry:
We write in response to your correspondence, alleging that the Wilmington City Council
violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat
this 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. As discussed more fully herein, we
determine that the City Council's Committee of the Whole violated FOIA by voting via secret
ballot in two executive sessions to select candidates for vacant Council seats. We recommend that
these private votes be repeated in open session at a future Committee meeting held in compliance
with FOIA.

BACKGROUND
The City Council had several vacancies recently, including the seats of a Councilmember
At-Large and the First District Councilmember. The Council may appoint individuals to fulfill
the remaining term of these two vacant seats. 1 The Council's Committee of the Whole met on
1

Response, Ex. E, L (The Nov. 28, 2022 and Feb. 1, 2023 Committee of the Whole meeting
minutes both state "City Charter [S]ec. 2-101 provides Council with the authority to appoint a
person to complete the remaining term based upon the qualifications as outlined in City Charter
Sec. 2-103.").
1

November 28, 2022 and February 1, 2023 to interview candidates and discuss recommendations
for candidates. The Committee met in executive session at both meetings. 2 The Petition alleges
that the Council voted privately in those executive sessions to select candidates for the open
Council seats in violation of FOIA. 3
The City's counsel replied to the Petition on March 2, 2023 ("Response"), including an
affidavit from the Chief of Staff for the Council who attended the executive sessions at issue. To
fill the vacant seats, the City states that the Council followed the process in the City Code, which
is led by the Council's Committee of the Whole. For the Councilmember At-Large seat, the
Council issued a press release announcing the incumbent's resignation and publicly soliciting
applications from qualified candidates. Following the public announcement of the candidates, the
Committee met on November 28, 2022, and interviews of candidates were conducted in open
session. After the interviews, a public comment period was held, and the Committee then entered
executive session. According to the executive session minutes provided with the Response, the
members discussed their "preference for not announcing their choices because there was a fear
that someone [may] share their selections with the public even though they are in executive
session." 4 Each candidate was given an identifier, and the Committee then voted by secret written
ballot in executive session, submitting the ballots to the Council President, who verbally
announced that Latisha Bracy received the most votes. The selection was not unanimous. After
open session reconvened, the Council President announced a motion to recommend a resolution
to appoint Latisha Bracy to the seat; this motion passed unanimously. At the December 1, 2022
Council meeting, the Council unanimously voted to adopt the resolution to appoint her to the
Councilmember At-Large seat.
For the First District Council seat, following multiple press releases about the process and
the candidates, the Committee held a meeting to consider the candidates for this seat on February
1, 2023, where it again interviewed the candidates in open session, accepted public comment, and
then moved into executive session. In executive session, the Committee members gave the
candidates identifiers and voted by secret ballot to select a single recommended candidate, first
voting to choose the top two candidates and then voting again to select the top candidate, Vincent
White. Again, the selection was not unanimous. After returning to open session, the Council
President announced a motion to approve a recommendation to adopt a resolution appointing
Vincent White to the vacant First District seat, which passed unanimously. The Council adopted
this resolution at its February 2, 2023 Council meeting unanimously.

2

Id., Ex. F, M.

3

The initial Petition claimed improper voting occurred in three executive sessions. One
executive session was held almost a year prior to this Petition, and this claim was dismissed as
untimely. See DEL. DEP'T JUST., RULES OF PROCEDURE FOR FOIA PETITIONS AND
DETERMINATIONS, at 3 (2019), https://attorneygeneral.delaware.gov/wp-content/uploads/sites
/50/2019/09/DDOJ-Rules-of-Procedure-for-FOIA-Petitions-and Determinations.9.26.19.pdf.
4

Response, Ex. F.
2

The City acknowledges that a tally vote in executive session is improper. However, the
City argues that the Council performed its appointments in an open and public manner, and any
"technical violation" was harmless because the Council overwhelmingly complied with FOIA.
The City contends that any violation was cured by the Committee's consideration of the
recommendations immediately after the executive sessions and by Council's consideration of the
resolutions at the later Council meetings. As nearly all the candidate selection process was
performed in public, the City maintains that the public had ample opportunity to observe this
process and to have their voices heard.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 5 In certain
circumstances, a sworn affidavit may be required to meet that burden. 6 In this instance, the City
provided copies of the minutes for the open and executive sessions that are the subject of this
Petition. The Chief of Staff attested that she attended the executive sessions, and the minutes are
a complete and accurate record of the sessions. In the executive sessions, the Committee gave
each candidate an identifier and then secretly voted by writing their choices on a form. The
Council President tallied the votes and verbally announced the candidate with the most votes to
the Committee. After leaving the executive sessions, the motions to recommend the selected
candidates passed unanimously. The resolutions to appoint these candidates to the Council seats
at regular Council meetings also passed unanimously.
FOIA provides that 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." 7 In addition, FOIA does not permit public bodies to vote in a meeting by
secret ballot. 8 Accordingly, we find that the Committee violated FOIA by voting in executive
session and by using written ballot to select candidates for recommendation to the two Council
vacancies.
Having found a violation of the open meeting requirements, we may recommend
remediation when appropriate. 9 The "remedy of invalidation is a serious sanction and ought not
5

29 Del. C. § 10005(c).

6

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

7

29 Del. C. § 10004(c).

8

29 Del. C. § 10004(f) (stating that meeting minutes include "a record, by individual
member … of each vote taken and action agreed upon"); see also Del. Op. Att'y Gen 19-IB63,
2019 WL 6273317, at *2 (Nov. 8, 2019) (finding a violation of FOIA occurred when a public
body took a vote in open session by secret ballot).

9

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).
3

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." 10 In this case, the
Committee members' votes in these executive sessions did not allow the public, or even the other
Committee members, to observe how each member voted, as they took the votes by secret ballot
in private and then "unanimously" adopted recommendations and accompanying resolutions for
the chosen candidates in public. 11 Selecting candidates to fill open Council seats impacts
substantial public rights, and it is recommended that the Committee's voting on these candidates
be repeated in a future meeting in open session.12 While the Petition has requested removing
candidates from office and invalidating Council actions, this Office lacks the authority to impose
any of the requested remediation, as the authority to invalidate a public body's action or impose
other injunctive relief is reserved for the courts. 13

CONCLUSION
For the reasons set forth above, we conclude that that the Committee violated FOIA by
voting by secret ballot in executive session at the November 28, 2022 and February 1, 2023
Committee meetings to recommend the selected candidates for two Council vacancies.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

10

Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29,

1986).
11

Neither candidate was selected unanimously in the executive session. Response, Ex. F, M.

12

Ianni, 1986 WL 9610, at 6 ("When the decision involves the electoral process, these rights
of the public take on an enhanced importance."); Del. Op. Att'y Gen. 03-IB17, 2003 WL 22669563,
at 3 (July 31, 2003) ("Like Ianni, this case affects the fundamental right to vote and the important
civil liberty of citizens to be governed by the representatives they elect. We do not see the Town's
FOIA violation as technical. The action taken by the Town Council in declaring a councilman's
office forfeited and voting to replace him with another person affected substantial public rights.");
Del. Op. Att'y Gen. 98-IB08, 1998 WL 648718, at *3 (Sept. 1, 1998) ("Analogizing from Ianni,
interested members of the public have a right to be heard on issues which substantially affect their
right to determine the method and manner in which they will be governed").
13

29 Del. C. § 10005.
4

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor

5