Can a Delaware town council reach consensus on public business through emails between three of four members?

Plain-English summary

Councilmember Tamara Skis filed a FOIA petition against her own Town of Ellendale. The five-member Council had two newly elected members, two earlier-elected members, and one vacant seat. The petition raised two separate FOIA claims:

1. The January 30, 2023 Planning and Zoning Commission meeting was noticed without an agenda. Skis included a photograph of the Town bulletin board taken on January 26, 2023 (four days before the meeting) showing the meeting notice with no agenda.

2. Three councilmembers were privately meeting and emailing about town business.

The Town's response did not address the agenda allegation. The AG found a FOIA violation on that count: failure to show that an agenda was properly posted.

On the secret-meetings claim, the Town provided a sworn affidavit signed by the three accused councilmembers stating they had "never met in person to discuss town business outside of a duly noticed meeting." The councilmembers admitted, however, that "between January 2023 and February 2023, [they] have exchanged email correspondence relating to mundane town business which, upon information and belief, is a technical violation of FOIA." They said the Town Solicitor had briefed them and the practice would not be repeated.

The AG split the result:

• In-person meetings: No violation. The petition's allegation was generic ("seen meeting at residences and in town hall together") and the affidavit denied it. The petitioner did not establish a prima facie case.

• Email exchanges: Violation. The provided emails showed at least one episode where a quorum of councilmembers actively exchanged views and reached consensus on a tax-increase letter to the community (notifying residents of the property tax increase adopted in August 2022, identifying elected councilmembers, and describing community involvement opportunities). That episode satisfied the constructive-quorum standard: an active exchange of information and opinions, plus a consensus on action.

The AG declined to recommend invalidation because the councilmembers had stopped the practice and been briefed by the Solicitor. The Town was instructed to ensure both agenda postings and email communications complied with FOIA going forward.

What this means for you

If you serve on a Delaware council and use group email

Email is the easiest way to commit a constructive-quorum violation. Practical rules:

• Reply only to the sender, never reply-all to a group of councilmembers, on substantive matters. Reply-all on substantive business creates the active-exchange pattern.
• Never use email to "vote" or "agree" on a position. Even informal "I'm fine with that" replies, when sent to a quorum, can supplant a meeting.
• Acceptable email uses: scheduling logistics, distributing background documents in advance of a meeting, sharing information without inviting back-and-forth.
• If you receive a substantive email from a colleague that other quorum members are copied on, do not reply. Reply only to the sender, or wait for the public meeting.

GO4PLAY (Del. Super. 2022) marks the boundary: a Board of Adjustment email exchange that "show[ed] no active exchange of ideas" and merely affirmed positions already stated in a public hearing was not a violation. The opposite (members trading new views and converging) is.

If you handle agendas for a Delaware municipal commission

The agenda is part of the meeting notice. § 10004(e)(2) requires the agenda to be included with the notice. If a citizen photographs the bulletin board four days out and the agenda is missing, that is prima facie a violation. Two practical safeguards:

• Post the agenda the same time you post the notice, not later.
• Photograph or otherwise document each posting yourself, with date and timestamp, so you can rebut a claim that the agenda was missing.

If you are a Delaware citizen suspecting your council is doing business by email

Two ways to surface evidence:

• File a FOIA request for all emails between councilmembers about a specific topic over a specific date range. Email content is generally a public record (subject to limited exemptions).
• File a § 10005 petition once you have specific allegations (date range, members involved, topic). Generic claims that members are "always emailing each other" will fail; specific claims with an email-disclosure request behind them tend to succeed.

Common questions

Q: What is a "constructive quorum" by email?
A: When a series of emails among a quorum of public body members involves an active exchange of views and reaches consensus on Council action, FOIA treats the emails as a meeting that should have been public. The standard, restated in 23-IB10 and earlier opinions, looks at nature, timing, and substance.

Q: What is a "passive receipt" exception?
A: If members merely passively receive information without responding (or respond only individually to the sender, not to the group), there is no active exchange and no constructive quorum. This is also the GO4PLAY line.

Q: Can the AG punish individual councilmembers?
A: No. The AG can find a violation, recommend training and remediation, and refer the matter to court if the practice persists. Money penalties and individual consequences come from court action.

Q: What about the in-person meeting allegations?
A: Those failed because the petitioner described them generically ("seen meeting at residences and in town hall together") without specific dates, times, or substance. The affidavit denying meetings then carried the day. Specific allegations with corroborating evidence are required.

Q: Why was the agenda violation found without a sworn rebuttal?
A: Because the Town's response did not address the agenda claim at all. The petitioner provided a photograph; the Town offered nothing. The burden under § 10005(c) was unmet.

Q: Can councilmembers email about logistics (scheduling, document distribution) safely?
A: Yes. Logistics-only emails are not active substantive exchange. The risk arises when someone replies with a substantive view and others chime in.

Background and statutory framework

Open meeting requirements. § 10004 requires advance public notice (typically seven days) including the agenda, allows public attendance, and requires minutes. Failure to post the agenda is itself a violation.

Prima facie standard for secret meetings. § 10005(c) places the ultimate burden on the public body, but the petitioner first must make a prima facie case with substantive (not speculative) proof of a meeting. The burden then shifts. This avoids forcing the public body to "prove a negative."

Constructive-quorum doctrine for emails. The doctrine grew from in-person and telephonic cases (Tryon, Op. 03-IB11) and now reaches electronic communications including email. The active-exchange and consensus-reaching elements are the fact-bound triggers.

GO4PLAY and the boundary. GO4PLAY held that emails affirming positions already stated in a public hearing, with no active exchange of ideas, did not violate FOIA. This is the breathing room councilmembers have for thin email use.

Citations and references

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

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- GO4PLAY, Inc. v. Kent Cnty. Bd. of Adjustment, 2022 WL 2718849 (Del. Super. July 12, 2022)
- Tryon v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/03/30/23-ib10-03-30-2023-foia-opinion-letter-to-councilmember-tamara-skis-re-foia-complaint-concerning-the-town-of-ellendale/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/03/Attorney-General-Opinion-No.-23-IB10.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 23-IB10

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 23-IB10

March 30, 2023

VIA EMAIL

Councilmember Tamara Skis

Ellendale Town Council

[email protected]

RE: FOIA Petition Regarding the Town of Ellendale

Dear Councilmember Skis:

We write in response to your correspondence, alleging that the Town of Ellendale 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 Town violated FOIA by failing to establish that an agenda for the January 30, 2023 Planning and Zoning Commission meeting was properly posted. In addition, the Town Council violated FOIA by meeting via a constructive quorum without satisfying FOIA's requirements for open meetings.

BACKGROUND

The Town of Ellendale Town Council consists of five members. Two members were elected with terms beginning this year, and two other members were elected earlier. The Council has one vacant seat. The Petition submits two allegations for consideration: 1) the January 30, 2023 Planning and Zoning Commission meeting notice failed to include an agenda as required; and 2) a quorum of councilmembers met in person and communicated over email to discuss and make decisions about public business outside of a public meeting. [1] With the Petition, you submitted various emails involving members of the Town Council and a photograph of the Town bulletin board, which you state was taken on January 26, 2023, showing the Planning and Zoning Commission meeting notice without an agenda.

The Town, through its Council President, replied to the Petition on March 14, 2023 ("Response"). The Town provided an affidavit signed by the three councilmembers accused of meeting privately in residences and the town hall, stating that "three of us have never met in person to discuss town business outside of a duly noticed meeting of the Ellendale Town Council." [2] However, the three councilmembers admit that "between January 2023 and February 2023, [they] have exchanged email correspondence relating to mundane town business which, upon information and belief, is a technical violation of FOIA." [3] The members attest that they have been briefed by the Town Solicitor on this topic, and "the transgression will not be repeated." [4]

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] For the first claim, you state that the Town failed to post an agenda for its January 30, 2023 Planning and Zoning Commission meeting and provided a photograph alleged to be taken four days before the meeting, showing that the meeting notice did not include an agenda. The Response did not address this claim. As the Town failed to demonstrate it posted an agenda for this meeting as required by FOIA, we find that a violation of FOIA occurred in this regard.

The second claim alleges that a quorum of the Council engaged in private, in-person meetings and exchanged emails to make decisions outside of a public meeting. FOIA requires public business to be performed in an open and public manner so that citizens "have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." [7] A meeting under FOIA is "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." [8] "'Public business' [is] any matter over which the public body has supervision, control, jurisdiction or advisory power." [9] When a public body holds a meeting, certain open meeting requirements, such as providing proper public notice and preparing minutes, must be satisfied. [10] For a claim of a secret meeting between public body members, the petitioner carries the initial burden of making a prima facie case that a meeting occurred. [11] "A plaintiff must show substantive proof of a secret meeting rather than mere speculation in order to shift the burden of proof going forward." [12] The allegations must be sufficiently specific to allow consideration. [13] "Once a plaintiff has made a prima facie case that a quorum of a public body has met in private for the purpose of deciding on or deliberating toward a decision on any matter," the burden then shifts to the public body to prove that no violation of the open meeting requirements occurred. [14] This burden-shifting occurs to avoid requiring a public body from having to "prove a negative," i.e ., prove that a meeting did not occur. [15]

In this case, the Petition merely alleges that the three councilmembers "have been seen meeting at residences and in town hall together not during open sessions." [16] In response, the Council provided the sworn affidavit of the three councilmembers, attesting that they have never met in person to discuss town business outside of a duly noticed meeting of the Town Council. [17] We cannot, on this record, determine this initial allegation meets the burden of making a prima facie case that a meeting occurred, and even if this allegation was sufficient, the Town has provided statements under oath that no such meeting occurred. As such, we find no violation with respect to the claim that a quorum of councilmembers met at a physical location and made decisions about public business outside of a public meeting.

The Town Council's email practices compel a different result. "[S]erial telephone, email or other electronic communications among members of a public body may amount to a meeting of the public body." [18] "It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum." [19] For example, "a public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body 'to receive and comment on other members' opinions and thoughts, and reach consensus on action to take.'" [20] It is further required that the communications involve "'an active exchange of information and opinions' as opposed to 'the mere passive receipt of information.'" [21] The members' exchanges cannot supplant a public meeting. [22]

In this case, the Town attests, through the affidavit, that those emails involving more than two councilmembers involved "mundane town business." [23] The provided emails demonstrate that the Town councilmembers addressed various matters with more than two members on several occasions. In one instance, after a councilmember initially questioned whether a letter regarding a tax increase should be approved at a Council meeting, a quorum of councilmembers actively exchanged their thoughts and reached a consensus on a letter notifying the community of a property tax increase adopted in August 2022, the elected councilmembers, and opportunities for the community to get involved in committees and other efforts to support the Town. [24] Accordingly, we find that a quorum of Town councilmembers violated FOIA in at least one set of email exchanges by privately discussing and deciding on public business outside of a public meeting.

This Office lacks the authority to invalidate a public body's action or impose other injunctive relief, as this authority is reserved for the courts. [25] When this Office finds a violation of the open meeting requirements, we may recommend remediation if appropriate. [26] 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." [27] In these circumstances, the record does not include sufficient information to determine the extent of the affected interests and whether the specific steps may remediate these violations while protecting other legitimate public interests. The Response states that the councilmembers are no longer engaging in this email practice, and the councilmembers attest that they "have now been briefed by the Town Solicitor on this topic and the transgression will not be repeated." [28] We recommend that the Town ensures that its agenda postings and email communications comply with FOIA in the future.

CONCLUSION

For the reasons set forth above, we conclude that the Town violated FOIA by failing to demonstrate that an agenda for the January 30, 2023 Planning and Zoning Commission meeting was properly posted. In addition, the Council violated FOIA by meeting via a constructive quorum without satisfying FOIA's requirements for open meetings.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

Patricia A. Davis

State Solicitor

cc: Craig T. Eliassen, Town Solicitor

[1] The Petition initially made two additional claims. First, the Petition questioned whether it is an ethics violation for the two married councilmembers to have access to the Town accounts. In the Response, the Town Council President agrees such a practice would be unethical and states that he and his spouse would not co-sign checks, but instead, must co-sign with another councilmember. Ethics claims are outside the FOIA Office's authority to consider. The second claim, that the Town attempted to hold a meeting without proper notice but did not actually hold the proposed meeting, was dismissed, as no violation of FOIA occurred.

[2] Response.

[3] Id.

[4] Id.

[5] 29 Del. C. § 10005(c).

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

[7] 29 Del. C. § 10001.

[8] 29 Del. C. § 10002(j).

[9] 29 Del. C. § 10002(m).

[10] 29 Del. C. § 10004.

[11] Del. Op. Att'y Gen . 17-IB20, 2017 WL 3426260, at *7 (July 12, 2017).

[12] Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240, at *2 (Apr. 11, 2005) (citing Gavin v. City of Cascade , 500 N.W.2d 729, 732 (Iowa App. 1993).

[13] See Del. Op. Att'y Gen. 16-IB18, 2016 WL 5888777, at *5 (Sept. 29, 2016) (finding that the petitioner did not make a prima facie case: "without specific information regarding specific dates, the number of Council members present, and the number of Council members to whom you allege the Mayor passed notes during specific meetings, these allegations are too vague to warrant consideration").

[14] Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240, at *2.

[15] Id.

[16] Petition.

[17] Response, Aff. of Councilmembers Michael Workman, Lisa Workman, and Terrie Ottomano dated Mar. 8, 2023.

[18] Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 5 (Apr. 25, 2017) (citing Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 4 (May 19, 2003); see also See GO4PLAY, Inc. v. Kent Cnty. Bd. of Adjustment , 2022 WL 2718849, n. 28 (Del. Super. July 12, 2022) ("There were no votes cast or exchanged during the email exchange. The members, for the most part, affirmed what they had already stated in the public hearing with the parties present, and the emails show no active exchange of ideas. . . . Therefore, the email exchange was not a means of circumventing FOIA.") (citing Del. Op. Att'y Gen. 10-IB17, 2010 WL 5186152 at *3 (Dec. 15, 2010) and Tryon v. Brandywine Sch. Dist. Bd. of Educ. , 1990 WL 51719 (Del. Ch. Apr. 20, 1990)).

[19] Del. Op. Att'y Gen. 06-ID20, 2006 WL 2724980, at *2 (Sept. 11, 2006) (citation omitted).

[20] Id. (quoting Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at *4 (May 19, 2003)).

[21] Del. Op. Att'y Gen. 06-IB16, 2006 WL 2435111, at 4 (quoting Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 5).

[22] Del. Op. Att'y Gen. 21-IB17, 2021 WL 3609560, at *2 (July 23, 2021) ("Thus, we find that this vote was not a poll to understand whether the Council was ready to discuss and vote on this issue at a subsequent meeting like the facts of the Tryon case; this vote by a series of emails and calls actually supplanted a meeting in which the Council could consider and vote on whether to designate this Juneteenth as a holiday.").

[23] Response, Aff. of Workman, Workman, and Ottomano.

[24] Petition.

[25] 29 Del. C. § 10005.

[26] Del. Op. Att'y Gen. 21-IB17, 2021 WL 3609560, at 3; see also Del. Op. Att'y Gen. 05-IB15, 2005 WL 2334344, at 4 (Jun. 20, 2005).

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

[28] Response, Aff. of Workman, Workman, and Ottomano.