When a Delaware municipality holds a 'special meeting' less than seven days after deciding to schedule it, what does the agenda have to say about why notice came late?
Official title
24-IB13 03/05/2024 FOIA Opinion Letter to Carol DiGiovanni re: FOIA Complaint Concerning the Village of Arden
Plain-English summary
The Village of Arden has a town-meeting governance structure in which the Town Assembly (all residents) is the legislative body. The Town Assembly has a standing Advisory Committee with representatives from each of the eleven other committees, the three Trustees of Arden, and the Village Secretary. It typically meets four times a year on a regular schedule.
On January 31, 2024, the Chair of the Advisory Committee emailed the other members proposing an Advisory Committee meeting on February 13, 2024 to discuss (1) selecting a date for an upcoming Special Town Meeting, (2) setting the agenda for that meeting, and (3) recommending a process for changing the Town Charter.
Carol DiGiovanni filed a FOIA petition before the meeting, alleging that as of February 8, 2024 at 10:51 a.m. there was no posted notice or agenda. She argued the Chair could not unilaterally call a meeting, and that absent a quorum vote of the Committee, the meeting itself would be improper.
The Village's counsel responded with the Town Assembly Chair's affidavit. The Village asserted the Town Assembly had previously delegated to the Advisory Committee the authority to schedule a Special Town Meeting on charter amendments. The Village provided photographs showing the meeting notice and agenda were posted on February 8, 2024 at the Buzz Ware Center.
The AG split the result. The Chair-authority question is municipal law and outside the AG's FOIA-petition jurisdiction (consistent with AG 24-IB17, the parallel Rosenkranz / Arden opinion). On the FOIA question, however, the AG found a violation. Section 10004(e)(2) requires seven days' advance notice for regular meetings. A "special meeting" (one held less than seven days after the scheduling decision) requires under § 10004(e)(4) an "explanation as to why the notice required by [Section 10004(e)(2)] could not be given." Arden's posted agenda contained no such explanation. That is a violation.
For remediation, the AG recognized that two of the three agenda items were logistics (date and agenda for the Special Town Meeting), but the third item (recommendation for how to amend the Charter) was substantive. The AG recommended that the Committee re-notice and discuss the charter-amendment process item in a future public meeting and ratify any votes already taken on that item.
What this means for you
For Delaware municipal clerks and committee chairs scheduling special meetings. Two requirements: (1) post the notice and agenda before the meeting (no later than the start), and (2) include a brief written explanation of why seven days' notice could not be given. The explanation does not need to be elaborate; it just needs to exist. A line like "Special meeting called on January 31 to set up the February 27 Special Town Meeting; seven days' advance notice not feasible because the Special Town Meeting must be scheduled before the Charter-amendment deadline" would satisfy the requirement. Without that line, the agenda violates FOIA.
For Delaware municipal attorneys. Build a checklist: every special-meeting notice template should include a "Reason for Special Meeting" or "Why Seven-Day Notice Was Not Given" field that the clerk must fill in. Train the clerks once and the violation rate drops. The AG has been consistently ruling on this requirement (24-IB13 is one of multiple AG opinions reaching the same conclusion).
For Delaware municipal residents who object to short-notice meetings. This opinion is your template. The AG will rule on (a) the late-notice claim and (b) any substantive items decided at the offending meeting. Procedurally, the AG can recommend re-noticing and ratifying votes; the AG cannot itself void the action (that authority is reserved for Chancery under § 10005(a)).
For the Village of Arden specifically. The 24-IB13 opinion comes alongside 24-IB17 (Rosenkranz) and 23-IB20 (also Rosenkranz on the joint Villages meeting) as a chain of FOIA petitions involving Arden's governance reform efforts. The Charter-amendment process appears to be moving forward under repeated FOIA scrutiny. Build a clean meeting-notice paper trail. Each Advisory Committee meeting should be noticed at least 7 days in advance unless genuinely urgent, and when it is short-notice, give a written reason.
Common questions
What's a "special meeting" under Delaware FOIA?
29 Del. C. § 10004(e)(4) defines a special meeting as one "to be held less than 7 days after the scheduling decision is made." It is contrasted with the regular-meeting rule in § 10004(e)(2), which requires seven days' advance notice.
What kind of explanation is required?
The statute says the notice "shall include an explanation as to why the notice required by [§ 10004(e)(2)] could not be given." The AG has been flexible on form, requiring only that some written explanation appear with the notice. Common reasons: time-sensitive contract deadline, court order, statutory deadline approaching, urgent personnel matter, response to an emergency. The reason can be one short sentence.
Why couldn't the AG decide the Chair-authority question?
Because it is a question of Arden's Charter and bylaws, not Delaware FOIA. The AG's FOIA petition jurisdiction (§ 10005(e)) is limited to FOIA-violation determinations. AG 20-IB28 (Wilmington Council seat) and the parallel AG 24-IB17 (Rosenkranz / Arden) confirm that municipal-authority questions belong to the Chancery Court or the municipality's own governance process.
What was the AG's remediation recommendation?
The two logistical agenda items (setting the date and agenda of the Special Town Meeting) are routine and not "substantial public rights" affecting items that warrant invalidation. The third item (the Committee's recommendation for the process of amending the Charter) is substantive and affects substantial public rights. The AG recommended that the Committee re-notice that third item and ratify any votes on it at a properly noticed public meeting. The Court of Chancery is the only body with authority to actually invalidate the action (Ianni v. Dep't of Elections; Chemical Industries Council).
What's a "Special Town Meeting"?
In Arden's town-meeting structure, a Special Town Meeting is a Town Assembly meeting called outside the regular quarterly schedule, typically to address specific business such as a Charter amendment. The Special Town Meeting is itself subject to FOIA's notice and agenda requirements; the Advisory Committee's role is to plan and recommend.
How does this connect to AG 24-IB17 and AG 23-IB20?
All three involve Arden governance and Charter-amendment process. 24-IB17 (Rosenkranz / FOIA for firm communications) declined to decide who is the firm's client; 23-IB20 (Rosenkranz / Three-Village meeting) found no FOIA violation on meeting location and website-posting; 24-IB13 (DiGiovanni) found a FOIA violation on special-meeting notice. The pattern suggests the Village can avoid future violations by tightening up its notice procedures.
Background and statutory framework
29 Del. C. § 10004(e)(2) requires seven days' advance notice for regular meetings.
29 Del. C. § 10004(e)(4) defines a special meeting as one held within seven days of the scheduling decision and requires the notice to "include an explanation as to why the notice required by [§ 10004(e)(2)] could not be given."
29 Del. C. § 10005(a) provides that "any action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The AG cannot void; only Chancery can.
29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required.
29 Del. C. § 10005(e) limits the AG's FOIA petition jurisdiction.
The remediation framework comes from Ianni v. Dep't of Elections (Del. Ch. 1986), Chem. Indus. Council v. State Coastal Zone Indus. Control Bd. (Del. Ch. 1994), and AG opinion 07-IB16 (July 10, 2007), which prescribes re-noticing and ratification when a public body has acted on improperly noticed substantive items.
Citations
- 29 Del. C. § 10004(e)(2): seven days' advance notice
- 29 Del. C. § 10004(e)(4): special meeting definition; explanation requirement
- 29 Del. C. § 10005, § 10005(a), § 10005(c), § 10005(e): petition jurisdiction; voidability; burden; scope
- 29 Del. C. §§ 10001-10008: Delaware FOIA chapter
- Arden, Del., C. (Charter) § 4: Town Assembly composition
- 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): invalidation standard
- Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994): invalidation factors
- Del. Op. Att'y Gen. 20-IB28 (Nov. 9, 2020): municipal authority outside FOIA scope
- Del. Op. Att'y Gen. 07-IB16 (July 10, 2007): re-noticing remediation
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/03/07/24-ib13-03-05-2024-foia-opinion-letter-to-carol-digiovanni-re-foia-complaint-concerning-the-village-of-arden/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/03/Attorney-General-Opinion-No.-24-IB13.pdf
Original opinion text
KATHLEEN JENNINGS
DEPARTMENT OF JUSTICE
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. 24-IB13
March 5, 2024
VIA EMAIL
Carol DiGiovanni
[email protected]
RE: FOIA Petition Regarding the Village of Arden
Dear Ms. DiGiovanni:
We write in response to your correspondence alleging that the Village of Arden violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 find that the Village violated FOIA by failing to post the February 13, 2024 Advisory Committee meeting notice and agenda with an explanation regarding why seven days' advance notice for this meeting could not be given.
BACKGROUND
The Village of Arden is a small municipality governed by the Town Assembly. The Town Assembly has a standing committee known as the Advisory Committee. This Committee, consisting of representatives from each of the Town Assembly's eleven committees, the three Trustees of Arden, and the Village Secretary, typically holds four regular meetings a year. However, on January 31, 2024, the Chair of the Advisory Committee sent an email to the other members, stating that the Chair would like to have an Advisory Committee meeting on February 13, 2024 to discuss selecting a date for the Special Town Meeting, setting an agenda for that meeting, and recommending a process for changing the Town Charter. This Petition followed.
In the Petition, you allege that as of February 8, 2024 at 10:51 a.m., the Committee did not post a notice or agenda for this February 13, 2024 meeting. You state that there was no notice at the Buzz Ware Village Center meeting location, nor was there a posting at the Gild Hall, where meetings of this Committee and other committees occasionally are held. In addition, you assert that no notice of this meeting appeared in the January 2024 issue of the Arden Page newsletter or on the Arden website. You allege that the Village's charter and bylaws do not permit the Chair to make a unilateral decision about holding a public meeting, and a quorum of the Advisory Committee must agree to a meeting. You argue that if this February 13, 2024 meeting occurs, it would be a violation of FOIA.
On February 16, 2024, the Village's counsel replied to the Petition ("Response") and attached the affidavit of the Chair of the Town Assembly attesting that counsel's statements in the Response are accurate to the best of his knowledge and belief. The Village held the Advisory Committee meeting on February 13, 2024 as scheduled. The Village asserts that the Town Assembly previously voted to allow the Advisory Committee to schedule a special meeting of the Town Assembly concerning charter amendments and further asserts that municipalities act through elected or designated officials or committees. The Village states that a meeting notice and agenda were posted for the February 13, 2024 Committee meeting on February 8, 2024, and the Response included photographs of the meeting notice and agenda. The Chair attests that these photographs "are true and correct copies of the notices posted on February 8, 2024, at the Buzz Ware Center in Arden, concerning the Advisory Committee's Special Meeting." The posted agenda's three items included deciding on a date and time for the Special Meeting of the Town Assembly, setting an agenda for this meeting, and producing "a recommendation for how this change to the Charter could be made (to be presented at the meeting)."
DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden. In this case, the Petition challenges the timeliness of the posting of the February 13, 2024 meeting notice and agenda and alleges that the Advisory Committee's Chair does not have the unilateral authority to set up a committee meeting. As a preliminary matter, we find that the Chair's authority to convene a meeting is a question concerning municipal law, which is outside the scope of this Office's authority to decide.
This Petition concerns the timeliness of the Village's posting for the February 13, 2024 Advisory Committee meeting. Section 10004(e)(2) of the FOIA statute requires that a public body give seven days' advance notice of a regular meeting. A special meeting is defined as a meeting "to be held less than 7 days after the scheduling decision is made." The notice for a special meeting must "include an explanation as to why the notice required by [Section 10004(e)(2)] could not be given." Although the notice of the special meeting in this case was posted less than seven days in advance, the agenda contained no explanation as to why seven days' advance notice could not have been given. This is a violation.
Having found that the Village violated FOIA, we must determine whether remediation would be appropriate. Section 10005(a) states that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate a public body's action, or to impose other relief, is reserved for the courts. The Delaware Court of Chancery stated 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." In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." Here, two of the three items on the agenda are logistical matters involving setting up a later public meeting, but the third item, discussing the process for amending the charter and adopting a recommended course for charter revisions, is a matter of significant public business. After providing appropriate notice in accordance with the FOIA statute, we recommend that the Committee discuss in a public meeting, at a minimum, this third agenda item and ratify any votes taken during that meeting regarding that matter.
CONCLUSION
Based on the foregoing, we conclude that the Village violated FOIA by failing to post the February 13, 2024 Advisory Committee meeting notice and agenda with an explanation regarding why seven days' advance notice for this meeting could not be given.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Edward B. Rosenthal, Attorney for the Town Assembly Chair, Village of Arden