Can a Delaware town council just hold a closed-door 'executive meeting' to talk about draft ordinances?

Official title

24-IB16 04/29/2024 FOIA Opinion Letter to Brian Geller re: FOIA Complaint Concerning the Town of Leipsic

Plain-English summary

The Town of Leipsic noticed a March 26, 2024 meeting on its agenda as a "Town Council Executive Meeting/Session" for "Council Members Only." The agenda's only substantive item was discussion of "proposed and existing Town ordinances prior to any scheduled public reading," with two sub-items pointing to a draft ordinance dated September 23, 2023, and the powers of the Town Charter. Brian Geller petitioned, arguing this violated FOIA's open-meeting requirements.

The AG agreed on two grounds. First, drafting and discussing town ordinances before a public reading is not one of the nine permitted executive-session topics under 29 Del. C. § 10004(b). The Town's Mayor responded that he was "unaware that [the Town] would be violating . . . FOIA by having an Executive Meeting that was properly posted." Posting an agenda does not make a non-permissible topic permissible. Second, the Town did not vote in open session to enter executive session. FOIA prohibits stand-alone executive sessions; the vote to enter must happen at an open meeting and be recorded in the minutes (§ 10004(c)).

The Town ultimately decided not to move forward with the draft ordinances. The AG recommended the Town discuss the same items at a future open meeting with proper public notice, and ratify any votes that may have been taken.

What this means for you

For Delaware municipal officials and town clerks. This opinion is the cleanest example of two basic mistakes you cannot make. (1) "Discuss draft ordinances" is not on the list of executive-session purposes. Read 29 Del. C. § 10004(b) before agenda-drafting; the nine permitted purposes are narrow and specific. (2) Stand-alone executive-session meetings are not allowed in Delaware. The vote to enter executive session has to happen in open session, in front of the public, and be recorded.

For Delaware citizens watching small-town government. When you see a meeting agenda labeled "Executive Session" or "Council Members Only" without a parallel open-session vote, that is a violation. Document the agenda and meeting notice, attend the meeting if you can, and file a petition to the AG.

For attorneys advising small Delaware municipalities. The "we didn't know" defense never works. The Mayor's affidavit here did not save the Town; FOIA training is not optional. Build a habit of running every agenda by counsel for executive-session items, and flag any agenda that omits the public-comment line item or the public-vote-to-enter-session step.

For elected officials drafting policy in private. Pre-meeting strategy work among individual members about ordinance language is not categorically illegal, but the moment a quorum is gathered and discussing public business, FOIA applies. The cleanest path is to do the substantive discussion at a public work session, with public comment, and then move to a regular meeting for the formal vote.

Common questions

What's a "stand-alone executive session"?
A meeting where the only stated purpose is the executive-session discussion, with no open-session segment before, after, or around it. FOIA requires the vote to enter executive session to take place at a public meeting (§ 10004(c)), which means there has to be an open-session segment containing that vote.

Did the Town actually take a vote at the closed meeting?
The Town's Response said the only action taken was "a decision to not move forward with a draft packet of town ordinances before more research could be done on the subject matter." That sounds like a deliberation rather than a formal vote, but the AG declined to find a basis for invalidation. Instead, the AG recommended a future open meeting to discuss the same items and ratify any votes.

Could the Town have legally discussed any of the same content in executive session?
Probably not. The agenda items (draft ordinances, charter powers) are core policy work. None of the nine § 10004(b) exceptions covers "drafting policy" or "deliberating about ordinances." A consultation with the town attorney about the legal effect of an ordinance might fall under (b)(4) "strategy sessions . . . involving legal advice or opinion, from an attorney-at-law, with respect to . . . pending or potential litigation," but only if there's actual or imminent litigation tied to the ordinance.

What happens to the Town's previous discussion?
The AG's recommended remediation is for the Town to redo the discussion at a future open, properly-noticed meeting and ratify any votes that may have been taken. That cures the procedural defect. Only the Court of Chancery can void the action under § 10005(a), and the AG recommended against that approach because no innocent third parties relied on the closed-session decisions.

Is the AG opinion enforceable?
The opinion itself is recommendatory. If the Town ignores it and tries to push the closed-session ordinance forward, a citizen would need to file in Chancery to enforce.

Background and statutory framework

29 Del. C. § 10004(a) requires every meeting of every public body to be open to the public, except as authorized by subsections (b), (c), (d), and (h). Section 10004(b) lists the nine permitted executive-session topics. Section 10004(c) requires the vote to enter executive session to be public and to be recorded in the minutes.

The AG has consistently held that stand-alone executive sessions are not allowed. Opinions 17-IB27 and 02-IB33 both make the point. The reasoning is structural: the public has the right to observe the body voting to close its doors, and the public can only do that if the vote happens at an open meeting.

The remediation analysis follows the standard Chancery framework from Ianni v. Department of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), which reserves invalidation for cases where "substantial public rights have been affected" and the remedy can be crafted without harming "innocent parties."

Citations

• 29 Del. C. § 10004: open meetings
• 29 Del. C. § 10004(a): meetings open to the public
• 29 Del. C. § 10004(c): vote to enter executive session must be public
• 29 Del. C. § 10005: petition process and Chancery authority
• 29 Del. C. § 10005(a): Chancery may void action
• 29 Del. C. § 10005(c): burden of proof
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Chem. Indus. Council v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
• Del. Op. Att'y Gen. 17-IB27, 2017 WL 3426267 (July 18, 2017): stand-alone executive session not permitted
• Del. Op. Att'y Gen. 02-IB33, 2002 WL 34158592 (Dec. 23, 2002): same

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/04/29/24-ib16-04-29-2024-foia-opinion-letter-to-brian-geller-re-foia-complaint-concerning-the-town-of-leipsic/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/04/Attorney-General-Opinion-No.-24-IB16.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-IB16
April 29, 2024

VIA EMAIL
Brian Geller
[email protected]

RE: FOIA Petition Regarding the Town of Leipsic

Dear Mr. Geller:
We write in response to your correspondence alleging that the Town of Leipsic 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 Town violated FOIA by failing to meet its burden to demonstrate that the Town Council held an executive session for an appropriate purpose under FOIA and by failing to conduct a public vote to enter executive session at its March 26, 2024 meeting.

BACKGROUND
The Petition alleges that the Leipsic Town Council held an executive session at its March 26, 2024 meeting in violation of FOIA. The meeting notice states the "Town Council Executive Meeting/Session" was for "Council Members Only," and the sole item scheduled for discussion was "proposed and existing Town ordinances prior to any scheduled public reading," with two subsections: "specifically, draft ordinance document dated September 23, 2023" and "powers of Leipsic Town Charter and its application to ordinances (new, proposed, or existing)." 1 You allege that the items on this agenda are not proper reasons to enter executive session under the open meeting requirements of FOIA. Additionally, you allege that this stand-alone executive session was also a violation, as the Council did not take a vote in public session to enter the executive session.

On April 3, 2024, the Mayor replied to the Petition on the Town's behalf ("Response"). The Town asserts that it was unaware that it would "be violating . . . FOIA by having an Executive Meeting that was properly posted." 2 The Town states that "the only action taken was a decision to not move forward with a [d]raft packet of town ordinances before more research could be done on the subject matter." 3

DISCUSSION
The Town carries the burden of proof "to justify a decision to meet in executive session or any failure to comply with [FOIA]." 4 In certain circumstances, a sworn affidavit may be required to meet that burden. 5 The Petition's first claim is that the executive session was not held for a purpose authorized by FOIA. Section 10004 requires all public bodies' meetings to be open to the public, unless an executive session is permitted by one of the designated provisions. 6 In its Response, the Town does not explain how the items discussed in this meeting are appropriate for executive session, nor does the agenda expressly state the reasons for entering the executive session. We find that the Town violated FOIA by failing to justify its decision to meet in executive session at its March 26, 2024 meeting.

The second claim is the Town Council, in violation of FOIA, did not take a vote in public before entering executive session. The agenda indicated it was an "Town Council Executive Meeting/Session" for "Council Members Only." 7 Because public bodies must take a public vote to enter executive session and make those results public, FOIA does not permit a public body to hold a stand-alone executive session meeting. 8 As the agenda indicates it was an executive session closed to the public and the Town did not present any evidence of compliance with these requirements, we find that the Town violated FOIA by holding a stand-alone executive session in violation of FOIA.

Having found that the Town violated FOIA as set forth above, we consider whether any remediation is 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. 9 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." 10 In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." 11 Here, the items planned for discussion were proposed and existing ordinances, the specific subjects of which were not identified, and a discussion of the Town's authority under the charter. The Town indicates it decided not to move forward with a draft packet of ordinances. We recommend that the Town discuss the items of the March 26, 2024 meeting, including the ratification of any votes taken, in open session at a future meeting, after providing appropriate public notice pursuant to FOIA's open meeting requirements.

CONCLUSION
Based on the foregoing, we conclude that the Town violated FOIA by failing to meet its burden to demonstrate that the Town Council held an executive session for an appropriate purpose under FOIA and by failing to conduct a public vote to enter executive session at its March 26, 2024 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:
Samuel J. Fox, IV, Town Mayor
F. Michael Parkowski, Attorney for the Town

1 Petition.
2 Response.
3 Id.
4 29 Del. C. § 10005(c).
5 Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
6 29 Del. C. § 10004(a) ("Every meeting of all public bodies shall be open to the public except when closed under subsections (b), (c), (d), and (h) of this section.").
7 Petition.
8 29 Del. C. § 10004(c) ("The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes."); Del. Op. Att'y Gen. 17-IB27, 2017 WL 3426267, at 3 (July 18, 2017) ("[T]he record demonstrates that the Council appears to have treated the meeting as a stand-alone executive session, which FOIA does not permit."); Del. Op. Att'y Gen. 02-IB33, 2002 WL 34158592, at 3 (Dec. 23, 2002) ("FOIA does not permit a 'stand alone' executive session.").
9 29 Del. C. § 10005.
10 Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 7 (Del. Ch. Aug. 29, 1986).
11 Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 15 (Del. Ch. May 19, 1994).