Are informal 'office hours' held by elected village officers a public meeting under Delaware FOIA?
Official title
24-IB40 10/03/2024 FOIA Opinion Letter to Warren Rosenkranz re: Village of Arden
Plain-English summary
Warren Rosenkranz alleged the Village of Arden's four elected officers (the Chair of the Town Assembly, the Secretary of the Town Assembly, the Chair of the Advisory Committee, and the Town Treasurer) had effectively become a public body when, in 2007, they began holding monthly "office hours" together to handle the Village's operational responsibilities. He pointed to a January 2022 Town Assembly motion clarifying who counts as an "officer" as evidence that a new public body was created. He requested minutes of the May 9, 2024 and July 11, 2024 office hours; the Village said no minutes existed because the officers are not a public body.
The AG agreed with the Village. Under FOIA's two-part public-body test in 29 Del. C. § 10002(k), the entity must (1) be a regulatory, administrative, advisory, or similar body of the State or a political subdivision, and (2) be supported by public funds, expend public funds, or be charged to advise or report. The 2022 motion only clarified the meaning of "officer" as used in the Charter; it did not create a new committee or expand any officer's duties beyond those already in the Charter or the Town Assembly's authorizations. So the officers, when meeting together for office hours, are not a separate public body. Each officer's individual position is part of the Town Assembly (which is a public body) but their joint office hours are not a public meeting requiring minutes under § 10004.
What this means for you
If you live in a Delaware village or small municipality
Your village has clearly defined public bodies (council, town assembly, named committees) whose meetings are subject to FOIA. Officers meeting in their administrative capacity to coordinate operational work are usually not separate public bodies. The line is whether the gathering is creating policy, taking votes, or doing the work of a public body, versus simply coordinating administrative work.
If you are a municipal officer
Be careful what you call your gathering. "Office hours" with a quorum of officers from a recognized public body that drift into substantive deliberation can become a constructive meeting of that public body. The fact that Arden's officers do not collectively constitute a public body does not insulate them if they happen to also constitute a quorum of, say, the Advisory Committee, and start deliberating committee business.
If you are filing a FOIA complaint
Frame the petition around what the gathering actually did, not just what it was called. The AG looked at whether the 2022 motion created new duties (it did not) and whether the officers had become a separate body (they had not). A future complaint that documented officers using their office hours to deliberate on Advisory Committee business with a quorum of that committee present could succeed under the constructive-quorum doctrine even if the officers themselves are not a body.
Common questions
Why isn't a regularly scheduled meeting of four municipal officers a public body?
Because each officer holds a Charter-defined position individually, and their gathering for administrative coordination does not transform them into a separate body. The FOIA test requires the entity to have been "established by an act of the General Assembly" or by another public body. The 2022 motion in Arden did not establish a new entity; it just clarified language.
Doesn't FOIA's "public body" definition cover any committee?
The definition is broad but not unlimited. § 10002(k) covers "committee, advisory board and committee, association, group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity." If the four officers were "appointed" or "empowered" as a group, they might qualify. The Arden officers were elected to individual positions; the group did not exist as an appointed entity.
What if the office hours involve a quorum of the Advisory Committee?
That would change the analysis. The Advisory Committee is a public body, and a quorum of its members meeting to discuss committee business is a meeting of the committee. The Town Clerk's earlier response actually flagged this concern: minutes are needed if the gathering "constitutes a quorum of the Advisory Committee." If three or more Advisory Committee members showed up at office hours and discussed Advisory Committee business, they would owe minutes for that gathering.
Could the Town Assembly require its officers to keep minutes anyway?
Yes. The Town Assembly could pass a motion requiring its officers to maintain a log of office-hours discussions, even though FOIA does not require it. That is a transparency and good-governance choice the Village could make.
Background and statutory framework
The Village of Arden is governed by its Charter. The Charter defines two officer positions (Chair and Secretary of the Town Assembly), both elected by the Town Assembly. The 1968 creation of the Advisory Committee added the Advisory Chair as an elected position. In 2007, the Town Assembly added the Town Treasurer position. At the same time, the four officers began holding regular "office hours" to handle operational responsibilities.
29 Del. C. § 10002(k) defines "public body" as a regulatory, administrative, advisory, executive, appointive, or legislative body of the State or any political subdivision, including any "committee, advisory board and committee, association, group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity." The two-part test in Del. Op. Att'y Gen. 18-IB28 asks whether the entity meets that definition and whether it is publicly funded, expends public funds, or is charged to advise or report.
The Village and the Town Assembly are public bodies. Per Del. Op. Att'y Gen. 18-IB28, 17-IB09, and 96-IB13, all Delaware municipalities and their governing bodies are subject to FOIA. The 2022 motion clarifying the meaning of "officers" in Charter documents did not create a new public body or expand officer responsibilities, so the officers' joint office hours are not a public meeting.
Citations
- 29 Del. C. §§ 10001-10008 (Delaware FOIA)
- 29 Del. C. § 10002(k) (definition of public body)
- 29 Del. C. § 10004 (open meetings)
- 29 Del. C. § 10005 (petition procedure)
- 29 Del. C. § 10005(c) (burden of proof)
- Arden, Del., C. (Charter) §§ 4, 5(g), 5(h)
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 (Jun. 1, 2018)
- Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247 (Apr. 25, 2017)
- Del. Op. Att'y Gen. 96-IB13, 1996 WL 254932 (May 6, 1996)
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/10/03/24-ib40-10-03-2024-foia-opinion-letter-to-warren-rosenkranz-re-village-of-arden/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-No.-24-IB40.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 24-IB40
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB40
October 3, 2024
VIA EMAIL
Warren Rosenkranz
RE: FOIA Petition Regarding the Village of Arden
Dear Mr. Rosenkranz:
We write in response to your correspondence, alleging that the Village of Arden ("Village") 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. The material issue in this matter is whether the officers of the Town Assembly of the Village are a "public body" within the meaning of FOIA. For the reasons set forth below, we conclude that the officers are not a public body and therefore their "office hours" are not subject to FOIA.
BACKGROUND
The Village is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village. [1] On January 24, 2022, the Village held a town meeting. You allege that during that meeting, the Town Assembly passed a motion forming a new public body called "Officers" consisting of people already holding office with the Town Assembly: the Treasurer, the Secretary of Town Assembly, the Chair of the Advisory Committee, and the Chair of Town Assembly. The Officers hold office hours once a month to "[d]iscuss village governance with officials of the Village of Arden, Delaware." [2]
On May 9, 2024, office hours were held. [3] On June 13, 2024, office hours were held with a "quorum of Officers" and two members of the Board of Assessors to discuss financial issues of the Village. [4] On July 11, 2024, office hours were held with a "quorum of Officers" and a member of the Board of Assessors to discuss the presentation of the annual Budget Referendum. [5]
On June 2, 2024, you requested the minutes of the May 9, 2024 office hours. [6] The Secretary of the Town Assembly responded stating that the town officers were not a public body, therefore when they meet they do not need to take minutes unless their meeting constitutes a quorum of the Advisory Committee. [7] On July 30, 2024, you requested the minutes of the July 11, 2024 office hours and received no response. [8]
This Petition followed, alleging that the Village violated FOIA by not creating or producing minutes of the Officers' office hours on May 9, 2024 and July 11, 2024. You contend that the Officers are a public body as defined by FOIA and that their office hours are public meetings subject to the requirements of FOIA.
On September 16, 2024, legal counsel to the Town Assembly Chair replied to the Petition on the Village's behalf ("Response") and included the Chair's affidavit attesting that the factual statements in the Response were true and correct to the best of his knowledge and belief. The Village is governed by the Charter of Arden ("Charter"). [9] The Charter defines two positions of the Town Assembly, the Chairman of the Town Assembly and the Secretary of the Town Assembly. [10] Both positions are elected by the Town Assembly. "In 1968, the Village created the Advisory committee, which is a committee consisting of all of the standing chairs of the other committees." [11] The Advisory committee is chaired by the Advisory chair who is elected by the Town Assembly, unlike other committee chairs. [12] In 2007, the Town Assembly approved the addition of another position, the Town Treasurer. The Town Treasurer is also elected by the Town Assembly. At the same time that the Town Assembly approved the addition of the Town Treasurer, the four officers began holding general "office hours" at "regular intervals to be able to deal with [] operational responsibilities." [13]
In the years following, confusion arose in the Town Assembly regarding the definition of the term "officers" as used in the Charter. At a meeting of the Town Assembly in January 2022, the Village sought to clarify what the term "officers" meant. A motion was presented and passed as follows:
" MOTION: The word "officers" in Village documents refers to the Chairs of the Town Assembly and Advisory Committee, the Village Secretary and the Village Treasurer. Calling them "officers" shall not confer any additional responsibilities on those holding these offices; that is, they shall have only those responsibilities authorized by the town charter or approved by the Town Assembly." [14]
The Village asserts that the motion did not create a new public body. [15]
In response to your requests for the minutes of the office hours held on May 9, 2024 and July 11, 2024, the Village asserts: first, that it inadvertently sent a response to your request for the July 11, 2024 minutes to the wrong email address. [16] Second, that the response to both your requests is the same: the Village does not have responsive documents because the officers are not a public body and office hours are not a meeting of a public body such that minutes would be required to be taken. [17]
DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. [18] In certain circumstances, a sworn affidavit may be required to meet that burden. [19] To advance FOIA's objective of transparency, FOIA mandates that public bodies meet specific requirements when holding public meetings to discuss or take action on public business, including allowing public access, posting advance notice and an agenda, permitting an opportunity for public comment, and maintaining meeting minutes. [20]
As a threshold matter, we must determine whether the Officers are a public body as defined by FOIA. To make this determination, a two-part analysis is required. [21] The first inquiry is whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," which includes a ". . . committee, . . . advisory board and committee . . . association, group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity." [22] If the first part is met, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations." [23]
This Office has previously determined that, like all municipalities in the State of Delaware, the Village and its governing body, the Town Assembly, are public bodies and therefore subject to FOIA. [24] The Town Assembly's January 2022 meeting motion specially sought only to clarify the definition of the term "officers" and did not create a new group, committee or entity nor did it expand the charges already given to each officer's individual position. We determine, based on this record, that the officers of the Town Assembly do not constitute a public body subject to FOIA's open meeting and minutes requirements.
CONCLUSION
For the reasons set forth above, we conclude that the Village did not violate FOIA because the officers of the Town Assembly are not a public body.
Very truly yours,
/s/ Carla A.K. Jarosz
Carla A.K. Jarosz
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Edward B. Rosenthal, Esquire, Attorney for the Village of Arden
[1] Arden, Del., C. (Charter) § 4.
[2] Petition, p. 2.
[3] Petition, p. 3.
[4] Id.
[5] Id.
[6] Petition, p. 69.
[7] Petition, p. 70.
[8] Petition, p. 71.
[9] Response, p. 1.
[10] Response, p. 1 citing §§ 5(g) and 5(h) of the Charter of Arden.
[11] Response, p. 1.
[12] Id.
[13] Response, p. 4.
[14] Response, p. 4.
[15] Response, p. 5.
[16] Id.
[17] Id.
[18] 29 Del. C. § 10005(c).
[19] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).
[20] 29 Del. C. § 10004.
[21] Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706, at *1 (Jun. 1, 2018).
[22] 29 Del. C. § 10002(k).
[23] Id.
[24] Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 ( citing Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 3 (Apr. 25, 2017) ( citing Del. Op. Att'y Gen. 96-IB13, 1996 WL 254932, at 2 (May 6, 1996)).