DE 24-IB51 2024-11-26

Can a Delaware town council discuss a public employee's performance plan in a string of emails, instead of holding a public meeting?

Short answer: No. When the town's lawyer emailed the whole council asking for their comments on the plan and members replied with substantive opinions, that exchange became a 'meeting' under FOIA. Doing it by email skipped the public notice and public comment requirements. The council violated FOIA. The earlier executive session about the same employee, however, was properly held under the potential-litigation exemption.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

Plain-English summary

Janet Todd, a Town of Greenwood employee, complained that the Town Council improperly handled three things related to her job: (1) a closed-door executive session at the August 27, 2024 special meeting about her, even though she had asked for any discussion to be public; (2) executive-session minutes she suspected were typed by a non-member; and (3) an email exchange among all council members and the town's employment attorney about her performance plan.

The Deputy AG ruled in three parts:

The executive session was OK. Even though Ms. Todd asked for an open discussion under the personnel-matters exemption (Section 10004(b)(9)), the Town legitimately closed the meeting under a different exemption: Section 10004(b)(4), which allows executive sessions for litigation strategy with counsel. The Town had received a letter from Ms. Todd's attorney alleging hostile work environment and retaliation, and the discussion of her performance was tied up with the Town's litigation posture.

The minutes-author claim was outside FOIA. The AG cannot police who types meeting documents. Nothing in FOIA addresses authorship of records, so the AG's office had no jurisdiction.

The email exchange was a meeting and violated FOIA. This is the substantive holding. The Town's employment attorney emailed the entire Council, attached a draft performance plan, and asked for comments. One member replied to all approving the plan; another replied to all objecting; the attorney replied to the objector. All members were copied throughout. That exchange went beyond passive receipt of information and amounted to an "active exchange of opinions" by a quorum, deciding public business privately. That is a constructive quorum, and FOIA's open-meeting rules apply. They were not followed (no notice, no public comment), so the Council violated FOIA.

The remediation: the Town committed to put the performance plan on a future public-meeting agenda for open discussion and a vote. The AG endorsed this fix.

What this means for you

If you sit on a Delaware municipal council, board, or commission

Substantive group emails about pending decisions are dangerous. The standard the Delaware AG applies is whether the exchange goes beyond "passive receipt of information" to "active exchange of opinions" leading toward consensus. Approving a draft, objecting to a draft, and the back-and-forth that follows all count. Practical rule of thumb: if a topic is the kind of thing you would discuss and vote on at a meeting, do not discuss it by email outside a meeting. Use email only to schedule, distribute documents, or share neutral information.

If you're a municipal attorney advising a council

You are the most likely vector for this violation. Counsel routinely circulates draft documents and asks for input. The opinion makes clear that those exchanges, when they elicit opinions from the members, can themselves create the violation. Two practices to adopt: (1) send draft documents without soliciting member-to-member discussion, framing your email as "for review at the next meeting"; (2) if you need feedback, get it one-on-one and synthesize, rather than reply-all.

If you're a public employee subject to discussion in executive session

Knowing your rights helps. Under Section 10004(b)(9), you can ask that any personnel discussion about your "name, competency, or abilities" be held in open session, and the body must honor that request. But this opinion shows the workaround: the body can still go into executive session under a different exemption (potential litigation, Section 10004(b)(4)) if real litigation indicia exist, like a demand letter from your attorney. That happened here. If you want truly public discussion, factor in whether your own legal posture might trigger that exception.

If you're a citizen or journalist trying to surface email-quorum violations

Three telltales: (1) an email thread on a substantive policy issue that was addressed to the full body or its working majority, (2) replies from multiple members beyond simple acknowledgments, and (3) the issue then appearing on a future agenda as if for the first time. FOIA petitions like Ms. Todd's are how these get caught. The 60-day filing window for invalidation suits in Section 10005(a) is short, so move fast.

Common questions

Q: Why was the executive session legal even though Ms. Todd asked for it to be open?
A: The personnel-matters exemption requires the body to open the meeting if the employee asks. But a separate exemption, Section 10004(b)(4), allows closed sessions for strategy on potential litigation. The Town received a demand letter alleging hostile work environment and retaliation, which is "objective signs that litigation is coming" under Delaware case law. So the Town used the litigation-strategy exemption, which the employee cannot waive.

Q: What's a "constructive quorum"?
A: It's when a majority of a public body discusses public business outside a noticed meeting through a series of communications (email, text, phone) that, taken together, function like a meeting. The Delaware AG has held this for years. The opinion cites cases going back to 2003.

Q: Are all council emails illegal?
A: No. Emails to schedule meetings, distribute meeting materials, or share factual updates are fine. The line is "passive receipt of information" (OK) versus "active exchange of opinions" toward a decision (not OK). Replying to share a view, objecting, or building consensus crosses the line.

Q: What's the remedy when this happens?
A: The AG can recommend remediation. Here, the Town agreed to take up the performance plan in open session at a future meeting. If a citizen wants to invalidate an action taken via email-quorum, they have to sue in the Court of Chancery within 60 days of learning of the action.

Q: Does the Town typically get sanctioned?
A: Not under the AG's opinion authority. The AG can find a violation and recommend correction. Sanctions or invalidation come from courts, and the Court of Chancery has said invalidation is "a serious sanction" used only when substantial public rights are affected.

Citations

29 Del. C. § 10004, open meeting requirements
29 Del. C. § 10004(b)(4), strategy session for potential litigation exemption
29 Del. C. § 10004(b)(9), personnel matters exemption (employee can require open session)
29 Del. C. § 10005(a), citizen suit, 60-day filing window
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit requirement
ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007), potential-litigation test
Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986), invalidation standard
Del. Op. Att'y Gen. 21-IB17, 17-IB09, 06-ID20, 03-IB11, serial communication / quorum precedents

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB51
November 26, 2024

VIA EMAIL
Janet Todd
[email protected]

RE: FOIA Petition Regarding the Town of Greenwood

Dear Ms. Todd:

We write in response to your correspondence alleging that the Town of Greenwood violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this correspondence as a petition ("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 Council's executive session at its August 27, 2024 meeting was appropriately held under Section 10004(b)(4). However, we find that the Town Council violated FOIA by holding a "meeting" as defined by FOIA through email communications without satisfying FOIA's open meeting requirements.

BACKGROUND

The Petition alleges that the Town Council violated FOIA in addressing issues with your employment with the Town. Prior to the August 27, 2024 Special Meeting of the Town Council, you allege that you asked the Town's employment attorney if the scheduled executive session on the agenda pertained to you and if so, you asked that the discussions be held in public. You state that the attorney advised you did not have to attend, but you later learned that this session involved discussions about you. After the meeting, you assert that the employment attorney emailed about your performance plan with all members of Council. You state that the attorney later asserted, at the time this plan was presented to you, that all members had seen and agreed on the performance plan. Based on these facts, you allege that FOIA was violated because: 1) the Council's executive session was improper, as you requested these discussions be public; 2) the executive session documents were typed by a council member's relative; and 3) a quorum of the Council improperly discussed public business over email.

On November 6, 2024, the Town Solicitor responded to the Petition on the Town's behalf, including affidavits from the Mayor and another councilmember who attended the relevant meetings, both attesting to their belief that the statements in the Response are accurate ("Response"). The Town attached a copy of the August 27, 2024 Special Meeting agenda in which a personnel matter related to you was discussed. The agenda including the executive session item for "strategy sessions and advice or opinion from an attorney-at-law regarding pending or potential litigation and to discuss personnel matters in which the names, competency, and abilities of individual employees will be discussed." Due to the potential for litigation, the Town asserts that this executive session could not be publicly held. The Town states that it received a letter from your attorney in July 2024, which the attorney was "increasingly concerned with the hostile work environment and retaliation" you were facing. The Town also provided a copy of the follow-up letter from counsel sent in October 2024, reasserting these claims against the Town and stating he "would be happy to confer with [the Town's employment attorney] on these matters to avoid litigation." The Town asserts that discussion of your employment performance and potential litigation were inextricably intertwined, and holding such discussions publicly would jeopardize the Town's litigation position; as such, the Council held this executive session under Section 10002(b)(4) for strategy sessions related to potential litigation in consultation with its employment attorney. Regarding the executive session records purportedly typed by a non-member, the Town states that this record was in fact drafted by a member of council.

Regarding your third claim, the Town acknowledges the attorney emailed all Council regarding the performance plan, soliciting comments. The Town asserts that although two members replied to all members, those comments were not substantive. While the Town states it does not believe it violated FOIA in this regard, the Council will schedule an agenda item at a future meeting to formally review and vote on the relevant performance plan in open session. The Town states that this open session discussion, at this stage, would not involve much, if any, legal strategy discussion.

DISCUSSION

The public body has the burden of proof to "justify a decision to meet in executive session or any failure to comply with [FOIA]." In certain circumstances, a sworn affidavit may be required to meet that burden. As a preliminary matter, the Petition's claim regarding the author of the executive session materials concerns a subject that is not addressed by the FOIA statute. As such, our Office lacks the authority to address this claim.

The Petition challenges the propriety of the August 27, 2024 executive session. FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public. Public bodies, with proper notice of the intent to enter an executive session on its agenda, may hold an executive session to discuss one of the nine topics that are outlined in the statute. Discussions about personnel matters in which the names and competencies of an employee are discussed may be held in executive session, if the employee does not request "that such a meeting be open." The Town acknowledges you requested any discussions about your job performance be public but argues this executive session was proper under the other applicable exemption, Section 10004(b)(4).

Section 10004(b)(4) allows an executive session for "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." In considering whether an invocation of potential litigation is appropriate, we must look at the public body's knowledge at the time it asserted the exemption. Potential litigation "must be likely or reasonably foreseeable." "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." The "potential litigation exception for executive session applies only when there is a 'realistic and tangible threat of litigation' based on 'objective factors.'" These signs may include factors such as a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." Other indications may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue.

In this case, to prove potential litigation, the Town stated, under oath, that the July 2024 letter indicated your attorney alleged claims of hostile work environment and retaliation against the Town. Further, the Town provided sworn statements that this discussion of potential discipline and the implications on future litigation were intertwined and would have adversely affected the Town's litigation position if they occurred publicly. Based on this evidence, we find that the executive session was appropriately held under Section 10004(b)(4) to discuss litigation strategy.

The remaining claim is regarding the emails about your performance plan. "[S]erial telephone, email or other electronic communications among members of a public body may amount to a meeting of the public body." "It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum." 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.'" It is further required that the communications involve "'an active exchange of information and opinions' as opposed to 'the mere passive receipt of information.'" The members' exchanges cannot supplant a public meeting.

In this case, the Town's employment attorney circulated a draft performance plan to all of Council and asked for the members' comments and changes on the document. One councilmember wrote back, approving the plan and another member objected to the plan and the process. The employment attorney replied to the councilmember's concerns about the process. All councilmembers were copied on these exchanges. These exchanges went beyond the passive receipt of information and constituted an exchange of opinions about acting on public business that supplanted a meeting. Any meeting of a quorum of Council must satisfy the open meeting requirements of FOIA, including notice and the opportunity for public comment. These email exchanges did not satisfy FOIA's open meeting requirements. Accordingly, we must find that these emails resulted in a constructive quorum of council meeting privately, which violated FOIA.

When this Office finds a violation of the open meeting requirements, we may recommend remediation if appropriate. 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 these circumstances, the Town discussed your performance plan privately, despite the fact you had asked for any discussions about your job performance to occur in public. The Town, in its Response, committed to hold a public meeting to discuss and vote on the performance plan, which was the subject of this email exchange, in open session, as you requested. We recommend that the Town follow this course of action as remediation.

CONCLUSION

For the reasons set forth above, we conclude that the Town Council's executive session at its August 27, 2024 meeting was appropriately held under Section 10004(b)(4). However, we find that the Town Council violated FOIA by holding a "meeting" as defined by FOIA through email communications about your performance plan without satisfying FOIA's open meeting requirements.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: James P. Sharp, Town Solicitor