DE 25-IB05 2025-01-21

Can a Delaware public body cure a missing public-comment item on the agenda by orally adding it before the meeting starts?

Short answer: No. The public-comment period must be on the printed agenda. The Mayor's verbal addition at the start of the December 13, 2024 meeting did not save it. ACT violated FOIA. But because ACT voted at that meeting to dissolve, the AG declined to recommend further remediation.

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 AG opinions are persuasive authority but not binding precedent.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

The Association of Coastal Towns (ACT) held a meeting on December 13, 2024, where it voted to dissolve. Its agenda did not list a public comment period. The Mayor announced before the meeting started that the body would accept public comment anyway.

Jennifer Pawloski petitioned the AG, arguing the missing agenda item violated FOIA, and that ACT improperly voted to dissolve and refused to recreate older meeting minutes.

The Deputy AG ruled:

Public comment was a required agenda item, and the verbal cure does not work. Section 10004(a) requires that meetings open to the public include time for public comment. Earlier opinions (24-IB26) have established that the comment period itself has to appear on the agenda, since citizens decide whether to attend based on what they see in advance. ACT acknowledged it left the comment period off the agenda. FOIA does not allow last-minute additions of items at the start of a meeting (§ 10004(e)(6) only allows agenda amendments up to six hours before).

The other claims were outside the AG's jurisdiction. Whether ACT could properly vote to dissolve, and whether it had to recreate older meeting minutes, are not FOIA questions. The AG cannot opine on a public body's substantive choice to disband.

Remediation was waived. Because ACT had already voted to dissolve effective December 31, 2024, no remediation is appropriate. Ms. Pawloski was reminded that, under § 10005(a), she has 60 days from learning of the action to file suit in Court of Chancery if she wants the dissolution invalidated.

This opinion runs in parallel with 25-IB09, which addressed the related claims about the same December 13 meeting (notice failures and the public comment violation are both confirmed).

What this means for you

If you sit on a small public body planning to wind down

Two practical pieces. First, the public comment requirement applies all the way through your last meeting. You cannot skip it just because you are about to dissolve. Second, dissolution does not retroactively cure FOIA violations that occurred during the meeting where you decided to dissolve. If a citizen sues within 60 days, the Court of Chancery can still invalidate the dissolution vote. Confirm with counsel that all FOIA boxes are checked before that final meeting.

If you draft agendas for any Delaware public body

Add a standing line item: "Public Comment." Every agenda. Every meeting. The opinion line "A public comment period is a major issue for discussion, and citizens must receive public notice of their opportunity for public comment so they can decide whether they wish to attend the meeting" is the rationale, and it applies to every open meeting.

If you participate in dissolved or about-to-dissolve regional bodies

Watch for procedural slip-ups in final meetings. They are often where the work is sloppiest, and they are also where the most consequential decisions get made. If you want to challenge the dissolution itself, file in the Court of Chancery within 60 days of learning of the action.

If you're a citizen attending a meeting where the agenda is missing public comment

You can speak up at the start of the meeting and note the omission. The Mayor's correction here was made in good faith but did not satisfy FOIA. If the public body proceeds anyway, file a petition with the AG within a reasonable time so the violation can be documented. Your petition does not invalidate the meeting, but it creates a record that supports a later citizen suit.

Common questions

Q: Why isn't a verbal addition of public comment OK?
A: Because citizens decide whether to attend based on the agenda. If a comment period is not listed, citizens who would have come to speak may not show up. The point of the agenda requirement is advance notice, which a verbal correction at the meeting cannot provide.

Q: Can the body amend the agenda at all?
A: Yes, but only at least six hours before the meeting (29 Del. C. § 10004(e)(6)), and only when the new matter "came up suddenly and cannot be deferred to a subsequent meeting." Adding a routine public comment period does not meet that test.

Q: Why is dissolution outside the AG's authority?
A: The AG's role under § 10005(e) is to determine whether FOIA was violated. Whether a body has the substantive authority to disband is a different question, generally answered by the body's enabling statute or charter, and ultimately by a court. The AG declined to address it.

Q: What does the 60-day window in § 10005(a) actually do?
A: It lets a citizen ask the Court of Chancery to invalidate the action taken at the violating meeting. Here, that would be the dissolution vote. After 60 days from learning of the action (or 6 months from the date of action, whichever comes first), the right to challenge is lost.

Q: Were minutes of older meetings ever required to be created?
A: This opinion did not reach that question. The AG noted that the demand to recreate prior meeting minutes was outside FOIA's scope. The general rule is that a public body must keep minutes of its meetings, but recreating minutes of meetings that were not properly recorded is a different problem and usually requires legislative or judicial direction.

Citations

29 Del. C. § 10004, open meeting requirements
29 Del. C. § 10004(a), meeting must include public comment time
29 Del. C. § 10004(e)(6), agenda amendments six hours before
29 Del. C. § 10005(a), citizen suit for invalidation, 60-day window
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
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. 24-IB26, public comment must be on agenda
Del. Op. Att'y Gen. 19-IB48, no last-minute agenda amendments

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB05
January 21, 2025

VIA EMAIL
Jennifer Pawloski
[email protected]

RE: FOIA Petition Regarding Association of Coastal Towns

Dear Ms. Pawloski:

We write in response to your correspondence alleging that the Association of Coastal Towns ("ACT") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your 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. For the reasons set forth below, we determine that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

BACKGROUND

The Association of Coastal Towns held a meeting on December 13, 2024. Your Petition alleges that ACT violated FOIA by failing to include notice of a public comment period in its agenda. In addition, you assert that ACT failed to second a motion to recreate meeting minutes and voted to dissolve their organization at this meeting.

On December 18, 2024, ACT, through its legal counsel, replied to the Petition ("Response"). ACT states that the public comment period was inadvertently omitted from the agenda, but the Mayor verbally amended the agenda to include public comment before the meeting began.

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.

FOIA mandates that public bodies meet specific requirements when holding public meetings, including advance notice, posting notices and agendas, an opportunity for public comment, and maintaining meeting minutes. "As a part of the requirements to hold an open meeting, Section 10004(a) states that a 'meeting that is open to the public under paragraph (a)(1) of this section must include time for public comment.'" This public comment period must appear as an item on the agenda. ACT acknowledges its agenda did not include a public comment period, and FOIA does not permit a new item to be added at the outset of a meeting. As such, we find a violation occurred.

The Petition also references the actions of ACT at that meeting, including ACT's refusal to create past meeting minutes and the vote to dissolve the organization. This Office is statutorily charged with opining on FOIA violations and is not empowered to address a public body's decision to dissolve rather than come into compliance with FOIA.

Having found that ACT violated FOIA by failing to appropriately notice the public comment period in the agenda, we consider whether any remediation is appropriate to recommend. 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 this case, the December 13, 2024 meeting recording submitted with this Petition indicated that ACT voted at this meeting to dissolve, effective as of December 31, 2024. Thus, we make no further recommendations.

To the extent you wish to pursue legal remedies or enforcement, you are encouraged to promptly review whether you wish to file suit under Section 10005. Section 10005(a) provides that "[a]ny citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action."

CONCLUSION

For the foregoing reasons, we conclude that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: James E. Liguori, Attorney for the Association of Coastal Towns