If a Delaware city intern asks to speak during the public comment period at a council meeting, can the city refuse just because the intern is on city staff?
Plain-English summary
Milford City Council met on January 13, 2025 to consider two ordinances on retail sale of marijuana. The agenda included a public comment period. Lance Tressler, an unpaid intern with the City who had worked on the marijuana issues, asked his supervisor and the City Manager in advance for permission to speak; both granted it.
At the meeting, the City followed its usual hearing order: City staff and the applicant present first, then public comment opens. After several members of the public commented, the Mayor asked one final time whether anyone present wanted to speak. Tressler, seated at the staff table and not previously identified to the City's counsel as a public speaker, came forward. The City's counsel, audibly on the meeting recording, denied his request to speak on the ground that Tressler was part of City staff and the staff comment portion had ended.
Through attorney Ronald Poliquin, Tressler petitioned. The City's defense had several pieces:
- The hearing procedures specify staff and applicant first, then public comment.
- Tressler was a member of City staff working on this matter.
- Letting Tressler speak would have looked to the public like reopening staff comment, which would in turn require reopening public comment, prejudicing those who had already left.
- The restriction was a content-neutral procedural rule.
- Tressler had previous public forums where he could have spoken (a November 2024 workshop and a December Planning Commission meeting) and did not.
The Deputy AG ruled FOIA was violated. The relevant statute, 29 Del. C. § 10004(a)(2), requires every public body meeting to provide time for public comment "that must provide a meaningful opportunity for the public to engage with the public body." Section 10004(a)(2)(b) allows reasonable time, place, and manner restrictions on the length of public comment and on each individual's allotted time. But a blanket denial based solely on the speaker's role as an intern is not a permissible time/place/manner restriction. It is content-neutral in form, but it is not a reasonable restriction on length or per-speaker time; it is a categorical exclusion of a person from the public-comment opportunity. That is a FOIA violation.
The opinion does not invalidate the ordinances themselves; that authority belongs to the Court of Chancery (Section 10005(a)). The recommended remediation is for the City to review its meeting and hearing procedures with counsel to prevent recurrence.
What this means for you
If you sit on a Delaware city council or other public body
The opinion holds that under 29 Del. C. § 10004(a)(2), every public body meeting must include a public comment period that provides "a meaningful opportunity for the public to engage with the public body." Section 10004(a)(2)(b) lets a public body impose reasonable time, place, and manner restrictions on the length of the comment period and the time allotted for each comment. The opinion holds that denying an individual the opportunity to speak entirely, based solely on his role as an intern, is not such a restriction and violated FOIA.
If you're a Delaware city employee or intern who wants to speak at a council meeting on a policy issue
The opinion holds that the City violated FOIA when it refused to let the intern speak during the public comment period based solely on his status as a member of City staff. It notes that the intern had asked his supervisor and the City Manager for permission to speak in advance of the meeting, and that both granted it. The opinion does not lay out steps an employee must take to preserve the right; it holds only that a denial based solely on staff role is impermissible.
If you advocate at municipal hearings on cannabis or other policy
The opinion holds that the public comment period must provide a meaningful opportunity for the public to engage (§ 10004(a)(2)), and that a city may impose reasonable time, place, and manner restrictions on the length of the period and the time allotted per comment (§ 10004(a)(2)(b)). It holds that excluding a person from the opportunity entirely, based solely on his role as an intern, is not a permissible restriction of that kind.
If you advise a Delaware city solicitor's office
The opinion recounts the City's defense: that its hearing procedures put staff and the applicant first and then opened the floor to public comment, that allowing the intern to speak would appear to reopen the staff comment period and require reopening public comment (potentially prejudicing those who had left), and that the refusal was a content-neutral procedural rule. The opinion rejected that defense, holding that denying the intern the opportunity to speak based solely on his staff role was not a permissible time, place, and manner restriction. As remediation, the opinion recommends the City review its meeting and hearing procedures with its legal counsel; it notes that the authority to void an action taken in violation of FOIA is reserved to the Court of Chancery under § 10005(a).
Common questions
Q: Can a city require speakers to sign up in advance?
A: The opinion does not address sign-up procedures directly, but § 10004(a)(2)(b) permits reasonable time, place, and manner restrictions on public comment. The violation the opinion found was denying the intern the opportunity to speak based solely on his role as a member of City staff.
Q: Could the City have given the intern less time than other speakers?
A: Section 10004(a)(2)(b) allows a public body to limit the time allotted for each comment. The opinion holds that what FOIA does not allow is denying the opportunity to speak entirely based solely on staff status.
Q: Does this opinion mean staff can speak at every meeting on every issue?
A: The opinion does not go that far. It holds only that the City could not deny this intern the opportunity to provide public comment based solely on his role as an intern. It does not address broader questions about when staff may participate.
Q: The City worried that letting the intern speak would reopen the staff comment period. Did that justify the refusal?
A: The opinion acknowledged that concern but rejected it as a basis for the refusal, holding that denying the intern the opportunity to speak based solely on his staff role was not a permissible time, place, and manner restriction.
Q: What's the remedy here?
A: The opinion recommends that the City review its meeting and hearing procedures with its legal counsel. It does not invalidate the ordinances passed at the January 13 meeting; it notes that under § 10005(a), the authority to void an action taken in violation of FOIA is reserved to the Court of Chancery.
Citations
- 29 Del. C. § 10004(a)(2), public comment must provide meaningful opportunity to engage
- 29 Del. C. § 10004(a)(2)(b), reasonable time, place, and manner restrictions allowed
- 29 Del. C. § 10005, AG petition authority and remedies
- 29 Del. C. § 10005(a), Court of Chancery may void actions taken in violation of FOIA
- 29 Del. C. § 10005(c): burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/04/16/25-ib26-4-16-25-foia-opinion-letter-to-ronald-poliquin-esq-re-city-of-milford/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/04/Attorney-General-Opinion-No.-25-IB26.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. 25-IB26
April 16, 2025
VIA EMAIL
Ronald Poliquin, Esq.
The Poliquin Firm, LLC
[email protected]
RE:
FOIA Petition Regarding the City of Milford
Dear Mr. Poliquin:
We write in response to your correspondence on behalf of your client, Lance Tressler,
alleging that the City of Milford 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 of whether a violation of FOIA has occurred or is about to occur. As
discussed more fully herein, we determine that the City violated FOIA by denying your client the
opportunity to provide public comment during the hearing for two ordinances at the January 13,
2025 meeting.
BACKGROUND
On January 13, 2025, the City Council held a public meeting. The agenda included two
ordinances about the retail sale for general public consumption of marijuana. Consistent with
FOIA's requirements, the agenda also included a public comment period. Your client is an unpaid
intern with the City. This Petition alleges that although the City Manager and your client's
supervisor granted your client's request to speak in advance of this meeting, your client was denied
the opportunity to provide public comment regarding these ordinances at this meeting, in violation
of FOIA.
1
The City's counsel submitted the City's response with an accompanying affidavit, averring
that to the best of his knowledge and information, that the statements in the Response are true and
correct ("Response"). The City argues that its refusal to allow your client to speak was not a
violation of FOIA. Instead, the City was following its procedures for conducting a public hearing
on the ordinances at this meeting.
The City states that its hearing procedures follow a specified order in which the City staff
and applicant speak first, and then the floor is opened for public comment. At the January 13,
2025 meeting, the City maintains that these procedures were followed, describing the events as
follows. After the City staff spoke and others made public comment, the Mayor asked, for the last
time, if anyone else present would like to make a public comment, before turning to any persons
online who wished to speak, and it was at that time that your client, who was seated at the table
for City staff and had not been identified as a potential speaker to the City's counsel, came forward
to speak and was denied the opportunity. As your client was a member of the City staff working
on these matters,1 the City states that the "decision preventing [your client] from speaking was
made solely on the basis [your client] was part of the City staff" and according to the procedures,
the time for City staff's comments had passed.2 The City also points out that permitting your client
to speak would be viewed by the public as reopening the staff comment period, which would
requiring reopening the floor for further public comments and potentially prejudice those who
already left the meeting.
Additionally, the City states that there "is nothing of record to indicate what the content of
[your client's] comments may be."3 As such, the City asserts that this restriction on your client's
speech was based on a content neutral procedural rule that is narrow in scope and ensures the
orderly vetting of ordinances before adoption. Further, the City points out that these matters were
discussed in previous public forums, including a public workshop in November 2024 and a
Planning Commission meeting in December. The City states that your client spoke at neither
public forum, but these public forums provided the opportunity for your client's public
communication of his position.
1
As further proof of this assertion, the City provided a copy of the email from the then
Marijuana Commissioner who was making the November workshop presentation, asking the City
to confirm that your client was indeed part of the City's team assigned to this matter, before
returning your client's call. The City confirmed that was the case.
Response, p. 4. The City also points to the meeting audio recording, in which the City's
counsel specifically denies the request, as your client is part of the City staff.
2
3
Id., p. 6.
2
DISCUSSION
The public body has the burden of proof to demonstrate its compliance with the FOIA
statute. In certain circumstances, a sworn affidavit may be required to meet that burden. 5 FOIA
provides that every meeting of a public body must provide a time for public comment, which "must
provide a meaningful opportunity for the public to engage with the public body." 6 Although the
statute allows a public body to "impose reasonable time, place, and manner restrictions on the
length of the public comment period and the amount of time allotted for each public comment,"7
in these circumstances, FOIA does not permit denying an individual the opportunity to speak
entirely during the public comment period based solely on their role as an intern. On this basis,
we find a violation of FOIA occurred.
4
Having found that the City violated FOIA, 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, and to the extent you seek those
remedies, they must be pursued through the courts.8 Here, as remediation for the FOIA violation
found, we recommend the City review its meeting and hearing procedures with its legal counsel
to ensure future FOIA violations do not occur surrounding public comment.
CONCLUSION
For the reasons set forth above, we conclude that the City violated FOIA by denying your
client the opportunity to provide public comment during the hearing for two ordinances at the
January 13, 2025 meeting.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
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)(2).
7
29 Del. C. § 10004(a)(2)(b).
8
29 Del. C. § 10005.
3
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
David N. Rutt, City Solicitor
4