If I asked my Delaware town council to discuss my employment in open session, can they still go into executive session over my objection?

Plain-English summary

Delaware's open-meetings law lets a public body go into executive (closed) session for nine specific topics. Two of them matter here:

1. Personnel discussions, where the names and competencies of employees are discussed, may go into executive session, but only if the employee has not requested an open meeting. If the employee asks for open, this exception does not work.

2. Litigation-strategy sessions can go into executive session if there is "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."

Janet Todd, a Town of Greenwood employee, asked the Council multiple times in 2024 and 2025 to discuss her employment in open session. The Council went into executive session anyway at meetings on August 13, 2025 and December 8, 2025. At the December meeting, the executive session ran three hours, then the Council came back into open session and voted to terminate Todd's employment in 30 days.

Todd filed a § 10005 petition arguing the executive sessions violated FOIA's open-meetings requirements. The Town responded with a sworn affidavit from the Mayor, plus documentation that Todd's attorney had been threatening litigation since 2024 (a July 2024 letter alleging hostile work environment and retaliation, an October 2024 letter offering "to confer to avoid litigation," sworn statements that Todd herself said in a November 2024 meeting that she would move to sue, August 2025 and November 2025 letters reasserting hostile-work-environment claims). The Town acknowledged Todd had requested open discussion under the personnel exception, but argued the litigation-strategy exception at § 10004(b)(4) applied independently.

The AG agreed. Two analytical points:

1. The personnel and litigation exceptions operate independently. The fact that Todd objected to executive session under the personnel exception does not block the litigation-strategy exception. The Council can rely on the latter even when the former is unavailable.

2. The litigation-strategy exception requires "potential litigation" to be "likely or reasonably foreseeable" based on objective signs. The opinion lists factors: a written demand letter asserting a claim or demanding action, prior litigation between the parties, ongoing similar litigation, retention of counsel with intent to sue. Todd's case checked multiple boxes: her attorney had been on the case since 2024, had used the word "litigation" explicitly, the auditors had heard Todd say she would sue, and the claims continued through 2025.

The Town's sworn record made clear that significant parts of the executive sessions were spent on legal-strategy discussion with employment counsel about Todd's employment and the related potential litigation. Discussing those issues in open session would have adversely affected the Town's litigation position. So § 10004(b)(4) applied, and the executive sessions were proper.

What this means for you

If you are a public employee facing a personnel discussion

Asking for open discussion under the personnel exception does not guarantee an open meeting. If you have threatened litigation, retained counsel who has demanded action, or made any statement that could be interpreted as objective notice of likely litigation, the public body can still go into executive session under the litigation-strategy exception. Practical implication: the right to demand an open meeting under the personnel exception is meaningful only when no litigation threat has been telegraphed.

If you are a public body or municipal attorney managing a contentious personnel matter

The litigation-strategy exception is the right tool when there are objective signs of likely litigation, even if the affected employee has demanded open discussion. Document those signs contemporaneously: copies of attorney letters, dates of threats, retention of counsel, prior similar litigation. Build the record for a sworn affidavit at the time of the executive session, not after a petition is filed.

If you are a town councilmember weighing executive session

Two cumulative requirements for the litigation exception. First, potential litigation must be likely or reasonably foreseeable based on objective factors (not subjective worry). Second, an open discussion must adversely affect the public body's litigation position. The second requirement means that mere existence of a litigation threat is not enough; you also need a factual reason that opening the discussion would help the other side. Both elements need contemporaneous documentation.

If you are an employment lawyer representing a public employee

Be aware that your demand letters and litigation threats can have the unintended consequence of triggering the litigation-strategy exception, allowing the public body to keep employment discussions in executive session. If your client wants the discussion to be public (a common request when the client thinks publicity will help), consider holding off on litigation threats until after public meetings have occurred.

If you are a public-interest watchdog or journalist

The litigation-strategy exception is a meaningful gap in the open-meetings rule. Public bodies can use it whenever there is documented potential for litigation. The boundary is whether the public body's record actually shows objective indicators (attorney letters, demands, threats) and whether the executive session is genuinely tied to litigation strategy.

Background and statutory framework

29 Del. C. § 10004(b) lists nine categories of subject matter that can be discussed in executive session. The personnel-matter exception applies when the names, competencies, or character of an employee are discussed, but it requires the employee to have not requested an open meeting. The litigation-strategy exception at § 10004(b)(4) applies to "[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."

For "potential litigation" to support executive session, the public body's knowledge at the time it asserted the exception must show that litigation is "likely or reasonably foreseeable" based on "objective factors." The AG identifies indicators:
- Written demand letter asserting a claim or demanding action.
- Prior litigation between the parties.
- Ongoing similar litigation.
- Retention of counsel with respect to the claim and expression of intent to sue.

The "adverse effect" element requires a factual showing that opening the discussion would compromise the public body's strategic position. The Mayor's sworn statement here described how the executive-session discussion involved legal advice and strategy that, if disclosed, would have given the other side an advantage.

Common questions

Did the AG agree the personnel exception was available?

No, because Todd had explicitly requested open discussion under that exception. The Town did not rely on the personnel exception in its defense. The Town relied entirely on the litigation-strategy exception, and the AG agreed.

What kind of "objective factors" trigger the litigation exception?

The opinion lists: a written demand letter asserting a claim or demanding action, prior litigation between the parties, ongoing similar litigation, retention of counsel with respect to the claim, and an expressed intent to sue. Todd's case had multiple of these.

Does the Town's open-session vote to terminate after a long executive session make a difference?

The opinion treats the open-session vote as appropriate. The executive session covered the legal-strategy discussion; the vote itself happened in open session. That structure is consistent with FOIA: deliberation can be private under § 10004(b)(4), but final action must be in open session.

What if my situation does not involve clear litigation threats?

Then the personnel exception is your tool. The personnel exception requires open discussion if the employee asks for it. Without litigation threats, the public body cannot fall back on § 10004(b)(4).

Can the AG order the meeting redone?

The AG's role under § 10005 is to opine on whether a violation occurred. Specific judicial remedies (invalidation of action, etc.) come from the Court of Chancery. The AG's opinion is persuasive but not self-executing.

What about my right to a public hearing under the Town Charter?

That is a question of municipal charter law, not FOIA. The AG's authority under § 10005 is limited to FOIA violations. Charter rights would be enforced in another forum.

What did the AG opinion 24-IB51 say?

That earlier AG opinion (referenced in this opinion) addressed the same Town's earlier executive sessions on Todd's employment and reached the same conclusion: potential litigation existed and justified executive session.

When does the litigation-strategy exception NOT apply?

When the public body cannot show objective signs of likely litigation, when the discussion is not actually tied to litigation strategy (just generic personnel review), or when an open discussion would not adversely affect the public body's position. All three elements must be present.

Citations

• Statutes: 29 Del. C. § 10004(b)(4) (litigation strategy executive session); § 10005 (petition process); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) (sworn affidavit standard).
• Prior AG opinions: 24-IB51 (earlier opinion on the same Town's executive sessions on the same employee).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/01/13/26-ib03-01-13-2026-foia-opinion-letter-to-janet-todd-re-town-of-greenwood/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/01/Attorney-General-Opinion-No.-26-IB03.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 26-IB03

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 26-IB03

January 13, 2026

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 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 Town did not violate FOIA, because the Town Council's executive sessions at the two referenced meetings were authorized by the exception in Section 10004(b)(4).

BACKGROUND

The Petition alleges that the Town Council violated FOIA by discussing your employment issues in executive session at the August 13, 2025 meeting and the December 8, 2025 meeting, despite your requests for such discussions to be held in open session. You allege that at the December meeting, the Council utilized an executive session to discuss your employment for three hours and then entered public session to read accusations against you and vote for your termination of employment in thirty days. You state that you or your attorney notified the Council via the Town Solicitor that any discussion about your employment was to occur in open session on several occasions in 2024 and 2025. In addition, you assert that you had a right to a public hearing under the Town Charter.

On December 22, 2025, the Town Solicitor replied to this Petition ("Response"). The Response included the affidavit of the Mayor who attests that he was present at the referenced meetings, and he believes the Response is true and correct. The Town argues that your claim regarding the meetings largely mirror your previous claim in a 2025 FOIA petition, which resulted in Attorney General Opinion No. 24-IB51. The Town argues that although you requested the discussions of your employment be open, the threatened litigation and your employment are intertwined, and the Town cannot jeopardize its legal position by discussing your employment and the Town's concomitant legal strategy during a public session. The Town states that at the August 13, 2025 meeting, the Council voted for a suspension with pay and authorized an investigation; the resulting report was reviewed at the December 8, 2025 executive session.

You retained legal counsel who sent a letter indicating you were enduring a hostile work environment and retaliation. In the October 24, 2024 letter, your attorney indicated his offer to confer to avoid litigation. The Town alleges that at the November 2024 meeting, you stated you would make a motion to sue the Town; the Town auditors also conveyed you made statements that you would sue the Town in the summer of 2025. The Town provided copies of additional correspondence to show that the litigation threat continues, as your same allegations continue. Regarding the assertion about your right to a public hearing under the Town Charter, the Town argues this claim is not related to FOIA and should be dismissed.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." 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. A meeting of a public body must be open to the public, except in limited circumstances. 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 an initial matter, the Petition's assertion you have a right to a public hearing under the Town Charter is not appropriately considered herein. This Office's authority under the FOIA petition process is limited to considering alleged violations of the FOIA statute.

The Petition challenges the propriety of the August 13, 2025 and December 8, 2025 executive sessions. Public bodies, with proper notice of the intent to enter an executive session on an 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 these executive sessions were proper under the other applicable exemption, Section 10004(b)(4). We agree.

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 indicators 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, this matter of discussing your employment in executive session, despite your request for a public session, was raised in a previous FOIA petition, and this Office determined that potential litigation existed regarding this matter that justified a previous executive session. To support the assertion of this exception for the August and December 2025 meetings, the Town points out that in the July and August 2024 letters, your attorney alleged you were experiencing a hostile work environment and retaliation from the Town. In October 2024, your attorney reasserted the claims and offered to confer "to avoid litigation." The Town also submitted sworn statements that at the November 2024 meeting, you stated you make a motion to the sue the Town. The Town asserts you indicated your intent to sue to its auditors in the summer of 2025. In August 2025, your counsel submitted a letter reiterating that you continue to face a hostile work environment, characterized by harassment and retaliatory actions. In the November 2025 letter, your counsel alleges that the work environment and retaliatory actions have only increased.

The Town further provides in its Response, which was submitted under the oath of the Mayor, that at these executive sessions, the discussion of your employment and the potential litigation were intertwined and would have adversely affected the Town's litigation position if they occurred publicly. The Town alleges that significant parts of the 2025 executive sessions were devoted to discussion between the Town and its employment counsel about your employment and legal issues that may arise. The Town states that at the August 13, 2025 meeting, the Council voted in open session for a suspension with pay and authorized an investigation of your performance and claims of a hostile work environment. The Town alleges that the resulting investigative report was reviewed and discussed during the December 8, 2025 executive session. The Town states the disciplinary action discussions must occur privately, as they involved the pros and cons of certain actions and revealed the Town's litigation strategy. Based on the totality of these circumstances, we find that this potential litigation threat existed at the time these executive sessions were scheduled and that the August 13, 2025 and December 8, 2025 executive sessions were authorized by Section 10004(b)(4) for discussing litigation strategy.

CONCLUSION

For the reasons set forth above, we conclude that the Town did not violate FOIA, because the Town Council's executive sessions at the two referenced meetings were authorized by the exception in Section 10004(b)(4).

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: James P. Sharp, Town Solicitor