Can a Delaware governor's advisory council hold private meetings with invited guests under the state's open-meetings law?

Official title

95-IB22 07/31/95 FOIA Opinion Letter to The Honorable Darrell J. Minott re: FOIA Complaint Concerning Meeting of Governor's Council On Equal Employment Opportunity

Plain-English summary

Delaware's Secretary of Labor asked whether the Governor's Council on Equal Employment Opportunity (CEEO), an advisory body appointed by the Governor and the chair of the Human Relations Commission, could meet privately with invited guests from time to time. The AG concluded it could not. Applying FOIA's broad definition of "public body," which covers any advisory or appointive body supported in part by public funds or charged by a public official with making reports or recommendations, the AG found the CEEO qualified: it received staff support paid with public funds and was required by executive order to deliver a written annual report to the Governor. Because open-meetings exceptions are narrowly construed, the AG said the CEEO could not simply schedule private sessions with guests. It could still go into executive session, but only for a reason the statute specifically permits (such as reviewing personnel records), only after an affirmative vote of a majority of members present, and only after giving notice that states the precise statutory reason for closing the meeting.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Is a governor's advisory council automatically exempt from Delaware's open-meetings law?
A: No, according to this opinion. The AG found that an advisory body counts as a "public body" bound by FOIA if it's funded even partly with public money or charged by a public official with making reports or recommendations.

Q: Could an advisory council like this hold closed-door sessions with outside guests whenever it wanted?
A: No. This opinion concluded the council could not schedule private meetings with invited guests, and could close a meeting to the public only for one of the specific reasons the open-meetings statute allows.

Q: What did a public body have to do before closing part of a meeting to the public under this opinion?
A: It had to get an affirmative vote of a majority of members present and give notice stating the precise statutory reason for going into executive session.

Background and statutory framework

FOIA's definition of "public body" in 29 Del. C. § 10002(a), as amended by 65 Del. Laws c. 191, covers advisory and appointive bodies that are publicly funded in whole or part or charged by a public official with making reports, investigations, or recommendations. Applying the two-part test from Delaware Solid Waste Authority v. News Journal, the AG found the CEEO met both elements. Because FOIA's open-meetings exceptions in § 10004(b) are strictly interpreted, the AG concluded the CEEO could enter executive session only for a permitted reason, such as personnel-records review under § 10004(b)(6) and (9), following the notice-specificity requirements discussed in Chemical Industry Council of Del. v. Coastal Zone Industrial Control Board and Mark H. Levy v. Board of Education of The Cape Henlopen School District.

Citations and references

Statutes:

• 29 Del. C. § 10002(a), defines "public body" to include publicly funded or publicly charged advisory bodies
• 29 Del. C. § 10004(b), lists the permitted reasons a public body may hold an executive session
• 29 Del. C. § 10004(b)(6), permits executive session for certain personnel matters
• 29 Del. C. § 10004(b)(9), permits executive session for certain related personnel matters
• 65 Del. Laws c. 191, the 1985 amendment that produced the current "public body" definition

Cases:

• Delaware Solid Waste Authority v. News Journal, Del. Supr., 480 A.2d 628, 632 (1984), setting out the two-part test for "public body" status and requiring narrow construction of open-meetings exceptions
• Chemical Industry Council of Del., et al. v. Coastal Zone Industrial Control Board, et al., Del. Ch., No. 1216-K, Jacobs, V.C. (May 19, 1994), holding a public body must state its precise reason for convening in executive session
• Mark H. Levy v. Board of Education of The Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler, V.C. (October, 1990), cited alongside the same executive-session notice requirement

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/07/31/95-ib22-073195-foia-opinion-letter-to-the-honorable-darrell-j-minott-re-foia-complaint-concerning-meeting-of-governors-council-on-equal-employment-opportunity/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 95-IB22

July 31, 1995

The Honorable Darrell J. Minott

Department of Labor

Carvel State Office Building

820 N. French Street

Wilmington, DE 19801

Re: Meeting of Governor's Council On Equal Employment Opportunity

Dear Secretary Minott:

You have asked whether the Governor's Council on Equal Employment Opportunity ("CEEO") may meet privately with invited guests "from time to time."

For the reasons stated below, we conclude that the CEEO is a "public body" as defined in 29 Del. C. § 10002(a) and therefore must conduct its public business in accordance with 29 Del. C. § 100, the Freedom of Information Act (the "Act").

The threshold issue is whether the CEEO is a "public body" as that term is defined in 29 Del. C. § 10002. The two principal elements of a public body were outlined in Delaware Solid Waste Authority v. News Journal, Del. Supr., 480 A.2d 628, 632 (1984). First, the entity must fall within "the broad categories of executive or legislative entities of the State." Second, "the entity must be supported in whole or in part by public funds…or be specifically charged by any other public body to advise or make recommendations." The definition was subsequently amended to its present form in 1985.

(a) "Public body" means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative 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 an state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.

65 Del. Laws c. 191.

After the change, it was determined that Committees, by definition should be included in the category of public bodies. Atty Gen. Op. No. 94-1O07. The appointment or charge to the Committee could come from a public official as well as another public body.

We understand that the CEEO is an advisory body established by Executive Order comprised of a chairperson appointed by the Governor and members appointed either by the Governor or by the chairperson of the Human Relations Commission from among its own members. It is not specifically excluded from the requirement of 29 Del. C. ch. 100. The CEEO is also supported in part by public funds by virtue of the staff support. More importantly it is charged by a public official with making "reports, investigations or recommendations." 29 Del. C. § 10002(a). The Executive Order requires the CEEO to furnish a written annual report with recommendations to the Governor and State Personnel Director on October 30 of each year. We therefore, believe that the Council is a public body as defined in 29 Del. C. § 10002(a) and subject to 29 Del. C. § 10004, as well as all other provisions of 29 Del. C. c. 100.

Exceptions within open meeting laws are strictly interpreted to limit non-public meetings. Delaware Solid Waste Authority v. News Journal, 480 A.2d at 631. The exceptions are found in 29 Del. C.§ 10004. Thus, we conclude that the CEEO may not schedule private meetings for members and invited guests. However, it may go into executive session for the reasons permitted by 29 Del. C. § 10004(b) upon an affirmative vote of a majority of members present. For example, if during its review of an agency it becomes necessary to review personnel records, CEEO may sit in executive session under Del. C. § 10004(b)(6) and (9). The notice of the meeting must be specific in its reasons for going into executive session. In Chemical Industry Council of Del., et al. v. Coastal Zone Industrial Control Board, et al., Del. Ch., No. 1216-K, Jacobs, V.C. (May 19, 1994), the Court noted that,

FOIA contemplates that a closed session must be the exception, not the rule, for how a public body conducts its public business. Therefore, the statute requires the public body to justify its invocation of that exceptional procedure. It also requires the public body to inform the public in the notice of the executive session of its precise reason or reasons for convening in private.

See also Mark H. Levy v. Board of Education of The Cape Henlopen School District, Del. Ch., C.A. No. 1447, Chandler, V.C. (October, 1990). Before concluding, we note that the CEEO must comply with all the other record keeping and notice requirements of the Act including maintaining an agenda. See 21 Del. C. § 10004.

We hope this analysis clarifies CEEO's status as a public body and the application of the open meeting provisions of the Freedom of Information Act. Any executive sessions must be for a permitted purpose after due notice citing the specific exception that permits a closed meeting. See 29 Del. C. § 10004.

If you have further questions, please do not hesitate to contact us.

Very truly yours,

Sherry V. Hoffman

Deputy Attorney General

John K. Welch

Deputy Attorney General

SVH/rt

Approved:

Michael J. Rich

State Solicitor