Do a Delaware county administrator's private budget meetings with department heads have to be open to the public?

Official title

01-IB15 Re: Freedom of Information Act Complaint Against Sussex County

Plain-English summary

A resident complained that the Sussex County Administrator violated the open meeting law by meeting privately in March and April with department heads and finance staff to build the county's fiscal year 2002 operating budget. Those meetings let each department head walk the Administrator through their budget requests, including staffing, capital needs, and future plans, before he assembled his own proposal for the County Council.

The AG found no violation. Delaware's FOIA exempts "public bodies having only one member" from its open meeting requirements, and the AG treated the County Administrator, who alone holds statutory authority to prepare and submit the county budget, as such a "body of one." Meeting with staff to gather facts needed for that decision did not turn those staff into a public "committee," because the Administrator never delegated any of his decision-making authority; the department heads gave him information and recommendations, but it was the Administrator, not the group, who decided what to submit to the Council. The opinion also noted that the public still had a real opportunity to weigh in later, since the County published the proposed budget in two newspapers, posted notice of a public hearing, and made copies available before the Council took final action.

Currency note

This opinion was issued in 2001. 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

Does a Delaware county administrator have to open budget-planning meetings with department heads to the public?

No, according to this opinion. The AG found the County Administrator qualifies as a "body of one" under FOIA's open meeting exemption for public bodies with only one member, and that gathering facts from staff to prepare a budget recommendation did not require public notice.

If a public official's staff gives input on a decision, does that turn the staff into a public "committee" subject to open meeting rules?

Not by itself, according to this opinion. The AG distinguished between staff providing facts and recommendations to help an official decide (not covered by FOIA) and an official delegating actual decision-making authority to a group (which can create a "committee" subject to FOIA). Here, the department heads only informed the Administrator's own decision, so no committee was formed.

Does a "body of one" exemption mean a Delaware official's records about that decision are also exempt from public records requests?

No, based on this opinion. The AG specifically noted in a footnote that the "body of one" exemption applies only to FOIA's open meeting requirements, not to its separate public records requirements.

Background and statutory framework

FOIA defines a "public body" broadly to include executive bodies, committees, and advisory boards established or appointed by government entities, 29 Del. C. § 10002(a), but exempts "[p]ublic bodies having only one member" from the open meeting requirements, 29 Del. C. § 10004(h). Under Delaware's county government code, the Administrator is the county's chief administrative officer, appointed by the County Council, 9 Del. C. § 7003(d), and is charged with preparing and submitting the annual budget with his own recommendations, 9 Del. C. § 7003(d)(5). Before adoption, the budget must be published in two newspapers, made available at the Clerk's office, and go through a public hearing before adoption by July 1, 9 Del. C. § 7002(n).

The AG leaned heavily on out-of-state case law addressing similar "sunshine law" fact-finding questions: Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville & Davidson County (Tennessee Court of Appeals) and Bennett v. Warden (Florida District Court of Appeal), both finding no open-meeting violation where an official with sole decision-making authority consulted staff or advisors for facts. By contrast, Wood v. Marston (Florida Supreme Court) and News-Press Publishing Co. v. Carlson (Florida District Court of Appeal) found violations where an official delegated actual decision-making or screening authority to a group. The opinion also cited Cape Publications, Inc. v. City of Palm Bay (Florida District Court of Appeal) as closely analogous to the Sussex County facts, and drew on Tribune Publishing Co. v. Curators of the University of Missouri (Missouri Court of Appeals) for the idea that open meeting law must balance transparency against "administrative efficiency at the non-decisional level," and on Delaware Solid Waste Authority v. The News-Journal Co. (Delaware Supreme Court) for the principle that the public's right of access at later stages of a decision, such as a public hearing before final adoption, helps ensure government accountability.

Citations

• 29 Del. C. § 10002(a) (definition of "public body")
• 29 Del. C. § 10004(h) (open meeting exemption for public bodies with only one member)
• 9 Del. C. § 7003(d) (County Administrator as chief administrative officer)
• 9 Del. C. § 7003(d)(5) (Administrator's duty to prepare and submit the proposed budget)
• 9 Del. C. § 7002(n) (budget publication, public hearing, and adoption deadline)
• Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville & Davidson County, Tenn. App., 842 S.W.2d 611 (1992) (official with sole authority consulting staff for advice is not a public meeting)
• Bennett v. Warden, Fla. App., 333 So.2d 97, 99 (1976) (fact-finding meetings with advisors under an executive's direction not covered by sunshine law)
• Wood v. Marston, Fla. Supr., 442 So.2d 934 (1983) (screening committee performing a delegated decision-making function is covered by sunshine law)
• Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985) (group assisting an official by asking questions, with no delegated authority, not covered)
• Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983) (open meeting law balances accountability against administrative efficiency)
• Delaware Solid Waste Authority v. The News-Journal Co., Del. Supr., 480 A.2d 628, 634 (1984) (public's right of access at later decision-making stages supports accountability)
• News-Press Publishing Co. v. Carlson, Fla. App., 410 So.2d 546 (1982) (board's delegation of budget authority to an ad hoc committee required open meetings)

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/10/23/01-ib15-re-freedom-of-information-act-complaint-against-sussex-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 01-IB15 (Del.A.G.), 2001 WL 1593115

Office of the Attorney General

State of Delaware

Opinion No. 01 – IB15

October 23, 2001

Re: Freedom of Information Act Complaint Against Sussex County

*1 Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

Dear Mr. Kramer:

By letter dated May 23, 2001, you alleged that the Sussex County Administrator violated the Freedom of Information Act ("FOIA") by meeting in March and April of this year with his department heads and their staff to develop an operating budget for Sussex County for Fiscal Year 2002.

By letter dated June 4, 2001, we asked for the County's response, which we received on July 2, 2001. According to the County, the budget process begins on February 15th of each year when the County Administrator distributes "budget request forms and a scheduling letter to each department head. Each department head prepares a request for his or her department that includes goals for the upcoming years. Budget expenditure requests for each line item, support sheet information for amounts requested, a revenue support sheet for departments with related income, a line item cut sheet, and salary information and recommendations for each employee."

The budget process continues into March and April, when "each department head meets with the County Administrator, the Director of Finance and the Director of Accounting to explain their requests, including information regarding employee performance, salaries, capital requests, budget objectives, and future department direction." You allege that FOIA required those meetings to be noticed and open to the public

Relevant Statutes

FOIA defines "public body" to include any "executive body" or "committee" of, or "advisory board" to any executive 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 any state governmental entity, …" 29 Del. C. § 10002(a). The open meeting requirements of FOIA, however, do not apply to "[p]ublic bodies having only one member." Id. § 10004(h). 1

The County Administrator is "the chief administrative officer of the County" appointed by the County Council. 9 Del. C. § 7003(d). Among the duties of the County Administrator is to "prepare and submit a proposed annual budget and capital program to the county government, with his recommendations." Id. § 7003(d)(5). After receiving of the County Administrator's proposed budget, the County must publish a summary of the budget in two newspapers of general circulation, and make copies of the proposal available at the County Clerk's office. See 9 Del. C. § 7002(n). There must be "public hearings on the proposed budget" before it is adopted by the County Council "not later than the 1st day of July." Id.

Legal Analysis

A. The Open Meeting Requirements Requirements of FOIA Do Not Apply To The County Administrator.

*2 The County Administrator is an "executive body" as defined by FOIA, but the open meeting laws do not apply to the Administrator because he is a "body of one." 29 Del. C. §10004(h). We do not believe that FOIA applies to discussions between the County Administrator, as a "body of one," and his department heads and staff under the circumstances of this case.

In Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville & Davidson County, Tenn. App., 842 S.W.2d 611 (1992), a purchasing agent had sole authority to procure goods and services for city. Before awarding a contract for an environmental inspection program, the purchasing agent met with the city's finance director, director of environmental control, and the law director for their advice. The losing bidder sued, claiming that meeting should have been open to the public. The state appeals court disagreed. "The decision whether to award the contract rested with the purchasing agent. At most, the officials attending the meeting were providing the purchasing agent with their opinions concerning whether he should award the contract to the company that submitted the lowest bid." 842 S.W.2d at 619. Because the purchasing agent "could have made a decision without the meeting, … we find that the Sunshine Law did not require this meeting to be open to the public." Id.

Meetings "between an executive officer and advisors or consultants under his direction, for the purpose of 'fact-finding' to assist him in the execution of those duties are not meetings within the contemplation of the Sunshine Law." Bennett v. Warden, Fla. App., 333 So.2d 97, 99 (1976).

It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting within the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law require it.

Id. at 99-100.

The open meeting requirements of FOIA do not apply to the County Administrator because he is a "body of one." This statutory exemption is not lost if an executive official consults with his or her staff to obtain facts to make an informed executive decision.

B. The County Administrator Did Not Delegate His Decision-Making Authority.

When an executive body of one exercises his or her decision-making authority, the open meeting requirements of FOIA usually do not apply to fact-finding discussions with staff. Where, however, an executive official delegates any of his or her decision-making authority to a group of individuals, FOIA might apply because the group may amount to a "committee" appointed by an executive body.

*3 In Wood v. Marston, Fla. Supr., 442 So.2d 934 (1983), the President of the University of Florida had sole authority to appoint a new dean of the law school. The president appointed a ten-person committee to solicit and screen applicants and submit a list of the best qualified applicants. The Florida Supreme Court held that the state sunshine law applied to meetings of the screening committee. "In deciding which of the applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university." 442 So.2d at 938. The court distinguished Bennett v. Warden, supra, where the discussions between the college president and faculty about working conditions "were not decision-making in nature, but were for the purpose of fact-finding to assist [[the president] in the execution of his duties." 442 So.2d at 940.

In Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985), the city manager had sole responsibility under the city charter to select the chief of police. When the police chief resigned, the city manager met with his personnel director, city attorney, and deputy police chief to interview and evaluate applicants. "The group was delegated no authority; they did not select or screen applicants … Their sole function was to assist the city manager in acquiring information by asking questions and then discussing with the city manager the qualifications of each candidate after the interview, so that he could decide which of the three candidates he wished to interview on a one-to-one basis." 473 So.2d at 223.

We think this case is much closer to Warden and City of Palm Bay than Marston. The department heads and their staff provided facts to the County Administrator to assist him in preparing the budget for FY 2002. The meetings in March and April of 2001 were an opportunity to explain their budget requests and provide further information about employee performance, salaries, capital requests, budget objectives, and future department direction. Like the city manager in Palm Bay, the County Administrator attended all of these meetings, and it was the County Administrator who made the final decision about the proposed budget to present to the County Council pursuant to his statutory authority.

C. The Public Was Involved In The Decision-Making Process.

In construing the open meeting laws, there must be a balance between "government accountability" and "administrative efficiency at the non-decisional level." Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983). The "salutary goal of letting the 'sunshine' in on [government] meetings" does not require the elimination "of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions." Id.

*4 The County Administrator's authority is limited to preparing and recommending an annual budget. The final decision is for the County Council, which "may increase, decrease or delete any item of appropriation recommended by the County Administrator" or "add new items of appropriation." 9 Del. C § 7002(n).

On May 22, 2001, the County Administrator presented the proposed budget for FY 2002 to the County Council. On May 25, 2001, the County published in The News Journal a summary of the proposed budget and notice of a public hearing on June 19, 2001 when "all persons interested will have a reasonable opportunity to be heard." The notice also advised citizens that they could obtain a copy of the proposed budget from the Clerk of the Council. On May 26, 2001, the County posted an identical notice in the Delaware State News. In addition, the County posted notice and an agenda, listing the budget proposal, at its regular meeting place seven days in advance of the meeting.

Without question, the public had notice of the contents of the proposed budget, and an opportunity to be heard before the County Council took action on the proposed budget. "The public's right of access at later stages in the decision making process, and its accompanying right to question" ensured "accountability to the citizens." Delaware Solid Waste Authority v. The News-Journal Co., Del. Supr., 480 A.2d 628, 634 (1984).

D. The County Council Did Not Appoint A Budget Committee.

In your complaint, you suggest that the County Administrator and his department heads formed a "committee" of the County Council. A "committee" may be a "public body" for purposes of FOIA if it is "established by the General Assembly of the State, or established by any body established by the General Assembly, or appointed by any body or public official of the State … to advise or to make reports, investigations or recommendations." 29 Del. C. § 10002(a). We have already concluded that the County Administrator did not establish or appoint his department heads/and or their staff as a budget "committee" because he did not delegate any of his budget authority. We also conclude that the County Council did not establish or appoint the County Administrator, the Director of Finance, and the Director of Accounting, as a "committee" to advise the County Council on the annual budget. See Metropolitan Air Testing, 842 S.W.2d at 619 (the "group was neither created nor recognized by the Metropolitan Charter, the city ordinances, or the rules and regulations of the Division of Purchases.).

In News-Press Publishing Co. v. Carlson, Fla. App., 410 So.2d 546 (1982), the hospital board of directors was responsible for adopting the annual budget. The board delegated its responsibility to the hospital president, who appointed an ad hoc budget committee (himself and four vice presidents). The committee reviewed all of the budget requests, then met and drafted a proposed budget. The committee submitted the budget to the board of directors which "approved it with very little discussion." 410 So.2d at 547. The Florida appeals court held that the meetings of the budget committee should have been open to the public. "When public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the application of the Government in Sunshine Law is concerned." Id. at 547-48.

*5 The court in Carlson distinguished Bennett v. Warden, supra, where the chief executive's staff did not make their recommendations "directly to the board [of trustees]. Their recommendations were considered by the president of the college who then formed his own recommendations and submitted them to … the governing body." 410 So.2d at 548. Under those circumstances, "[w]e held that the actions of the committee were too remote to be directly connected with the decision-making process." Id.

The County Administrator's department heads and their staff did not make their budget recommendations directly to the County Council. They made them to the County Administrator, who formed his own recommendations and submitted them to the County Council pursuant to his statutory authority. Under these circumstances, we do not believe the department heads and their staff should be deemed an "advisory board" to or a "committee" of the County Council.

Conclusion

For the foregoing reasons, we determine that the budget meetings between the County Administrator and his department heads and their staff in March and April of 2001 were not meetings of a public body and therefore did not violate FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Footnotes

1
We note that this exemption for a "body of one" does not apply to the public records requirements of FOIA.

Del. Op. Atty. Gen. 01-IB15 (Del.A.G.), 2001 WL 1593115