Does a public body violate Delaware's open meetings law if the hearing room turns out to be too small for everyone who shows up?

Official title

14-IB03 06/16/14 FOIA Opinion Letter to Mr. Morse, Ms. Roe and Ms. Wallace re: FOIA Complaint Concerning the Newark Board of Adjustment

Plain-English summary

The ACLU of Delaware, on behalf of a residents' group and two individual members, challenged how the City of Newark's Board of Adjustment handled a high-profile zoning appeal hearing over a proposed data center and gas-fired power plant on the University of Delaware's STAR Campus. Anticipating a large crowd, the Board moved the hearing from its usual meeting room, which holds roughly 75 to 100 people, to a high school auditorium that holds about 700. The petitioners argued the Board had reason to know even that larger venue would not be big enough, pointing to a state legislator's warning to the city manager, and that going forward anyway violated Delaware's open meetings law.

The AG disagreed. The opinion reasons that FOIA's open-meetings law requires a public body that expects a large crowd to find a bigger venue and requires that the venue chosen be reasonable, but it does not require the body to guarantee a seat for literally every person who might attend. Because the auditorium was the largest non-university public venue available in Newark and city police only limited further admission once the room approached capacity, the AG found the Board's venue choice was reasonable given what it knew at the time. The opinion also notes that the hearing was a quasi-judicial zoning appeal rather than an ordinary public-comment meeting, so FOIA's guarantee was the public's right to attend and observe, not a right to participate, and roughly 700 people did in fact attend and observe.

Currency note

This opinion was issued in 2014. 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

If a public meeting turns out to be too small for the crowd, is that automatically an open-meetings violation?

Not under this opinion. The AG found that Delaware's FOIA requires a public body that expects a large turnout to choose a reasonably sized venue, but it does not require the body to accurately predict the exact number of attendees or guarantee everyone a seat.

Does the public have a right to comment or ask questions at a public body's meeting?

Not always. The opinion notes that FOIA guarantees the public's right to notice of, and attendance at, meetings of public bodies, but it does not require public bodies to allow public comment or questions at every meeting, particularly a formal quasi-judicial hearing like a zoning appeal.

What if some people were turned away because the room filled up?

The opinion found that even if some individuals were unable to get in, once roughly 700 people had already been admitted and had the opportunity to observe the hearing, that did not amount to denying the public at large the opportunity to attend, nor was there any showing that the outcome would have changed had the excluded individuals been present.

How did the AG decide the venue size was "reasonable"?

The opinion looked at what the Board actually knew when it selected the venue: it knew the subject was drawing significant public interest and responded by moving from its normal 75-to-100-person chamber to the largest available non-university venue in the city, which held about 700. Given that information, the AG concluded the choice was not unreasonable, without needing to decide whether an even larger venue existed somewhere.

Background and statutory framework

FOIA's Declaration of Policy states that citizens "shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made," 29 Del. C. § 10001, and every meeting of a public body, defined to include the Board under 29 Del. C. § 1000(2)(h), must be open to the public except for a permissible executive session, 29 Del. C. § 10004(a). The opinion applies the AG's earlier holding in Att'y Gen. Op. 02-IB09 that if a public body has reason to know a large number of citizens is likely to attend, FOIA requires it to find a larger venue, and Att'y Gen. Op. 98-IB12's gloss that the venue selected need only be "reasonable," not sized to accommodate any conceivable number of attendees.

The opinion also draws on out-of-state authority reaching similar conclusions: Gutierrez v. City of Albuquerque held open-meetings requirements were satisfied even where the crowd exceeded the capacity of a large venue; Gerwin v. Livingston County Bd. reasoned that requiring accommodation of every interested party would let a meeting be invalidated simply by overflowing the venue; and Maxwell v. Carney held that a requirement of "adequate" seating does not require seating for every person in the county. Finally, the opinion cites the Delaware Court of Chancery's decision in Reeder v. Dept. of Insurance for the proposition that FOIA guarantees the public's right to notice and attendance at meetings, not a right to comment or question public officials during those meetings, which mattered here because the underlying proceeding was a quasi-judicial hearing on a zoning appeal rather than a legislative or comment-taking session.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA's Declaration of Policy)
• 29 Del. C. § 1000(2)(h) (defines the Board of Adjustment as a public body)
• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)

Cases:

• Gutierrez v. City of Albuquerque, 631 P.2d 304 (N.M. 1981) (open-meetings requirements met even where a crowd exceeded the capacity of a large venue)
• Gerwin v. Livingston County Bd., 802 N.E.2d 410 (Ill. App. 3d 2003) (requiring accommodation of every interested party would allow invalidation by simply overflowing the venue)
• Maxwell v. Carney, 548 S.E.2d 293 (Ga. 2001) ("adequate" seating does not require seating for everyone in the county)
• Reeder v. Dept. of Insurance, 2006 Del. Ch. LEXIS 46 (FOIA guarantees attendance and observation, not a right to comment, at public meetings)

Source

• Landing page: https://attorneygeneral.delaware.gov/2014/06/16/14-ib03-061614-foia-opinion-letter-to-mr-morse-ms-roe-and-ms-wallace-re-foia-complaint-concerning-the-newark-board-of-adjustment/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 14-IB03

June 16, 2014

VIA EMAIL AND REGULAR MAIL

Richard H. Morse

American Civil Liberties Union Foundation

100 West 10th Street

Suite 103

Wilmington, Delaware 19801

[email protected]

Counsel for Petitioners

Jennifer Wallace

19 Sue Lane

Newark, Delaware 19711

Petitioner

Amy W. Roe

19 Sunset Road

Newark, Delaware 19711

[email protected]

Petitioner

RE: FOIA Complaint Concerning the Newark Board of Adjustment

Dear Mr. Morse, Ms. Roe and Ms. Wallace:

On April 1, 2014, the American Civil Liberties Union Foundation of Delaware (the "ACLU"), on behalf of Newark Residents Against the Power Plant ("NRAPP"), and its members, Amy Roe and Jennifer Wallace (collectively, the "Petitioners"), petitioned for review of the action of the Board of Adjustment of the City of Newark (the "Board") in holding a public hearing at a facility that the Petitioners claim the Board had reason to know was insufficient in size to handle the number of citizens likely to attend (the "Petition"). Counsel for ACLU provided copies of the Petition to counsel for the City of Newark (the "City") and the Board. The City, the Board, and The Data Centers, LLC filed timely responses. The Petitioners then filed a timely reply on May 6, 2014, to which the City, the Board, The Data Centers, LLC filed sur-replies, the last of which was sent by Counsel to the Board on May 28, 2014.

BACKGROUND

The Petition arises from a March 19, 2014 hearing (the "Hearing") before the Board relating to the proposed construction and operation of a data center (the "Data Center") on the University of Delaware Science and Technology (STAR) Campus, and request to construct a gas-fired power plant as part of the Data Center. The purpose of the Hearing was to consider the appeal of a zoning verification (the "Zoning Verification") issued by the City's Planning and Development Department. The Hearing was a formal legal hearing, and there was no opportunity for public comment. The Petitioners were among the Appellants who challenged the Zoning Verification.

The Board scheduled the Hearing to be held at 6:00 p.m. on March 19, 2014 in the auditorium of Newark High School at 750 East Delaware Avenue, Newark, Delaware (the "Facility"). The Petitioners claim the capacity of the Facility is approximately 700 persons. Board hearings are generally held in City Council Chambers, a venue that holds approximately seventy-five to one hundred people; however, because the proposed Data Center has drawn significant public interest, the venue of the Hearing was moved to the Facility, which is the largest non-University public venue available within the City.

The Petitioners allege the Board had reason to know that the facility was too small to hold many of the citizens who wanted to attend, based upon a statement by State Representative John Kowalko to Carol Houck, the manager of the City of Newark, that the Facility would not be large enough to hold the many Newark residents who were expected to attend the Hearing. Petitioners allege Ms. Houck did not acknowledge the need to move the hearing to a larger facility and did not move the hearing.

To assure that the Auditorium did not become overcrowded, City Police Officers periodically stopped admitting people to the Facility. The parties dispute whether anyone who desired to attend the Hearing was turned away.

RELEVANT STATUTES

FOIA's "Declaration of Policy" provides that "citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made …." 29 Del. C. § 10001. The Board is a public body. See 29 Del. C. § 1000(2)(h). "Every meeting of all public bodies shall be open to the public except those closed" for a permissible executive session. 29 Del. C. § 10004(a).

ANALYSIS

The Petitioners assert the Board violated the law when it decided to go forward with the Hearing at the Facility after it knew that the room was too small to hold everyone who was expected to attend. There is no dispute that the Board knew of the heightened interest in the subject matter of the hearing, or that it arranged to move the Hearing to a much larger facility. The Petitioners argue that

29 Del. C. § 10004(a) gives all members of the public the right to be present. Att'y Gen. Op., 02-IB09, 2002 Del. AG LEXIS 8, *5 (April 12, 2002). This means that "if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting." Id. at 5-6.

Even if we interpret the statute as the Petitioners' urge, neither FOIA nor our earlier decisions require that a public body predict in advance the exact number of people who will attend. The only requirement is that "the public body . . . find another, larger place for the meeting," and the size of the venue chosen is "reasonable." Att'y Gen. Op. 98-IB12. The Board was not required to use a venue that could "accommodate any possible number of persons who might attend." Id. Given the information made available to the Board at the time the venue was selected, it cannot be said that the decision to use the Facility was unreasonable. See, Gutierrez v. City of Albuquerque, 631 P.2d 304 (N.M. 1981) (FOIA requirements met even where crowd exceeded capacity of large venue); Gerwin v. Livingston County Bd., 802 N.E.2d 410, 417 (Ill.App.3d 2003) (requirement that all interested parties be accommodated would permit invalidation of action by public body by the simple method of overflowing the venue, citing Gutierrez at 306). See also Maxwell v. Carney, 548 S.E.2d 293, 295 (Ga. 2001) (requirement of "adequate" seating doesn't require seating for everyone in the county).

Under the facts of this case, the public policy concerns under 29 Del. C. § 10001 are satisfied. The matter before the Board was oral argument of an appeal of a Zoning Verification. Though defined as a "public meeting," this was an administrative proceeding at which the parties were to present the legal arguments supporting their respective positions on appeal and the testimony of just two expert witnesses. There were approximately 700 people who attended the Hearing who had the opportunity to observe the conduct of the Hearing. As the Delaware Court of Chancery has observed:

Although FOIA entitles citizens to notice of public meetings and to attend meetings of public bodies, FOIA does not mandate that public bodies allow for public comments at any or all meetings. There is nothing in the text of the declaration of policy or the open meeting provision requiring public comment or guaranteeing the public the right to participate by questioning or commenting during meetings. What is provided by FOIA generally, and by the open meetings provision in particular, is public access to attend and listen to meetings.

Reeder v. Dept. of Insurance, 2006 Del. Ch. LEXIS 46, 11-12 (footnotes omitted). Even if some people were turned away from the Hearing, a point over which the parties disagree, it cannot be said that the public at large was denied the opportunity to attend and observe the Hearing, nor can it be said that the presence of those persons who may have been turned away would have changed the outcome of the Hearing.

CONCLUSION

We therefore conclude that no violation of FOIA occurred with respect to the Board Hearing on March 19, 2014.

Very truly yours,

/s/ Edward K. Black

Edward K. Black

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon, State Solicitor

Cc: John W. Paradee, Esquire

Max B. Walton, Esquire

Richard A. Forsten, Esquire