Does a city council violate Delaware's open meetings law if a consultant interviews each council member separately about the same topic?

Official title

18-IB23 5/4/2018 FOIA Opinion Letter to Ms. Amy Roe re: FOIA Complaint Concerning the City of Newark

Plain-English summary

Newark's City Council hired a Human Resources consultant to help recruit a new City Manager. As part of that work, the consultant met one-on-one with each of the six sitting Council members (four on February 11, two on February 12, including the Mayor) to gather their individual views on the city's strengths, challenges, and the qualities the new manager should have. A resident argued that, taken together, these six separate meetings amounted to a "meeting" of the full Council held in secret, a "rolling quorum" that let the Council discuss hiring the City Manager without notice, an agenda, or public minutes, pointing to a 1996 AG opinion that found a violation on similar facts.

The AG disagreed. Delaware's FOIA defines a "meeting" as a gathering of a quorum of a public body's members to discuss or act on public business. While a quorum of the Council did meet with the consultant across the two days, the AG found no evidence that the consultant shared any Council member's comments with any other Council member during the interviews, and the Council later spent roughly two combined hours discussing the resulting recruitment profile at two separate open, publicly noticed meetings. The AG distinguished the 1996 precedent, which involved actual discussion and consensus-building among Council members through a series of sub-quorum sessions with the same third party, from this case, where each interview was a self-contained information-gathering exchange between one member and the consultant, without cross-member discussion. On those facts, the AG found the Council did not violate FOIA.

Currency note

This opinion was issued in 2018. 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

Can a public body avoid Delaware's open meetings law by having a consultant or staffer talk to each member separately instead of meeting as a group?

Not automatically, according to this opinion, but it depends on whether the separate conversations function as a discussion among the members. Here, the AG found no violation because the consultant did not relay one member's views to another during the interviews, so there was no member-to-member discussion happening indirectly through the consultant.

Is discussing candidate qualifications or a hiring process considered "public business" under Delaware FOIA?

Yes, based on this opinion. The AG found that hiring a City Manager, a matter over which the Council has appointment authority under the city's Code of Ordinances, was "public business" as FOIA defines that term, even though the individual interviews themselves were found not to be a "meeting."

Does a prior AG opinion finding a "rolling quorum" violation on similar facts control every case involving separate meetings with the same third party?

No, per this opinion. The AG distinguished its 1996 precedent involving actual discussion and consensus-building among council subgroups from this case, where each interview was a stand-alone exchange of one member's views without any sharing of other members' comments.

If Council members later discuss a topic at a public meeting, does that cure any earlier private discussions on the same topic?

The opinion did not need to resolve that question directly, since it found no earlier "meeting" occurred at all; it noted the later public discussions as evidence supporting its conclusion that the topic was aired openly, not as an independent basis for excusing a private meeting that had already happened.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, generally requires meetings of public bodies to be open, 29 Del. C. § 10004, and defines "meeting" as the formal or informal gathering of a quorum of a public body's members to discuss or take action on public business, 29 Del. C. § 10002(g). "Public business" is defined broadly as any matter over which the public body has supervision, control, jurisdiction, or advisory power, 29 Del. C. § 10002(j). The opinion drew on a line of prior AG determinations recognizing that a series of sub-quorum discussions can amount to an unlawful meeting when they involve actual discussion or consensus-building among members of the public body, whether through email exchanges, sub-group meetings, or a shared third party, but distinguished those precedents because they each involved some cross-member communication, which the AG found absent here. A resident may bring such a claim as a petition for the AG's determination under 29 Del. C. § 10005(e).

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10002(g) (definition of "meeting")
• 29 Del. C. § 10002(j) (definition of "public business")
• 29 Del. C. § 10004 (open meetings requirement)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/05/04/18-ib23-5-4-2018-foia-opinion-letter-ms-amy-roe-re-foia-complaint-concerning-city-newark/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/05/Attorney-General-Opinion-No.-18-IB23.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB23

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB23

May 4, 2018

VIA U.S. MAIL AND EMAIL

Ms. Amy Roe

19 Sunset Road

Newark DE 19711

[email protected]

RE: Correspondence Regarding the City of Newark

Dear Ms. Roe:

We write in response to your correspondence alleging that the City of Newark City Council ("Council") violated the open meeting provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you allege that separate discussions between a Human Resources consultant and individual Council members amounted to a "meeting" of the Council held in violation of FOIA's open meetings provisions. We treat your correspondence as a petition ("Petition") for determination pursuant to 29 Del. C. § 10005(e). We invited the Council to submit a written response to your Petition. We received the Council's response on April 16, 2018 ("Response Letter") [1] and your reply thereto on April 18, 2018 ("Reply"). For the reasons set forth below, it is our determination that that the Council did not violate FOIA as alleged.

RELEVANT BACKGROUND

Section 2-11 of the City's Code of Ordinances provides that "[t]he city manager shall be appointed by the council for an indefinite term." On December 13, 2018, the Council hired a Human Resources consultant to assist the Council with its search for a new City Manager. The parties executed an agreement on January 23, 2018. Part of the consultant's duties as charged by the Council was to "[w]ork with City Council to develop a candidate profile that meets the City's desired qualifications and experience." [2] The consultant provided Council members with a blank recruitment brochure to review prior to meeting individually with the consultant.

On February, 11, 2018, the consultant met individually with the following Council members individually: Councilman Mark Morehead, Councilman Chris Hamilton, Councilman Jen Wallace, and Councilman Jerry Clifton. On February 12, 2018, the consultant met individually with Councilman Stu Markham and Mayor Polly Sierer. [3] When meeting with each individual, the consultant did not relay any information regarding comments made by other Council members. After meeting with these individuals, the consultant prepared a draft City Manager Professional Announcement listing the attributes, a copy of which was posted to the City's website on February 19, 2018.

On February 26, 2018, the Council discussed the draft listing at a public meeting for approximately twenty-three minutes. [4] On March 26, 2018, the Council discussed the position profile, advertising location, recruitment timeline, process, and dates for approximately one hour before hearing public comments on the matter. [5]

POSITIONS OF THE PARTIES

In your Petition, you allege that the six individual meetings amounted to a "meeting" of the Council. Specifically, you allege that the individual meetings with five Council members and the Mayor amounted to a serial quorum. You note that public business – the hiring of the new City Manager – was discussed at each of the meetings. You argue that the facts here mirror the facts in Del. Op. Att'y Gen. 96-IB02, [6] wherein this Office determined that meetings between three ad hoc committees of the Council and the same University of Delaware staff to discuss essentially the same topics amounted to meetings of the Council that were held in violation of FOIA.

In its Response Letter, [7] the City argues:

Unlike the 1996 case . . . , there was no consensus building, discussion, or exchange of views between Council members or third persons during this interview process. It was just one member of Council talking with the consultant about his or her views on these topics. Moreover, the views of Council members were not shared with other Council members during these interviews.

According to the City, the discussions "were simply information gathering sessions" and not "meetings" as defined by FOIA. The City also states: "The individual interview sessions were merely one step in the consultant's process of gathering information for the recruitment brochure." The City notes that other steps included a Facebook Live Video on February 12, 2018, public surveys, and two public Council discussions of the draft profile (on February 26 and March 26, 2018) with the opportunity for public comment. The City also appears to suggest that "public business" was not discussed during the interviews. Finally, the City argues that "[t]o hold that such one-on-one interviews constitute a violation of FOIA would lead to the absurd result that would effectively forbid an elected official from having any individual conversations involving Newark in private."

In your Reply, you note that email correspondence specifically refers to the gatherings as "meetings." You argue that the City's argument that the meetings were information gathering sessions exempted from the definition of "meeting" is unavailing:

Information-gathering, either by or for City Council, is not exempt from the FOIA definition of meetings. Because the meetings were held in a "rolling quorum" style, where each meeting was separate and the Mayor and City Council were unable to directly communicate, the City of Newark appears to claim that information-gathering sessions are not meetings. The views of Council members, while perhaps not shared with other council members during the meetings, were shared in aggregate after the meetings, and information was shared and discussion was had between the individual members of Mayor and Council and the consultant, which were held off the record so the public could not witness or participate in our government in action.

You also challenge the City's suggestion that the topics of discussion were not "public business" as defined by FOIA, stating: "It would be completely inappropriate for a public body to write a contract, hire a contractor, use city staff to schedule meetings, and hold meetings at the city office building merely for the opportunity to socialize." [8] You also argue that FOIA does not contain a mechanism for a public body to conduct public business in earlier stages privately so long as there is a later opportunity for public participation. Finally, in response to the City's argument regarding an absurd result, you state:

If the Mayor and City Council are able to lawfully engage in numerous private discussions with the same entity over which they have decision-making authority off the record, without an agenda, minutes and public notice, that could lead to a situation where the public body is able to do all of their fact finding and ask all questions of developers about development projects or any other issue that requires City Council approval in private, and only hold meetings for the purpose of casting votes. That is not the intent of FOIA.

DISCUSSION

As an initial matter, we note that the subject matter of the six individual discussions at issue was indeed "public business." "Public business" is defined as "any matter over which the public body has supervision, control, jurisdiction or advisory power." [9] The discussions involved the hiring of a City Manager. As the Council is responsible for appointment the City Manager per the City's Code of Ordinances, the discussions undoubtedly concerned "public business." The pertinent question, of course, is whether the discussions between the individual Council members and the consultant amounted to a "meeting" of the Council as defined by FOIA. As discussed more fully below, it is our determination that they did not.

For purposes of Delaware's FOIA, "meeting" is defined as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business either in person or by video-conferencing." [10] With limited exceptions, meetings of public bodies shall be open to the public. [11]

Prior opinions of this Office have suggested that a series of discussions among less than a quorum of a public body may amount to a meeting. [12] Importantly, however, in each of those matters, there was a discussion among one or more members of the public body. Here, while we recognize that a quorum of the Council met individually with the consultant, we see no evidence of a discussion among any Council members on February 11 or 12, 2018, prior to the February 12, 2018 public meeting. [13] To the contrary, we note that the Council engaged in lengthy discussions at the February 26 and March 26, 2018 meetings regarding the very matters that they had individually discussed with the consultant. [14] As such, while we believe your concern to have been reasonable based upon the information available to you, we are not persuaded that the Council members' individual discussions with the consultant amounted to a "meeting" under FOIA. Therefore, it is our determination that the Council did not violate FOIA as alleged.

CONCLUSION

For the reasons discussed above, it is our determination that the Council did not violate FOIA as alleged.

Very truly yours,

/s/ Michelle E. Whalen

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc: Paul E. Bilodeau, Esq. (via email)

[1] The City Solicitor submitted the Response Letter on behalf of the City.

[2] City of Newark Request for Proposal No. 17-04 at § C.1.

[3] Section 2-8(a) of the City's Code of Ordinances provides that "[t]he mayor shall preside at meetings of the council and shall have a full voice and vote in the proceedings thereof." According to the City, "These interviews were to aid the consultant in her preparation of a recruitment brochure listing by obtaining the following information from the Mayor and members of Council: 1) the positive aspects of the City of Newark; 2) the challenges facing Newark; and 3) the attributes a City Manager should possess." Response Letter at 1.

[4] See February 26, 2018 City of Newark Delaware Council Meeting Minutes, at pp. 20-22, available at: https://newarkde.gov/ArchiveCenter/ViewFile/Item/5503 (last visited May 4, 2018) . The meeting minutes reflect that the Council invited public comment, but there was none.

[5] See March 26, 2018 City of Newark Delaware Council Meeting Minutes, at pp. 7-14, available at: https://newarkde.gov/ArchiveCenter/ViewFile/Item/5565 (last visited May 4, 2018) .

[6] 1996 WL 40923 (Jan. 2, 1996). We note that you inadvertently cited to Del. Op. Att'y Gen. 96-IB01, a determination unrelated to the matters at issue here.

[7] The City included affidavits from each of the Council members and the Mayor.

[8] You also note that, in response to a March 8, 2018 FOIA request for the consultant's notes, the City's FOIA Coordinator informed you that it was not in possession of any such notes, but that any responsive records would be exempted pursuant to the deliberative process/draft document privilege.

[9] 29 Del. C. § 10002(j).

[10] 29 Del. C. § 10002(g).

[11] See generally 29 Del. C. § 10004.

[12] See, e.g., Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 5 (Apr. 25, 2017) (meeting occurred when a quorum of the Village of Arden Buzz Ware Village Center Committee discussed a reached consensus regarding a request via email) Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 4-5 (May 19, 2003) (exchange of emails among City of Newark Nominating Committee regarding public business violated FOIA); Del. Op. Att'y Gen. 96-IB05, 1996 WL 114716, at 4 (Feb. 13, 1996) (Georgetown Town Council met in sub-groups to discuss, formulate and execute a memorandum); Del. Op. Att'y Gen. 96-IB02, 1996 WL 40923, at 3 (series of three sub-quorum meetings between different groups of Council members and University of Delaware administrators to discuss the same topics amounted to ad hoc committee meetings under FOIA).

[13] See Del. Op. Att'y Gen. 17-IB08, 2017 WL 1317850, at 4 (Apr. 3, 2017) ("As we have determined that there is no evidence of a discussion among a quorum of the Board, it is our determination that the Board did not violate FOIA as alleged in the Petition."); see also Del. Op. Att'y Gen. 17-IB12, 2017 WL 2817928, at 4 (June 19, 2017). ("Members of legislative and executive branches of municipal governments should not be discouraged from having informal meetings to discuss matters of public interest, so long as those meetings do not involve sufficient members . . . to constitute a quorum and are not attempts to evade FOIA's public meeting provisions.").

[14] These discussions provided ample opportunity for the public to observe the deliberative process of the Council. Similarly, while not dispositive to this analysis, we also note that the public was afforded ample opportunity to provide input and public comment.