Is a mayor's hand-picked advisory committee on water rates subject to Delaware's open meetings law?

Plain-English summary

The Mayor of Rehoboth Beach put together a seven-member working group to recommend new wastewater rate structures. The group included three City department heads and four members of the public. Its first meeting in January 2019 was held without public notice, on the theory that this was an internal advisory group, not a "public body" subject to FOIA's open-meetings rules. Eight residents filed FOIA petitions arguing the meeting should have been public.

The AG sided with the residents. Delaware's two-part public-body test was satisfied: (1) the committee was an advisory group appointed by a public official (the Mayor), and (2) it was charged with making recommendations on rate structures. The AG rejected the City's argument that a committee created by Public Official A cannot be a public body unless some different Public Official B charged it with making recommendations. The statute, the AG read, has no such requirement.

As remediation the AG recommended that any minutes the committee already had be made public, that minutes be reconstructed for previous meetings if recordings existed, and that future meetings comply with open meetings rules. The AG opinion is a determination only; it has no power to invalidate prior action or order specific remedies, but the City typically follows the recommendations.

Currency note

This opinion was issued in 2019. 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: What's the two-part test for whether a group is a "public body" under Delaware FOIA?
A: Under 29 Del. C. § 10002(h), an entity is a public body if (1) it is an "advisory, executive, appointive or legislative body" of the State or a political subdivision, and (2) it either is supported by public funds, expends public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations, or recommendations." Both prongs must be satisfied.

Q: Does the second prong require a different official to charge the committee than the one who created it?
A: No. The City of Rehoboth Beach argued that "any other" in the statute meant a public official different from the one that created the body. The AG rejected that reading: the Mayor appointed the Committee and charged it with making recommendations, which satisfied the second prong.

Q: What about "body of one" exceptions where a single public official meets with staff?
A: The Petitioners argued the Committee was not staff to a "body of one." The Committee included four members of the public, not just City staff, and the AG concluded it was a public body charged with making recommendations.

Q: What is the remediation when a public body holds an unnoticed meeting?
A: The standard AG recommendation is: (1) release any existing minutes, (2) reconstruct minutes if the meeting was otherwise recorded or preserved, and (3) comply with open-meetings rules going forward. The AG cannot order invalidation of any vote or decision; that requires Superior Court action.

Q: Could a future committee with similar membership avoid FOIA by being charged only to advise an individual mayor or executive?
A: Not based on this opinion. The AG read § 10002(h) to cover advisory committees regardless of whether they report to a body or to a single public official, as long as the committee is itself appointed by a public official and tasked with recommendations.

Background and statutory framework

Delaware's FOIA open-meetings rules sit at 29 Del. C. § 10004. They apply to "public bodies" defined in § 10002(h), and the definitional question often becomes the case. A wide range of advisory committees, task forces, and study groups sit at the boundary, and earlier AG opinions have drawn the line in different places depending on continuity of membership, public funding, and the formality of the charge.

The Mayor in Rehoboth Beach was trying to use a familiar municipal-management technique: convene a small group with technical expertise and stakeholders, get a recommendation, then bring it to the elected body. The City's argument was that this kind of internal advisory process, where the Mayor is the proximate recipient of the recommendation, shouldn't trigger the formal open-meetings machinery. The AG rejected that pragmatic argument as inconsistent with the statute.

The AG read the second prong to be satisfied whenever a public official charges the committee with making recommendations, whether that official is the same one who created it or a different body. On the facts, the Mayor appointed a fixed membership and charged the Committee with creating rate-structure recommendations, so the AG found both prongs met.

Citations and references

Statutes:

• 29 Del. C. § 10002(h) (definition of public body)
• 29 Del. C. § 10004 (open meetings requirement)
• 29 Del. C. § 10005(e) (AG petition process)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/15/19-ib04-2-11-2019-foia-opinion-letter-to-ms-jan-konesey-and-mr-sam-cooper-re-foia-complaint-concerning-the-city-of-rehoboth-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB04.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB04

February 11, 2019

VIA EMAIL

Petition No. 1: Jan Konesey, Brian Patterson, Jennifer Duncan, Gary Glass, Steve Latsios, Marjorie Holman, Bob Lawrence (c/o [email protected])

Petition No. 2: Sam Cooper ([email protected])

RE: Two FOIA Petitions Regarding the City of Rehoboth Beach

Dear Petitioners:

We received your two separate communications alleging that the City of Rehoboth Beach's wastewater working group committee ("Committee") is in violation of the open meeting requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Jan Konesey, Brian Patterson, Jennifer Duncan, Gary Glass, Steve Latsios, Marjorie Holman, and Bob Lawrence filed one Petition with this allegation ("Konesey Petition"). Sam Cooper filed a second Petition raising three allegations, one of which makes the same assertion—that the Committee's meetings were conducted in violation of FOIA ("Cooper Petition"). We treat each correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur and issue this combined Opinion to address both Petitions.

For the reasons set forth below, we conclude that the Committee is a public body and recommend the remediation outlined below.

BACKGROUND

The City's Board of Commissioners is an elected body; the Mayor is the elected chief executive of the City and the presiding officer of the Board. The City is considering substantial amendments to its wastewater services, and the Mayor and Board held a public "Town Hall" meeting to discuss the matter. Following that meeting, the Mayor established a group to study wastewater rate structures for rate payers and to make recommendations to him, which he would in turn pass onto the Board. The group consists of the City Manager, City Finance Director, City Public Works Director, and four members of the public ("Committee"). The first Committee meeting occurred on January 14, 2019 without public notice, as the City believes this Committee is not a public body under FOIA.

Both Petitions asked this Office to determine whether the City was in violation of FOIA by conducting Committee meetings out of compliance with the open meeting requirements. By separate letters addressed to each Petition ("Responses"), the City's legal counsel submits that this Committee is not a public body. The Responses state that the Committee "was established by the Mayor, who is not a participant, for the sole purpose of advising the Mayor—and not the Commissioners—on potential rate structures." The City interprets the definition of "public body" to include only those bodies that are charged by "any other public official, body, or agency," other than the public official, body, or agency that created the body. Thus, the City believes the Committee was not a public body, as it was appointed and given its charge by the Mayor, and not separately charged by another public body or public official, such as the City Board of Commissioners. Further, the City asserts that if groups such as this Committee are deemed public bodies, it will significantly impede municipalities' day-to-day efficiency.

In their respective Replies, the Petitioners respond that the Committee is a public body, because it was established by the Mayor, supported by public funds of the City employees' salaries and the consultant fees, and is specifically charged to advise and make recommendations. Additionally, the Petitioners argue that the Committee members are not the staff to a "body of one." Finally, the Petitioners argue that contrary to the City's assertion, the Committee is impliedly charged to advise the Board of Commissioners, not merely the Mayor.

DISCUSSION

Only public bodies are subject to the open meeting requirements, and to determine whether a group is a public body under FOIA, a two-part test must be met. First, we must determine whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," which includes a "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 any state governmental entity." If the first part is met, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations, or recommendations." Both parts of this test must be satisfied in order for an entity to be considered a "public body" under FOIA.

Under the first prong, we consider whether this Committee constitutes an advisory group appointed by a public official of the State. Here, the Committee is comprised of seven members: the City Manager, City Finance Director, City Public Works Director, and four members of the public. The City acknowledged that the Mayor, as a public official, appointed this Committee by inviting specific members and does not dispute that this Committee meets this prong of the test.

Regarding the second prong, neither party has alleged that the Committee expends or disburses funding; thus, the remaining question is whether the Committee is supported by public funds and/or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations, or recommendations." In its Responses, the City affirmed the Mayor set the Committee's mission to recommend potential rate structures to the Mayor, who then will share those recommendations with the Commissioners. The record shows that the Mayor selected a fixed Committee membership at the outset and charged the Committee with creating recommendations through a collaborative effort. Therefore, this second prong is also satisfied, and we find that the Committee is a public body as defined by FOIA.

As we have concluded that the Committee is a public body, the Committee must conduct itself in accordance with FOIA's open meeting requirements. It has been the long-standing practice of this Office to recommend certain steps for remediation. The City's Responses indicated that a Committee meeting was held on January 14, 2019, at which the City's Public Works Director gave a brief summary of the discussions and noted that the parties intended to meet again thereafter. It is unclear from the record whether other meetings have occurred, whether meeting minutes were created, what topics were discussed, or whether any meetings were recorded or otherwise preserved. This Office previously recommended that existing minutes be released and if no minutes exist, that those minutes be recreated if the meetings were recorded or preserved. Thus, to the extent that meeting minutes exist for previous Committee meetings, we recommend making those minutes publicly available in accordance with FOIA. To the extent that Committee meetings occurred and the discussions were preserved without creating minutes, we recommend that minutes be created and be made publicly available. The Committee is recommended to comply with all aspects of the open meeting requirements in the future.

CONCLUSION

As the Committee is a public body, it is our determination that the City has violated FOIA. We recommend that this Committee comply with the open meeting requirements in the future. To the extent that meeting minutes exist for previous Committee meetings, we recommend making those minutes publicly available in accordance with FOIA. If meeting minutes were not created but previous discussions were otherwise preserved, we recommend that minutes be created and made publicly available.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Glenn C. Mandalas, Esq., Attorney for the City of Rehoboth Beach (via email)