Can a city council avoid Delaware's open-meetings law by splitting one discussion into several small groups, each below a quorum?

Official title

96-IB02: Freedom of Information Act regarding Newark City Council

Plain-English summary

A Newark resident complained that City Council members met three separate times with University of Delaware administrators to discuss the university's building plans, and suspected the council had split the discussion into small groups specifically to avoid having a full quorum present. The city argued that because each of the three meetings (two or three council members at a time) fell below the four-member quorum needed for the seven-member council, none of them counted as a "meeting" of the council under the state's Freedom of Information Act.

The Attorney General rejected that argument. A 1985 amendment to the Act, passed after the Delaware Supreme Court's Delaware Solid Waste Authority decision, expanded the definition of "public body" to include ad hoc and special committees, not just the full council. The opinion found that each small group of council members who met with the same university officials to discuss the same topic became, in effect, its own ad hoc committee "impliedly or specifically charged" to gather information and report back, and was therefore itself a public body subject to the open-meeting notice, agenda, and minutes requirements. The AG found the three-way split, covering practically the same subject matter with the same outside participants, was a deliberate scheme to sidestep the law, and held the council had violated the Act by not giving public notice or keeping minutes of the meetings.

Currency note

This opinion was issued in 1996. 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: Could a city council avoid Delaware's open-meetings law just by keeping each sub-group under a quorum?
A: Not under this opinion. The AG found that once the 1985 amendment broadened "public body" to include ad hoc and special committees, a group of council members below a quorum could still count as a public body if it was implicitly or specifically charged with advising on or reporting back about public business.

Q: Who has to prove why a group of officials got together, the complainant or the government body?
A: The opinion placed the burden on the public body to show the purpose of a gathering, citing News-Journal Co. v. McLaughlin, and found the lack of any minutes or agenda from the three meetings left no way to establish an innocent purpose.

Q: Did meeting with an outside entity like a state university change the analysis?
A: No. The opinion noted a year-earlier complaint by the same resident where a different council/university meeting was found not to involve "public business," but here the topic (the university's building plans) was one the council itself had jurisdiction or advisory power over, so the Act applied regardless of the university's own exempt status.

Background and statutory framework

The complaint concerned three 1995 gatherings, an August 30 dinner, a September 7 lunch, and a September 8 breakfast, each attended by two or three of Newark's seven council members along with the same three University of Delaware staff, to discuss university building plans and related topics. The city's solicitor argued none was a "meeting" under 29 Del. C. § 10002 because no session reached the four-member quorum. The opinion applied the amended definition of "public body" in 29 Del. C. § 10002(a), which after 1985 covers "any... ad hoc committee, special committee, temporary committee" impliedly or specifically charged to advise or report, in response to the Delaware Supreme Court's holding in Delaware Solid Waste Authority v. News-Journal Co. that a sub-quorum standing committee fell outside the Act's older definition. The AG found each two- or three-member session was such a committee, triggering the notice, agenda, and minutes duties of 29 Del. C. § 10004(e) and (f), and held the pattern of splitting the same discussion three ways was, on these facts, a scheme to avoid the council's open-meeting obligations, with any future enforcement to proceed under 29 Del. C. § 10005(e).

Citations and references

Statutes:

• 29 Del. C. § 10002, definitions of "public body," "public business," and "meeting"
• 29 Del. C. § 10004(e), public notice requirements for regular and special meetings
• 29 Del. C. § 10004(f), duty to maintain minutes of public body meetings
• 29 Del. C. § 10005(e), Attorney General's investigation and enforcement authority

Cases:

• Delaware Solid Waste Authority v. News-Journal Co., 480 A.2d 628 (Del. 1984), the sub-quorum standing-committee decision that prompted the 1985 amendment to "public body"
• News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977), placing the burden on the public body to prove the purpose of a gathering

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/01/02/96-ib02-freedom-of-information-act-regarding-neward-city-council/

Original opinion text

Del. Op. Atty. Gen. 96-IB02 (Del.A.G.), 1996 WL 40923

( determining that meetings between two or three members of city council and UD employees were public meetings subject to FOIA’s open meeting requirements where council member groups could be viewed as special or ad hoc committees “impliedly or specifically charged” by the full council to advise or to make reports or recommendations concerning public business )

Civil Division – New Castle County

January 2, 1996

Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Re: Freedom of Information Act Complaint

29 Del . C . § 10005(e)

Newark City Council

Dear Mr. Porach:

Please consider this the Attorney General’s written determination pursuant to 29 Del . C . § 10005(e) in the above-referenced matter.

As you are aware, after the Attorney General’s Office received your Complaint on October 24, 1995, it was required to conduct an investigation to determine the validity of the Complaint. 29 Del . C . § 10005(e). A response to your Complaint was requested in an October 26, 1995 letter to the Mayor of Newark. On November 29, 1995, this office received a response from the City Solicitor of Newark.

Your Complaint states that you were informed at an October 16, 1995 Newark City Council Workshop of a recent gathering of the Newark City Council (hereinafter the “Council”) and University of Delaware administrators. Although you were not advised of the exact date of the gathering, you were told that the topic discussed was the University building plans and that the gathering was split between a morning and evening session to avoid a City Council quorum at any one session. You asked for an investigation to determine the following:

1. Did a gathering occur between the Newark City Council and University administrators?

2. Were any other gatherings held in the last six months with the University or other interests to discuss their building plans?

3 Did the Newark City Council consider scheduling and/or attending the University gathering or any gathering as discretionary?

4. Was public notice given announcing the gathering?

5. When did the gathering occur?

6. Where was the gathering held?

7. Who attended the gathering?

8. Was the gathering a split session affair?

9. Was the information presented at each split session identical or similar enough to be considered identical?

10. Was the split session format deliberately implemented to avoid a City Council quorum?

11. Who recommended the split session format?

12. Does the University, a state agency, consider the gathering as fully complying with Delaware Code, Title 29, Section 9227?

In response to your letter, Roger A. Akin, Esquire, City Solicitor for the City of Newark, in his November 21, 1995 letter advised that Mr. John Brook, University Vice President for Government and Public Relations scheduled a series of meetings. The first meeting was a dinner meeting at the Blue & Gold Club on August 30, 1995, attended by Mayor Ronald Gardner, Councilman Godwin, Councilman Felicia and Mr. Brook, Mr. Hollowell and Mr. Armitage from the University.

The second meeting was a luncheon meeting at the Blue & Gold Club on September 7, 1995, attended by Councilwoman Jane Tripp and Councilwoman Irene Zych and the same three members of the University staff. The final meeting was a breakfast meeting held at the University Student Center on September 8, 1995 attended by Councilman Wampler and Councilman Grant and the same three members of the University staff. The University arranged the locations and the time of the meetings. The topics discussed at the meeting “included the University’s building plans as well as other subjects including traffic and other matters.” Mr. Aiken further advises that none of these sessions was a “public meeting” of the Newark City Council because “[n]o quorum was present on any of the three listed dates.”

THE LAW

§ 10002. Definitions.

(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 any 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.

(b) “Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power.

(e) “Meeting” means 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.

§ 10004(e).

(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.

For the reasons stated below, we conclude that the Council did violate the Freedom of Information Act (hereinafter the “Act”) by failing to give public notice and record minutes of the meeting, and to perform public business in an open and public manner. See 29 Del . C . § 10004(e)(2),(4) and § 10004(f).

The Council through its attorney concedes that it is a public body and wishes to argue that none of the three meetings was a public meeting of the Council because a quorum was not present. Since the Council consists of seven members and according to the Newark City Charter, a quorum of the Council consists of a majority of its members, a quorum of the Newark City Council is four members. The argument is that by definition, a public meeting occurs only when there is a quorum of the Council. The City cites Delaware Solid Waste Authority v. News-Journal Co. , Del. Supr., 480 A.2d 628 (1984) in support of this argument.

The difficulty encountered by the City’s argument is that in July, 1985, the General Assembly amended the definition of public body provided by 29 Del . C . § 10002(a) in response to the Court’s comments in Delaware Solid Waste Authority v. News-Journal Co. , Del. Supr., 480 A.2d 628 (1984). In that case, the Court construed the definition of public body and found that a standing committee of less than a quorum of the public body was not subject to the “open meeting” provisions of the Act. Id . Accordingly, the General Assembly amended the definition of “public body” to include an “ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee,” and included such committees “established by any body established by the General Assembly of the State.” The definition of “public body” now applies to many groups including temporary, special or ad hoc committees such as the meetings on August 30, September 7 and September 8, 1995.

In its response, the City advised that the University chose the time and location of the meetings. It may be assumed that the invitations did not specify the members to attend, but that this decision was made by the Council itself. These groups of two or three become special or ad hoc committees selected to meet with the University personnel and “impliedly or specifically charged” by the full Council to advise or to make reports or recommendations. These three special committees are public bodies as certainly as is the Council itself.

The facts in this matter permit only one reasonable conclusion. The formation of three ad hoc committees to meet with the same university staff to discuss essentially the same topics was a scheme to avoid compliance with the Act. A year before, also in response to a complaint filed by Mr. Porach, this office had found that a meeting between the City Council and the University personnel was not a public meeting because the meeting did not concern a matter “over which the public body has supervision, control, jurisdiction, or advisory power.” In that December 15, 1994 opinion, this office stated that the Act was applicable to the meeting even though it involved the University of Delaware, an exempt entity under the Act.

In this instance, a year later, the City Council has attempted to avoid a quorum by meeting with the University in three separate meetings. If there were only two meetings, at least one would have a quorum of the Council. The fact that the three meetings involved practically the same topics and the same University staff appears to be an egregious waste of time and energy unless the three meetings had another purpose. Although the Council argues that the purpose of the meetings was not public business, the Act places the burden of proving the purpose of a gathering of a public body on the public body. News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358 (1977). The absence of minutes of the meeting or an agenda precludes findings on the subjects discussed at the meetings.

This opinion does not respond to your twelve questions, paragraph by paragraph, but with the exception of question twelve concerning the University, the information requested is given. Since there has been no decision resulting from the three meetings, no further enforcement activity is planned. However, should the Council decide to discuss these public matters again, all provisions of the Act must be complied with, including 29 Del. C. § 10004(e)(2),(3) and (4), as well as 29 Del. C. § 10004(f). If the Council continues to meet with the University in violation of the Act, this office may consider invoking the statutory enforcement remedies contained in 29 Del. C. § 10005(e).

Very truly yours,

John K. Welch

Deputy Attorney General

James J. Hanley

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

JKW/JJH/jb