Does discussing employee salary and personnel policy count as 'public business' that Delaware's open-meetings law covers?

Official title

96-IB11: Re: Motion for Reconsideration – Georgetown Town Council Lynn M. DeLeon – Freedom of Information Act Complaint, 29 Del. C. §10005(e)

Plain-English summary

After the Attorney General found in 96-IB05 that Georgetown's town council violated the open-meetings law by drafting and signing an employee-policy memo without a public meeting, the town's counsel asked the Attorney General to reconsider. The town argued a Missouri case, Kansas City Star Company v. Fulson, showed that a school board's workshop focused on staff relations and group dynamics, rather than substantive board business, did not have to comply with Kansas's open-meetings law, and suggested Georgetown's memo review was similarly informal.

The Attorney General rejected the comparison and denied the motion. Unlike the Missouri workshop, which centered on "basic concepts of productive human interaction" among board members, Georgetown's memo set actual salary, personnel, pay-docking, and leave policy for town employees, squarely within the council's "supervision, control, jurisdiction or advisory power" and therefore "public business" under the Act. The opinion also noted the town had not disputed that a public meeting was legally required or that public business was discussed; its only defense was that no single quorum sat down together at once, an argument the AG's earlier 96-IB02 opinion had already rejected. The Attorney General did grant the town a further thirty-day extension to re-notice a proper public meeting and correct the violation.

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: Can a town point to an out-of-state case to get a Delaware FOIA finding reconsidered?
A: It can try, but the AG found the Missouri case the town relied on, involving a school board workshop about interpersonal dynamics rather than substantive policy, was not comparable to a memo that actually set town employee pay and personnel rules.

Q: Does splitting review of a document among individual council members change whether it's "public business"?
A: No. The opinion found that once a document like the memo covers matters the council has jurisdiction over, such as personnel policy, it is public business regardless of how the council members reviewed or signed it.

Q: What did the town still have to do after losing its reconsideration motion?
A: The Attorney General gave Georgetown a thirty-day extension to re-notice a public meeting, with proper notice and agenda, to adopt or ratify the memo, and to send copies of the notice, agenda, and minutes to the Attorney General's office.

Background and statutory framework

The town's counsel moved for reconsideration of the February 13, 1996 written determination in 96-IB05, arguing under Kansas City Star Company v. Fulson, 859 S.W.2d 934 (1993), a Missouri Court of Appeals decision applying Kansas's open-meetings law, that a school board workshop centered on interpersonal dynamics rather than substantive business fell outside that state's act. The Attorney General distinguished the case, applying 29 Del. C. §10002(b)'s definition of "public business" as any matter over which the public body has "supervision, control, jurisdiction or advisory power," and found the memo's salary, pay-docking, cash-handling, and leave provisions squarely met that definition. The opinion reaffirmed that meeting in sub-groups to discuss, formulate, and execute the memo, as addressed in Attorney General Opinion 96-IB02, did not excuse compliance with the notice and minutes requirements of 29 Del. C. §10004(e)(2)(3)(4) and (f), and granted a thirty-day extension (through March 27, 1996 per the opinion's text) for the council to correct the violation, with the Attorney General's continuing authority under 29 Del. C. §10005(e).

Citations and references

Statutes:

• 29 Del. C. §10002(b), definition of "public business" the public body has jurisdiction over
• 29 Del. C. §10004(e)(2)(3)(4), public notice requirements for meetings
• 29 Del. C. §10005(e), Attorney General's investigation, reconsideration, and enforcement authority

Cases:

• Kansas City Star Company v. Fulson, 859 S.W.2d 934 (1993), a Missouri decision the AG found inapplicable because the workshop there did not involve substantive board business

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/03/20/96-ib11-re-motion-for-reconsideration-georgetown-town-council-lynn-m-deleon-freedom-of-information-act-complaint-29-del-c-§10005e/

Original opinion text

Del. Op. Atty. Gen. 96-IB11 (Del.A.G.), 1996 WL 254857

Office of the Attorney General

State of Delaware

Opinion No. 96-IB11

March 20, 1996

( denying request for reconsideration of AGO 96-IB05 where memorandum privately signed by three of four council members contained personnel policies for council employees, which are matters over which the council has jurisdiction and control )

Re: Motion for Reconsideration – Georgetown Town Council Lynn M. DeLeon – Freedom of Information Act Complaint, 29 Del. C. §10005(e)

*1 Brian D. Shirey, Esquire

Tunnell & Raysor

Race & Pine Streets

P.O. Box 151

Georgetown, DE 19947

Dear Mr. Shirey:

Please consider this the Attorney General’s written decision regarding the Georgetown Town Council’s (“the Council”) motion for reconsideration received by facsimile on March 11, 1996.

This office forwarded you as counsel to the Council on February 13, 1996 a copy of the Attorney General’s written determination in this matter pursuant to 29 Del. C. §10005(e) . This office accepts your representations that, for unknown reasons, you did not receive a copy. It therefore grants the Council a thirty (30) day extension from March 7, 1996 to comply with the renoticing of this matter on the agenda with proper public notice at a public meeting held by the Council. As we requested in our written determination, please forward to our office copies of the public notice, agenda and meeting minutes for the rescheduled meeting.

To the extent the Town moves for reargument citing Kansas City Star Company v. Fulson, 859 S.W.2d 934 (1993) for the following reasons, we find that decision inapplicable to our written determination issued pursuant to by 29 Del. C. § 10005(e) in this matter and deny the motion. The Missouri Court of Appeals held in Kansas City Star Company that a workshop held by a school board focusing primarily on personal relations, and not on board business, did not constitute “public business” within the meaning of Kansas’ Freedom of Information Act. The Court concluded the school board did not have to comply with the public meeting notice, agenda and record keeping requirements of the Kansas Freedom of Information (the “Act”). 859 S.W.2d at 941. The court specifically ruled that the matters addressed at the workshop held by the school board “[c]entered around the basic concepts of productive human interaction. The workshop included an analysis of each board member’s role in the group interaction and process of decision making.” 859 S.W.2d at 941. The court therefore concluded that no public meeting was necessary as the Board did not conduct public business as defined by the Kansas Act. We find that decision inapplicable to the facts or law outlined in the Attorney General’s February 13, 1996 written determination in this matter.

As outlined in that letter, we believe there is no doubt, based upon the facts in the record, that the Town of Georgetown conducted “public business” within the meaning of the Delaware Act. Twenty-nine Del . C . §10002(b) provides that “public business means any matter over which the public body has supervision, control, jurisdiction or advisory power.” Id . The November 27, 1995 memorandum signed individually by three of the four Council members specifically covered personnel policies regulating the Council employees which are matters over which the Council clearly has “supervision, control, jurisdiction and advisory power.” The November 27, 1995 memorandum detailed salary policies, personnel policies for Town employees, employees’ pay policy for docking pay without required written approval for vacation, procedures for issuing monies out of the cash drawer, and leave and departure policies for the Town of Georgetown employees. The Council’s defense in its answer to the complaint was not that a public meeting was not required or that “public business” was not transcribed. Instead, the Council’s defense to the alleged violations focused on the Council’s position that no quorum was assembled and that each member individually reviewed the executed November 27, 1995 memorandum by Town Council members. The Attorney General therefore correctly concluded that meeting in “subgroups to discuss, formulate and execute the November 27, 1995 memorandum suggested that the Council acted deliberately to document the public notice, agenda, and recording keeping requirements of the Act.” See , Attorney General Opinion No. 96-IB02 attached as Exhibit “B”. At page 3 of the Attorney General’s February 13, 1996 written determination, this office also pointed out that the Council conceded that Councilperson Hovington had the memorandum prepared and subsequently met with Councilperson Mabel Givens to review the same and that Councilperson Hovington also reviewed the memorandum with Councilperson Sylvia Short-Calhoun on a separate occasion. The fact that an individual quorum did not meet does not excuse the Act’s requirements contained in 29 Del. C. §10004(e)(2)(3)(4) and (f) .

*2 Therefore, we deny the Town of Georgetown’s request for reconsideration as clearly public business was conducted by Council and the Council failed to comply with the Act’s public meeting agenda, notice and minutes requirements. We grant the Council’s extension to March 27, 1995 to correct the violations by re-noticing a public meeting and complying with all requirements of the Act, including 29 Del . C . §100044(e)(1),(2),(3) and (4). Please forward the relevant documents outlined above to us.

Sincerely,

John K. Welch

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 96-IB11 (Del.A.G.), 1996 WL 254857

End of Document
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