Can a town agenda say a council will consider 'nominations' for a vacant seat and then hold an actual election at the same meeting?

Official title

98-IB08: FOIA Complaint Against Town of Townsend

Plain-English summary

A resident complained that the Town of Townsend mishandled the process of filling a vacant town council seat at its August 5, 1998 meeting. The AG's office had no authority to decide whether the town's own charter was violated by how the vote was conducted, so it focused strictly on the FOIA notice issues. Two problems stood out. First, the town posted notice only six days before the meeting instead of the required seven. Second, and more troubling, the agenda listed the item only as "Nominations For Vacant Town Council Seat," but the council didn't just take nominations that night; it held a full election and seated a new councilperson. The AG found that gap between what the agenda promised and what actually happened misled the public in exactly the way a prior Court of Chancery decision had condemned when an election board's vague agenda failed to alert citizens that a specific, significant vote would occur. Because filling an elected office implicates the public's fundamental interest in how it's governed, the AG treated both problems as affecting substantial public rights rather than excusable technicalities, a bar the opinion set higher than it might for a routine administrative vote. As a remedy, the council was ordered to either notice a new special meeting or add the item to its next regular meeting's agenda, this time nominating and electing the seat's occupant with proper seven-day notice and an accurate description of what would happen, and to send proof of that notice to the AG's office. The opinion pointedly left untouched the validity of anything the previously elected councilperson had already done in office.

Currency note

This opinion was issued in 1998. 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: Is posting a meeting notice one day short of the seven-day requirement a minor, excusable violation?
A: Not always, according to this opinion. The AG found that when a shortfall like six days' notice instead of seven combines with other problems, and the meeting involves something as significant as filling an elected office, it counts as affecting substantial public rights rather than a mere technicality.

Q: Does an agenda that says "nominations" satisfy FOIA notice if the body actually holds a full election at that meeting?
A: No. The AG found that describing the item as nominations when an election was in fact conducted misled the public about what would actually happen, echoing an earlier court ruling that vague or inaccurate agenda language can fail FOIA's notice purpose.

Q: Why did the AG treat notice problems around filling a council vacancy more strictly than it might for other business?
A: Because the opinion found that elections for public office carry a fundamental public interest beyond ordinary administrative votes, meaning the public's right to be heard and to see the process conducted fairly deserved heightened protection.

Q: Did the AG undo everything the improperly elected councilperson did after taking office?
A: No. The opinion specifically declined to address the validity of any actions taken by the councilperson after the flawed August 5 meeting, focusing its remedy only on requiring the town to redo the vacancy-filling process going forward.

Background and statutory framework

The complaint arose from Townsend's August 5, 1998 meeting where the council both nominated and elected a member to fill a vacant seat, after posting notice only six days in advance under 29 Del. C. Section 10004(e)(2) and describing the agenda item only as "Nominations." Applying Section 10002(f)'s definition of "agenda" as a general statement of major issues, and drawing on Ianni v. Department of Elections of New Castle County for the principle that an agenda item is insufficient when a public body knows a specific important matter will be addressed but describes it only in vague terms, along with Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board for a similar finding where an agenda omitted that a vote to adopt regulations would actually occur, the AG found both the short notice and the "nominations" language misled the public about the true nature of the meeting. Because filling an elective office implicates a heightened public interest in the fairness and perceived fairness of the process, the AG found these violations affected substantial public rights and ordered the council to redo the vacancy-filling process with accurate, timely notice, while leaving undisturbed any actions already taken by the seated councilperson.

Citations and references

Statutes:

• 29 Del. C. Chapter 100, the Delaware Freedom of Information Act
• 29 Del. C. Section 10002(f), definition of "agenda" as a general statement of major issues expected to be discussed
• 29 Del. C. Section 10004(e)(2), seven-day advance notice requirement for meetings
• 29 Del. C. Section 10004(e)(4), conspicuous posting requirement for meeting notices

Cases:

• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 10, 1986), on vague agenda language failing to alert the public to a specific significant vote
• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch. May 19, 1994), on an agenda's failure to disclose that a final vote would occur

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/09/25/98-ib09-foia-complaint-against-town-of-townsend/

Original opinion text

Civil Division-New Castle County

September 1, 1998

Clifford B. Hearn, Jr., Esquire

Clifford B. Hearn, Jr., P.A.

P.O. Box 1205

Wilmington, DE 19899-1205

RE: Freedom of Information Act Complaint

Against Town of Townsend

Dear Mr. Hearn:

By letter August 11, 1998, Ellen H. Cole alleged that the Town of

Townsend (“the Town”) held a meeting on August 5, 1998 in

violation of the Freedom of Information Act, 29 Del. C. Chapter

100 (“FOIA”). Specifically, she contended that the Town did not

publish adequate notice of its intent to elect a new member for a

vacant seat on the Council. She also contended that the procedure

by which the vote was taken to elect R. Charles Murray as

Councilperson pro tempore violated the Town Charter.

The Attorney General’s Office does not have jurisdiction to

determine whether the Town may have violated its own Charter.

Accordingly, we only address the allegation that the Town

violated the notice requirements of FOIA. At the request of the

Town of Townsend, we have agreed to expedite our consideration of

this complaint because there are significant items included on

the agenda for a Council meeting scheduled for September 2, 1998

which may be affected by the outcome of this complaint.

Section 10004(e)(2) of FOIA provides: “All public bodies shall

give public notice of their regular meetings . . . 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; . . . .” Section 10004(e)(4) further

requires that notice be made by “conspicuous posting of said

notice at the principal place 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, . . . .”

The facts are not in dispute here. In your letter responding to

Ms. Cole’s complaint, the Town confirmed that notices were posted

on July 30, 1988 at the United States Post Office in Townsend and

at the Ratledge Achievement Center, the Town Commission’s normal

meeting place. The notice was posted six days in advance of the

August 5, 1998 meeting instead of the seven days required by

FOIA. In Ianni v. Department of Elections of New Castle County,

Del. Ch., 1986 WL 9610 (Aug. 10, 1986) (Allen, C.), the Board of

Elections posted the notice six days in advance of the meeting.

The Chancellor found that to be a violation which, taken in

context with the rest of the issues raised in that case, resulted

in a reversal of the Board’s actions. In this case, the question

of timely notice must be considered together with the sufficiency

of the notice.

The agenda for the August 5, 1998 included the following item of

“New Business,” “d) Nominations For Vacant Town Council Seat.”

Ms. Cole contend that the agenda was deficient or misleading

because “[i]t was not advertised that Mr. Murray’s appointment

was going to be voted on at the meeting.”

FOIA defines an agenda to be a “general statement of the major

issues expected to be discussed at a public meeting.” 29 Del. C.

Section 10002(f). In Ianni v. Department of Elections of New

Castle County, Del. Ch., 1986 WL 9610 (Aug. 10, 1986) (Allen,

C.), the Board of Elections posted a notice of a meeting and

listed on the agenda, “Primary Election.” When the Board met, it

voted to open fewer polling stations in New Castle County in the

primary elections. Chancellor Allen held that this notice was

insufficient

“to alert the public to the fact that the Board would consider and act upon a proposal to consolidate election districts for the purpose of the primary election. While the statute requires only a ‘general statement’ of the subject to be addressed by the public body, when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of [FOIA] to state the subject in such broad generalities as to fail to draw the public’s attention to the fact that specific important subject will be treated. In this instance, all that would have been required to satisfy this element of the statute would have been a statement that ‘election district consolidation; or ‘location of polling places’ was to be treated.”

1986 WL 9610, at p. 5 (emphasis added).

In Ianni, Chancellor Allen was concerned with the overall

question of whether, as a factual matter, the notice given by the

Board was “ineffective to alert members of the public with an

intense interest in this matter of the Board’s consideration of

it.” Id. at p. 4. In addition to the ambiguous agenda, the notice

was published on a door outside the Board’s offices on the third

floor of the Carvel State Building. The Board made no effort to

post the notice and agenda elsewhere, or to take “other steps to

make the notice publicly available.” Id. at p. 5. As a result,

only four or five members of the public knew about the meeting,

and they left before the Board addressed the issue whether to

consolidate election districts. Ianni dealt with the electoral

process in that the Board was making decisions which would affect

the voting process for elective offices. This complaint questions

the election process for selecting a town councilperson to fill a

vacancy. Borrowing from the language in Ianni:

While the decision involves the electoral process, these rights of the public take on an enhanced importance. It is not only important that the mechanism for exercising the vote be in fact fair, it is also fundamentally important that it be perceived as fair.

Id. at 6.

The issue of whether the public was misled by the agenda’s use of

the term “nomination” is more troubling. In Chemical Industry

Council of Delaware, Inc. v. State Coastal Zone Industrial

Control Board, Del. Ch., 1994 WL 274295 (May 19, 1994), the Board

held a series of meeting to discuss proposed regulations. For the

June 9, 1993 meeting, the agenda stated that the Board would

“continue deliberation upon the proposed new Regulations” in

“continuation” of its May 10, 1993 meeting. The notice, however,

did not disclose what turned out to be the sole purpose for the

public session — to vote on, and possibly adopt, the

Regulations. The significance of that omission is underscored by

the fact that at the May 10, 1993 workshop, the Board had told

the public (incorrectly, in retrospect) that another public

meeting would be held. Thus, the public had been given reasonable

cause to believe that the Board would hold another public hearing

at some later time before adopting any regulations. 1994 WL

274295, at p. 9.

The statutory definition of the term “agenda” “shall include but

is not limited to a general statement of the major issues

expected to be discussed at a public meeting” of the body.” 29

Del. C. § 10002(f) (emphasis added). FOIA requires that the

notice be reasonably calculated to provide adequate notice of the

issues to be considered by the public body. We believe that the

notice in this case fails to meet that standard. There is a

fundamental difference between the act of nominating a person for

an office and electing a person to an office. The Council, like

the Board in Ianni, knew that there was a significant amount of

public interest in this particular vacancy. The spirit of FOIA is

not met by indicating nominations would occur, when, in fact, an

election was conducted.

In sum, we find that the Town violated FOIA in two respects: (1)

by failing to post notice of its August 5, 1998 meeting at least

seven days in advance of the meeting and (2) by failing to

provide adequate notice that there would be an election, rather

than just nominations, for the Council vacancy. The question then

turns to whether the violations were merely technical and not

involving substantial public rights or whether the cumulative

effect of the violations leads to a conclusion that substantial

public rights have been affected. As in Ianni, we must conclude

that the issue of electing public officials is such an important

fundamental public right that violations which might be excusable

under another set of circumstances are not excusable in this

context. The overriding issue is whether the public’s rights have

been protected. Analogizing from Ianni, interested members of the

public have a right to be heard on issues which substantially

affect their right to determine the method and manner in which

they will be governed. As the Court noted in Ianni:

When public participation is afforded, it is reasonable to hope, and the drafters of the [FOIA] clearly did hope, that two kinds of benefits would result. The public body might be put in a position to make a better decision ultimately and, secondly, a citizen or organization of citizens that understands the decision may feel, if not pleased with the ultimate outcome, at least content that its views have been considered and the decision has been reached in an impartial and fair way.

1986 WL 9610 at 6.

We conclude that the Council’s violations have adversely affected

substantial public rights. Therefore, we direct the remaining

four regularly elected members of Council to either notice a

special meeting for the purpose of nominating and/or electing a

Councilperson pro tempore or to include that item on the agenda

for the next regularly scheduled Council meeting. We also direct

the Council to confirm the sufficiency and timeliness of such

notice by sending copies of the same to this office at the time

it is publicly posted. This opinion does not address the validity

of any acts or orders of the Council which resulted from the

participation of Mr. Murray subsequent to August 5, 1998.

Sincerely,

Michael J. Rich

State Solicitor

cc: Hon. M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

Ms. Ellen H. Cole

W. Michael Tupman, Deputy Attorney General

Ms. Chrystyna Savitz, Opinion Coordinator