Does a town's meeting agenda have to name the specific job candidate it plans to discuss in a closed personnel session?

Official title

99-IB03: Re: Freedom of Information Act Complaint Against Town of Bethany Beach

Plain-English summary

A resident complained about three Bethany Beach Town Council executive sessions in early 1999, arguing they weren't held for a lawful purpose, and about the notice given for a special meeting on February 19, 1999. The AG cleared all three executive sessions: the January 12 and 15 sessions both involved the Town Manager's job performance evaluation, and the February 19 session involved hiring a new Town Manager, all squarely within FOIA's personnel exception. On the special meeting notice, though, the AG found two real problems. First, while the town gave the required 24 hours' notice for a special meeting, it never explained why the usual seven-day notice couldn't be given, something FOIA specifically requires. Second, the notice described the closed session only as "personnel matters," but the council actually used that time to discuss and act on hiring a specific new Town Manager, which the AG found made the notice deficient in describing what would really happen. Even so, the AG declined to order any fix, reasoning that even a perfectly worded notice wouldn't have changed the outcome: the council still could have discussed the hiring in executive session either way, and the unanimous public vote to hire the new manager would have stood regardless. The AG also rejected the resident's argument that the notice should have named the specific candidate, explaining that job applicants have their own privacy interest in not having their candidacy publicized before they're hired, since disclosure could embarrass them with current employers or discourage strong candidates from applying at all.

Currency note

This opinion was issued in 1999. 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: Does a public body have to name a specific job candidate in its agenda before discussing them in executive session?
A: No, according to this opinion. The AG found FOIA doesn't require identifying the personnel involved to properly convene an executive session, and that job applicants have a privacy interest in keeping their candidacy confidential until they're actually hired.

Q: If a town's special-meeting notice is technically on time but doesn't explain why, is that a FOIA violation?
A: Yes. The AG found Bethany Beach's February 19, 1999 notice was timely under the 24-hour rule for special meetings, but still violated FOIA because it failed to explain why the normal seven-day notice couldn't be given.

Q: If an agenda says a closed session is about "personnel matters" but the council actually discusses hiring someone specific, does the vague description violate FOIA?
A: The AG found it can be deficient, at least in this case, since the actual business (hiring a new Town Manager) went beyond the generic description given, though the AG didn't require any remedy for it here.

Q: Why would disclosing a job applicant's identity be harmful even under an open-government law?
A: The opinion explained that publicizing unsuccessful applicants' names can embarrass them with current or future employers and discourage strong candidates from applying in the first place, a privacy interest that persists at least until someone is actually hired.

Background and statutory framework

The complaint concerned three Bethany Beach Town Council executive sessions in January and February 1999, all evaluated against 29 Del. C. Section 10004(b)(9)'s exception for discussing the names, competency, and abilities of individual employees, which the AG found properly invoked at each session (Town Manager evaluation on January 12 and 15, and hiring a new Town Manager on February 19). On the February 19 special meeting's notice, the AG applied Section 10004(e)(3)'s rule allowing 24 hours' notice for a special meeting but requiring an explanation for bypassing the normal seven-day period, finding the town's notice lacked that explanation and also mischaracterized the closed session as generic "personnel matters" when a specific hiring decision was actually made. On whether the agenda needed to name the job candidate, the AG applied job-applicant privacy principles from Core v. United States and Arizona Board of Regents v. Phoenix Newspapers, Inc., both recognizing that publicizing unsuccessful or pending applicants can cause real harm and chill qualified candidates from applying, concluding no remedy was warranted for either notice defect since neither would have changed the council's unanimous, publicly-voted decision to hire the new manager.

Citations and references

Statutes:

• 29 Del. C. Section 10004(b)(9), personnel exception for executive session
• 29 Del. C. Section 10004(e)(3), 24-hour notice rule for special meetings, with a required explanation for the shortened notice

Cases:

• Core v. United States, 730 F.2d 946, 949 (4th Cir. 1984), on the privacy interest of unsuccessful job applicants
• Arizona Board of Regents v. Phoenix Newspapers, Inc., 806 P.2d 348, 352 (Ariz. 1991), on publicity chilling qualified candidates from applying for a position

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/04/28/99-ib03-re-freedom-of-information-act-complaint-against-town-of-bethany-beach/

Original opinion text

Del. Op. Atty. Gen. 99-IB03 (Del.A.G.), 1999 WL 1093143

Office of the Attorney General

State of Delaware

Opinion No. 99-IB03

April 28, 1999

Re: Freedom of Information Act Complaint Against Town of Bethany Beach

*1 Ms. Amy Garrison

510 Candlelight Lane

Bethany Beach, DE 19930

Dear Ms. Garrison:

By letter dated February 23, 1999 (received by this Office on March 2, 1999), you complained that the Town of Bethany Beach (“the Town”) had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 (“FOIA”). Specifically, you alleged: (1) the Town Council met in executive sessions on January 12, January 15, and February 19, 1999 for purposes not authorized by law; and (2) the Town did not give the required notice of a special meeting held on February 19, 1999.

By letter dated March 11, 1999, we asked the Town to respond to your complaint within ten days. Because the Town Manager was recovering from an illness, we granted the Town’s request for an extension of time until March 26, 1999.

The Town Council held a special meeting on January 12, 1999. The agenda stated that the Town will discuss “the possibility of contracting, with an outside vendor, for the complete collection of all residential trash” and “personnel matters relating to annual evaluation” of the Town Manager. After hearing from members of the public about trash removal, the Town Council voted to go into executive session. The minutes of the executive session, which we have reviewed confidentially, show that the Council discussed the Town Manager’s job performance evaluation. FOIA provides that a public body can go into executive session for “[p]ersonnel matters in which the names, competency and abilities of individual employees … are discussed.” 29 Del. C. Section 10004(b)(9) . The Council therefore met in executive session for a purpose authorized by law.

The Town Council held its regular monthly meeting on January 15, 1999. The noticed agenda stated that the Council would “[c]onsider a motion to go into Executive Session to discuss personnel matters relating to names, competency and abilities of individual employees.” After discussing other matters of public business, the Council voted to go into executive session to discuss personnel matters. The minutes of that executive session, which we have reviewed confidentially, show that the Council discussed the Town Manager’s job performance evaluation. The Council therefore met in executive session for a purpose authorized by law.

The Town Council held a special meeting at 6:30 p.m. on February 19, 1999 (which preceded the regularly scheduled meeting at 7:30 p.m.). The notice and agenda were posted on February 17, 1999. As a general rule, FOIA requires at least seven days’ notice of a meeting of a public body, but a special meeting may be held on 24 hours’ notice. See 29 Del. C. Section 10004(e)(3) . “The public notice of a special or rescheduled meeting shall include an explanation as to why the [seven days’] notice required by paragraph (1) of this subsection could not be given.” Id. The notice of the February 19, 1999 special meeting did not explain why seven days’ notice could not be given.

*2 The agenda for the regular monthly meeting on February 19, 1999 stated that the Town Council will “[c]onsider a motion to go into Executive Session to discuss personnel matters relating to names, competency and abilities of individual employees.” At the regular monthly meeting on February 19, 1999, the Town Council voted to go into executive session to discuss personnel matters. The minutes of that executive session, which we have reviewed confidentially, show that the Council went into executive session for a purpose authorized by law.

For the foregoing reasons, we conclude that the Town Council met in executive session at its meetings on January 12, January 15, and February 19, 1999 for purposes authorized by FOIA. We find that the Town gave timely notice of the special meeting on February 19, 1999, but violated FOIA by not explaining why it could not give seven days’ notice to the public. We also find that the notice of the special meeting on February 19, 1999 was deficient because it stated that the Town Council will meet in executive session to discuss personnel matters, when in fact the Council met to discuss new hires.

You claim that the notice should have disclosed more specifically what the Town Council intended to discuss in executive session at the special meeting on February 19, 1999 (the hiring of Mr. Hudson as the new Town Manager). This Office has determined that “‘it is not necessary to identify the personnel in convening an executive session to consider personnel matters.”’ Att’y Gen. Op. 96-IB27 (Aug. 1, 1996) (quoting Nageotte v. Board of Supervisors of King George County, Va, Supr., 288 So.2d 423, 426 (1982) ). Similarly, we do not believe that FOIA required the Town to disclose in the agenda the name or names of applicants for a job. For sound public policy reasons, job applicants have a right of privacy to information disclosed during the application process, at least until they are hired.

[D]isclosure may embarrass or harm applicants who failed to get a job. Their present employers, co-workers, and prospective employers, should they seek new work, may learn that other people were deemed better qualified for a competitive appointment.

Core v. United States. 730 F.2d 946. 949 (4th Cir. 1984) . See also Arizona Board of Regents v. Phoenix Newspapers, Inc., Ariz. Supr., 806 P.2d 348, 352 (1991) (en banc) (publicity attendant to a job search may result “in lesser qualified” applicants and “chill the attraction of the best possible candidates for the position”).

We do not think that remediation is necessary or appropriate for the two deficiencies in the notice of the February 19, 1999 special meeting. Even if the Town had posted the notice seven days in advance and stated that the Town Council will go into executive session to discuss hiring a new Town Manager, under FOIA the Council still could have met in executive session. To direct them to meet again in executive session would not change the result: the unanimous vote by the Council, at a meeting properly noticed to the public, to hire a new Town Manager.

*3 You state in your letter that the Town should have “advertised the position opening” for Town Manager, and you question Mr. Hudson’s qualifications. We take no position on either of those two issues. The first is a matter of municipal law, which is outside the jurisdiction of our Office. The wisdom of selecting a Town Manager is to be judged by the political process. We only hold that the process did not violate FOIA except in two respects which do not warrant remediation. The Town is cautioned, however, to ensure accuracy in its agenda and the minutes to avoid confusion as to the nature of the business to be conducted or acted upon, and to fully comply with FOIA notice requirements in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 99-IB03 (Del.A.G.), 1999 WL 1093143

End of Document
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