Can a city council add a $675,000 budget vote to its meeting agenda on the day of the meeting?

Official title

99-IB11: FOIA Complaint Against City of Newark

Plain-English summary

A resident complained that Newark's City Council amended its meeting agenda at the start of the March 22, 1999 meeting to add a vote on a $675,000 amendment to the city's 1999 budget. The city defended the last-minute addition by pointing to FOIA's rule that an agenda can be changed to include items that "arise at the time of the public body's meeting." The AG rejected that defense on the facts. FOIA's flexibility to amend an agenda mid-meeting is meant for genuinely new issues, not for matters the city already knew about well in advance. Twelve days before the meeting, on March 10, 1999, the city had already signed an agreement to buy a parcel of land on East Delaware Avenue, a purchase that wasn't in the original 1999 budget and therefore necessarily required a budget amendment. Since the city knew about the need for that amendment well before the seven-day notice period even started, it had every opportunity to include the item on the posted agenda and simply failed to. Because the agenda amendment wasn't a genuine, meeting-time surprise, the AG found the city violated FOIA's notice and agenda requirements, making the council's vote approving the amendment voidable. As a remedy, the city was ordered to put the budget amendment back on the agenda of its next regular or a sooner special meeting, giving the public proper notice and a chance to be heard before voting on it again.

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: Can a public body add an item to its meeting agenda on the day of the meeting?
A: Only for issues that genuinely arise at the time of the meeting itself, according to this opinion. If a public body already knew about the issue well before the meeting, it can't wait until the meeting to spring it on the public.

Q: If a city already committed to a purchase weeks earlier, can it treat the resulting budget vote as a last-minute surprise?
A: No, based on this opinion. The AG found that because the land purchase agreement was signed twelve days before the meeting, the resulting need for a budget amendment was known well in advance and should have been on the posted agenda.

Q: What happens to a vote taken after an improper last-minute agenda change?
A: The AG found the vote voidable, and directed the city to place the item back on the agenda of a properly noticed meeting so the public would have a real opportunity to be heard before the council voted on it again.

Q: Does the city have to start the whole budget process over after a voided vote like this?
A: Not according to the remedy in this opinion. The city only had to re-notice and re-vote on the specific budget amendment at a subsequent properly noticed meeting, not redo its entire budget process.

Background and statutory framework

The complaint concerned Newark's addition of a $675,000 budget amendment to its March 22, 1999 meeting agenda at the start of the meeting, which the city defended under 29 Del. C. Section 10004(e)(2)'s allowance for agenda changes to address items "which arise at the time of the public body's meeting." Applying the standard that a public body cannot, in good faith, claim an issue arose at meeting time if it already knew about the issue in advance, the AG found the city's March 10, 1999 land purchase agreement made the need for a budget amendment foreseeable well before the seven-day notice period for the March 22 meeting even began. Because Section 10004(a) requires every meeting to be open to the public with proper advance notice, and the amendment could have been included in the timely-posted agenda, the AG found the last-minute change violated FOIA, rendering the council's approval voidable and requiring the city to re-notice and re-vote on the amendment at a subsequent properly noticed meeting.

Citations and references

Statutes:

• 29 Del. C. Section 10004(a), general requirement that public body meetings be open with proper notice
• 29 Del. C. Section 10004(e)(2), seven-day notice and agenda requirement, including the limited allowance for items arising at meeting time

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/06/25/99-ib11-foia-complaint-against-city-of-newark/

Original opinion text

June 25, 1999

Civil Division-Kent County (739-7641)

Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Re: Freedom of Information Act

Complaint Against City of Newark

Dear Mr. Porach:

Our Office received your Freedom of Information Act (“FOIA”) complaint on March 25, 1999. You alleged that the City of Newark (“the City”) violated the notice requirements of FOIA by amending the agenda at the start of the City Council meeting on March 22, 1999 to include a $675,000 amendment to the 1999 city budget.

By letter dated March 31, 1999, we asked the City to respond to your complaint within ten days. The City Solicitor asked for an extension of time to respond to your complaint, which we granted.

In its letter of April 27, 1999 (which we did not receive until May 3, 1999), the City acknowledged that “[t]he agenda of the March 22 Council meeting was amended at the commencement of this meeting in order to consider the budget amendment.” The City claims that

“[a]gendas are subject to the addition or deletion of items ‘which arise at the time of the public body’s meeting'” (quoting 29 Del. C. Section 10004(e)(2).

FOIA requires that “[e]very meeting of all public bodies shall be open to the public” except those closed for executive session for a purpose authorized by law. 29 Del. C. Section 10004(a). In addition,

[a]ll 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 that 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.

29 Del. C. Section 10004(e)(2).

This Office has previously addressed the issue of a public body’s amending the agenda. The key is whether the amended matter for discussion arose at the time of the public body’s meeting. “If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation.” Att’y Gen. Op. 97-IB20 (Oct. 20, 1997).

The agenda for the March 22, 1999 meeting did not give any indication that the City Council would consider and vote on an amendment to the 1999 budget. Yet twelve days earlier, on March 10, 1999, the City entered into an agreement of sale to purchase a parcel of land on East Delaware Avenue. The purchase price was not included in the original 1999 budget, which therefore required an amendment. The issue of a budget amendment arose well prior to the meeting on March 22, 1999, and could have been included in the agenda posted for that meeting within the seven days required by law.

For the foregoing reasons, we conclude that the City violated the notice and agenda requirements of FOIA by trying to revise the agenda at the start of the March 22, 1999 meeting to include the $675,000 budget amendment. As a consequence, the Council’s vote approving the amendment is voidable.In order to remediate this violation of FOIA, we direct the City to place the budget amendment on the agenda of the next regularly scheduled meeting, or at a special meeting if scheduled sooner, to give the public notice and an opportunity to be heard prior to voting on the budget amendment. We also direct the City to report back to us in writing when it has complied with this remediation directive.

The Department of Justice acknowledges that this opinion has been delayed as a result of our internal review process. We regret any inconvenience caused thereby.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Roger A. Akin, Esquire, City Solicitor

Mr. Phillip G. Johnson, Opinion Coordinator