Can a town council go into a closed executive session to discuss police salaries or get legal advice about the police department?

Official title

02-IB12: Re: Freedom of Information Act Complaint Against Fenwick Island Town Council

Plain-English summary

The Fenwick Island police chief complained that the Town Council improperly used executive session three separate times (February 8, February 22, and March 16, 2002) to discuss police salaries and department problems, and refused to release the executive-session minutes. The AG reviewed the actual minutes in camera (privately, without publishing them) and found the agendas themselves were adequate, since FOIA only requires a general statement like "Executive Session to Discuss Personnel," not the specific subjects to be discussed. But the substance of what the council actually talked about, general police salary and staffing issues rather than the competency or ability of any named individual employee, didn't qualify for the personnel exception. The AG also rejected the council's attempt to justify the March 16 session as attorney-client legal advice, because there was no realistic, tangible threat of litigation, just the town's attorney generally informing the council about police department legal issues. Because the council used these improper closed sessions to reach a real outcome (raises for a sergeant and new hires), the AG ordered a new public meeting to formally approve any salary increases, ordered release of the improperly withheld minutes, and cautioned the council to comply going forward. It also flagged a separate violation: amending the March 16 agenda hours before the meeting without stating a reason for the late add.

Currency note

This opinion was issued in 2002. 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 council discuss employee pay raises in a closed executive session under the "personnel matters" exception?
A: Not just because pay is involved, according to this opinion. The AG found the personnel exception is limited to discussions that directly involve the competency, ability, or performance of a named individual employee; general salary-scale or staffing decisions affecting a department don't qualify, even if one employee's name comes up in passing.

Q: Is it enough for a meeting agenda to just say "Executive Session to Discuss Personnel"?
A: Yes, according to this opinion, at least for notice purposes. The AG found FOIA's agenda requirement only obligates a public body to state the general purpose of the closed session, not to specify the exact subjects that will be discussed, though what's actually discussed still has to fit within an authorized exception.

Q: When can a town council meet privately with its attorney to discuss "potential litigation"?
A: Only when there's a realistic, tangible threat of a lawsuit based on objective signs, like a demand letter or notice of intent to sue, according to this opinion. The AG found simply having the town attorney update the council on general legal issues facing a department doesn't qualify, and that the litigation exception can't be stretched to cover any topic just because a lawsuit is theoretically possible someday.

Q: What happens if a public body improperly discusses something in executive session and then acts on it?
A: In this opinion, the AG directed the council to hold a new, properly noticed public meeting to formally discuss and approve the salary increases it had arrived at through the improper executive sessions, and to release the minutes of the sessions since they no longer qualified for FOIA's executive-session exemption.

Background and statutory framework

The complaint concerned three Fenwick Island Town Council executive sessions in February and March 2002 addressing police salaries and department issues, and the council's refusal to release the minutes. Reviewing the minutes in camera, the AG applied the personnel exception in 29 Del. C. §10004(b)(9), drawing on Meyer v. Board of Regents, Baker v. Town of Middlebury, San Diego Union v. City Council of San Diego, and Floyd County Board of Education v. Ratliff for the principle that the exception covers individual competency and performance evaluations, not general department-wide salary or staffing decisions with broader budgetary implications. For agenda adequacy, the AG relied on Common Cause of Delaware v. Red Clay Consolidated School District and its own Att'y Gen. Op. 97-IB23 for the rule that a general statement of purpose satisfies FOIA's notice requirement under 29 Del . C . §10004(e)(2) and §10004(e)(5). For the attorney-client exception in 29 Del . C . § 10004(b)(4), the AG applied District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, Chemical Industry Council of Delaware v. State Coastal Zone Industrial Control Board, and Claxton Enterprise v. Evans County Board of Commissioners to require a realistic and tangible threat of litigation based on objective factors, not just the routine possibility that any government body might someday be sued. Because the sessions didn't qualify for either exception, the minutes lost the confidentiality protection of 29 Del. C. § 10002(d)(10), and the AG ordered their release along with a new public meeting to formally ratify any resulting salary decisions.

Citations and references

Statutes:

• 29 Del . C . §10004(a), requirement that public body meetings be open except for authorized executive session
• 29 Del . C . §10004(b)(9), personnel-matters exception for executive session
• 29 Del . C . § 10004(b)(4), attorney-client/litigation-strategy exception for executive session
• 29 Del . C . §10004(f), executive-session minutes exemption "so long as" disclosure would defeat the session's purpose
• 29 Del . C . § 10004(e)(2), seven-day advance posting requirement for meeting agendas
• 29 Del . C . §10004(e)(5), rules for amending an agenda shortly before a meeting
• 29 Del. C. § 10002(d)(10), exemption of properly-held executive-session minutes from the definition of "public record"

Cases:

• Common Cause of Delaware v. Red Clay Consolidated School District, C.A. No. 13798 (Del. Ch. Dec. 5, 1995), general agenda language satisfies FOIA's notice requirement for executive session
• Att'y Gen. Op. 97-IB23 (Dec. 23, 1997), no need to identify personnel by name in convening an executive session
• Meyer v. Board of Regents, 510 N.W.2d 450, 454 (Neb. Ct. App. 1993), personnel exception balances open government against individual privacy in performance discussions
• Baker v. Town of Middlebury, 753 N.E.2d 67, 72 (Ind. Ct. App. 2001), private discussion of job performance doesn't significantly impair public oversight
• San Diego Union v. City Council of San Diego, 146 Cal. App. 3d 947 (1983), salary-setting for city officials is a budgetary matter, not a personnel matter, once beyond individual evaluation
• Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), personnel exemption doesn't cover general discussion involving multiple employees
• District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 481 N.E.2d 1128, 1131 (Mass. 1985), open meeting law is a statutory waiver of privilege except in narrow stated circumstances
• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-K (Del. Ch. May 19, 1994), litigation exception doesn't cover legal advice on any pending issue before a position is taken
• Claxton Enterprise v. Evans County Board of Commissioners, 549 S.E.2d 870, 874 (Ga. Ct. App. 2001), litigation exception requires a realistic and tangible threat based on objective factors

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/05/21/02-ib12-re-freedom-of-information-act-complaint-against-fenwick-island-town-council/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 02-IB12 (Del.A.G.), 2002 WL 1282812

Office of the Attorney General

State of Delaware

Opinion No. 02-IB12

May 21, 2002

Re: Freedom of Information Act Complaint Against Fenwick Island Town Council

*1 Civil Division-Kent County

Chief George H. Dickerson, Jr.

Fenwick Island Police Department

800 Coastal Highway

Fenwick Island, DE 19944

Dear Chief Dickerson:

Our Office received your Freedom of Information Act ("FOIA") complaint on March 20, 2002 alleging that the Fenwick Island Town Council ("the Council") violated the open meeting and public records requirements of FOIA.

By letter dated March 26, 2002, we asked the Council to respond to your complaint. We granted an extension of time for their response, which we received on April 17, 2002.

You allege seven violations of FOIA: (1) the Council failed to give the public notice of its intent to go into executive session at a meeting on February 8, 2002; (2) the Council improperly went into executive session at that meeting to discuss pay raises for police officers; (3) the Council failed to give adequate notice to the public that it would go into executive session at a meeting on February 22, 2002; (4) the Council improperly went into executive session at that meeting to discuss police department problems; (5) the Council failed to give adequate notice to the public of its intent to go into executive session at a meeting on March 16, 2002; (6) the Council impermissibly went into executive session at that meeting to discuss personnel and legal problems involving the police department; and (7) the Council violated FOIA by not providing you with copies of the minutes of executive sessions.

Relevant Statutes

FOIA requires that every meeting of a public body "shall be open to the public" except for executive sessions authorized by the statute. 29 Del . C . §10004(a). FOIA authorizes a public body to go into executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." Id. §10004(b)(9). FOIA also authorizes executive session for "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." 29 Del . C . § 10004(b)(4).

FOIA requires that "[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del . C § 10002(a). FOIA exempts from disclosure the minutes of executive sessions "so long as public disclosure would defeat the lawful purposes for the executive session, but not longer." Id. §10004(f).

Legal Analysis

A. February 8, 2002 Meeting

1. Agenda

*2 The agenda for this meeting listed "Executive Session to Discuss Personnel." We find that notice sufficient for FOIA's generalized requirements for an agenda." FOIA "simply requires public bodies to disclose the purpose of the executive session in the agenda." Common Cause of Delaware v. Red Clay Consolidated School District , Del. Ch., C.A. No. 13798 (Dec, 5, 1995) (Balick, V.C.). The act does not require the public body to "specify what legal, personnel or other subjects are discussed in executive session." Id.

We have previously determined that "it is not necessary to identify the personnel in convening an executive session to constitute personnel matters." Att'y Gen. Op. 97-IB23 (Dec. 23, 1997). "But it may be necessary to identify the individual involved and the nature of the personnel matter in the minutes of executive session to be sure what the public body actually discussed." Att'y Gen. Op. 02-IB02 (Jan. 14, 2001).

2. Executive Session

We have reviewed in camera the minutes of the executive session of the February 9, 2002 meeting. The Council discussed police salaries and the emergency situation caused by the resignation of several police officers. These are not the type of "personnel matters" authorized by FOIA for discussion in executive session.

The "personnel" exception for executive session in Delaware's FOIA is limited to matters "in which the names, competency and abilities of individual employees or students are discussed…." 29 Del . C § 10004(b)(9). The discussion must "directly involve the consideration of individual employees by name, competency, and ability." Att'y Gen. Op. 96-IB32 (Oct. 10, 1996). This limitation "reflects the Legislature's judgment of the appropriate balance between the public interest in open discussion of governmental issues and the rights of individuals, such as state employees, to have their work performance considered in private and to avoid injury to the individual's reputation." Meyer v. Board of Regents, Neb. App., 510 N.W.2d 450, 454 (1993) . The "private discussion of an individual's job performance evaluation does not significantly prevent or impair the public's knowledge or understanding of the people's business, and it is in the public interest to promote efficient personnel management and maintain employee morale." Baker v. Town of Middlebury, Ind. App., 753 N.E.2d 67, 72 (2001) .

In San Diego Union v. City Council of San Diego, 146 Cal.App.3d 947 (1983) , the city council met in executive session to discuss and determine the salaries for various city officials, including the city manager, city auditor, and city clerk. The California appeals court held that the meeting did not fall within the personnel exception under the state open meeting law. Salaries and other terms of compensation constitute municipal budgetary matters of substantial public interest warranting open discussion and eventual electoral public ratification. Public visibility breeds public awareness which in turn fosters public activism politically and subtly encouraging the governmental entity to permit public participation in the discussion process. It is difficult to imagine a more critical time for public scrutiny of its governmental decision-making process than when the latter is determining how it shall spend public funds. 196 Cal.Rptr. at 49 . The city council could meet in executive session to evaluate an individual employee's performance on the job. But once the council determined an employee was deserving of a salary increase, "various other factors must be considered such as available funds, other city funding priorities, relative compensation of similar positions within the city and in other jurisdictions, before determining the salary increase. Each of these considerations is of acute public interest. Id. at 49-50. See also Floyd County Board of Education v. Ratliff, Ky. Supr., 955 S.W.2d 921, 924 (1997) ("The personnel exemption to the Open Meetings Act does not allow a general discussion concerning a school reorganization plan when it involves multiple employees.").

*3 From the minutes of the executive session on March 8, 2002, it does not appear that the Council discussed the competency or ability of any individual police officer. Although one officer is named, it is in the context of raising his salary to match a competing offer from another police department. We determine that the Council violated FOIA by meeting in executive session to discuss matters not authorized by statute.

B. February 22, 2002 Meeting

1. Agenda

The agenda for the February 22, 2002 meeting of the Council listed "Executive Session to Discuss Personnel." For the reasons set for in Part A. of our opinion, we find that this satisfied FOIA's generalized requirements for an agenda.

2. Executive Session

We have reviewed in camera the minutes of the executive session held at the February 22, 2002 meeting. It does not appear that the Council discussed the competency or ability or any individual police officer, but rather problems with the police department such as town coverage and work schedules. These topics of discussion are not within the "personnel matters" exception. We determine that the Council violated FOIA by meeting in executive session for a purpose not authorized by statute.

C. March 16, 2002 Meeting

1. Agenda

The Council posted the agenda for this meeting on February 27, 2002 listing two items for discussion: "1. Goals – Direction for Budget 2. Coffee Shops." On March 16, 2002, the Council amended the agenda to add "Ex. Session – Personnel."

FOIA requires the posting of a notice and agenda for a public meeting at least seven days in advance. See 29 Del . C . § 10004(e)(2). FOIA permits a public body to amend an agenda up to six hours before a meeting to add items "not available as of the time of the initial posting of the public notice" but "the reasons for the delay in posting shall be briefly set forth in the agenda." Id. §10004(e)(5). The Council admits that it did not amend the agenda until "the morning of March 16, 2002, just prior to the meeting" and there is no stated reason for the delay.

The Council contends that these FOIA violations were "technical" and "did not result in any harm since the matter of an executive session is not a matter that is open to the public." We do not agree.

2. Executive Session

a. Personnel Matters

We have reviewed in camera the minutes of the March 16, 2002 executive session, and there is no indication that the Council discussed the competence or ability of any individual police officer. Rather, the Council discussed general issues concerning the police department. These topics of discussion are not within the "personnel matters" exception. We determine that the Council violated FOIA by meeting in executive session for a purpose not authorized by statute.

b. Pending/Potential Litigation

The Council contends that it could meet in executive session on March 16, 2002 for legal advice from the Town's attorney. The attorney-client privilege, however, is limited by the open meeting requirements of FOIA. FOIA is "a statutory public waiver of any possible privilege of the public client in meetings of governmental bodies except in the narrow circumstances stated in the statute." District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, Mass. Supr., 481 N.E.2d 1128, 1131 (1985) .

*4 Delaware's FOIA limits the attorney-client privilege for public bodies to legal advice "with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." 29 Del . C . § 10004(b)(4). These limitations were designed "to prevent potential abuse" and do not permit "a public body to hold an executive session to receive legal advice about any issue or matter under discussion so long as it had not yet taken a stand or reached a conclusion about the issue." Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board , Del. Ch. C.A. No. 1216-K (May 19, 1994) (Jacobs, V.C.).

We have reviewed in camera the minutes of the executive session on March 16, 2002, and there is no indication that the Town Attorney gave legal advice with respect to pending or potential litigation the disclosure of which would have an adverse effect on the Town's litigation position. Rather, the minutes simply state the Town Attorney "was present to inform the Council on legal issues pertaining to the police department." It is true that FOIA does not require a public body "to summarize the subjects discussed with any degree of specificity in the minutes of executive session." Red Clay , supra . "But the minutes of executive session must be sufficient to allow our Office to make an in camera determination whether the subject(s) discussed during executive session are authorized by FOIA." Att'y Gen. Op. 02-IBO1 (Jan. 14, 2002). Otherwise, the public body may fail to meet its burden to prove that the topics discussed during executive session are authorized by law.

The exemption for executive session applies only "to matters commonly inherent in litigation, such as preparation, strategy or tactics…. The exception should not be construed to apply any time the public agency has its attorney present or where the possibility of litigation is still remote." Ratliff, 955 S.W.2d at 924 .

"In our litigious society, a governmental agency always faces some threat of suit. To construe the term 'potential litigation' to include an unrealized or idle threat of litigation would seriously undermine the purpose of the [open meeting law]." Claxton Enterprise v. Evans County Board of Commissioners , Ga. App. 549 S.E.2d 870, 874 (2001).

Like the court in Claxton , we think that the potential litigation exception for executive session applies when there is a "realistic and tangible threat of litigation" based on "objective factors." Some indicia of such a situation might include a written demand letter, notice of intent to sue, or "previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims." 549 S.E.2d at 874. 1 We do not find any such objective factors here, and determine that the Council did not have grounds to meet in executive session to consult with the Town's attorney.

D. Minutes of Executive Session

*5 FOIA exempts from the definition of a "public record" the minutes of "discussions held in executive session pursuant to subsections (b) and (c) of Section 10004 of this title." 29 Del. C. § 10002(d)(10). Since we have already found that the Council did not meet in executive session in accordance with the open meeting law, the minutes of the February 8, February 22, and March 16, 2002 meetings are not exempt records under FOIA.

Conclusion

For the foregoing reasons, we conclude that the Council violated the open meeting requirements of FOIA when it went into executive session to discuss matters of public business at its meetings on February 8, February 22, and March 16, 2002. We also conclude that the Council violated the agenda requirements of FOIA by amending the agenda just prior to the meeting on March 16, 2002, and without stating the reason for the delay. Finally, we conclude that the Council violated the public records requirements of FOIA by denying access to the minutes of executive sessions which were not authorized by law.

The Council contends that no remediation is appropriate because it did not take any formal action on police salaries at the three executive sessions. But the Council admits that as a result of the executive session on February 8, 2002, there was "a raise for Sergeant Bruette and a general increase for new hires in the [Fenwick Island Police Department]." We direct the Council to schedule a special meeting in compliance with FOIA's public notice requirements to discuss and approve any salary increases for the police department. We also direct the Council in the future to comply with the executive session requirements of FOIA, and to go into executive session only

for a purpose authorized by the statute. Finally, we direct the Council to make available to any citizen who requests copies of the minutes of the executive sessions for February 8, February 22, and March 16, 2002.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin

State Solicitor

Footnotes

1
We note that this list of objective factors is not exhaustive. Whether there is a realistic and tangible threat of litigation must be decided on a case-by-case basis.

Del. Op. Atty. Gen. 02-IB12 (Del.A.G.), 2002 WL 1282812

End of Document
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