Did Fenwick Island properly fix its earlier open-meeting violations by publicly re-voting on a police salary decision?

Official title

02-IB21: FOIA Complaints Against Town of Fenwick Island

Plain-English summary

After the AG found in a prior opinion (02-IB12) that Fenwick Island Town Council improperly used executive session to raise police salaries, the AG had ordered the council to hold a new public meeting to formally ratify any salary decision. This follow-up complaint from the police department checked whether the town actually complied. The AG reviewed the minutes and a tape of the June 28, 2002 meeting and confirmed the council had discussed the salary increase in public and voted publicly to ratify it, satisfying the remedy. A second complaint argued the town should also have let the public discuss two individual employees' salaries at that meeting, but since that topic wasn't listed on the agenda, the AG found the town was right to decline. The AG also pushed back on the town attorney's characterization of the earlier violations as merely "technical," making clear the underlying problem, discussing important public business outside public view, was serious enough to warrant the remedy that had been ordered.

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: If the Attorney General orders a public body to fix an open-meeting violation, how does the AG confirm it was actually fixed?
A: In this case, the AG reviewed the actual minutes and a tape recording of the follow-up meeting to confirm the town discussed and voted on the matter in public, rather than just taking the town's word for it.

Q: Can citizens raise an unrelated topic, like a different employee's salary, at a meeting called to ratify a different decision?
A: Not according to this opinion. The AG found the town properly declined to discuss two individual employees' salaries at the same meeting because that topic was not listed on the meeting's agenda.

Q: Does the Attorney General consider open-meeting violations "technical" if no formal vote happened in the closed session?
A: No, based on this opinion. The AG explicitly rejected that characterization, explaining that the core problem was public business being handled outside public view, which the AG viewed as serious enough to require a real remedy, not a mere technicality.

Background and statutory framework

This opinion followed up on the AG's prior determination that the Fenwick Island Town Council improperly used executive session to discuss police salary increases, which had directed the council to hold a compliant public meeting to ratify any such decision. The AG confirmed compliance by reviewing the June 28, 2002 meeting's minutes and recording, which showed public discussion and a public vote on the agenda item "Discussion and Ratification of February Decision to Increase Police Salaries." A second, separate complaint about discussing two individual employees' salaries at that meeting was rejected because that topic was not noticed on the agenda for that meeting, consistent with FOIA's advance-notice requirements.

Citations and references

No statute sections or case citations appear in the original text of this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/08/30/02-ib21-foia-complaints-against-town-of-fenwick-island/
• Original PDF: not linked from landing page

Original opinion text

August 30, 2002 Civil Division-Kent County

Major William E. Manning

Fenwick Island Police Department

800 Coastal Highway

Fenwick Island, DE 19944

Re: Freedom of Information Act Complaints Against Town of Fenwick Island

Dear Major Manning:

Our Office received your Freedom of Information Act ("FOIA") complaint on June 20 , 2002. You allege that the Town of Fenwick Island ("the Town") violated FOIA by failing to remediate previous FOIA violations in accordance with our letter of June 10, 2002. That letter directed the Town Council to comply with our directives "within thirty days of the date of this letter, and to confirm in writing when it has been done."

By letter dated July 22, 2002, the Town's attorney provided us with copies of the minutes of the Town's meeting on June 28, 2002 and a tape recording of that meeting. We have reviewed the minutes and listened to the tape, and are satisfied that the Town complied with our remedial directives. The agenda for the June 28, 2002 meeting listed "Discussion and Ratification of February Decision to Increase Police Salaries." The minutes show that the Council discussed the issue in public and then voted in public to ratify the decision to increase police salaries.

By letter dated July 10, 2002, you made a second complaint alleging that the Town violated FOIA by not allowing public discussion of yours and the Chief Dickerson's salaries at the June 28, 2002 meeting. That issue was not listed on the agenda for that meeting, and the Town properly decided that it could not discuss those issues without advance notice to the public as required by FOIA.

We feel it necessary to comment regarding the characterization by the Town's attorney that our opinion dated May 21, 2002 cited only "technical violations of notice requirements and minutes." We do not agree. The gravamen of the violations we found were that the Town was meeting to discuss important matters of public business outside the public view in a manner not authorized by law. The severity with which we viewed the infractions is clear from the nature of the remedy required. We would not have directed remediation if we did not believe that those violations affected the substantial rights of citizens.

Conclusion

For the foregoing reasons, we find that the Town did not violate the open meeting requirements of FOIA at the June 28, 2002 meeting, and that the Town has satisfied our directives to remediate the FOIA violations that occurred at meetings earlier this year.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Tempe Brownell Steen, Esquire

Phillip G. Johnson, Opinion Coordinator