If a town labels an executive session 'personnel' but actually discusses a volunteer board candidate, is that a FOIA violation?

Official title

03-IB20: Re: F.O.I.A. Complaint Against Town of South Bethany

Plain-English summary

A South Bethany resident raised two FOIA complaints. First, the town's November 8, 2002 agenda listed an executive session as "personnel," but the AG's private review of the minutes showed the council actually discussed a property owner's qualifications to serve on the town's Board of Adjustment, a volunteer board, not a town employee. Since FOIA's personnel exception only covers actual employees or students, the town had cited the wrong basis for going into executive session. But the AG found this harmless: FOIA has a separate, equally available exemption for discussing an individual's qualifications for a position, which doesn't require naming the candidate on the agenda either, so the same closed-door discussion could lawfully have happened under the correct label. Second, when the town amended its November 18, 2002 agenda the morning of the meeting to add "Reconsideration of New Board of Adjustment Member," it didn't explain in the notice why that item wasn't ready earlier, technically required under FOIA's six-hour amendment rule. But since the public already knew from the prior meeting that the topic was coming back, and the matter was fully and openly discussed (resulting in a failed vote, not a done deal), the AG again found no real harm and required no remedy for either slip, while still cautioning the town going forward.

Currency note

This opinion was issued in 2003. 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 FOIA's "personnel" exception for executive session cover discussions about candidates for a volunteer town board?
A: No, according to this opinion. The AG found the personnel exception applies only to actual employees or students, not to members of a volunteer body like a Board of Adjustment, even though a separate exemption for job or position qualifications could cover the same kind of discussion.

Q: If a public body cites the wrong legal basis for an executive session, does that automatically require undoing what happened?
A: Not necessarily, according to this opinion. The AG found that when a different, equally valid exemption would have authorized the very same closed-door discussion, citing the wrong one is a technical error that doesn't require remediation.

Q: What has to be included when a public body adds an item to its agenda just hours before a meeting?
A: FOIA requires a brief explanation of why the item wasn't available when the original notice was posted, according to this opinion, though the AG found omitting that explanation harmless here because the public already had effective notice the topic was coming back.

Background and statutory framework

The complaint concerned two aspects of South Bethany Town Council's handling of a Board of Adjustment vacancy: an executive session on November 8, 2002 labeled "personnel" that actually addressed a candidate's qualifications, and a same-day agenda amendment on November 18, 2002 adding "Reconsideration of New Board of Adjustment Member" without explaining the delay. On the first point, the AG distinguished the personnel exception in 29 Del. C. § 10004(b)(9), which under Att'y Gen. Op. 96-IB27 doesn't require naming an employee but does require an actual employee or student, from the separate job/position-qualifications exemption in 29 Del. C. § 10004(b)(1), which Att'y Gen. Op. 99-IB03 confirmed also doesn't require naming the candidate; because the latter exemption would have authorized the same discussion, the mislabeling was harmless. On the agenda amendment, applying 29 Del. C. § 10004(e)(2) and § 10004(e)(5), and drawing on Att'y Gen. Op. IB22 for when an item is genuinely unavailable at initial posting, the AG found the six-hour timing requirement met but the required delay explanation missing, again treating the omission as technical given the public's effective notice and the fact that the resulting vote failed rather than finalized anything.

Citations and references

Statutes:

• 29 Del. C. § 10004(b)(9), personnel-matters exception for executive session, limited to employees or students
• 29 Del. C. § 10004(b)(1), separate exemption for discussing an individual's qualifications for a job or position
• 29 Del. C. § 10004(e)(2), standard seven-day agenda notice requirement
• 29 Del. C. § 10004(e)(5), six-hour rule and delay-explanation requirement for adding items unavailable at initial posting

Cases:

• Att'y Gen. Op. 96-IB27 (Aug. 1, 1996), no need to name personnel to convene an executive session on personnel matters
• Att'y Gen. Op. 99-IB03 (Apr. 28, 1999), a town could discuss town manager candidates' qualifications in executive session without naming them on the agenda
• Att'y Gen. Op. IB22 (Sept. 13, 2002), an item not known at the time of initial posting can be added later without violating the seven-day rule

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/09/03/03-ib20-re-f-o-i-a-complaint-against-town-of-south-bethany/
• Original PDF: not linked from landing page

Original opinion text

New Castle County/Civil Division

September 3, 2003

Mr. Ted Marcucilli

128 Henlopen Drive

South Bethany, DE 19930

Re: Freedom of Information Complaint Against Town of South Bethany

Dear Mr. Marcucilli:

Our Office received your Freedom of Information Act ("FOIA") complaint dated December 16, 2002 against the town of South Bethany ("the Town"). You allege that the Town violated FOIA by: (1) meeting in executive session on November 8, 2002 for a purpose not authorized by law; and (2) holding a meeting on November 18, 2002 without sufficient advance notice to the public. You also complained that the Mayor made inappropriate remarks about you during the meeting on November 18, 2002. That complaint is not within our Office's jurisdiction under FOIA.

By letter dated December 20, 2002, we asked the Town's attorney to provide to us with copies of the minutes for the Town's public meetings on November 8 and November 18, 2002 and the minutes of the executive session on November 8, 2002. By letter dated January 2, 2003, we asked the Town's attorney to explain the reason for the late change to the agenda for the November 18, 2002 meeting in greater detail. We received that supplemental information on January 27, 2003.

Recently, we asked the Town for additional information concerning the process to appoint a new member to the Board of Adjustment and the status of Board members within local government to complete our factfinding. We received that information on August 13, 2003.

A. November 8, 2002 Meeting

You question whether the agenda for this meeting gave sufficient notice to the public that the Council would meet in executive session because the only matter listed for executive session was "personnel." You also were concerned that agenda scheduled the vote on the personnel matter ahead of the executive session, suggesting that the matters discussed in the executive session were for another, unauthorized purpose.

We have reviewed the minutes of the November 8, 2002 executive session in camera and compared them with the minutes of the public portion of the meeting. It is clear that the Council met first in executive session to discuss the qualifications of a property owner who was interested in being a member to the Board of Adjustment and then, after going back into public session, decided to postpone approval of a new Board of Adjustment member until the Town's next meeting on November 18, 2002.

FOIA does not require that the items addressed by a public body in a meeting be discussed in the order in which they are listed in the agenda. Indeed, the agenda for the Town's November 8, 2002 meeting specifically stated that "[t]he agenda items, as listed, may not be considered in sequence."

FOIA authorizes a public body to meet in 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." 29 Del. C.

§ 10004(b)(9). We have previously 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). If the Town had discussed the names, competency and abilities of individual employees in executive session at the meeting on November 8, 2002, the agenda item "Executive Session to Discuss Personnel" would have satisfied FOIA's notice requirements. But the Town has confirmed that members of Board of Adjustment are not "employees" of the Town. FOIA's personnel exemption for executive session, therefore, does not apply.

FOIA, however, authorizes a public body to meet in executive session to discuss "an individual's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open." 29 Del. C. § 10004(b)(1). Under that exemption, the Town could lawfully have met in executive session on November 8, 2002 to discuss an individual's qualifications to be a member of the Board of Adjustment. See Att'y Gen. Op. 99-IB03 (Apr. 28, 1999) (town could meet in executive session to discuss qualifications of the candidates for town manager; FOIA did not require the agenda to list the names of the candidates).

We find that the Town invoked the wrong exemption to go into executive session on November 8, 2002 to discuss the qualifications of an individual to be a member of the Board of Adjustment. Since the Town could have met in lawful executive session to discuss the qualifications of a job candidate — and FOIA did not require the agenda to list the name of the candidate — we find this to be a technical violation for which remediation is not necessary. See Atty' Gen. Op. 99-IB03 (Apr. 28, 1999) ("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.").

B. November 18, 2002 Meeting (1)

According to the Town, it posted a revised agenda for the November 18, 2002 meeting at 9:00 a.m. on that day, more than six hours prior to the scheduled meeting (at 4:00 p.m.), to add an item, "Reconsideration of New Board of Adjustment Member."

FOIA provides for two distinct methods to amend an agenda. First, FOIA allows a public body to change an agenda "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. § 10004(e)(2) (emphasis added). The item added to the agenda of the Town's November 18, 2002 meeting ("Reconsideration of New Board of Adjustment Member") did not arise at the time of the Town's meeting.

Second, FOIA also provides: "When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda." 29 Del. C. § 10004(e)(5).

According to the minutes of the executive session on November 8, 2002, the Council discussed the qualifications of the one candidate to date who had expressed an interest in the position on the Board of Adjustment, Paul E. Tabor. When the Council returned to public session during the November 8, 2002 meeting, the minutes show that "Mayor Beck postponed discussion on the appointment and approval of a new Board of Adjustment Member until the November 18 Special Meeting/Workshop Meeting."

According to the Town, when Mayor Beck first reviewed the agenda for the November 18, 2002 meeting on the morning of that meeting, he realized that there was no line item for the Board of Adjustment vacancy. The Town then amended the agenda to add "Reconsideration of New Board of Adjustment Member." The Town has provided us with an affidavit from Linda L. Collins attesting that the revised agenda was posted at approximately 9:00 a.m. on November 18, 2002 (the special meeting was scheduled for 4:00 p.m. later that day).

The Town satisfied the requirement of Section 10004(e)(5) of FOIA to amend the agenda at least six hours in advance of the meeting on November 18, 2002. We are also satisfied that the item added to the agenda was not available at the time of the initial posting of the agenda because the Mayor had not had an opportunity to review the agenda prior to November 18, 2002 to see if it was consistent with the action contemplated by the Council at the meeting on November 8, 2002. See Att'y Gen. Op. IB22 (Sept. 13, 2002) (when the public body posted notice of the July 16, 2002 meeting on July 9, 2002, it was not aware that it might take up the ethics issues discussed at the July 11, 2002 meeting of the County and Council).

The Town admits that the revised notice of the November 18, 2002 meeting did not include an explanation why the subject — "Reconsideration of New Board of Adjustment Member" — was not available at the time the Town posted the original notice for that meeting. We find this a technical violation that does not require remediation. The public had notice that the Council intended to re-visit the Board of Adjustment issue at the November 18, 2003 meeting as announced during the public portion of the meeting on November 8, 2002. Indeed, during that ten-day interval you apparently expressed an interest in the Board of Adjustment position. At the November 18, 2002 meeting, the Council discussed several candidates for the job, and Councilman Cestone made a motion to appoint Mr. Tabor. According to the minutes, "Since the motion failed with only three FOR votes (four FOR votes were required to carry), it will be presented against at another Town Council meeting."

Based on this record, the public had effective notice that the Council would take up the matter of the Board of Adjustment position at the meeting on November 18, 2002. The matter was thoroughly discussed in public before the Council took a vote that did not result in any final action. Under these circumstances, we do not believe that any remediation is necessary to cure the technical violations of FOIA in the amended agenda for the November 18, 2002 meeting.

Conclusion

For the foregoing reasons, we determine that the Town violated the open meeting requirements of FOIA by: (1) meeting in executive session on November 8, 2002 under an agenda item listed as "personnel" when in fact the Town discussed another matter that FOIA authorizes for discussion in executive session; and (2) by amending the agenda for the November 18, 2002 meeting without explaining the reason for the delay in posting an amended agenda. We find these two FOIA violations to be technical, and therefore do not require remediation. The Town is cautioned to strictly comply with the requirements of FOIA in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

John Terence Jaywork, Esquire

Mr. Philip G. Johnson

Opinion Coordinator

I:\Phil\AG-OPN\2003\03-IB20

1. The agenda and minutes of the November 18, 2002 meeting refer to it as a "Special Meeting/Workshop." FOIA has a separate provision for noticing a "special meeting," defined as any meeting "to be held less than 7 days after the scheduling decision is made." 29 Del. C. § 1000(4)(e)(3). The Town posted the original notice of the November 18, 2002 meeting more than seven days in advance, so the change later made to the agenda is governed by Section 1000(4)(e)(5), not Section 1000(4)(e)(3).