Does starting a planning commission meeting an hour early, then rushing the final council vote onto the agenda, void a subdivision approval in Delaware?

Official title

05-IB15: RE: F.O.I.A. Complaint Against City of New Castle

Plain-English summary

A New Castle resident complained about a proposed subdivision of a property on East 2nd Street moving through the city's approval process in two flawed steps. First, the Planning Commission's notice said its meeting would start at 7:00 p.m., but it actually met and voted to recommend the subdivision an hour earlier, at 6:00 p.m., meaning interested citizens who showed up at the noticed time missed the whole discussion. The city called this a clerical error. Second, when a newly elected City Council held its first regular meeting on April 19, 2005 to take final action on the subdivision, the item wasn't added to the agenda until the day before, with the city citing only a general "late arrival of information." The AG found both to be real violations. An inadvertent early start still deprives the public of the chance to observe, and unlike a case where a meeting merely started an hour late (leaving the public just waiting), starting early cuts the public out entirely. On the agenda point, the subdivision matter had been pending since the Planning Commission's March 28 vote, so it didn't "arise suddenly" close to the April 19 meeting in a way that would justify skipping the normal seven-day notice, even accounting for a recent city election. Because the flaws stripped the public of both of its realistic chances to weigh in on a land-use decision affecting substantial public rights, the AG ordered the whole process redone from scratch: a new, fully compliant Planning Commission meeting, followed by a new Council vote.

Currency note

This opinion was issued in 2005. 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 it matter if a Delaware public body starts a noticed meeting early instead of late?
A: Yes, according to this opinion. Starting early can completely shut interested citizens out of the meeting, unlike starting an hour late, where the public generally just has to wait and can still attend.

Q: Can a newly elected city council use "late arrival of information" as its reason for adding an item to the agenda the day before a vote?
A: Not automatically, based on this opinion. If the underlying matter, like a subdivision recommendation from weeks earlier, wasn't something that genuinely came up suddenly, that explanation doesn't satisfy FOIA's requirement for late agenda additions.

Q: What happens to a land-use approval if the public was cut out of both the recommending and the final vote?
A: According to this opinion, when a pattern of notice violations denies the public its only real opportunities to weigh in on a matter affecting substantial public rights like land use, the AG can order the entire process, both the recommending body's meeting and the final vote, to be redone in full compliance with FOIA.

Background and statutory framework

The complaint concerned a March 28, 2005 New Castle Planning Commission meeting that started an hour before its noticed time, and an April 19, 2005 City Council meeting where a subdivision item was added to the agenda the day before. Applying the open-meeting requirement of 29 Del. C. §10004(a), the notice and agenda provisions of §10004(e)(2) and § 10001(g), and the agenda-amendment procedures at §10004(e)(5) and (e)(3), and drawing on its own opinions distinguishing a late meeting start from an early one (Att'y Gen. Op. 04-IB17), on the open-meeting law applying regardless of formal action (Levy v. Board of Education of Cape Henlopen School District), on agenda specificity and the narrow scope of the "arises suddenly" exception (Att'y Gen. Op. 05-IB11, Att'y Gen. Op. 05-IB09, Att'y Gen. Op. 03-IB22, Att'y Gen. Op. 02-IB22), and on remediation for violations affecting substantial public rights (Wilmington Federation of Teachers v. Howell, Ianni v. Department of Elections of New Castle County, Att'y Gen. Op. 02-IB33, Att'y Gen. Op. 03-IB20), the AG found two violations and ordered the subdivision process redone.

Citations and references

Statutes:

• 29 Del. C. §10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. §10004(e)(2), regular meetings require at least seven days' public notice including the agenda
• 29 Del. C. § 10001(g), the agenda must include a general statement of major issues expected to be discussed
• 29 Del. C. §10004(e)(5), an agenda not ready at initial posting may be amended at least six hours before the meeting with reasons for the delay
• 29 Del. C. §10004(e)(3), special meeting notice must include an explanation why the normal seven-day notice couldn't be given

Cases:

• Att'y Gen. Op. 04-IB17 (Oct. 18, 2004), moving a meeting an hour later did not deprive the public of an opportunity to attend
• Levy v. Board of Education of Cape Henlopen School District, C.A. No. 1447, 1990 WL 154147 (Del. Ch., Oct. 1, 1990), the open meeting law applies to fact gathering and deliberation regardless of formal action, and a later vote cures an earlier violation only through true de novo reconsideration
• Att'y Gen. Op. 05-IB11 (Apr. 11, 2005), quoting Att'y Gen. Op. 97-IB20, an agenda notifies the public of matters to be discussed and voted on
• Att'y Gen. Op. 05-IB09 (Apr. 11, 2005), a matter does not "arise suddenly" merely because a public body decides to add it
• Att'y Gen. Op. 03-IB22 (Oct. 6, 2002), a late agenda amendment is proper only for matters that come up suddenly and can't be deferred
• Att'y Gen. Op. 02-IB22 (Sept. 13, 2002), a delayed agenda amendment was proper where the underlying matter itself arose shortly before posting
• Wilmington Federation of Teachers v. Howell, 374 A.2d 832, 836 (Del. 1977), citizens and officials rely on governmental decisions in planning their affairs
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch., Aug. 29, 1986), remediation is directed when a public body takes final action affecting substantial public rights
• Att'y Gen. Op. 02-IB33 (Dec. 23, 2002), land-use decisions affect substantial public rights
• Att'y Gen. Op. 03-IB20 (Sept. 3, 2003), no remediation is required where a matter was thoroughly discussed in public before a vote

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/06/20/05-ib15-re-f-o-i-a-complaint-against-city-of-new-castle/
• Original PDF: not linked from landing page

Original opinion text

June 20, 2005

Civil Division-Kent County (739-7641)

05-IB15

Ms. Karen Hurley-Heyman

207 East 2nd Street

New Castle, DE 19720

Re: Freedom of Information Act Complaint

Against City of New Castle

Dear Ms. Hurley-Heyman:

Our Office received your Freedom of Information Act (“FOIA”) complaint on June 1, 2005

alleging that the City of New Castle (“the City”) violated the open meeting requirements of FOIA

by: (1) holding a meeting of the Planning Commission on March 28, 2005 one hour earlier than the

time noticed to the public to discuss the proposed subdivision of 219 East 2nd Street; and (2)

amending the agenda for the City Council meeting noticed for April 19, 2005 the day before the

meeting to include the subdivision of 219 East 2nd Street for final action by the Council.

By letter dated June 9, 2005, we asked the City to respond to your complaint by the close of

business on June 13, 2005. We received the Town’s response by facsimile the morning of June 14,

2005. *1

The City acknowledges that the Planning Commission met on March 28, 2005 at 6:00 p.m. to

discuss a proposed subdivision of 219 East 2nd Street and that the Commission “approved the

subdivision and made its recommendation to City Council.” The City also acknowledges that the

notice of that meeting “was posted incorrectly on February 14, 2005. It listed the meeting at 7:00

p.m. The actual meeting was held at 6:00 p.m.”

According to the City, the Planning Commission only makes a recommendation to the City

Council. “The City Council must vote on the subdivision. The Council is not bound by the

Planning Commission’s recommendation. It can approve, amend or reject the subdivision plan.”

According to the City, the “Council held its regular meeting on April 19, 2005. The

subdivision plan was approved at that meeting by Resolution No. 2005-06.” The City did not add

that item to the agenda, however, until April 18, 2005. The City explains that the “delay in posting

was due to ‘late arrival of information.’ . . . This Council has only one hold over from the previous

Council and it was its first regular meeting. It is not surprising that materials were received late.

Their election was on Saturday, April 8, 2005.”

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those closed” for executive session if authorized by law. 29 Del. C. §10004(a).

“All 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, . . . .” Id . § 10004(e)(2).

FOIA requires the agenda to include “a general statement of the major issues expected to be

discussed at a public meeting, as well as a statement of intent to hold an executive session and the

specified ground or grounds therefor . . . .” 29 Del. C. § 10001(g).

“When an 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.” Id . § 10004(e)(5).

Legal Authority

B. Notice of March 28, 2005 Planning Commission Meeting

It is not disputed that the City’s Planning Commission noticed a meeting for 7:00

p.m. on March 28, 2005 to discuss a proposed subdivision, but the Commission actually

met one hour earlier at 6:00 p.m. As a consequence, a number of citizens who were

interested in this matter of public business and planned to attend the meeting arrived only

to find that the meeting was over and the Commission had voted to recommend approval of

the subdivision.

The City contends that the incorrect time noticed for the Commission’s meeting on

March 28, 2005 was a “clerical error,” and the public had a further opportunity to voice their

opinion when the City Council met on April 19, 2005 to consider the Commission’s

recommendation regarding the sub-division. Even if the error was inadvertent, it still

deprived members of the public of their right to monitor and observe the discussion of a

matter of public business. In contrast, in Att’y Gen. Op . 04-IB17 (Oct. 18, 2004), we

determined that the change in the time for a public meeting from 2:00 p.m. to 3:00 p.m. “did

not deprive the public of an opportunity to attend the meeting (112 citizens attended). The

time of the meeting was moved one hour later, not earlier, and to attend the meeting the

public only had to wait an hour.”

We recognize that the Commission only decides whether to recommend a proposed

sub-division and that the final decision lies with the City Council. The Chancery Court has

held, however, that the application of Delaware’s open meeting law does not turn on

whether the public body took any formal action. “‘[A]ction by a public body includes fact

gathering, deliberations and discussions, all of which surely influence the public entity’s

final decision.” Levy v. Board of Education of Cape Henlopen School District , C.A. No.

1447, 1990 WL 154147, at p.6 (Del. Ch., Oct. 1, 2990) (Chandler, V.C.).

We determine that the City violated the open meeting requirements of FOIA when

the Planning Commission met on March 28, 2005 at 6:00 p.m. having noticed the meeting

to the public for 7:00 p.m.

B. April 19, 2005 City Council Meeting

“‘An agenda serves the important function of notifying the public of the matters which

will be discussed and possibly voted on at a meeting, so that members of the public can

decide whether to attend the meeting and voice their ideas or concerns.’” Att’y Gen. Op .

05-IB11 (Apr. 11, 2005) (quoting Att’y Gen. Op. 97-IB20 (Oct. 20, 1997)).

“Section 10004(e)(5) of FOIA allows a public body to amend its agenda up to six

hours before the meeting to include additional matters that may come up after the posting

of the original agenda, but requires that ‘the reasons for the delay in posting shall be briefly

set forth in the agenda.’” Att’y Gen. Op . 05-IB09 (Apr. 11, 2005). We have cautioned that

this exception does not authorize a public body to amend the agenda prior to a meeting for

any reason, but rather applies “to add items that come up suddenly and cannot be deferred

to a later meeting.” Id. See Att’y Gen. Op . 03-IB22 (Oct. 6, 2002) (school district only

learned of the need for a construction contract change order the morning of the scheduled

meeting); Att’y Gen. Op . 02-IB22 (Sept. 13, 2002) (the council’s executive committee did

not violate FOIA when it posted an amended agenda four days after a regular meeting to

include ethics issues raised at the city/council meeting two days after the original agenda

was posted).

The City Council first posted the notice and agenda for its April 19, 2005 meeting on

April 7, 2005. The City posted an amended agenda on April 12, 2005, and amended the

agenda three more times before the meeting (on April 14, April 18, and April 19, 2005). In

the seven days prior to the April 19, 2005 meeting, the City added eight new items to the

agenda for public discussion, including (on April 18, 2005) “Resolution 2005-06 approving a

Minor Subdivision for property located at 219 East 2nd Street.” The final amended agenda

stated that the “reasons for delay in posting” these eight matters of public business were

“due to late arrival of information.”

The City contends that “[s]ince the resolution was posted more than 24 hours ahead

of the Council Meeting with a reasonable explanation, it is believed that the City council did

not violate FOIA.” FOIA authorizes a public body to give notice of a special meeting in less

than the normal seven days, “but in any event not later than 24 hours before such meeting.

. . . The public notice of a special . . . meeting shall include an explanation as to why” the

normal seven notice “could not be given.” 29 Del. C . §10004(e)(3).

The 24-hour notice requirement authorized by Section 10004(e)(3) applies only to

the initial posting of the notice for a special meeting. When a public body has already

published notice of a regular meeting at least seven days in advance, Section 10004(e)(5)

controls: “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)(3).

The City amended the agenda for the Council’s April 19, 2005 meeting at least six

hours in advance to add the subdivision issue. The issue then is whether the City gave

sufficient reason why it could not have included the subdivision in the agenda when it was

originally posted on April 7, 2005. We understand that there was a municipal election on

April 8, 2005, and new Council members took office after the original posting of the agenda

for the April 19, 2005. But the Planning Commission met and voted to recommend the

proposed subdivision on March 28, 2005. The new Council had until April 12, 2005 to post

a new agenda to include the subdivision within the seven day notice requirement of FOIA.

The subdivision matter did not “come up suddenly” after the original posting of the agenda

on April 7, 2005. Att’y Gen. Op. 05-IB09 (Apr. 11, 2005). Nor is there any evidence in the

record that consideration of the proposed subdivision by the Council was such a pressing

matter that it could “not be deferred until a later date.” Id.

We determine that the City violated the public notice requirements of FOIA when it

amended the agenda for the April 19, 2005 Council meeting the day before to include the

proposed subdivision of 219 East 2nd Street.

C. Remediation

In deciding whether to direct remediation, we are mindful that “[b]oth citizens and

officials rely on governmental decisions in planning their everyday affairs.” Wilmington

Federation of Teachers v. Howell , 374 A.2d 832, 836 (Del. 1977). In previous decisions,

we have followed the lead of the Chancery Court and directed remediation when a public

body has taken final action on a matter affecting “substantial public rights.” Ianni v.

Department of Elections of New Castle County , 1986 WL 9610, at p.6 (Del. Ch., Aug. 29,

1986) (Allen, C.).

We have previously determined that substantial public rights are affected by actions

involving land use. See Att’y Gen. Op . 02-IB33 (Dec, 23, 2002) (conditional use exception

for senior citizen retirement community). *2 We believe that the City’s FOIA violations

affected substantial public rights by: (1) depriving interested citizens of the opportunity to

influence the decision by the Planning Commission whether to approve the proposed

subdivision; and (2) failing to give timely notice that the Council would take final action on

the proposed subdivision so that interested citizens would know to attend the April 19, 2005

meeting.

It is the combination of these two FOIA violations which we believe requires

remediation. In other cases, we have not directed remediation where a matter of public business “was

thoroughly discussed in public before the Council took a vote.” Att’y Gen. Op. 03-IB20 (Sept. 3, 2003).

If a public body fails to give sufficient notice before discussing a matter of public business, the public

body may cure the violation at a later public meeting “provided that the later public meeting functions as

a true de novo consideration of the challenged action.” Levy , 1990 WL 154147, at p.7

Here, the FOIA violations first by the Planning Commission and then by the Council deprived

interested members of the public of the only two opportunities they might have had to make their views

known about the proposed subdivision. Since the Planning Commission only makes a recommendation

to the Council, the Commission’s notice violation might have been cured if the public had received

timely notice that the Council would take final action on the proposed subdivision at its April 19, 2005

meeting. By twice violating the notice requirements of FOIA, the Commission and the Council impaired

the substantial rights of citizens to observe and monitor the resolution of this important matter of public

business. See Levy , 1990 WL 154147, at p.7 (‘[t]here may be circumstances where this Court would

legitimately conclude that a later public vote at a meeting held in compliance with the sunshine law

would remedy an earlier violation” but not when “[t]he undisputed record shows a pattern of

violations”).

Conclusion

For the foregoing reasons, we determine that the City violated the open meeting requirements

of FOIA by: (1) noticing a meeting of the Planning Commission for 7:00 p.m. on March 28, 2005,

but holding the meeting one hour earlier; and (2) amending the agenda the day before the City

Council’s April 19, 2005 meeting to add the subdivision as an item for final action by the Council

without a sufficient reason seven days’ notice could not given.

As remediation, we direct the Planning Commission to hold a public meeting in strict

compliance with the notice requirements of FOIA within twenty (20) days of the date of this letter to

re-consider the subdivision of 219 East 2nd Street. Within twenty days after that meeting of the

Planning Commission, we direct the City Council to hold a public meeting in strict compliance with

the notice requirements of FOIA to consider the Commission’s recommendation regarding that

subdivision. We direct the City Solicitor to report to us in writing within ten days after the

Council’s meeting to confirm that remediation has been perfected.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Keith R. Brady, Esquire

Assistant State Solicitor

Lawrence W. Lewis, Esquire

Deputy Attorney General

Clifford B. Hearn, Jr., Esquire

City Solicitor

Thomas Mammarella, Esquire

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 Because of the nature of your allegations and the potential consequences that might

flow from a finding of a FOIA violation, we expedited our investigation and shortened the normal

ten-day response time for the public body.

*2 We are not directing remediation for other matters that may have been unlawfully

added to the agenda for the April 19, 2005 meeting of the City Council because they appear to have

involved procedural or other matters that did not result in final action (e.g., setting dates and times for

interviewing candidates for position of City Clerk and to begin the budget process and meet with

Trustees; discussion of areas of responsibilities of each Council person; authorization for financial

chair of the Council to enter into discussions to establish a line of credit).