Can a Delaware county council go into a closed executive session to hear its attorney's report on pending lawsuits before voting to shift budget money to legal fees?

Official title

05-IB18: RE: F.O.I.A. Complaint Against New Castle County Council

Plain-English summary

An attorney complained that New Castle County Council's Administrative-Finance Committee violated FOIA at an April 19, 2005 meeting in three ways: meeting in executive session without proper advance notice, not following the correct procedures for going into executive session, and discussing things there that should have been public. The meeting's public agenda covered a budget ordinance shifting over a million dollars into legal fees and settlements, and separately listed a "Report of ongoing litigation by the County Attorney" as a public agenda item. During the meeting, the committee decided to hear that litigation report in a closed executive session instead, without having disclosed in advance that it would do so. The AG found a real, if narrow, violation on the first point: the committee knew ahead of time it would hear this report and should have listed the executive session in its original agenda rather than moving it there on the fly. But the AG found the committee otherwise did everything right. The minutes properly documented the votes to enter and exit executive session, and the content of the closed session, briefing the committee on around seventy pending lawsuits to justify a $1,050,000 budget transfer for outside counsel, was exactly the kind of litigation strategy FOIA allows a public body to discuss privately, since disclosing that strategy publicly would hurt the county's negotiating and defense position. Because the closed session was substantively proper regardless of the notice slip, no remedy was needed for the earlier failure to flag it.

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 a Delaware public body have to say in its agenda that it plans to go into executive session, even if it doesn't have to say exactly what will be discussed there?
A: Yes, according to this opinion. FOIA requires disclosing in the agenda that an executive session will happen, though not the specific legal, personnel, or other subjects to be covered inside it.

Q: Can a Delaware county's attorney brief council members privately about ongoing lawsuits before a budget vote on legal fees?
A: Yes, based on this opinion, when public disclosure of the litigation strategy, funding needs, and legal options would hurt the county's position in that litigation, which the AG found was the case here for roughly seventy pending lawsuits.

Q: If a public body fails to properly notice an executive session but the session itself was legally proper, does the AG require a do-over?
A: Not necessarily, according to this opinion. The AG found no remediation necessary because giving proper notice wouldn't have changed anything, the committee could still have lawfully discussed litigation strategy behind closed doors either way.

Background and statutory framework

The complaint concerned an April 19, 2005 New Castle County Council Administrative-Finance Committee meeting where an executive session on litigation funding wasn't disclosed in advance. Applying the open-meeting requirement of 29 Del. C. §10004(a), the litigation-strategy executive session exemption at §10004(b)(4), the notice requirement at §10004(e)(2), and the minutes requirement at §10004(f), and drawing on its opinions on agenda specificity (Att'y Gen. Op. 03-IB22, quoting Att'y Gen. Op. 97-IB20, and Ianni v. Department of Elections of New Castle County), on the relaxed disclosure standard for executive-session purposes (Common Cause of Delaware v. Red Clay Consolidated School District, Att'y Gen. Op. IB12), on construing the agenda-amendment exception narrowly (Att'y Gen. Op. 03-IB18), on proper executive-session procedure (Att'y Gen. Op. 02-IB17, Att'y Gen. Op. 93-IO11), on the scope of the litigation-strategy exemption (Att'y Gen. Op. 02-IB12, Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board), on which legal-fee records remain public (Att'y Gen. Op. 02-IB24, Att'y Gen. Op. IB16, Att'y Gen. Op. 04-IB07), and on out-of-state authority supporting confidential litigation strategy discussions (The Reading Eagle Co. v. Council of the City of Reading, Prior Lake American v. Mader, Furhman v. Freedom of Information Commission, Minneapolis Star & Tribune Co. v. Housing and Redevelopment Authority), the AG found a narrow notice violation requiring no remedy and no violation on the substance or procedure of the executive session.

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(b)(4), executive session authorized for litigation strategy sessions, including legal advice, when an open meeting would adversely affect the body's litigation position
• 29 Del. C. §10004(e)(2), regular meetings and intent to hold executive session require seven days' notice
• 29 Del. C. §10004(f), minutes must record members present and each vote taken, including votes to enter and exit executive session

Cases:

• Att'y Gen. Op. 03-IB22 (Oct. 6, 2003), quoting Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), an agenda notifies the public of matters to be discussed and voted on
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch., Aug. 29, 1986), a vague agenda fails FOIA when a known specific subject goes undisclosed
• Common Cause of Delaware v. Red Clay Consolidated School District, C.A. No. 13798, 1995 WL 733401 (Del. Ch., Dec. 5, 1998), FOIA only requires disclosing the purpose of an executive session, not its specific subjects
• Att'y Gen. Op. IB12 (May 21, 2002), an agenda listing "Executive Session to Discuss Personnel" satisfied FOIA's agenda requirements
• Att'y Gen. Op. 03-IB18 (July 31, 2003), the agenda-amendment exception must be construed narrowly
• Att'y Gen. Op. 02-IB17 (Aug. 6, 2002), the public has a right to observe a public body properly enter and exit executive session
• Att'y Gen. Op. 93-IO11 (May 6, 1993), minutes of an executive session must record the vote to return to public session
• Att'y Gen. Op. 02-IB12 (May 21, 2002), FOIA waives attorney-client privilege except in the narrow circumstances the statute specifies
• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-K, 1994 WL 274295 (Del. Ch., May 18, 1994), the litigation-strategy exemption does not permit executive session for legal advice on any issue generally
• Att'y Gen. Op. 02-IB24 (Oct. 1, 2002), a settlement agreement for a discrimination claim is generally a public record
• Att'y Gen. Op. IB16 (July 20, 2002), outside counsel engagement letters and billing statements are generally public records
• Att'y Gen. Op. 04-IB07 (Mar. 8, 2004), FOIA does not exempt billing statement information showing amounts paid to outside counsel
• The Reading Eagle Co. v. Council of the City of Reading, 627 A.2d 305, 307 (Pa.Cmwlth. 1993), public disclosure of litigation strategy or settlement amounts can damage a public body's ability to defend or settle
• Prior Lake American v. Mader, 642 N.W.2d 729, 740 (Minn. 2002), litigation strategy can be impaired if every discussion is available to opposing parties
• Furhman v. Freedom of Information Commission, 1996 WL 689946 (Conn. Super., Nov. 21, 1996), a town council properly discussed litigation options and consultant costs in executive session
• Minneapolis Star & Tribune Co. v. Housing and Redevelopment Authority, 251 N.W.2d 625-26 (Minn. 1976), consultation with the attorney defending a specific case need not be public
• Att'y Gen. Op. 03-IB17 (July 31, 2003), a public body must vote by motion to properly amend its agenda

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/07/08/05-ib18-re-f-o-i-a-complaint-against-new-castle-county-council/
• Original PDF: not linked from landing page

Original opinion text

July 8, 2005

Kent County – Civil Division (739-7641)

05-IB18

Richard L. Abbott, Esquire

The Bayard Firm

222 Delaware Avenue, Suite 900

P.O. Box 25130

Wilmington, DE 19899

RE: Freedom of Information Act Complaint

Against New Castle County Council

Dear Mr. Abbott:

On April 14, 2005, we received your complaint alleging that the Administrative–Finance

Committee (“the Committee”) of the New Castle County Council (“the Council”) violated the open

meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), on

April 19, 2005 by: (1) meeting in executive session without giving the required advance notice to

the public; (2) failing to follow the proper procedures for going into executive session; and (3)

discussing matters in executive session which FOIA requires to be discussed in public.

By letter dated April 18, 2005, we asked the Council to respond to your complaint in writing

within ten days. We granted the Council’s counsel a brief extension of time, and received the

Council’s response on May 5, 2005.

According to the Council, a legislative aide posted the notice and agenda for the Committee’s

April 19, 2005 meeting on April 12, 2005. The agenda listed several ordinances for discussion,

including Ordinance 05-028 “Amend the Annual Operating Budget.” Under that item, the agenda

listed eight proposed decreases in the budget to fund one budget increase in “General Insurance:

Legal Fees & Settlements” ($1,050,000). The agenda went on to explain: “This transfer of funds

is required in order to provide sufficient funding for ongoing litigation

dealing with employment and land use issues. Funding is available due to savings within the

Departments of Administration, Special Services, Police and General Insurance.”

The agenda for the Committee’s April 19, 2005 meeting also listed under the heading

“Other” – “Report of ongoing litigation by the County Attorney.” The agenda noted that it “shall

be subject to change to include the addition or deletion of items received from Council members,

including executive session, which arise at the time of the meeting.”

The minutes of the April 19, 2005 meeting show that Councilwoman Venetzky introduced

Ordinance 05-028 which “deals with ongoing litigation and Council members will be going into

Executive Session. Council decides to move this item to the end of the agenda.” The minutes show

that later in the meeting “Councilman Weiner made a motion to go into Executive Session for the

purpose of discussion [sic] litigation strategy related to cases which will be funded by the transfer

of funds in this ordinance.”

The minutes of the executive session (which the Council provided to us for our in camera

review) show that after a presentation by the County Attorney, “Councilman Weiner made a motion

to come out of Executive Session. It was seconded by President Clark. All were in favor and

Council exited Executive Session.”

Relevant Statutes

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

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

FOIA authorizes a public body to meet in executive session to discuss “[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.” Id. §10004(b)(4).

FOIA requires public bodies to “give public notice of their regular meetings and of their

intent to hold an executive session to the public, at least 7 days in advance thereof. . . . [T]he 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.” Id .

§10004(e)(2).

FOIA requires every public body to “maintain minutes of all meetings, including executive

sessions . . . Such minutes shall include a record of those members present and a record, by

individual members . . . of each vote taken and action agreed upon.” Id . §10004(f).

Legal Analysis

A. No tice of April 19, 2005 Executive Session

“‘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. 03-IB22 (Oct. 6, 2003)

(quoting Att’y Gen. Op. 97-IB20 (Oct. 20, 1997)). “While the statute requires only a ‘general

statement’ of the subject to be addressed by the public body, when an agency knows that an

important specific aspect of a general subject is to be dealt with, it satisfied neither the spirit nor the

letter of the Freedom of Information Act to state the subject in such broad generalities as to fail to

draw the public’s attention to the fact that that specific important subject will be discussed.” Ianni

v. Department of Elections of New Castle County , 1986 WL 9610, at p.5 (Del. Ch., Aug. 29, 1986)

(Allen, C.).

The notice requirements for executive session, however, are less strict because the executive

session is closed to the public. 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 , C.A. No. 13798, 1995 WL 733401, at p.4 (Del. Ch., Dec. 5, 1998) (Balick, V.C.). For

example, FOIA does not require the agenda to “specify what legal, personnel or other subjects are

discussed in executive session.” Id. See Att’y Gen. Op . IB12 (May 21, 2002) (agenda listing

“Executive Session to Discuss Personnel” satisfied the agenda requirements of FOIA).

The Committee posted the notice and agenda for its April 19, 2005 on April 12, 2005 seven

days in advance as required by FOIA. The agenda listed for discussion in public session Ordinance

05-028 “Amend the Annual Operating Budget.” The agenda did not list any matters for discussion

in executive session. Under the last item, “Other,” the agenda listed: “Report on recently completed

financial reviews by the County Administration; Report of ongoing litigation by the County

Attorney; and New Castle County Council grant requests.”

The Council maintains that FOIA authorized the Committee to amend its agenda during the

April 19, 2005 meeting to go into executive session to discuss the County Attorney’s report about

ongoing litigation. FOIA allows a public body “to include additional items including executive

session . . . which arise at the time of the public body’s meeting.” 29 Del. C . §10004(e)(2). But

under FOIA, a matter does not “arise” at a public meeting “by way of a motion to add the issue to

the agenda. By that circular logic, there would be no limits on what business could be discussed at

the meeting of a public body, so long as the agenda provided that it was subject to change. We have

previously cautioned that Section 10004(e)(2) of FOIA must be construed narrowly ‘lest the

exception swallow the rule.’” Att’y Gen. Op . 03-IB22 (Oct. 6, 2003) (quoting Att’y Gen. Op. 03-

IB18 (July 31, 2003)). *1

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.” Att’y Gen. Op . 97-IB20 (Oct. 20, 1997). The

Committee knew when it posted the agenda for its April 19, 2005 meeting that it would hear a report

from the County Attorney about ongoing litigation. The Council has not offered any plausible

reason why this matter was not noticed in advance for executive session.

We determine that the Committee violated the open meeting requirements of FOIA because

it did not give the public notice in the agenda posted for the April 19, 2005 meeting that the

Committee would meet in executive session to discuss litigation strategy. FOIA requires public

bodies to give the public notice “of their intent to hold an executive session closed to the public, at

least 7 days in advance thereof.” 29 Del. C. §10004(e)(2). While the agenda stated that there would

be a report by the County Attorney about “ongoing litigation,” the agenda listed it for public session.

For reasons explained below, we do not believe that any remediation is necessary for this FOIA

violation.

B. Procedures for Going into Executive Session

“If a public body meets to discuss only matters that are authorized for executive session,

FOIA still requires that the meeting be noticed to the public. The public have a right to attend the

opening of the meeting, to see that the public body follows the required procedures for going into

executive session, and to observe the discussion of any public business that follows.” Att’y Gen. Op.

02-IB17 (Aug. 6, 2002).

The procedures for going into executive session under FOIA are determined by the

requirements for maintaining minutes. The minutes of the public portion of the meeting must reflect

that the public body voted to go into executive session with a record “of each vote taken and action

agreed upon.” 29 Del. C. §10004(f). The minutes of an executive session must record the vote

taken to leave executive session and go back into public session. See Att’y Gen. Op . 93-IO11 (May

6, 1993).

The Council has provided us with a sworn affidavit of Nellie Manlove, a legislative aide to

Councilwoman Venezky, who prepared the minutes of the public portion of the Committee’s April

19, 2005 meeting and minutes of the executive session. The affidavit states that during the public

portion of the meeting, “Councilman Weiner made a motion to go into Executive Session and stated

the purpose: to discuss litigation strategy. The motion was seconded, all were in favor, the public

was asked to exit the room, and Council officially went into executive session.” The affidavit

further states: “At the conclusion of the Executive Session, Councilman Weiner made a motion to

come out of Executive Session, the motion was seconded, all were in favor, and Council exited

Executive Session.”

The minutes of the April 19, 2005 meeting confirm that the Committee followed the proper

procedures under FOIA for going into executive session and then returning to public session. We

determine that the Committee did not violate the open meeting requirements of FOIA in the manner

in which it went into executive session at the meeting on April 19, 2005.

C. Subject Matter of April 19, 2005 Executive Session

“FOIA is a statutory waiver of any possible [attorney-client] privilege of the public client

in meetings of governmental bodies except in the narrow circumstances stated in the statute.” Att’y

Gen. Op. 02-IB12 (May 21, 2002). A public body can consult with an attorney in executive session

“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) (emphasis added). 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.” Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial

Control Board , C.A. No. 1216-K, 1994 WL 274295, at p. 11 (Del. Ch., May 18, 1994) (Jacobs,

V.C.).

You contend that the Committee met in executive session for a purpose not authorized by

law on April 19, 2005 because “[i]t is believed that the advisability and justification for the proposed

County legislation was discussed, and that decision-making was made by one or more members of

County Council during this time frame as to how they would vote on Ordinance No. 05-028.”

We have the benefit of reviewing the minutes of the Committee’s April 19, 2005 executive

session in camera. *2 Those minutes show that the County Attorney briefed the Committee about

current litigation involving the County to explain why more funds would be necessary to pay for

outside legal fees to defend against seventy pending lawsuits. There is no indication in the minutes

of the executive session that there was any discussion of the specific budget cuts Ordinance 05-028

might require or how members of the Committee might be inclined to vote on the ordinance.

You contend that the County Attorney’s report would not have had an adverse effect on the

bargaining position of the Council in ongoing litigation: “First, the County Council is not a party

in many, if any, of the (70) pending legal actions against the County. . . . . Second, general issues

regarding case status and funding of litigation costs cannot reasonably be said to have an adverse

effect on the litigation position of the County.”

The Council’s response is that the “public body that would be adversely affected by an open

discussion of its litigation strategy is the County as a whole, including the legislative branch that

approves the budget for payment of legal fees to outside counsel and settlements.”

FOIA’s litigation strategy exemption is designed not just to protect the public body named

as a party in a lawsuit, but to protect the citizens whose tax monies may be used to fund the defense

of the litigation or settle the case. “[I]f knowledge of litigation strategy, or the amount of settlement

offers or of potential claims became public, it would damage the [public body’s] ability to settle or

defend those matters and all the citizens would have to bear the cost of that disclosure.” The

Reading Eagle Co. v. Council of the City of Reading , 627 A.2d 305, 307 (Pa.Cmwlth. 1993). We

believe that the Committee had a right under FOIA to obtain confidential legal advice from the

County Attorney to decide how to deploy taxpayer monies to defend seventy pending lawsuits, and

that public disclosure of that legal advice would have an adverse effect on the litigation position of

the County.

In decisions involving the public records requirements of FOIA, we have determined that

documents reflecting the expenditure of public funds for outside legal counsel are usually public

records. See Att’y Gen. Op. 02-IB24 (Oct. 1, 2002) (agreement to settle a sex discrimination claim);

Att;y Gen. Op . IB16 (July 20, 2002) (letter of engagement with outside legal counsel and billing

statements); Att’y Gen. Op. 04-IB07 (Mar. 8, 2004) (“FOIA does not exempt the disclosure of

information in the billing statements that will enable a citizen to calculate the dollar amounts paid

by the County to Oberly Jennings”).

We believe that other matters relating to outside legal counsel, however, are protected by

attorney-client privilege under FOIA. Specific litigation objectives, how much resources to deploy,

the legal issues being researched, and parameters for potential settlement are just a few examples

of matters which we believe FOIA allows a public body to discuss in private. *3 “A basic

understanding of the adversary system indicates that certain phases of litigation strategy may be

impaired if every discussion is available for the benefit of opposing parties who may have as a

purpose a private gain in contravention of the public need” for confidentiality.” Prior Lake

American v. Mader , 642 N.W.2d 729, 740 (Minn. 2002).

In Furhman v. Freedom of Information Commission , 1996 WL 689946 (Conn. Super., Nov.

21, 1996), the town council appropriated funds to hire an environmental consultant and legal counsel

to oppose a sediment disposal landfill. At a public town meeting, the council went into executive

session to discuss the sediment disposal issue, and when the council returned to public session it

approved a supplemental appropriation for legal and consulting fees. The minutes of the executive

session showed that the council discussed: (1) the amount of money to be spend on consultants and

attorneys and the hiring of a lobbyist: (2) the contents of some prior consultants’ reports; and (3)

legal options of the town including the feasibility of a declaratory judgment action in court, and the

appropriate timing of any such filings.

Like Delaware’s FOIA, the Connecticut open meeting law authorizes executive session for

“strategy and negotiations with respect to pending claims or pending litigation.” Conn.Gen.Stat. §1-

18a(e)(2). “Strategy is defined as a careful plan or method and the art of devising or employing

plans or strategems toward a goal.” Fuhrman , 1996 WL 689946, at p.5. The Connecticut Superior

Court held that the town council properly met in executive session to discuss litigation strategy.

The Town Council was concerned about the

possible effects the disposal of sediment would

have on the landfill . . . During the June 1, 1995

executive session, the Town Council considered

the possible legal options and responses to the

disposal application. The council was considering

action to implement legal relief and enforce the

town’s legal rights. Therefore, the executive

session was held for purposes of discussing “pending

litigation.”

Fuhrman , 1996 WL 689946, at p. 5.

In the past, the Council has retained outside legal counsel to represent the County in a

number of pending lawsuits. The Committee met in executive session with the County Attorney on

April 19, 2005 to discuss the legal options for defending those lawsuits (e.g., outside vs. in-house

counsel) and the costs that might be incurred depending on the choice of strategy. When the Council

returned to public session, it voted to amend the budget to provide for $1,050,000 in funds to pay

for legal costs. We believe that public disclosure of the private discussions that led to that public

vote “would have an adverse effect on the . . . litigation position of the public body.” 29 Del. C.

Based on the record, we determine that the Committee did not violate FOIA when it met in

executive session on April 19, 2005 to discuss litigation strategy as authorized by law.

Conclusion

For the foregoing reasons, we determine that the Committee did not violate the open meeting

requirements of FOIA when it voted to go into executive session at a meeting on April 19, 2005 to

discuss litigation strategy as authorized by FOIA for private discussion. We determine that the

Committee violated FOIA by not giving notice seven days in advance to the public that the litigation

report by the County Attorney to the Committee would be heard in executive session.

We do not believe that any remediation is necessary for this violation because the Committee

followed the proper procedures under FOIA for going into executive session, and only discussed

matters which FOIA authorizes for discussion by a public body in executive session. If the

Committee had given seven days notice to the public of the executive session, the result would not

been any different. The Committee could still have lawfully met in executive session to discuss

litigation strategy.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Wendy Rising Danner, Esquire

Counsel to the Council

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 “In the event that FOIA permits a public body to add items to the agenda, the

proper procedure is for the public body by motion to vote to amend the agenda.” Att’y Gen. Op.

03-IB17 (July 31, 2003).

*2 In ascertaining the matters discussed during the Committee’s executive session on

April 19, 2005, we refer generally to the contents of minutes of executive session without

disclosing any specifics in keeping with our assurances of confidentiality.

*3 Although the County Attorney is not legal counsel to the Council, the courts have

held that the “litigation strategy” exemption under the state open meeting law applies when a

public body meets with the attorney who will be defending the case. “[I]f the Board were

required to meet with the insurance company’s lawyer on a specific case, that consultation

should not be subject to public scrutiny as an ‘open meeting’ contemplated by the statute.”

Minneapolis Star & Tribune Co. v. Housing and Redevelopment Authority, 251 N.W.2d 625-26

(Minn. 1976).