Can a Delaware town council privately settle on a budget before the meeting and then just rubber-stamp it during a closed executive session?

Official title

05-IB29: REP: F.O.I.A. Complaint Against Town of Cheswold

Plain-English summary

Three residents filed overlapping complaints about a July 7, 2005 Cheswold Town Council meeting, alleging late notice, a too-small meeting room, an improper executive session, a rubber-stamped budget vote, missing minutes, and denied access to prior minutes. Most of these went nowhere: notice had been posted on time, nobody was actually turned away from the meeting room, minutes existed and were provided, and a records request for 45 pages of prior minutes was fulfilled for everyone who asked, just not instantly during a holiday week. Two problems survived. First, the town's cursory executive session minutes listed real estate tax and code enforcement matters as agenda items, and the town claimed those weren't actually "discussed," just announced, but offered no real proof beyond that assertion; since the town bears the burden of justifying an executive session, vague minutes without supporting detail don't meet that bar. Second, and more serious, the town manager had privately run the near-final 2005-2006 budget figures by council members individually before the meeting, so that when the council reached executive session, all that was left was a rubber-stamp consensus, and the council then voted in public with no discussion at all. The AG has long held that FOIA doesn't allow "straw polling" or private consensus-building that's later just ratified in public. Because the improperly handled matters (a budget, hiring decisions, and land-use-adjacent actions) affected substantial public rights, the AG ordered the town to redo all three votes, code enforcement, the tax/assessor matter, and the budget, at a new, fully public meeting.

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: Who has to prove that a Delaware public body's executive session was for a lawful reason?
A: The public body does, according to this opinion. If its minutes of the closed session are too vague to show what was actually discussed, and it can't otherwise back up its explanation, it hasn't met that burden.

Q: Can a town manager privately check with council members on a budget before the public meeting, then have the council formally vote with no discussion?
A: No, according to this opinion. Running near-final figures by members individually and turning the meeting into a rubber-stamp vote is the kind of "straw polling" or private consensus-building FOIA's open meeting law is designed to prevent.

Q: What happens if a Delaware public body's budget or hiring vote is found to violate open meetings law?
A: According to this opinion, when the violation affects substantial public rights, like spending public money or hiring key staff, the AG can order the entire vote redone at a new meeting that's properly open to public discussion.

Background and statutory framework

The complaints concerned a July 7, 2005 Town of Cheswold council meeting where a private pre-meeting budget process and cursory executive session minutes came under scrutiny. Applying the open-meeting requirement of 29 Del. C. §10004(a), the personnel exemption at §10004(b)(9), the public-voting requirement at §10004(c), the "meeting" definition at §10001(e), and the burden-of-proof provision at 10005(c), and drawing on its opinions on reasonable public access to meetings (Att'y Gen. Op. 02-IB09), on the open-meeting law applying regardless of formal action (Att'y Gen. Op. IB24, quoting Levy v. Board of Education of Cape Henlopen School District), on the heightened burden for cursory executive-session minutes (Att'y Gen. Op. 03-IB23, Att'y Gen. Op. 03-IB16), on the narrow scope of the police-personnel exemption (Att'y Gen. Op. 02-IB12), on the prohibition against straw polling and consensus votes (Att'y Gen. Op. 96-IB15), and on remediation for violations affecting substantial public rights (Ianni v. Department of Elections of New Castle County, Att'y Gen. Op. 03-IB06, Att'y Gen. Op. 02-IB23), the AG found violations on the budget process and the unsupported executive-session items and ordered the votes 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(b)(9), executive session authorized for personnel matters involving names, competency, and abilities of individual employees
• 29 Del. C. §10004(c), executive sessions are only for discussion, and all voting must occur at a public meeting
• 29 Del. C. §10001(e), defines "meeting" as a formal or informal gathering of a quorum to discuss or act on public business
• 29 Del. C. 10005(c), the public body bears the burden of proof to justify meeting in executive session

Cases:

• Att'y Gen. Op. 02-IB09 (Apr. 12, 2002), a meeting room adequate to accommodate attendees does not violate FOIA's access requirement
• Att'y Gen. Op. IB24 (Aug. 18, 2005), quoting 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 discussion and deliberation regardless of formal action
• Att'y Gen. Op. 03-IB23 (Oct. 20, 2003), cursory executive session minutes without supporting detail fail to meet the burden of proof
• Att'y Gen. Op. 03-IB16 (July 14, 2003), a public body must prepare minutes detailed enough to show exactly what was discussed in executive session
• Att'y Gen. Op. 02-IB12 (May 21, 2002), a town council cannot use executive session to discuss general police department administrative matters
• Att'y Gen. Op. 96-IB15 (May 10, 1996), FOIA does not permit straw polling or private consensus votes later ratified in public
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch., Aug. 29, 1986), remediation is directed when a violation affects substantial public rights
• Att'y Gen. Op. 03-IB06 (rev. Feb. 11, 2003), hiring key personnel affects substantial public rights
• Att'y Gen. Op. 02-IB23 (Dec. 23, 2002), land-use actions affect substantial public rights
• Att'y Gen. Op. 97-IB14 (July 29, 1997), FOIA's reasonable-access requirement does not require instantaneous access to records
• Att'y Gen. Op. 03-IB26 (Nov. 13, 2003), a records custodian generally must make a record available within ten days of a request

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/10/13/05-ib29-rep-f-o-i-a-complaint-against-town-of-cheswold/
• Original PDF: not linked from landing page

Original opinion text

October 13, 2005

Civil Division-Kent County (739-7641)

05-IB29

Mr. Richard Alexander                 Mr. David G. Lawson

207 Cobblecreek Curve                5105 N. DuPont Highway

Newark, DE 19702                          Dover, DE 19901

Mr. Michael S. Bundek

230 Main Street Little Creek

Dover, DE 19901

Re: Freedom of Information Act Complaint

Against Town of Cheswold

Gentleman:

On July 8, 2005, our Office received complaints from Messrs. Alexander and Bundek

alleging that the Town of Cheswold (“the Town”) violated the open meeting and public records

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

July 11, 2005, our Office received a complaint from Mr. Lawson making many of the same

allegations. *1

The three complaints allege the following violations of FOIA: (1) the Town Council did not

post timely public notice of a meeting held on July 7, 2005; (2) the venue for the July 7, 2005

meeting of the Council was too small to accommodate the public; (3) the Town Council met in

executive session on July 7, 2005 for purposes not authorized by law; (4) the Town Council

reached a consensus on matters of public business in executive session before voting on those

matters in public without any further discussion; (5) the Town did not prepare and maintain

minutes of the July 7, 2005 meeting; and (6) the Town did not provide Mr. Bundek with access to

the minutes of prior Council meetings.

By letter dated July 9, 2005, we asked the Town to respond to your complaints by July 20,

2005 and “provide us with a copy of the notice, agenda, and minutes for the meeting held on July

7, 2005, including the minutes of any executive session which we will review in camera and treat

confidentially.”

By letter dated July 29, 2005, the Town Solicitor advised that he had “been unable to check

the record, and therefore I am requesting a ten (10) day extension of time to respond to the

complaints.” We received the Town’s response on July 26, 2005 including the draft minutes of the

July 7, 2005 Council meeting. The Town noted that “these minutes have not been approved by

Council and will not be considered until their next meeting, which is August 1, 2005.”

On August 24, 2005, we asked the Town for a copy of the approved minutes of the July 7,

2005 Council meet, which we received on September 6, 2005.

On October 3, 2005, we asked the Town for additional information regarding any discussions

of the Town’s 2005-2006 budget. We received that information on October 5, 2005.

According to the Town, the Town Clerk posted the notice and agenda for the July 7, 2005

meeting on June 27, 2005 on the door of the Town Hall at least seven days in advance as required

by FOIA. The copy of the notice and agenda provided to us by the Town confirms this fact. We

determine that the Town did not violate the public notice requirements of FOIA with respect to the

July 7, 2005 meeting of the Town Council.

Mr. Bundek’s complaint alleged that he requested copies of minutes of prior Town Council

meetings sometime during the week of July 1- July 7, 2005. According to the Town, “Mr. Bundek

was one of five persons who requested [minutes of prior meetings]” during that week (which

included the July 4 holiday weekend) and the Town Clerk “simply did not have the time or resources

to produce copies, which covered approximately 45 pages, upon short notice. . . . Subsequently,

copies have been made for all five persons who made the request.” It appears that Mr. Bundek’s

public records complaint is resolved so we will not address it further in this opinion. *2

Mr. Lawson alleged that the Town Council did not provide reasonable access to the public

to attend the meeting on July 7, 2005 because the Town Hall “has a meeting space limited to twelve

persons.” The Town responds that “Mr. Lawson does not indicate that anyone was excluded because

of lack of space nor is there any indication that he or anyone else made any complaint at the Council

meeting to this effect. Cheswold Town Hall is an old home but it has the ability to accommodate

more than 12 persons as spectators to the meeting.”

Your complaints acknowledge that, in addition to Messrs. Lawson and Bundek, there were

a number of citizens who attended the July 7, 2005 meeting: Mrs. Harmon, Mrs. Durham, Drew

Volturo of the State News, Harvey Reed, and six other persons identified only by first name,

occupation, residence, age or gender. There is nothing in the record to show that members of the

public who wished to attend the July 7, 2005 Town Council could not because of the size of the

meeting room. We determine that the Town did not violate FOIA’s requirement that a public body

provide reasonable access to the public to attend the Council meeting on July 7, 2005. See Att’y

Gen. Op. 02-IB09 (Apr. 12, 2002) (nothing in the record to show that members of the public “were

turned away or unable to participate in the discussion of public business” because of the size of the

town council chambers). *3

The Council has provided for our in camera review a copy of the minutes of the July 7, 2005

executive session of the Town Council. Mr. Lawson’s allegation that the Town did not prepare

minutes of that meeting in violation of FOIA is unfounded.

The remaining allegation for our consideration is whether the Town Council met in executive

session on July 7, 2005 to discuss matters of public business for a purpose or purposes authorized

by FOIA?

Relevant Statutes

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

those closed pursuant to subsections (b),(c), (d), or (g) of this section.” 29 Del. C. §10004(a).

Subsection (b) of Section 10004 authorizes a public body to meet in executive session to

discuss nine subject matters, including “[p]ersonnel matters in which the names, competency and

abilities of individual employees or students are discussed, unless the employer or student requests

that such a meeting be open.” Id . §10004(b)(9).

“Executive sessions may be held only for the discussion of public business, and all voting

on public business must take place at a public meeting and the results of the vote made public.” Id.

§10004(c).

FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members

of any public body for the purpose of discussing or taking action on public business.” Id. §10001(e).

FOIA provides that “the burden of proof shall be on the . . . public body to justify a decision

to meet in executive session . . . .” Id. 10005(c).

LEGAL AUTHORITY

According to the Town, “it is obvious from reading the minutes of the [July 7, 2005]
executive session that the primary purpose of the same was to consider police department personnel

issues, which would be permissible under §10004(b)(9). It does not appear that the other issues

noted were ‘discussed’ and these matters should not have been listed as part of the executive session

minutes.”

Our in camera review of the minutes of the July 7, 2005 executive session shows that the

Council addressed four matters: (1) police department personnel issues; (2) real estate taxes; (3) the

hiring of a new code enforcement officer and building inspector; and (4) the proposed budget for the

2005-06 fiscal year. *4

According to the Town, Items 2, 3, and 4 were informational announcements only and “no

discussion followed.” The Town does not contend that FOIA authorized the Council to meet in

executive session to discuss Items 2, 3, or 4. Rather, the Town contends that these issues were not

“discussed” and “should not have been listed as part of the executive session minutes.”

Unless authorized by statute for executive session, the open meeting requirements of FOIA

apply to any “meeting,” defined as “the formal or informal gathering of a quorum of the members

of any public body for the purpose of discussing or taking action on public business.” 29 Del. C.

§10001(d) (emphasis added). FOIA does not define “discussing” but the statute distinguishes the

term “discussing” from the term “taking action” by using the disjunctive “or.” See Att’y Gen. Op .

IB24 (Aug. 18, 2005) (“The public meeting requirements of FOIA do not turn on whether a public

body took official action. Otherwise, ‘there would be no remedy to deter Board members from

privately meeting for discussion, investigation or deliberation about public business so long as the

Board reached no formal decision at that private meeting.’”) (quoting Levy v. Board of Education

of Cape Henlopen School District , C.A. No. 1447, 1990 WL 154147, at p.6 (Del. Ch., Oct. 1, 1990)

(Chandler, V.C.)).

We have not had previous occasion to determine what level of interaction among the

members of a public body is necessary to amount to “discussing” a matter of public business to

trigger the open meeting requirements of FOIA. We do not have to resolve that issue for purposes

of this case, however, because the Town: (1) failed to meet its burden of proof whether the Council

“discussed” matters of public business (real estate taxes and code enforcement) at the July 7, 2005

executive session; and (2) the record shows that the Town discussed the 2005-2006 Town budget

prior to the July 7, 2005 executive session and reached a consensus vote in executive session to

approve the final figures without any public discussion.

A. Burden of Proof

Under FOIA, “the burden of proof shall be on the . . . public body to justify a decision to meet

in executive session.” 29 Del. C. §10005(c).

In “our investigations and determinations under Section 10005(e) of FOIA, we must hold

public bodies to their burden of proof to justify going into executive session for a purpose authorized

by statute. If the minutes of the executive session (as here) are cursory, and the public body does not

provide us with affidavits from those in attendance specifying in more detail the matters discussed,

then the public body may not meet its burden of proof, as in this case.” Att’y Gen. Op . 03-IB23 (Oct.

20, 2003). “Our Office will hold public bodies to high standards in satisfying their burden of proof

to go into executive session. To meet that burden, a public body will have to prepare minutes of

executive session that are sufficiently detailed to allow our Office to determine exactly what the

public body discussed in executive session.” Att’y Gen. Op. 03- IB16 (July 14, 2003).

The minutes of the July 7, 2005 executive session are cursory. Item 2 states: “It was

announced there would be no new Real Estate Taxes this year and a resolution regarding an assessor

was ready to be signed.” Item 3 states: “It was announced a new Code Enforcement Officer and

Building Inspector would be hired and Mr. Ryan, Town Manager would be Senior Code

Enforcement Officer.” FOIA did not authorize either of these matters of public business for

discussion in executive session, so the public body bears an even heavier burden of proof to show

that, in fact, there was no “discussion” at all (which calls into question why the matter was listed in

the executive session minutes in the first place). We determine that the Town failed to meet its

burden of proof that there was no discussion of these two matters real estate taxes and new

employees in executive session.

With regard to Item 1 listed in the minutes of the July 7, 2005 executive session, the Town

contends that FOIA authorized the Council to discuss in executive session “police department

personnel issues.” FOIA’s personnel exemption only applies when a public body discusses the

“names, competency, and abilities of individual employees.” 29 Del. C. §10004(b)(9).

We have previously determined that a town council cannot meet in executive session under

FOIA to discuss general issues concerning the police department such as town coverage and work

schedules. See Att’y Gen. Op. 02-IB12 (May 21, 2002). It is not clear from the cursory minutes of

the Town Council’s July 7, 2005 executive session exactly what police department matters the

Council discussed. The minutes simply state: “Police Department personnel issues were discussed

in great detail.”

Under other circumstances, we would be inclined to determine that the Town has not met its

burden of proof to justify meeting in executive session on July 7, 2005 to discuss the names,

competency and abilities of individual police officers. We will give the Town the benefit of the

doubt that in the executive session on July 7, 2005 the Council discussed those issues in light of the

recent termination of Police Chief Vann.

B. 2005-2006 Town Budget

The minutes of the July 7, 2005 executive session state that “[t]he 2005-2006 Budget has

been presented to all Council members prior to meeting. Council was asked if they had any

questions — no questions or discussion followed.”

According to the Town, the “Council was given a draft of the 2005-06 budget seven to ten

days prior to the July 7, 2005 meeting. The budget was not discussed at a public meeting other than

by the Town Manager who had approached all of the Town Council members during the months

preceding the meeting for their input into the budget process. The budget was not discussed at the

special meeting. The Town Manager merely ran the final figures by members of Town Council so

they could determine if discussion was needed at the open part of the meeting whether to vote to

accept or reject the budget.”

Even if, in fact, there was no substantive discussion of the 2005-2006 budget during

executive session on July 7, 2005, the Town has acknowledged that there were non-public

discussions of the budget prior to July 7, 2005. As a result, at the executive session on July 7, 2005,

all that was left to do was review the final figures to decide whether to vote to accept or reject the

budget, without any public discussion being required.

We believe that the process by which the Town Council came to approve the 2005-2006

budget violated the open meeting requirements of FOIA. We have previously determined that FOIA

does not permit “straw polling” nor does FOIA “allow public bodies to reach ‘consensus votes’

which they strive later to ratify.” Att’y Gen. Op . 96-IB15 (May 10, 2996). The record shows that

the process by which the Town Council came to approve 2005-2006 Town budget at the July 7,

2005 meeting violated FOIA because it deprived the public of any opportunity to monitor and

observe the budget approval process.

We note that the record reveals a close nexus between the matters listed in the minutes

of the discussed by the Town Council’s executive session on July 7, 2005, and the matters voted on

in public session after the Council came out of executive session. The minutes of the executive

session list: (1) the hiring of a new code enforcement officer and building inspector; (2) retaining

the professional services of a new real estate assessor; and (3) the 2005-06 budget. After the Council

returned to public session it voted, without any discussion, to: (1) approve a code enforcement

department; (2) hire an independent real estate appraiser to reassess all the real estate in Town; and

(3) pass the proposed 2005-2006 fiscal year budget. It could appear to the public as your

complaints suggest that the Council discussed and acted on matters of public business without any

opportunity for the public to monitor and observe the Council’s decision-making process.

C. Remediation

In the past when we found a violation of the open meeting law we directed remediation if a

public body has taken 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 were affected by: (1) the expenditure of

public money (Att’y Gen. Op. 02-IB12 (May 21, 2002) (increase the salaries of police officers); (2)

hiring key personnel (Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003) (officer-in-charge of the police

department); (3) actions affecting land use ( Att’y Gen. Op . 02-IB23 (Dec. 23, 2002) (conditional use

exception for senior citizen retirement community).

We determine that the Town Council’s violations of FOIA affected substantial public rights:

the 2005-2006 fiscal year budget involved the expenditure of public funds; code enforcement

involved the hiring of key personnel; and the new real estate appraiser affected land use. As

remediation, we direct the Town within thirty (30) days of the date of this letter to notice a meeting

open to the public to discuss in public and vote again on the these three matters of public business:

(1) code enforcement; (2) real estate taxes; and (3) the 2005-06 fiscal year budget.

Conclusion

For the foregoing reasons, we determine that the Town did not violate FOIA because the

Town: (1) posted timely public notice of a meeting held on July 7, 2005; (2) provided the public

with reasonable access to attend the July 7, 2005 meeting; (3) prepared and maintained minutes of

the July 7, 2005 meeting; and (4) provided reasonable access to minutes of previous meetings of the

Town Council.

We determine that the Town violated FOIA by privately discussing the 2005-2006 budget

prior to the July 7, 2005 meeting and then approving the budget without any discussion in public

thereby depriving the public of the opportunity for the public to monitor and observe the budget

approval process. We also determine that the Town failed to meet its burden of proof that it did not

discuss two other matters of public business (code enforcement and real estate taxes), neither of

which matters FOIA authorized for private discussion.

As remediation, we direct the Town within thirty (30) days of the date of this letter to notice

a meeting open to the public to discuss in public and vote again on these three matters of public

business (code enforcement, real estate taxes, and budget). We direct the Town Solicitor to report

back to us in writing within ten days after the Town has completed remediation.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Nicholas H. Rodriguez, Jr., Esquire

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 Mr. Lawson also complained about a business license fee recently imposed by the

Town: “Not only did we only get two days notice that this fee was due” but the “letter was not

even signed by the tax collector, Robert Sign. Furthermore, the letter did not include when this

ordinance was passed.” Those issues are outside our jurisdiction under FOIA.

*2 We note that the “‘reasonable access’ requirement of FOIA” does not “mean that a

public body must provide access, on short-notice demand, at any time or place. The FOIA

Declaration of Policy states that citizens should have ‘easy access’ to public records. 29 Del. C.

§10001. It does not say that they must have instantaneous access.” Att’y Gen. Op. 97-IB14 (July

29, 1997). We have previously determined that, as a general rule, FOIA requires the custodian of

a public record to make it available within ten days of a request. Att’y Gen. Op. 03-IB26 (Nov.

13, 2003).

*3 We note “that if a public body has reason to know that a large number of citizens

is likely to attend a meeting, then FOIA requires the public body to find another, larger place for

the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning

the meeting to another time at a facility that can accommodate all of the interested citizens.”

Att’y Gen. Op. 02-IB09 (Apr. 12, 2002).

*4 When we refer to minutes of executive session provided to us in camera, we are

careful not to disclose any substantive information that FOIA authorizes for private discussion.

For matters not authorized for executive session, any portions of the minutes reflecting

discussion of those matters are not protected by FOIA and we feel free to refer to those portions

of the minutes in greater detail.