Does a Delaware town have to name a specific person in the meeting agenda before voting to remove them from a volunteer board?

Official title

07-IB20: Re: Freedom of Information Act Complaint Against Town of Cheswold

Plain-English summary

A former Cheswold Planning Commission member complained that the town council violated FOIA by voting to remove her from the Commission after an executive session whose agenda said only "Executive Session if needed to discuss personnel matters," without naming her or mentioning the Planning Commission. The AG rejected the complaint, holding that FOIA's agenda notice requirement for executive sessions is deliberately less demanding than for public discussion items: a public body only has to disclose that it will meet privately to discuss a personnel matter, not identify which employee, student, or appointee will be discussed. Because the council also followed the rest of FOIA's process correctly, discussing the matter behind closed doors and then returning to public session to actually cast the vote, the AG found no violation. A separate allegation that the removal itself skipped a legally required public hearing was outside the AG's FOIA jurisdiction and was not addressed.

Currency note

This opinion was issued in 2007. 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 name the person it plans to discuss in an executive session agenda item?
A: No, according to this opinion. Listing that the session will cover "personnel matters" is enough; FOIA does not require identifying the specific employee, student, or appointee involved.

Q: Can a town council vote to remove someone from a volunteer commission after discussing it in a closed session?
A: Yes, according to this opinion, as long as the actual vote happens after the council returns to open public session, which is what FOIA's separation between private discussion and public voting requires.

Q: If someone thinks their removal from a town board skipped a required public hearing, can the AG's FOIA office fix that?
A: Not necessarily. The opinion notes that whether a removal complied with a separate municipal law hearing requirement is outside the AG's jurisdiction under FOIA.

Background and statutory framework

The complaint concerned a June 14, 2007 Cheswold Town Council meeting where the council met in executive session to discuss "personnel matters" and then voted in public to remove a Planning Commission member. Applying the seven-day notice requirement at 29 Del. C. § 10004(e)(2), the personnel-matters executive session exemption at § 10004(b)(9), the definition of "agenda" at § 10002(a), and the public-voting requirement at § 10004(c), and drawing on the lighter agenda burden for executive sessions (Att'y Gen. Op. 03-IB12; Common Cause of Delaware, Inc. v. Red Clay Consolidated School District) and its own precedent that personnel-matters agenda items need not name the individual involved (Att'y Gen. Op. 02-IB12; Att'y Gen. Op. 03-IB20; Att'y Gen. Op. 99-IB03), while acknowledging the general rule that agendas must let the public decide whether to attend (Att'y Gen. Op. 05-IB11, quoting Att'y Gen. Op. 03-IB22, quoting Att'y Gen. Op. 97-IB20), the AG found the town's notice adequate.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), public bodies must give at least seven days' notice, including an agenda, of regular meetings and planned executive sessions
• 29 Del. C. § 10004(b)(9), executive session authorized for personnel matters involving names, competency, and abilities of individual employees or students
• 29 Del. C. § 10002(a), defines "agenda" as a general statement of the major issues expected to be discussed
• 29 Del. C. § 10004(c), executive sessions are only for discussion, and all voting must occur at a public meeting

Cases:

• Att'y Gen. Op. 03-IB12 (May 21, 2003), FOIA does not require an agenda to specify what legal, personnel, or other subjects are discussed in executive session
• Att'y Gen. Op. 02-IB12 (May 21, 2002), "Executive Session to Discuss Personnel" satisfied the agenda requirement of FOIA
• Att'y Gen. Op. 03-IB20 (Sept. 3, 2003), it is not necessary to identify personnel when convening an executive session on personnel matters
• Att'y Gen. Op. 99-IB03 (Apr. 28, 1999), FOIA does not require disclosure in the agenda of the names of job applicants
• Att'y Gen. Op. 05-IB11 (Apr. 11, 2005), quoting Att'y Gen. Op. 03-IB22 (Oct. 6, 2003), quoting Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), an agenda must let the public decide whether to attend and voice concerns
• Common Cause of Delaware, Inc. v. Red Clay Consolidated School District, C.A. No. 13798, 1998 WL 733401 (Del. Ch., Dec. 5, 1998), FOIA's executive session notice requirement simply requires disclosing the purpose of the session

Source

• Landing page: https://attorneygeneral.delaware.gov/2007/09/10/07-ib20-re-freedom-of-information-act-complaint-against-town-of-cheswold/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 07-IB20 (Del.A.G.), 2007 WL 4732803

Office of the Attorney General

State of Delaware

Opinion No. 07-IB20

September 10, 2007

Re: Freedom of Information Act Complaint Against Town of Cheswold

*1 Mr. Peter Diakos

P.O. Box 407

Cheswold, DE 19904

Dear Mr. Diakos:

On June 18, 2007, our Office received your complaint alleging that the Town of Cheswold (“the Town”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), by meeting in executive session on June 14, 2007 to discuss a “Personnel Matter,” i.e. , “the removal of Anna Strimel as a member of the Cheswold Planning Commission.” You allege that “[w]hen the Council reconvened in public they voted to remove Ms. Strimel as a member of the Planning Commission.” You allege that the Council violated the public notice requirements of FOIA because the agenda for the meeting “never mentioned they were going to discuss a member of the Planning Commission or the firing of a person in that volunteer position.” 1 You provided us with a copy of the agenda for the June 14, 2007 which listed for discussion “Executive Session if needed to discuss personnel matters.”

By letter dated June 19, 2007, our Office asked the Town to respond in writing to your complaint by July 2, 2007. We received the Town’s response by facsimile on June 21, 2007.

According to the Town, the “Council voted in public to enter executive session to discuss personnel issues related to Ms. Strimel’s appointment on the Planning Commission. After moving out of executive session, the Council voted to remove Strimel from the Planning Commission.” The Town contends that the “Council properly notified the public that it would discuss personnel issues during executive session” because “FOIA does not require the agenda to ‘specify what legal, personnel or other subjects are discussed in executive session”’ (quoting Att’y Gen. Op. 03-IB12 (May 21, 2003)).

By letter dated June 25, 2007, our Office asked for a copy of the minutes of the June 14, 2007 executive session for our in camera review. After a reminder letter on July 12, 2007, our Office received the executive session minutes on July 18, 2007.

RELEVANT STATUTES

FOIA requires public bodies to “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, … and the dates, times and places of such meetings.” 29 Del. C. § 10004(e)(2) .

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) .

FOIA defines an agenda as “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 specific ground or grounds therefor …” Id. § 10002(a).

LEGAL AUTHORITY

*2 “‘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 concerns or ideas.”’ Att’y Gen. Op. 05-IB11 (Apr. 11, 2005) (quoting Att’y Gen. Op. 03-IB22 (Oct. 6, 2003) (quoting Att’y Gen. Op. 97-IB20 (Oct. 20, 1997)).

The notice requirements for executive session, however, are less stringent because the executive session is closed to the public. FOIA “simply requires public bodies to disclose the purpose of the executive sessions in the agenda.” Common Cause of Delaware, Inc. v. Red Clay Consolidated School District , C.A. No. 13798, 1998 WL 733401, at p.4 (Del. Ch., Dec. 5, 1998) (Balick, V.C.). Our Office has determined that FOIA does not require a public body to “specify what legal, personnel or other subjects are discussed in executive session.” Att’y Gen. Op. 02-IB12 (May 21, 2002) (“Executive Session to Discuss Personnel” satisfied the agenda requirements of FOIA”). See also Att’y Gen. Op. 03-IB20 (Sept. 3, 2003); Att’y Gen. Op. 99-IB03 (Apr. 28, 1999) (town could meet in executive session to discuss candidates for town manager; FOIA does not require disclosure in the agenda of the names of job applicants).

Our Office determines that the Town satisfied the public notice requirements of FOIA by listing in the agenda for the June 14, 2007 meeting that the Council would meet in executive session to discuss a personnel matter. FOIA did not require the Town to identify the person by name who would be the subject for discussion at that executive session.

The minutes of the June 14, 2007 meeting reflect that the Council voted in public session to go into executive session to discuss a personnel matter. The minutes of the executive session (which began at 7:58 p.m.) reflect that the Council discussed “the Strimel situation. The Council discussed the letter from Ms. Hurley and Ms. Strimel’s refusal to meet with Council to discuss the situation.” The minutes of the executive session then reflect that at 8:18 p.m. the Council voted to go back into public session, at which time the Council voted to remove Ms. Strimel from the Planning Commission.

Our Office determines that the Council met in executive session for a purpose authorized by law: to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed.” 29 Del. C. § 10004(b)(9) . The Council also complied with FOIA by returning to public session to vote. “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) .

CONCLUSION

For the foregoing reasons, our Office determines that the Town did not violate the public notice requirements of FOIA. The agenda for the June 14, 2007 Town Council meeting satisfied the notice requirements of FOIA by stating the purpose of the executive session listed in the agenda: to discuss a personnel matter. FOIA did not require the Council to name the person in the agenda who was to be the subject of that private discussion.

Very truly yours,

*3 W. Michael Tupman, Esquire

Deputy Attorney General

Approved

Lawrence W. Lewis, Esquire

State Solicitor

Footnotes

1
You also allege that the Town violated Section 701 of Title 22 of the Delaware Code which provides: “Any member of the planning commission so established in a city may be removed for cause after a public hearing by the mayor with the approval of city council.” Whether or not Ms. Strimel received a public hearing before her removal is an issue of municipal law which is outside our jurisdiction under FOIA.

Del. Op. Atty. Gen. 07-IB20 (Del.A.G.), 2007 WL 4732803

End of Document
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