Does a mayor's office have to hold open meetings under Delaware's open meetings law?

Official title

12-IB07: RE Freedom of Information Act African American Heritage Center

Plain-English summary

A nonprofit that had applied for a City of Wilmington grant to run an African American Heritage Center raised three sets of complaints after losing out to a competing applicant. Two were dismissed at the threshold. Allegations of legal and ethical impropriety in how the City solicited and awarded the grant were simply outside the Attorney General's authority, that office only gets involved in municipal contracting disputes if there's evidence of criminal misconduct, and the organization hadn't alleged any. A separate complaint that the City failed to hand over requested public records also failed: the AG reviewed the City's response and found it had conducted a diligent search and turned over everything that existed, appropriately telling the organization when a requested record couldn't be located. The one FOIA theory that got real analysis was the organization's claim that letting its competitor meet privately with the Mayor's staff, while excluding the complainant from a similar meeting, violated the open meetings law. The AG rejected this on two independent grounds. First, staff members aren't decisionmaking "members" of a public body under FOIA, so a meeting involving only staff doesn't trigger the open-meeting rules at all, just as staff don't count toward a quorum. Second, and more sweepingly, the Mayor's Office itself is exempt from FOIA's open meeting requirements because all of its authority rests with one person, the Mayor, who is never required to hold a vote or discuss his decisions with anyone, unlike a multi-member board or council.

Currency note

This opinion was issued in 2012. 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: Can the Delaware Attorney General investigate whether a city awarded a grant unfairly or unethically?
A: Not under FOIA, according to this opinion. The AG has no jurisdiction over municipal contracting or grant disputes unless there's evidence of criminal misconduct.

Q: Does a meeting between a mayor's staff and an outside applicant have to be open to the public under FOIA?
A: No, according to this opinion. Staff aren't decisionmaking "members" of a public body, so their meetings don't count as FOIA "meetings," regardless of who else is invited or excluded.

Q: Is a mayor's office subject to Delaware's open meetings law the same way a city council is?
A: No, per this opinion. An office where all decisionmaking authority rests with one person, like a mayor or governor, is specifically exempt from FOIA's open meeting requirements.

Background and statutory framework

The complaint concerned a City of Wilmington grant competition for an African American Heritage Center, a related public records request, and a claim that a mayoral staff meeting with a competing applicant violated open meetings law. Applying the AG's petition authority at 29 Del. C. § 10005, the public records access requirement at § 10003, the open meetings requirements at § 10004, and the single-executive exemption at § 10004 subsection (h)(6), the AG found the grant dispute outside its jurisdiction, the City's records search compliant with FOIA, and both the staff meeting and the Mayor's Office itself outside FOIA's open meeting requirements.

Citations and references

Statutes:

• 29 Del. C. § 10005, the Attorney General's authority to determine FOIA petitions
• 29 Del. C. § 10003, public records must be made available for inspection and copying upon request
• 29 Del. C. § 10004, governs open meeting notice and access requirements for public bodies
• 29 Del. C. § 10004 subsection (h)(6), exempts public bodies with a single executive decisionmaking member from the open meeting requirements

Source

• Landing page: https://attorneygeneral.delaware.gov/2012/05/04/12-ib07-re-freedom-of-information-act-african-american-heritage-center/
• Original PDF: not linked from landing page

Original opinion text

2012 WL 1680116 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 12-IIB07

May 4, 2012

*1 Dr. James H. Sills, Jr.

President

African American Heritage

Center of Delaware

900 North Pine Street

Suite One

Wilmington, Delaware 19801

OPINION

We received from you three letters dated February 10 th , March 5 th and April 14 th complaining of certain acts and omissions of the Office of the Mayor of Wilmington in connection with the award of a grant of money to establish and operate an African American Heritage Center. We have reviewed the allegations in your letters and accompanying materials. We have also reviewed correspondence between your organization and the Wilmington City Solicitor’s Office and we reviewed the public records made available to your organization for inspection and copying.

THE PETITION

We have treated your letters, taken together, as a petition for a determination by us pursuant to 29 Del. C. , § 10005 as to whether the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”) has been violated. Here, as we do with other such petitions, before we made our determination, we requested that the City Solicitor respond to your allegations related to the FOIA —and only to those allegations. As we explain below, we have no jurisdiction over your organization’s dispute with the City of Wilmington relating to a grant of funds and, hence, no interest in the issues or merits of that dispute.

ANALYSIS

Your allegations against the City fall into two distinct categories: (1) allegations of legal and ethical improprieties relating to the solicitation of proposals and the award of a grant of money, and (2) allegations of the violation of the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”). And your FOIA allegations concern both the failure of the City of Wilmington to disclose certain public records your organization has requested pursuant to 29 Del. C. § 10003 and the failure of the Mayor’s office to comply with the Open Meetings provisions of FOIA , 29 Del. C. § 10004 .

First, as to the solicitation and awarding of grants of money by the government of the City of Wilmington, the grant funds at issue were approved by Wilmington City Council and signed into law by the Mayor as Ordinance No. 07-013 on April 20, 2007. Those funds are allocated to the Office of the Mayor under the heading “African American Museum/Heritage Center” at page 17, item G. 1 of the Ordinance. The bidding of contracts and the award of money grants by City of Wilmington (or any other municipality) are issues over which the Attorney General has no lawful jurisdiction, unless there is evidence of malfeasance amounting to criminal misconduct. We have reviewed carefully your statements concerning the conduct of the City’s personnel, and we find nothing that implicates criminal misconduct and you have suggested none. Therefore, we decline to expend our scarce resources investigating these allegations outside our jurisdiction, despite your repeated demands that we do so.

*2 Second, we have reviewed the City’s responses to your organization’s request for records submitted by its Executive Director, Harmon R. Carey. We are satisfied that the City conducted a diligent search for the records requested and made all existing records available for inspection and copying. Where records requested either do not exist or could not be found after a diligent search, you have been so advised. Accordingly, we have determined that the City of Wilmington is in compliance with FOIA with respect to your organization’s public records request.

Third, you complain that, while a meeting your organization had with the Mayor’s staff was open to your competing grant applicant, their meeting with staff was closed to you. You allege that excluding your organization from the Mayor’s staff’s meeting with your competitor violated the Open Meeting provisions of FOIA . This FOIA allegation has merit only if those meetings were required to be held pursuant to its Open Meeting requirements, set forth in 29 Del. C. § 10004 .

The open meetings requirements of FOIA require public notice of and public access to meetings held by public bodies that consist of two or more decisionmaking/voting “members”. Moreover, there is a requirement that a quorum of those “members” be present in order to hold a meeting to discuss, vote on, or otherwise conduct public business. While staff are routinely employed by these bodies, they are not decisionmaking “members” under the open meeting requirements of FOIA . Just as staff are not counted when determining whether a quorum of members of the body has been met in order to hold a meeting governed by FOIA , meetings held by staff are not open meetings governed by FOIA .

The open meeting requirements of FOIA , at 29 Del. C. § 10004 subsection (h)(6), specifically excludes public bodies with one executive decisionmaking/voting “member,” such as the Governor’s Office or a Mayor’s Office. In this case, all of the authority of the office of the Mayor of Wilmington rests with one person — one decisionmaking “member” — the Mayor himself. Unlike leaders of public bodies whose collective decisions are made by its members, the Mayor is never required to have any of his staff approve decisions that he alone has the authority to make, nor is he ever required to discuss his decisions with any of them. Accordingly, we conclude that the Office of the Wilmington Mayor is exempt from the public meeting requirements of FOIA under 29 Del. C. § 10004 subsection (h)(6).

CONCLUSION

We reiterate: (1) the Attorney General has no jurisdiction over your organization’s dispute with the City of Wilmington regarding any grant for an African American Museum/Heritage Center and we decline to investigate or otherwise become involved; (2) the Attorney General is satisfied that your organization’s request for public records has been fully met; and (3) your complaint concerning meetings with the Office of the Mayor has no merit because the Mayor’s Office is not subject to the Open Meetings requirements of FOIA .

Yours truly,

*3 Ralph K. Durstein, III

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

2012 WL 1680116 (Del.A.G.)