Can a city council president use a FOIA petition to allege that three other councilmembers held secret meetings about a tourism director hire, and what does the AG do when the suspicion seems plausible but everyone swears it didn't happen?

Official title

22-IB49 12/16/2022 FOIA Opinion Letter to Michael Platt, City Council President, re: FOIA Complaint Concerning the New Castle City Council

Plain-English summary

The New Castle City Council has five members; three is a quorum.

In March 2022, the Council voted to directly hire a City tourism director under a one-year contract, authorizing the City Administrator to recruit. By July, the Council had changed direction: at the July 21, 2022 meeting, the Council voted 4-1 (Councilmember Leary dissenting) to instead have the New Castle Historical Society (NCHS) hire the tourism director (at City expense, under a two-year contract, performing both City and NCHS duties).

Within about a week, the Administrator received independent communications from Councilmember Leary (the original dissenter), Councilmember Smith (who said he wanted to reverse his vote for reasons similar to Leary's), and Councilmember Day (also opposing). At the September 14, 2022 Council meeting, Councilmembers Day and Smith voiced opposition; the Council tabled the matter.

Council President Platt filed a FOIA petition. He alleged the alignment of three councilmembers' positions in such a short time was no coincidence; they must have privately coordinated outside a public meeting. He further suggested a quid pro quo with a separate ordinance. He cited an email from Leary referencing Day: "Need to chat with Joe to make sure he gets the votes he needs for anything before we step down."

The Council's response included affidavits from Councilmembers Day, Smith, and Leary. All three swore under oath that after the July 21 meeting, they did not communicate verbally or in writing with a quorum of Council outside a public meeting to discuss the NCHS proposal, the tourism-director position, or to pre-agree on any public business. Day specifically attested that he set up his July 29 meeting with the Administrator independently and did not discuss with any other Council members his decision before that meeting.

The AG ruled the affidavits rebutted the prima facie case. The petition's allegations were "general assertions" that a meeting "must have been held" because the three positions aligned. That is suspicion, not substantive proof. The Council's three sworn denials carried the burden. The AG noted explicitly: "These events are unlikely to be a coincidence. However, the Council provided sworn testimony . . . denying that any such discussions took place. Accordingly, we have no choice but to determine that the Council has demonstrated that the Petition's claim . . . does not constitute a violation of FOIA."

On the email-coordination claim, the AG also denied. Two-person communications do not form a quorum (the Council has five members; three constitute a quorum). Even if Leary had emailed or called Day, that would be one-on-one and outside the meeting requirements. Leary's affidavit said she did not in fact contact Day after the email.

The AG closed with a non-binding caution: "the factual record in this case indicates that members of Council are regularly corresponding via public and personal email accounts. Such communications must be done with care to avoid running afoul of FOIA's requirements. We encourage the Council to review its email practice with its legal counsel to ensure its compliance with FOIA."

What this means for you

For Delaware council presidents who suspect colleagues of coordinating. The opinion holds that suspicion is not enough. The AG wrote that a petitioner must show "substantive proof of a secret meeting rather than mere speculation." Here the AG agreed the aligned positions were "unlikely to be a coincidence," but found it had "no choice" but to credit the three councilmembers' sworn denials and find no violation.

For councilmembers who communicate outside meetings. The opinion holds that a discussion between two members of a five-member council is not a quorum, so it does not trigger the open-meeting requirements. The AG applied that to reject the email-coordination claim against Leary and Day.

For Delaware municipalities thinking about email practices. The AG did not impose any new rule here. It closed with a non-binding caution: the record showed members "regularly corresponding via public and personal email accounts," such communications "must be done with care," and the AG "encourage[d] the Council to review its email practice with its legal counsel to ensure its compliance with FOIA." The opinion stops there; it does not prescribe specific safeguards.

For petitioners alleging secret meetings. The opinion describes the burden: a petitioner carries the initial burden of a prima facie case that a meeting occurred, with allegations "sufficiently specific to allow consideration." General assertions that a meeting "must have been held" because votes aligned did not meet that burden once the council answered with sworn affidavits.

Common questions

What's the prima facie standard for a secret-meeting claim?
The opinion states that the petitioner "carries the initial burden of making a prima facie case that a meeting occurred" and "must show substantive proof of a secret meeting rather than mere speculation." The allegations must be sufficiently specific to allow consideration. Once that prima facie case is made, the burden shifts to the public body to prove no violation occurred (the burden-shifting exists so a public body is not forced to "prove a negative").

What happens when the council answers with sworn affidavits?
On this record, the AG credited the three councilmembers' sworn denials that they discussed the matter with a quorum outside a public meeting. The AG said the events were "unlikely to be a coincidence" but that, given the sworn testimony, it had "no choice but to determine" no FOIA violation was shown.

What about the alleged "quid pro quo" between the councilmembers?
The petition suspected the three members coordinated their opposition as a quid pro quo for support on a separate ordinance. The AG did not separately analyze that theory; its FOIA inquiry turned on whether a quorum gathered to discuss public business outside a meeting, and the sworn denials defeated that claim.

Why was the Leary email about Day not enough?
Leary's June 2 email said she needed "to chat with Joe to make sure he gets the votes he needs for anything before we step down." The AG accepted Leary's sworn statement that she "never contacted Mr. Day" to discuss public business afterward. The AG also noted that a discussion between two members of the five-member council would not be a quorum that triggers the open-meeting requirements.

Did the AG's email caution have legal force?
No. The AG framed it as encouragement, not a finding: it found no FOIA violation but "encourage[d] the Council to review its email practice with its legal counsel to ensure its compliance with FOIA."

Background and statutory framework

The opinion applies Delaware's FOIA, 29 Del. C. §§ 10001-10007, and treats Platt's correspondence as a petition under 29 Del. C. § 10005. It restates the open-meeting policy in the AG's own words: public business must be open so citizens "have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." It 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," and describes the prima-facie-then-burden-shifting framework for secret-meeting claims. (The opinion's reproduced text does not carry footnotes or cite specific subsections or prior opinions for these standards, so none are listed below beyond what appears in the letter itself.)

Citations

• 29 Del. C. § 10005: petition for determination
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/12/16/22-ib49-12-16-2022-foia-opinion-letter-to-michael-platt-city-council-president-re-foia-complaint-concerning-the-new-castle-city-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Attorney-General-Opinion-No.-22-IB49.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB49

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB49

December 16, 2022

VIA EMAIL

Michael Platt, City Council President
New Castle City Council
[email protected]

RE: FOIA Petition Regarding the New Castle City Council

Dear Council President Platt:

We write regarding your correspondence alleging that the New Castle City Council violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we conclude that the Council did not violate FOIA's open meeting requirements as alleged in the Petition. However, we encourage the Council to review its email practices with its legal counsel to ensure compliance with FOIA.

BACKGROUND

The City Council is comprised of five members. At a March 2022 Council meeting, the Council discussed and voted to directly hire a City tourism director under a one-year contract. The resolution stated that the City Administrator was authorized to solicit applications for candidates and report back to Council with recommendations regarding these candidates. At the July 21, 2022 meeting, the Council instead voted, by four to one with Councilmember Valarie Leary dissenting, to adopt a new proposal for the New Castle Historical Society ("NCHS") to hire a tourism director, at the expense of the City, for a two-year period to perform both City and NCHS duties. The motion authorized the Administrator to negotiate a contract with NCHS and bring it back to Council for approval.

After this July 21, 2022 Council meeting, the Petition alleges that the following events occurred. On July 22, 2022, the Administrator received a call from Councilmember Leary, who stated she wished to "persuade Council to her position in the follow up meeting." A few days later, Councilmember Russell Smith emailed the Administrator to indicate he wished to reverse his decision on the new proposal to have the NCHS hire the position for reasons similar to Councilmember Leary's reasons. Councilmember Joseph Day had a meeting with the Administrator separately on July 29, 2022, wherein he expressed his opposition for similar reasons. The Petition alleges that these facts were conveyed to you by the Administrator, and you advised the Administrator to proceed with NCHS negotiations as authorized by the July 21, 2022 vote. However, you state that at the September 14, 2022 Council meeting, Councilmembers Day and Smith voiced opposition to the proposal to have NCHS hire the tourism director. The Petition included a copy of the draft September meeting minutes, indicating that the Council tabled the matter following a discussion about various concerns.

In the Petition, you allege that these events are no coincidence and that the three councilmembers engaged in active discussions outside of a public meeting. You further claim that "it is [your] suspicion that these three Councilpersons privately coordinated efforts to reject the proposed association with NCHS for the Tourism Director hire as a quid pro quo to secure support for a separate ordinance adopted earlier in 2022." In addition, the Petition alleges that the three councilmembers frequently use private email accounts for City business to avoid public scrutiny and references an email sent on June 2, 2022 in which Councilmember Leary refers to Councilmember Day, stating: "[n]eed to chat with Joe to make sure he gets the votes he needs for anything before we step down."

The Council, through its counsel, responded on November 30, 2022 to the Petition ("Response"). The Council first argues that the Petition's allegations for a secret meeting regarding the tourism director position do not meet the requisite prima facie burden of showing a meeting took place. The Council provided the affidavits of Councilmembers Day, Leary, and Smith. Councilmembers Smith and Leary swear that after the July 21, 2022 meeting, they did not "communicate verbally or in writing with a quorum of Council outside of a duly called public meeting to discuss the NCHS proposal, the tourism director position, or to otherwise pre-agree on any of public City business." Councilmember Day attests in his affidavit that he set up the July 29, 2022 meeting with the Administrator to discuss various issues, including his misgivings about the NCHS proposal, and at no time in between the July 21, 2022 and this meeting, did he "discuss with any other Council members, whether verbally or in written form, [his] personal decision to not support a City funded tourism director for NCHS involving separate work responsibilities to both the City and NCHS." Second, the Council contends that the Petition's claim about other private meetings is without merit, because discussions between two members do not constitute a quorum of the members of the Council and as demonstrated by her sworn statement, Councilmember Leary did not engage in private discussions with Councilmember Day, despite her email professing her intent to do so.

DISCUSSION

FOIA requires public business to be performed in an open and public manner so that citizens "have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." A meeting under FOIA is "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." When a petitioner makes a claim of a secret meeting between public body members, the petitioner carries the initial burden of making a prima facie case that a meeting occurred. "A plaintiff must show substantive proof of a secret meeting rather than mere speculation in order to shift the burden of proof going forward." The allegations must be sufficiently specific to allow consideration. "Once a plaintiff has made a prima facie case that a quorum of a public body has met in private for the purpose of deciding on or deliberating toward a decision on any matter," the burden then shifts to the public body to prove that no violation of the open meeting requirements occurred. This burden-shifting occurs to avoid requiring a public body from having to "prove a negative," i.e., prove that a meeting did not occur.

In this case, the Petition includes general assertions that a meeting must have been held because the three members' concerns with the proposal for the NCHS to hire the tourism director aligned and the circumstances under which those concerns were expressed to the Administrator caused you to surmise that these members communicated. These events are unlikely to be a coincidence. However, the Council provided sworn testimony from each of the three councilmembers denying that any such discussions took place. Accordingly, we have no choice but to determine that the Council has demonstrated that the Petition's claim regarding three members' private meetings to discuss and reach a consensus on the tourism director position does not constitute a violation of FOIA.

The Petition next alleges that these councilmembers improperly engaged in discussions over private email accounts outside of public meetings and references the email from Councilmember Leary indicating that she needs to speak to Councilmember Day about his intended legislation demonstrates that Councilmember Leary engaged in further discussions of public business with a quorum of other members outside of a public meeting. To counter this specific allegation, the Council provided the sworn testimony of Councilmember Leary that despite this email, she "never contacted Mr. Day or later verbally or in writing to discuss matters of public business or to pre-agree on any vote before Council." Again, we cannot, on this record, determine this initial allegation meets the burden of making a prima facie case that a meeting occurred after this email. The discussion between two members do not qualify as a quorum in these circumstances that would trigger open meeting requirements, and this sworn testimony makes it clear that no such discussions took place. As such, we must find that the Council demonstrated that Councilmember Leary did not engage in private discussions about public business with Councilmember Day.

While we find that these claims do not constitute violations of FOIA, the factual record in this case indicates that members of Council are regularly corresponding via public and personal email accounts. Such communications must be done with care to avoid running afoul of FOIA's requirements. We encourage the Council to review its email practice with its legal counsel to ensure its compliance with FOIA.

CONCLUSION

For the foregoing reasons, we determine that the Council has not voted FOIA as alleged in the Petition.

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Daniel R. Losco, City Solicitor