If a Delaware town council posts a revised meeting agenda late without explaining why, does that void what the council voted on?

Official title

95-IB15 Freedom of Information Act Complaint Mayor and Council of City of New Castle 29 Del. C. § 10005(e)

Plain-English summary

New Castle's mayor complained that the City Council violated Delaware's open-meetings law when it passed an ordinance cutting his pay for serving as Judge of the Mayor's Court. The original agenda for the December 13, 1994 meeting, posted seven days ahead as the statute requires, said nothing about the ordinance. A revised agenda adding the first and second reading of the ordinance was posted just one day before the meeting, and the council read and adopted the ordinance's third and final reading the following month. The problem the AG found wasn't the late addition itself (the statute allows agendas to be updated as items arise) but that the revised agenda never stated, as the law requires, the reason for the delay in posting it. The council argued this was a harmless technicality that didn't hurt anyone, pointing to an earlier case where a court excused a minor notice defect. The AG disagreed, reasoning that Delaware's open-meetings law is supposed to be read broadly in favor of public access and narrowly against the government, and that this earlier case actually involved a much more serious set of notice failures that the court still treated as a real violation. The AG found the missing explanation was itself a violation and asked the council to fix it by re-noticing and re-voting on the ordinance properly.

Currency note

This opinion was issued in 1995. 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 a Delaware public body add a new item to a meeting agenda after it's already been posted?
A: Yes, under this opinion's reading of the law at the time, the statute allowed additional items, including added business, to appear on a later, revised agenda.

Q: What went wrong with New Castle's revised agenda, if adding the item was allowed?
A: According to this opinion, the revised agenda failed to state, as the statute required, the reason for the delay in posting it, and that omission was itself the violation.

Q: Did the council's response that this was a "minor" or "technical" problem work?
A: No. This opinion held that the open-meetings law is to be construed liberally in favor of public access, and distinguished the technical-violation defense the council raised, finding a real violation here.

Background and statutory framework

Delaware's FOIA declares in 29 Del. C. § 10001 that open, public conduct of government business is vital to a free and democratic society. Section 10004(e)(2) requires seven days' public notice of regular meetings, including the agenda if determined by then, but allows the agenda to change to add or remove items as they arise. Section 10004(e)(5) requires that when an agenda isn't ready at the time of the initial notice, it must be added at least six hours before the meeting and the reasons for the delay must be briefly stated on the agenda itself. The citizen-petition enforcement mechanism is at § 10005(e). Applying the liberal-construction principle from News-Journal Co. v. McLaughlin and Delaware Solid Waste Authority v. News-Journal Co., and distinguishing the technical-violation defense raised in Ianni v. Department of Elections of New Castle County, the AG found the council's revised agenda violated § 10004(e)(5) by omitting the required explanation for the delay.

Citations and references

Statutes:

• 29 Del. C. § 10001, declares FOIA's policy favoring open, public conduct of government business
• 29 Del. C. § 10004(e)(2), requires seven days' notice of regular meetings and permits later agenda additions
• 29 Del. C. § 10004(e)(3), requires notice of special or rescheduled meetings with an explanation for shortened notice
• 29 Del. C. § 10004(e)(5), requires a stated reason when an agenda is added after the initial notice
• 29 Del. C. § 10005(e), authorizes a citizen complaint and the Attorney General's determination

Cases:

• News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977), holding FOIA must be liberally construed in favor of citizens
• Delaware Solid Waste Authority v. News-Journal Co., Del. Super., 480 A.2d 628, 631 (1984), describing open-meetings laws as ensuring accountability and requiring liberal construction with narrowly construed exceptions
• Ianni v. Department of Elections of New Castle County, Del. Ch., Nos. 8590, 8591 Consolidated, slip op., Allen, C. (August 29, 1986), distinguished as involving different, more serious notice defects still found to violate the Act

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/03/24/95-ib15-freedom-of-information-act-complaint-mayor-and-council-of-city-of-new-castle-29-del-c-10005e/
• Original PDF: not linked from landing page

Original opinion text

March 24, 1995

Del. Op. Atty. Gen. 95-IB15 (Del.A.G.), 1995 WL 794547

( requesting that city council vote to reapprove ordinance passed at public meeting held in violation of the open meeting requirements due to council's failure to state in revised agenda reasons for the delay in posting a revised agenda )

The Honorable John F. Klingmeyer

City of New Castle

220 Delaware Street

New Castle, DE 19720

Re: Freedom of Information Act Complaint Mayor and Council of New Castle 29 Del. C. § 10005(e)

Dear Mayor Klingmeyer:

This is the Attorney General's final written determination pursuant to 29 Del. C.§ 10005(e) in the above-referenced matter.

As you are aware, subsequent to receiving your Complaint by facsimile on March 1, 1995, the Attorney General conducted an investigation to determine the validity of the complaint in accordance with 29 Del. C. § 10005(e). During said investigation, after forwarding to the President of New Castle City Council ("the Council") a copy of your Complaint, the Attorney General on March 3, 1995 requested and received from the Council copies of all public notices, agendas, special meeting minutes and executive session minutes applicable to the Complaint. 1

The relevant facts asserted in your Complaint are as follows. You alleged that the agenda for the December 13, 1994 regular monthly meeting of the Mayor and Council of New Castle City failed to refer to any action regarding the consideration of an ordinance (No. 352) reducing the compensation of the Mayor for serving as the Judge of Mayor's Court. The agenda for the January 10, 1995 meeting of the Mayor and Council lists under the "Old Business" section the third and final reading of this ordinance. The Complaint further asserted that the January, 1995 agenda incorrectly indicated that City Council gave a first and second reading of the ordinance at the December meeting without proper notification required by the Delaware Freedom of Information Act ("FOIA"). Additionally, you alleged that the addition of the proposed ordinance on the agenda at such a late date prior to a meeting violated FOIA as well as the New Castle City Charter.2 Based on the above allegations, you requested that the action taken by the Council at the January 10, 1995 meeting in relation to the ordinance reducing the compensation of the Mayor for serving as Judge of the Mayor's Court be voided.

The response by the President of the Council submitted on March 16, 1995 noted that the Complainant submitted only one (1) agenda for the December 13, 1994 meeting which was posted on December 6, 1994. According to the records provided by Council, the agenda changed after that date. The amended agenda for the December 13, 1994 Council meeting posted on December 12, 1994 gave public notice of the first and second reading of the ordinance reducing the compensation of the Mayor for serving as Judge of the Mayor's Court. The Council meeting minutes from December 13, 1994 established that the first and second reading of the ordinance did occur and the ordinance was adopted. The documents presented by the Council clearly showed that the revised agenda was posted on December 12, 1994, one (1) day prior to the December 13 meeting. There was no dispute that the agenda for the regular monthly meeting which was seven (7) days prior to the meeting on December 6 did not provide notice of the first and second reading of the ordinance, however, a later agenda posted on December 12 did provide such notice.

The response by Council also denied that the agenda for the January 10, 1995 meeting was posted on January 10, 1995 as alleged in the Complaint. The Council contended that the agenda for this meeting was first posted on January 3, 1995. The response further denied that the agenda of the January 10 meeting violated FOIA because a third and final reading of the ordinance did occur at said meeting and was unanimously approved. The Council in its submission contended that the omission of the reference to the first and second readings on the agenda for the December 13, 1994 meeting was merely an administrative oversight and not a substantive violation of FOIA. To support this contention, the Council cited Ianni v. Department of Elections of New Castle County, Del. Ch., Nos. 8590, 8591 Consolidated, slip op., Allen, C. (August 29, 1986) for the proposition that a technical violation of 29 Del. C. § 100 et seq. did not warrant relief or intervention pursuant to 29 Del. C. § 10005(e). Council further argued that the public would not have benefited from an explanation of why the posting of the agenda item in question was delayed.

THE LAW

29 Del. C. § 10001. Declaration of policy.

It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall 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; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted and shall be construed.

29 Del. C. § 10004. Open meetings.

(e)(2) All public bodies shall 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, if such has been determined at the time, and the dates, times and places of such meetings; however, the 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.

(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such a meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.

(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda. (Emphasis supplied).

DECISION AND ORDER

After careful review of the above statutory provisions contained in 29 Del. C. § 100 et seq., the documents supplied by both parties, and the relevant case law and statutory provisions, we find that the Council's failure to state the reasons for delay in posting the revised agenda for the December 6, 1994 meeting, which included the first and second reading of the ordinance reducing the compensation of the Mayor for serving as Judge of Mayor's Court, violated 29 Del. C. § 10004(e)(5).

In the present case, the agenda for the December 13, 1994 meeting of City Council posted December 6, 1994 failed to contain any reference to the ordinance pertaining to the compensation of the Mayor as Judge of Mayor's Court. The Council in its submission conceded that a revised agenda was posted on December 6, 1994 listing the proposed ordinance. It was also uncontested by the Council that the revised agenda failed to state the reasons for the delay in posting as required by § 10004(e)(5).

First, under a similar set of circumstances, this office concluded in Atty Gen. Op. No. 94-I037 (attached hereto) that an agenda which failed to state an explanation of the reasons why the seven (7) day notice of a special meeting under 29 Del. C. § 10004(e)(3) constituted a violation of the Act. Similarly, the failure by Council in the instant appeal to set forth reasons for the delay in posting an agenda which is not available at the time of the initial public notice violates the Act in the same manner as the failure to set forth reasons why a special or rescheduled meeting is held less than seven (7) days after the scheduling decision is made under 29 Del. C. § 10004(e)(3).

Second, this office must follow established case law that the Freedom of Information Act should be construed liberally in favor of the citizens of Delaware as declared in 29 Del. C. § 10001. News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362 (1977). In Delaware Solid Waste Authority v. News-Journal Co., Del. Super., 480 A.2d 628, 631 (1984), the Delaware Supreme Court articulated the purpose and intent of the Act as follows:

Sunshine laws requiring that meetings of governmental or public bodies be open to the public have been enacted in every state. These open meeting laws ensure governmental accountability, inform the electorate, and acknowledge that public entities, as instruments of government should not have the power to decide what is good for the public to know. In addition, open meeting laws promote the free flow of information so that the news media may report events accurately, rather than be forced to rely on potentially biased or inaccurate leaks. Consistent with these salutary purposes, open meeting laws are liberally construed, and closed session exceptions are strictly interpreted to limit non-public meetings. (Citations omitted).

The Act contemplates that citizens have a right to know and participate in government decisions and that, through participation and knowledge, better collective decisions can be made on behalf of the public. See Ianni v. Department of Elections of New Castle County, Del. Ch., Nos. 8590, 8591 Consolidated, slip op., Allen, C. (August 29, 1986) at pp. 7,8.

Third, The Council relied on Ianni in defense of its position to argue that certain technical violations of the Act do not infringe upon substantial public rights and therefore do not warrant relief. Council argued that the omission of an explanation on the revised agenda for the inclusion of the ordinance relating to the reduced compensation of the Mayor was such a technical violation and the failure to provide an explanation on the revised agenda did not harm the public. However, the Ianni decision can be clearly distinguished from the instant complaint.

In Ianni, certain citizens requested a mandatory injunction against the Delaware Board of Elections to open polling places during the primary election. The allegations were that the Board failed to give adequate notice of a public meeting under 29 Del. C. § 10004(e)(2), the notice posted failed to state the time of the meeting and that a reasonable number of notices were not made available to the public. While the Court indicated that not every failure to comply with the Act is a violation of substantial public rights, the Court determined that these violations did, in fact, infringe upon substantial public rights. In upholding a violation of the Act, the court employed a balancing between the objectives of the Act, namely the public right to know, against the technical nature of the violations.

This office through the enforcement provisions contained in 29 Del. C. § 10005(e) formally requests that the City Council correct the above violation of 29 Del. C. § 10004(e)(5) by submitting a new ordinance in conformance with FOIA. This office requests copies of all public notices and agendas for the re-noticed meetings, as well as the meeting minutes. Otherwise, this office shall take appropriate enforcement action as provided in 29 Del. C. § 10005(e).

Very truly yours,

John K. Welch

Deputy Attorney General

Lawrence W. Lewis

Deputy Attorney General

LWL/lw

Enclosure

APPROVED:

Michael J. Rich

State Solicitor

cc:

The Honorable H. Thomas McGuire

Gerald P. Kavanaugh, Jr., Esquire