If a Delaware town council votes on something that wasn't on the meeting agenda, can it fix the problem by voting again the right way?

Official title

95-IB26 Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Plain-English summary

The Greater Georgetown Chamber of Commerce complained that the Georgetown Town Council voted to evict it from Town Hall at a June 1995 meeting where the eviction was never listed on the agenda; it came up only under "additional business." The Town Council admitted the agenda omission. But by the time the AG reviewed the complaint, the Council had already held a properly noticed special meeting in August, listing the matter on the agenda in advance as FOIA requires, and had voted again, reaching the identical result. The Council's attorney also told the AG that Council members had since been briefed on the open-meetings law and that the town intended to change its agenda-preparation procedures going forward. Because the original defect had been cured through a compliant do-over vote, and because the Chamber had by then already vacated Town Hall and found other space, the AG found the matter moot and closed it without requiring any further enforcement action.

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: Did voting on an item without listing it on the meeting agenda violate Delaware's open-meetings law?
A: Yes, according to this opinion. The AG found an initial violation because the eviction vote was never listed on the agenda and instead was raised as unlisted "additional business."

Q: Could the town council fix that violation by simply holding another meeting and voting again?
A: According to this opinion, yes. The AG found the violation cured because the council held a special meeting with proper advance public notice and an agenda that specifically listed the item, then voted again.

Q: Did the AG require the town to do anything else once it held the corrective meeting?
A: No. This opinion concluded that once the corrective special meeting complied with the notice and agenda requirements, no further enforcement action was required.

Background and statutory framework

FOIA's definition of "agenda" in 29 Del. C. § 10002(f) requires a general statement of the major issues expected at a meeting. Section 10004(e)(2) requires seven days' advance public notice of regular meetings, including the agenda as then determined, while § 10004(e)(3) governs notice for special or rescheduled meetings held on shorter timelines. The citizen-complaint procedure is at § 10005(e). The AG found the Council's original June 14, 1995 vote violated these agenda-notice requirements, but found the violation remediated once the Council convened an August 8, 1995 special meeting with a compliant notice and agenda under § 10004(e)(2) and (3), and voted again to the same effect.

Citations and references

Statutes:

• 29 Del. C. § 10002(f), defines "agenda" to include a general statement of the major issues expected to be discussed
• 29 Del. C. § 10004(e)(2), requires seven days' public notice of regular meetings, including the agenda if then determined
• 29 Del. C. § 10004(e)(3), requires notice of special or rescheduled meetings with an explanation for shortened notice
• 29 Del. C. § 10005(e), authorizes a citizen complaint and the Attorney General's determination

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/08/15/95-ib26-freedom-of-information-act-complaint-29-del-c-10005e/
• Original PDF: not linked from landing page

Original opinion text

Civil Division – New Castle County

August 15, 1995

Del. Op. Atty. Gen. 95-IB26 (Del.A.G.), 1995 WL 794487

( viewing as moot alleged open meeting violation where town council convened a second meeting in accordance with FOIA and again voted to evict the chamber of commerce from the town hall )

Ms. Rosalie B. Walls

Executive Director

Greater Georgetown Chamber of Commerce

P.O. Box 1

Georgetown, DE 19947

Re: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Dear Ms. Walls:

This is the decision on the above-referenced complaint.

The operative facts are that on or about July 20, 1995 you filed a Freedom of Information Act (the "Act") complaint with our office. You stated in your complaint that on June 14, 1995 the Town Council of Georgetown ("Town Council") voted to evict the Chamber of Commerce from the Town Hall. You stated that the subject matter of the eviction was not listed on the agenda but was illegally brought up under "additional business." You enclosed copies of the relevant agenda, meeting minutes and various letters between yourself and Council. Finally, you stated that you believe this conduct violated the Act, specifically 29 Del. C. § 10004[(e)(2)].

On or about July 25, 1995, the Attorney General served the complaint by U.S. Mail on the Town Council. On August 3, 1995 the Town Council requested an extension in which to respond to the complaint noting that it did not receive the complaint until Monday, July 31, 1995. On August 9, 1995 the Town Council served its response to the complaint on the Attorney General by U.S. Mail.

The Law

29 Del. C. § 10002

(f) "Agenda" shall include but is not limited to 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 under subsection (b) of § 10004 of this title.

29 Del. C. § 10004.

(1) This subsection concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to the General Assembly.

(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 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. (Emphasis Supplied).

For the following reasons, this office finds that although there was an initial violation of the Act at the Town Council's June 14, 1995 meeting, it subsequently held a Special Meeting on August 8, 1995 in compliance with the Act. We find that the August 8, 1995 Special Meeting was held with an appropriate public notice and agenda in accordance with 29 Del. C. § 10004(e)(2). The Town Council voted again on the matter and essentially ratified its previous illegal action.

In the Town Council's August 9, 1995 response (attached) it conceded that, "[t]here is no question that the Chamber of Commerce matter was not specifically on the agenda for the June 14, 1995, Town Council meeting." However, the Town Council represented the Chamber of Commerce has now vacated Town Hall and "has found other quarters." Id. In addition, the Town Council's attorney noted that the Town Council has properly advertised its Special Meeting, and voted a second time on the issue. According to our review of the meeting minutes of the August 9, 1995 Special Meeting the second vote resulted in an identical result with the first vote to evict the Chamber of Commerce. The Town Council's attorney also noted that, as counsel, that he has subsequently met with the Town Manager, the Mayor and individual Town Council members and discussed the provisions of the Act relating to agendas. He stated that all parties now have a better understanding of the Act's provisions. He further represented that his clients intend to immediately institute new procedures relating to the preparation of agendas for its public meetings and to ensure that all requirements of 29 Del. C. Chapter 100 will be met.

Since the initial violation which occurred at the Town Council's meeting on June 14, 1995 has been corrected through a Special Meeting which complied with the Act, no further action is required by this office pursuant to 29 Del. C. § 10005(e). A review of the public notice and agenda enclosed with the Town Council's August 9, 1994 response clearly indicated it complied with the Act. 29 Del. C. § 10004(e)(2) and (3). The Attorney General considers this matter moot and concludes no further enforcement action is required.

Very truly yours,

John K. Welch

Deputy Attorney General

JKW/jb

cc:

Alan Kulajala, Town Council of Georgetown

Peter B. Jones, Esquire

APPROVED:

Malcolm S. Cobin

Assistant State Solicitor