Does a closed-door kickoff meeting between city staff, state officials, and a hired consultant violate Delaware's open-meetings law?

Official title

99-IB15 Re: Freedom of Information Act Complaint Against City of Newark

Plain-English summary

A resident complained that the City of Newark held an illegal closed meeting to discuss public business when city planning staff, the chair of the city's Parking Committee, and representatives of a private engineering consultant met without public notice. The city explained the meeting brought together city, state, and transit agency officials with the newly selected engineering firm for the first time, to go over the letter of award and the consultant's technical proposal. Six people attended alongside the consultant's representatives, drawn from the city, the state's transit corporation, and a regional planning organization. The AG found this wasn't the kind of gathering FOIA's open-meetings rule reaches. A group pulled from four separate organizations isn't a single statutory "public body," and the city's own attendees were staff employees doing their jobs, not council members forming an ad hoc committee or subcommittee. The AG looked to out-of-state cases holding that open-meetings laws generally don't reach meetings between executive officials and their subordinates, or working sessions between agency staff and outside consultants, reasoning that requiring every such administrative meeting to be public would cripple day-to-day government efficiency without adding real accountability. The AG noted the city had committed to giving the consultant's actual work product and status reports a public airing at later meetings, and cautioned that not every joint meeting of officials from different bodies escapes FOIA, since the answer depends on the specific facts of each case.

Currency note

This opinion was issued in 1999. 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 meeting have to be open to the public just because government employees and outside officials are discussing a public contract?
A: Not necessarily, according to this opinion. The AG found that a working meeting among staff from four separate organizations was not a meeting of a single "public body" under FOIA.

Q: Does a meeting between a department head and their own staff count as a public meeting?
A: No, this opinion found, noting that courts in other states generally exclude meetings between executive officials and subordinates from open-meetings requirements, since treating every such meeting as public would burden routine administrative work without adding real accountability.

Q: Does this mean any joint meeting between different government bodies is automatically closed to the public?
A: No. This opinion is explicit that the answer depends on the facts of each meeting, and the AG's office said it would keep closely scrutinizing these situations to prevent public bodies from using joint meetings to avoid FOIA's open-meetings mandate.

Background and statutory framework

FOIA requires every meeting of a public body to be open under 29 Del. C. § 10004(a), with "public body" defined in § 10002 to include committees, subcommittees, and ad hoc committees of a public body. Because the November 1999 gathering combined representatives from four separate organizations rather than one statutory body, and the city's own attendees were staff rather than a council subcommittee, the AG found no "public body" meeting occurred, consistent with The Advertiser Co. v. Wallis and SJL of Montana Associates Ltd. Partnership v. City of Billings, and with the executive-staff exclusion recognized in City of Sunrise v. News & Sentinel Co., Cape Publications, Inc. v. City of Palm Bay, and Tribune Publishing Co. v. Curators of the University of Missouri.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), requires every meeting of a public body to be open to the public
• 29 Del. C. § 10002, defines "public body" to include committees, subcommittees, and ad hoc committees

Cases:

• The Advertiser Co. v. Wallis, Ala. Supr., 493 So.2d 1365 (1986), holding open-meetings law applies only to entities governed by a deliberative body setting public policy
• SJL of Montana Associates Ltd. Partnership v. City of Billings, Mont. Supr., 867 P.2d 1084 (1993), holding open-meetings law did not apply to a meeting between city staff and a contractor
• City of Sunrise v. News & Sentinel Co., Fla. App., 542 So.2d 1354 (1989), excluding a meeting between a mayor and a department director on personnel matters
• Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985), excluding a meeting between a city manager and personnel director on hiring criteria
• Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983), on the distinction between decisional-level accountability and administrative efficiency

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/12/09/99-ib15-re-freedom-of-information-act-complaint-against-city-of-newark/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 99-IB15 (Del.A.G.), 1999 WL 33100497

Office of the Attorney General

State of Delaware

Opinion No. 99 – IB15

December 9, 1999

Re: Freedom of Information Act Complaint Against City of Newark

*1 Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Dear Mr. Porach:

Our Office received your Freedom of Information Act ("FOIA") complaint on November 18, 1999. You allege that the City of Newark ("the City") violated the open meeting requirements of FOIA by holding a meeting on November 17, 1999 to discus public business which was not open to the public. According to your complaint, those present at the meeting were several members of the City Planning Department, the Chairman of the City's Parking Committee, and representatives of F.R. Harris, Inc., a private consultant.

By letter dated November 29, 1999, we asked the City to respond to your complaint within ten days. That same day, we received the City's response (which had crossed in the mail with our letter).

The City denies that the meeting on November 17, 1999 was of a "steering committee" of the City Parking Committee. According to the City, the purpose of the meeting was to bring "officials of the City, the state and WILMAPCO" together to meet with representatives from "the selected engineering consultant [F.R. Harris] for the first time" to "review the letter of award with the consultants and to review their technical proposal in detail." In addition to the Harris representatives, there were six persons present: Cathy Dennis, of the Delaware Transit Corporation; Arthur Amick, Chair of the Newark Parking Committee; Carol Houck, Assistant Administrator of the City; Maureen Feeney Roser, Assistant Planning Director and City Parking Manager; Roy Lopata, City Planning Director; and Heather Ehrlich of WILMAPCO.

FOIA requires that "[e]very meeting of all public bodies shall be open to the public" except those closed for executive session for a purpose authorized by law. 29 Del. C. Section 10004(a). The Act defines a "public body" to include any "committee, ad hoc committee, special committee, temporary committee, advisory board [or] subcommittee" of any public body. The legal questions here are: (1) whether this group of individuals from four different organizations amounted to a "public body" for purposes of FOIA; and (2) if not, whether the four representatives from the City who were present at that meeting constituted an "ad hoc committee" or "subcommittee" of the City.

We do not believe that this was the kind of meeting of a "public body" that is controlled by FOIA. Comprised of individuals from four different organizations, the group as a whole cannot be viewed as a single statutory body, as contemplated by the open meeting law. It is important to note that the City's representatives were City employees, not members of the Council. As employees fulfilling the duties of their employment, they do not constitute an ad hoc committee or subcommittee of the City that would require a finding that they constitute a public body as that term is defined in 29 Del. C. § 10002.

*2 In The Advertiser Co. v. Wallis, Ala. Supr., 493 So.2d 1365 (1986), the Commissioner of Mental Health met with officials from other executive branch departments and union representatives to discuss contract negotiations to avert a strike. In an unrelated meeting, officials from the Alabama Medicaid Agency met with hospital officials to discuss a recent audit of expenditures. A local newspaper sued, claiming that both meetings should have been open to the public. The Alabama Supreme Court disagreed. "[W]e find that the entities to which the Sunshine Law applies are only those governed by a group of individuals who sit as a deliberative body to set policy regarding the public matters with which the entity is entrusted." 493 So.2d at 1369. See also SJL of Montana Associates Ltd. Partnership v. City of Billings, Mont. Supr., 867 P.2d 1084 (1993) (FOIA did not apply to a meeting between a city engineer and the public safety works director with a contractor to discuss construction delays on a municipal street project).

That does not mean, however, that every "joint" meeting of public officials from different public bodies is outside the scope of FOIA. The issue can only be decided on a case-by-case basis, depending on the facts presented. This office will continue to closely scrutinize such instances to assure that public bodies do not circumvent the clear mandate of public access to their meetings.

Nor does the presence of four City officials from the executive branch turn the meeting on November 17, 1999 into a "subcommittee" or "ad hoc committee" of the City. The courts in other states by and large have excluded from the scope of the open meeting laws meetings between executive officers and their subordinates. See, e.g., City of Sunrise v. News & Sentinel Co., Fla. App., 542 So.2d 1354 (1989) (meeting of mayor and city transportation director to discuss employee disciplinary matters); Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985) (meeting between city manager and personnel director to discuss criteria for recruitment of new chief of police). We find the underlying policy reasons persuasive. "Securing government accountability at the decisional level is one thing. Adversely affecting administrative efficiency at the non-decisional level is quite another thing. It is inconceivable that the salutary goal of letting the 'sunshine' in on meetings of 'public governmental bodies' envisioned the elimination of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions." Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983).

As the City points out, "any of the 'work product' generated as a result of the transit study project will be given a thorough public airing at meetings and/or workshops." Moreover, the consultant "must present status reports on progress at public meetings." The public, therefore, will have input and be involved before any decisions are made by the City to take actions affecting the public based on the consultant's recommendations.

*3 For the foregoing reasons, we find that the City did not violate the open meeting requirements of FOIA by meeting with representatives from other organizations on November 17, 1999 to discuss the Harris consulting contract.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Michael J. Rich

State Solicitor