Civil Division - New Castle County
March 20, 1996
Brian D. Shirey, Esquire
Tunnell & Raysor
Race & Pine Streets
P.O. Box 151
Georgetown, DE 19947
Re: Motion for Reconsideration - Georgetown Town Council
Lynn M. DeLeon - Freedom of Information Act Complaint, 29 Del. C. §10005(e)
Dear Mr. Shirey:
Please consider this the Attorney General's written decision regarding the Georgetown Town Council's ("the Council") motion for reconsideration received by facsimile on March 11, 1996.
This office forwarded you as counsel to the Council on February 13, 1996 a copy of the Attorney General's written determination in this matter pursuant to 29 Del. C. §10005(e). This office accepts your representations that, for unknown reasons, you did not receive a copy. It therefore grants the Council a thirty (30) day extension from March 7, 1996 to comply with the renoticing of this matter on the agenda with proper public notice at a public meeting held by the Council. As we requested in our written determination, please forward to our office copies of the public notice, agenda and meeting minutes for the rescheduled meeting.
To the extent the Town moves for reargument citing Kansas City Star Company v. Fulson, 859 S.W.2d 934 (1993) for the following reasons, we find that decision inapplicable to our written determination issued pursuant to by 29 Del. C. § 10005(e) in this matter and deny the motion. The Missouri Court of Appeals held in Kansas City Star Company that a workshop held by a school board focusing primarily on personal relations, and not on board business, did not constitute "public business" within the meaning of Kansas' Freedom of Information Act. The Court concluded the school board did not have to comply with the public meeting notice, agenda and record keeping requirements of the Kansas Freedom of Information (the "Act"). 859 S.W.2d at 941. The court specifically ruled that the matters addressed at the workshop held by the school board "[c]entered around the basic concepts of productive human interaction. The workshop included an analysis of each board member's role in the group interaction and process of decision making." 859 S.W.2d at 941. The court therefore concluded that no public meeting was necessary as the Board did not conduct public business as defined by the Kansas Act. We find that decision inapplicable to the facts or law outlined in the Attorney General's February 13, 1996 written determination in this matter.
As outlined in that letter, we believe there is no doubt, based upon the facts in the record, that the Town of Georgetown conducted "public business" within the meaning of the Delaware Act. Twenty-nine Del. C. §10002(b) provides that "public business means any matter over which the public body has supervision, control, jurisdiction or advisory power." Id. The November 27, 1995 memorandum signed individually by three of the four Council members specifically covered personnel policies regulating the Council employees which are matters over which the Council clearly has "supervision, control, jurisdiction and advisory power." The November 27, 1995 memorandum detailed salary policies, personnel policies for Town employees, employees' pay policy for docking pay without required written approval for vacation, procedures for issuing monies out of the cash drawer, and leave and departure policies for the Town of Georgetown employees. The Council's defense in its answer to the complaint was not that a public meeting was not required or that "public business" was not transcribed. Instead, the Council's defense to the alleged violations focused on the Council's position that no quorum was assembled and that each member individually reviewed the executed November 27, 1995 memorandum by Town Council members. The Attorney General therefore correctly concluded that meeting in "subgroups to discuss, formulate and execute the November 27, 1995 memorandum suggested that the Council acted deliberately to document the public notice, agenda, and recording keeping requirements of the Act." See, Attorney General Opinion No. 96-IB02 attached as Exhibit "B". At page 3 of the Attorney General's February 13, 1996 written determination, this office also pointed out that the Council conceded that Councilperson Hovington had the memorandum prepared and subsequently met with Councilperson Mabel Givens to review the same and that Councilperson Hovington also reviewed the memorandum with Councilperson Sylvia Short-Calhoun on a separate occasion. The fact that an individual quorum did not meet does not excuse the Act's requirements contained in 29 Del. C. §10004(e)(2)(3)(4) and (f).
Therefore, we deny the Town of Georgetown's request for reconsideration as clearly public business was conducted by Council and the Council failed to comply with the Act's public meeting agenda, notice and minutes requirements. We grant the Council's extension to March 27, 1995 to correct the violations by re-noticing a public meeting and complying with all requirements of the Act, including 29 Del. C. §100044(e)(1),(2),(3) and (4). Please forward the relevant documents outlined above to us.
John K. Welch
Deputy Attorney General
Michael J. Rich
cc: Ms. Lynn M. DeLeon, complainant
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