Civil Division-New Castle County September 1, 1998 Clifford B. Hearn, Jr., Esquire Clifford B. Hearn, Jr., P.A. P.O. Box 1205 Wilmington, DE 19899-1205 RE: Freedom of Information Act Complaint Against Town of Townsend Dear Mr. Hearn: By letter August 11, 1998, Ellen H. Cole alleged that the Town of Townsend ("the Town") held a meeting on August 5, 1998 in violation of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"). Specifically, she contended that the Town did not publish adequate notice of its intent to elect a new member for a vacant seat on the Council. She also contended that the procedure by which the vote was taken to elect R. Charles Murray as Councilperson pro tempore violated the Town Charter. The Attorney General's Office does not have jurisdiction to determine whether the Town may have violated its own Charter. Accordingly, we only address the allegation that the Town violated the notice requirements of FOIA. At the request of the Town of Townsend, we have agreed to expedite our consideration of this complaint because there are significant items included on the agenda for a Council meeting scheduled for September 2, 1998 which may be affected by the outcome of this complaint. Section 10004(e)(2) of FOIA provides: "All public bodies shall give public notice of their regular meetings . . . 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; . . . ." Section 10004(e)(4) further requires that notice be made by "conspicuous posting of said notice at the principal place 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, . . . ." The facts are not in dispute here. In your letter responding to Ms. Cole's complaint, the Town confirmed that notices were posted on July 30, 1988 at the United States Post Office in Townsend and at the Ratledge Achievement Center, the Town Commission's normal meeting place. The notice was posted six days in advance of the August 5, 1998 meeting instead of the seven days required by FOIA. In Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 10, 1986) (Allen, C.), the Board of Elections posted the notice six days in advance of the meeting. The Chancellor found that to be a violation which, taken in context with the rest of the issues raised in that case, resulted in a reversal of the Board's actions. In this case, the question of timely notice must be considered together with the sufficiency of the notice. The agenda for the August 5, 1998 included the following item of "New Business," "d) Nominations For Vacant Town Council Seat." Ms. Cole contend that the agenda was deficient or misleading because "[i]t was not advertised that Mr. Murray's appointment was going to be voted on at the meeting." FOIA defines an agenda to be a "general statement of the major issues expected to be discussed at a public meeting." 29 Del. C. Section 10002(f). In Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 10, 1986) (Allen, C.), the Board of Elections posted a notice of a meeting and listed on the agenda, "Primary Election." When the Board met, it voted to open fewer polling stations in New Castle County in the primary elections. Chancellor Allen held that this notice was insufficient
"to alert the public to the fact that the Board would consider and act upon a proposal to consolidate election districts for the purpose of the primary election. While the statute requires only a 'general statement' of the subject to be addressed by the public body, when an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of [FOIA] to state the subject in such broad generalities as to fail to draw the public's attention to the fact that specific important subject will be treated. In this instance, all that would have been required to satisfy this element of the statute would have been a statement that 'election district consolidation; or 'location of polling places' was to be treated."
1986 WL 9610, at p. 5 (emphasis added). In Ianni, Chancellor Allen was concerned with the overall question of whether, as a factual matter, the notice given by the Board was "ineffective to alert members of the public with an intense interest in this matter of the Board's consideration of it." Id. at p. 4. In addition to the ambiguous agenda, the notice was published on a door outside the Board's offices on the third floor of the Carvel State Building. The Board made no effort to post the notice and agenda elsewhere, or to take "other steps to make the notice publicly available." Id. at p. 5. As a result, only four or five members of the public knew about the meeting, and they left before the Board addressed the issue whether to consolidate election districts. Ianni dealt with the electoral process in that the Board was making decisions which would affect the voting process for elective offices. This complaint questions the election process for selecting a town councilperson to fill a vacancy. Borrowing from the language in Ianni:
While the decision involves the electoral process, these rights of the public take on an enhanced importance. It is not only important that the mechanism for exercising the vote be in fact fair, it is also fundamentally important that it be perceived as fair.
Id. at 6. The issue of whether the public was misled by the agenda's use of the term "nomination" is more troubling. In Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., 1994 WL 274295 (May 19, 1994), the Board held a series of meeting to discuss proposed regulations. For the June 9, 1993 meeting, the agenda stated that the Board would "continue deliberation upon the proposed new Regulations" in "continuation" of its May 10, 1993 meeting. The notice, however, did not disclose what turned out to be the sole purpose for the public session -- to vote on, and possibly adopt, the Regulations. The significance of that omission is underscored by the fact that at the May 10, 1993 workshop, the Board had told the public (incorrectly, in retrospect) that another public meeting would be held. Thus, the public had been given reasonable cause to believe that the Board would hold another public hearing at some later time before adopting any regulations. 1994 WL 274295, at p. 9. The statutory definition of the term "agenda" "shall include but is not limited to a general statement of the major issues expected to be discussed at a public meeting" of the body." 29 Del. C. § 10002(f) (emphasis added). FOIA requires that the notice be reasonably calculated to provide adequate notice of the issues to be considered by the public body. We believe that the notice in this case fails to meet that standard. There is a fundamental difference between the act of nominating a person for an office and electing a person to an office. The Council, like the Board in Ianni, knew that there was a significant amount of public interest in this particular vacancy. The spirit of FOIA is not met by indicating nominations would occur, when, in fact, an election was conducted. In sum, we find that the Town violated FOIA in two respects: (1) by failing to post notice of its August 5, 1998 meeting at least seven days in advance of the meeting and (2) by failing to provide adequate notice that there would be an election, rather than just nominations, for the Council vacancy. The question then turns to whether the violations were merely technical and not involving substantial public rights or whether the cumulative effect of the violations leads to a conclusion that substantial public rights have been affected. As in Ianni, we must conclude that the issue of electing public officials is such an important fundamental public right that violations which might be excusable under another set of circumstances are not excusable in this context. The overriding issue is whether the public's rights have been protected. Analogizing from Ianni, interested members of the public have a right to be heard on issues which substantially affect their right to determine the method and manner in which they will be governed. As the Court noted in Ianni:
When public participation is afforded, it is reasonable to hope, and the drafters of the [FOIA] clearly did hope, that two kinds of benefits would result. The public body might be put in a position to make a better decision ultimately and, secondly, a citizen or organization of citizens that understands the decision may feel, if not pleased with the ultimate outcome, at least content that its views have been considered and the decision has been reached in an impartial and fair way.
1986 WL 9610 at 6. We conclude that the Council's violations have adversely affected substantial public rights. Therefore, we direct the remaining four regularly elected members of Council to either notice a special meeting for the purpose of nominating and/or electing a Councilperson pro tempore or to include that item on the agenda for the next regularly scheduled Council meeting. We also direct the Council to confirm the sufficiency and timeliness of such notice by sending copies of the same to this office at the time it is publicly posted. This opinion does not address the validity of any acts or orders of the Council which resulted from the participation of Mr. Murray subsequent to August 5, 1998. Sincerely, Michael J. Rich State Solicitor cc: Hon. M. Jane Brady, Attorney General Keith R. Brady, Chief Deputy Attorney General Ms. Ellen H. Cole W. Michael Tupman, Deputy Attorney General Ms. Chrystyna Savitz, Opinion Coordinator
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