Civil Division-Kent County
John W. Paradee, Esquire
Prickett, Jones & Elliott
11 North State Street
Dover, DE 19901
Re: Freedom of Information Act Complaint Dover Safety Advisory Committee
Dear Mr. Paradee:
By letter dated June 25, 2001, you alleged that the City of Dover Safety Advisory Committee ("the Committee") violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"). Specifically, you allege that the Committee failed to notice in the agenda for a meeting on June 25, 2001 a discussion of a municipal waste transfer facility operated by Eastern Shore Environmental, Inc. ("ESE") and the objections of the Dover Air Force Base to the location of that facility.
By letter dated June 27, 2001, we asked for the City's response, which
we received on July 5, 2001. According to the City, the "City Clerk received
correspondence regarding a pending conditional use application filed by
ESE. This correspondence was given to each of the members of the Committee
and the agenda was amended to include discussion of this correspondence."
The Committee voted to recommend to the City Council at its next meeting
on July 9, 2001 to go on record opposing the conditional use application.
FOIA requires every "meeting of all public bodies" to be "open to the public except those closed" for executive session as authorized by statute. 29 Del. C. § 10004(a). As a general rule, public bodies must "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." Id. § 10004(e)(2). "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 of the deletion of items including executive sessions which arise at the time of the public body's meeting." Id.
FOIA defines a "meeting" of a public body as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." 29 Del. C. § 10002(e). FOIA defines "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power." Id. § 10002(b).
A. Amending the Agenda
By letter dated May 30, 2001, the Commander of the Dover Air Force Base wrote to Constance C. Holland, Director of Planning for the Kent County Regional Planning Commission, about the conditional use site plan review of ESE's municipal solid waste transfer station. "As the adjacent landowners to ESE, the Dover Air Force Base has a number of concerns with the operating of a that transfer station less than 1500 feet from our primary runway, and just down the road from Gate 5, the hazardous cargo entrance to the base."
The agenda for the Committee's June 25, 2001 meeting did not list the municipal solid waste transfer station as an item for discussion. At the meeting on June 25, 2001, the Committee voted to add to the agenda a discussion of the Base Commander's letter (which the Mayor had brought to the meeting). According to the minutes of that meeting, "Mayor Hutchinson advised members that negotiations are currently occurring with ESE and Dover Air Force Base regarding this matter and that the Regional Planning Commission has recommended approval. This matter is now being presented to Kent County Levy Court for final approval. Since the City of Dover has always been an avid supporter of Dover Air Force Base, he requested that members consider issuing a proclamation or resolution in support of the Dover Air Force Base regarding this issue." The Committee voted unanimously to approve the resolution.
FOIA permits changes in the agenda "to include additional items . . . which arise at the time of the public body's meeting." 29 Del. C. § 10004(e)(2). This Office has previously determined that "[i]f a public body knows that an item of public interest will be addressed at a meeting, it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA." Att'y Gen. Op. 97-IB20 (Oct. 20, 1997).
The issue of the Base Commander's letter "arose well prior to the meeting" which took place on June 25, 2001, and "could have been included in the agenda posted for that meeting outside the seven days required by law." Att'y Gen. Op. 99-IB11 (June 25, 1999). The Committee suggests that it had to act quickly in order to make a recommendation to the City Council, but the Council's next meeting was not until July 9, 2001. The Committee had other options to comply with FOIA: to notice another regular meeting within seven days, or a special or rescheduled meeting within 24 hours. See Del. C. § 10004(e)(3). Compare Att'y Gen. Op. 01-IB02 (Jan. 30, 2001) (town held a special meeting to decide whether to appeal an adverse court decision).
The City Council met on July 9, 2001. The agenda for that meeting listed for discussion: "Proposed Expansion of [Municipal Solid Waste] Transfer Site (ESE) Kent county Site Plan Review. After discussion, the Council issued a written proclamation in support of the Dover Air Force Base's position. The Council also voted to present "copies of this proclamation to members of the Kent County Levy Court for consideration during their meeting on July 10, 2001."
The City contends that the public vote at the Council's July 9, 2001 meeting remedied the earlier violation of FOIA by the Safety Advisory Committee. We do not agree because "citizens have the right to monitor decisions of public officials in formulating public policy." Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 6
(Oct. 1, 1990). The public has a right to be involved not only in final
agency action, but also in "fact gathering, deliberations and discussions,
all of which surely influence the public entity's final decision." Id.
C. Public Business
Although the Committee did not raise the issue, we must address whether expansion of the ESE waste transfer facility was a matter of "public business" to trigger the open meeting laws. FOIA defines "public business" as any matter of which the public body has "supervision, control, jurisdiction or advisory power." The authority to grant a conditional use permit to ESE lies with the Kent County Levy Court, not the City of Dover. Nevertheless, the City Council's proclamation opposing the permit "was not merely for academic discussion" on the grant or denial of the permit "which would have no effect upon the City." The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977). The decision by the Levy Court will have an impact on waste removal in the Dover, a matter "over which the City Council clearly had control, supervision and jurisdiction." Id. The purpose of the Council's proclamation was "to persuade" the Levy Court not to grant ESE a conditional use permit. Id. at 360.
We conclude that the discussion of the ESE waste transfer facility at the Council's July 9, 2001 meeting was a matter of "public business." Although the agenda for that meeting listed the transfer facility, the public did not have notice of the earlier discussions by the Safety Advisory Committee. The City violated the open meeting law because the public was not involved in the "fact finding, deliberations and discussions, all of which surely influence the public entity's final decision." Levy, supra.
We decide that remediation is unnecessary. ESE's conditional use permit is before the Kent County Levy Court. The Levy Court will take the matter up again at its next meeting. Because the City Council does not have ultimate supervision, control, or jurisdiction over the permit, we do not believe that any remedial purpose would be served by causing the Council to reconsider its non-binding proclamation against the permit. See McLaughlin, supra (Chancery Court did not order any remediation for the violation of the open meeting laws by the Wilmington City Council).
For the foregoing reasons, we determine that the meeting of the Committee
on June 25, 2001 violated FOIA by failing to include in the agenda, despite
the opportunity, that the Committee would discuss the Base Commander's
letter expressing concerns about the ESE waste transfer facility. We do
not believe that any remediation is necessary because it is ultimately
for the Kent County Levy Court to approve or disapprove ESE's conditional
use permit. The Committee, we hope, will find this opinion instructive
so in the future it may strictly comply with all of the requirements of
the open meeting laws.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady, Attorney General
Nicholas H. Rodriguez, Esquire
Phillip G. Johnson, Opinion Coordinator BACK TO INDEX