Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Re: Freedom of Information Act Complaint Against Sussex County
Dear Mr. Kramer:
By letter dated May 23, 2001, you alleged that the Sussex County Administrator violated the Freedom of Information Act ("FOIA") by meeting in March and April of this year with his department heads and their staff to develop an operating budget for Sussex County for Fiscal Year 2002.
By letter dated June 4, 2001, we asked for the County's response, which we received on July 2, 2001. According to the County, the budget process begins on February 15th of each year when the County Administrator distributes "budget request forms and a scheduling letter to each department head. Each department head prepares a request for his or her department that includes goals for the upcoming years. Budget expenditure requests for each line item, support sheet information for amounts requested, a revenue support sheet for departments with related income, a line item cut sheet, and salary information and recommendations for each employee."
The budget process continues into March and April, when "each department head meets with the County Administrator, the Director of Finance and the Director of Accounting to explain their requests, including information regarding employee performance, salaries, capital requests, budget objectives, and future department direction." You allege that FOIA required those meetings to be noticed and open to the public
FOIA defines "public body" to include any "executive body" or "committee" of, or "advisory board" to any executive body "established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, . . . ." 29 Del. C. § 10002(a). The open meeting requirements of FOIA, however, do not apply to "[p]ublic bodies having only one member." Id. § 10004(h).(1)
The County Administrator is "the chief administrative officer of the County" appointed by the County Council. 9 Del. C. § 7003(d). Among the duties of the County Administrator is to "prepare and submit a proposed annual budget and capital program to the county government, with his recommendations." Id. § 7003(d)(5). After receiving of the County Administrator's proposed budget, the County must publish a summary of the budget in two newspapers of general circulation, and make copies of the proposal available at the County Clerk's office. See 9 Del. C. § 7002(n). There must be "public hearings on the proposed budget" before it is adopted by the County Council "not later than the 1st day of July." Id.
The County Administrator is an "executive body" as defined by FOIA, but the open meeting laws do not apply to the Administrator because he is a "body of one." 29 Del. C. §10004(h). We do not believe that FOIA applies to discussions between the County Administrator, as a "body of one," and his department heads and staff under the circumstances of this case.
In Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville & Davidson County, Tenn. App., 842 S.W.2d 611 (1992), a purchasing agent had sole authority to procure goods and services for city. Before awarding a contract for an environmental inspection program, the purchasing agent met with the city's finance director, director of environmental control, and the law director for their advice. The losing bidder sued, claiming that meeting should have been open to the public. The state appeals court disagreed. "The decision whether to award the contract rested with the purchasing agent. At most, the officials attending the meeting were providing the purchasing agent with their opinions concerning whether he should award the contract to the company that submitted the lowest bid." 842 S.W.2d at 619. Because the purchasing agent "could have made a decision without the meeting, . . . we find that the Sunshine Law did not require this meeting to be open to the public." Id.
Meetings "between an executive officer
and advisors or consultants under his direction, for the purpose of 'fact-finding'
to assist him in the execution of those duties are not meetings within
the contemplation of the Sunshine Law." Bennett v. Warden, Fla.
App., 333 So.2d 97, 99 (1976).
Id. at 99-100.It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting within the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law require it.
The open meeting requirements of FOIA do not apply to the County Administrator because he is a "body of one." This statutory exemption is not lost if an executive official consults with his or her staff to obtain facts to make an informed executive decision.
In Wood v. Marston, Fla. Supr., 442 So.2d 934 (1983), the President of the University of Florida had sole authority to appoint a new dean of the law school. The president appointed a ten-person committee to solicit and screen applicants and submit a list of the best qualified applicants. The Florida Supreme Court held that the state sunshine law applied to meetings of the screening committee. "In deciding which of the applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university." 442 So.2d at 938. The court distinguished Bennett v. Warden, supra, where the discussions between the college president and faculty about working conditions "were not decision-making in nature, but were for the purpose of fact-finding to assist [the president] in the execution of his duties." 442 So.2d at 940.
In Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985), the city manager had sole responsibility under the city charter to select the chief of police. When the police chief resigned, the city manager met with his personnel director, city attorney, and deputy police chief to interview and evaluate applicants. "The group was delegated no authority; they did not select or screen applicants . . . Their sole function was to assist the city manager in acquiring information by asking questions and then discussing with the city manager the qualifications of each candidate after the interview, so that he could decide which of the three candidates he wished to interview on a one-to-one basis." 473 So.2d at 223.
We think this case is much closer to Warden
and City of Palm Bay than Marston. The department heads and
their staff provided facts to the County Administrator to assist him in
preparing the budget for FY 2002. The meetings in March and April of 2001
were an opportunity to explain their budget requests and provide further
information about employee performance, salaries, capital requests, budget
objectives, and future department direction. Like the city manager in Palm
Bay, the County Administrator attended all of these meetings, and it
was the County Administrator who made the final decision about the proposed
budget to present to the County Council pursuant to his statutory authority.
In construing the open meeting laws, there must be a balance between "government accountability" and "administrative efficiency at the non-decisional level." Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983). The "salutary goal of letting the 'sunshine' in on [government] meetings" does not require the elimination "of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions." Id.
The County Administrator's authority is limited to preparing and recommending an annual budget. The final decision is for the County Council, which "may increase, decrease or delete any item of appropriation recommended by the County Administrator" or "add new items of appropriation." 9 Del. C § 7002(n).
On May 22, 2001, the County Administrator presented the proposed budget for FY 2002 to the County Council. On May 25, 2001, the County published in The News Journal a summary of the proposed budget and notice of a public hearing on June 19, 2001 when "all persons interested will have a reasonable opportunity to be heard." The notice also advised citizens that they could obtain a copy of the proposed budget from the Clerk of the Council. On May 26, 2001, the County posted an identical notice in the Delaware State News. In addition, the County posted notice and an agenda, listing the budget proposal, at its regular meeting place seven days in advance of the meeting.
Without question, the public had notice
of the contents of the proposed budget, and an opportunity to be heard
before the County Council took action on the proposed budget. "The public's
right of access at later stages in the decision making process, and its
accompanying right to question" ensured "accountability to the citizens."
Solid Waste Authority v. The News-Journal Co., Del. Supr., 480 A.2d
628, 634 (1984).
In your complaint, you suggest that the County Administrator and his department heads formed a "committee" of the County Council. A "committee" may be a "public body" for purposes of FOIA if it is "established by the General Assembly of the State, or established by any body established by the General Assembly, or appointed by any body or public official of the State . . . to advise or to make reports, investigations or recommendations." 29 Del. C. § 10002(a). We have already concluded that the County Administrator did not establish or appoint his department heads/and or their staff as a budget "committee" because he did not delegate any of his budget authority. We also conclude that the County Council did not establish or appoint the County Administrator, the Director of Finance, and the Director of Accounting, as a "committee" to advise the County Council on the annual budget. See Metropolitan Air Testing, 842 S.W.2d at 619 (the "group was neither created nor recognized by the Metropolitan Charter, the city ordinances, or the rules and regulations of the Division of Purchases.).
In News-Press Publishing Co. v. Carlson, Fla. App., 410 So.2d 546 (1982), the hospital board of directors was responsible for adopting the annual budget. The board delegated its responsibility to the hospital president, who appointed an ad hoc budget committee (himself and four vice presidents). The committee reviewed all of the budget requests, then met and drafted a proposed budget. The committee submitted the budget to the board of directors which "approved it with very little discussion." 410 So.2d at 547. The Florida appeals court held that the meetings of the budget committee should have been open to the public. "When public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the application of the Government in Sunshine Law is concerned." Id. at 547-48.
The court in Carlson distinguished Bennett v. Warden, supra, where the chief executive's staff did not make their recommendations "directly to the board [of trustees]. Their recommendations were considered by the president of the college who then formed his own recommendations and submitted them to . . . the governing body." 410 So.2d at 548. Under those circumstances, "[w]e held that the actions of the committee were too remote to be directly connected with the decision-making process." Id.
The County Administrator's department
heads and their staff did not make their budget recommendations directly
to the County Council. They made them to the County Administrator, who
formed his own recommendations and submitted them to the County Council
pursuant to his statutory authority. Under these circumstances, we do not
believe the department heads and their staff should be deemed an "advisory
board" to or a "committee" of the County Council.
For the foregoing reasons, we determine
that the budget meetings between the County Administrator and his department
heads and their staff in March and April of 2001 were not meetings of a
public body and therefore did not violate FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: Dennis L. Schrader, Esquire
Phillip G. Johnson, Opinion Coordinator
We note that this
exemption for a "body of one" does not apply to the public records requirements
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