January 28, 2004
Civil Division-Kent County (739-7641)
Mr. Timothy C. Spies Ms. Mable Granke
53 Columbia Avenue 1013 Scarborough Avenue
Rehoboth Beach, DE 19971 Rehoboth Beach, DE 19971
Re: Freedom of Information Act Complaint Against Rehoboth Beach Board of Adjustment
Dear Mr. Spies and Ms. Granke:
Our Office received your Freedom of Information Act (“FOIA”) complaint on September 23, 2003 alleging that the Rehoboth Beach Board of Adjustment (“ the Board”) violated the open meeting requirements of FOIA by holding a hearing on September 19, 2003 to consider an appeal of a building permit without allowing you as members of the public to speak.
By letter dated September 24, 2003, we asked the Board to respond to your complaint within ten days. We received the Board’s response on October 2, 2003. The Board contends that it was appropriate not to hear from the public at the appeal hearing because the subject matter of discussion was: “to consider the legal issue of the standing of the Planning Commission to appeal a decision of the Building Inspector.” According to the Board, the meeting was “to consider the Motion to Dismiss the Appeal. The Board allotted a specific amount of time for full argument from all parties on this issue. There simply was no reason for public comment as the issue was not factual but was legal.”
By letter dated October 8, 2003, we asked the Board for a transcript of the September 19, 2003 meeting. After the court reporter made the transcription, we received a copy of the transcript on November 6, 2003.
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” as authorized by statute for executive session. 29 Del. C. § 10004(a).
FOIA entitles citizens to have notice and attend meetings of public bodies to watch the
discussion of public business, but “does not afford the public any right to participate in the meetings.” City of New Carrolton v. Rogers, Md. App., 410 A.2d 1070, 1078 (1980)). While our Office has always encouraged the public’s right to speak, “the plain language of FOIA does not require public participation, only that citizens have timely notice of public meetings so that they can monitor and observe their elected public officials discuss matters of public concern.” Att’y Gen. Op. 03-IB06 (revised Feb. 11, 2003).
In that earlier opinion, however, we cautioned that “[i]f a public body chooses to allow public participation in a meeting” then “it must treat members of the public fairly and even-handedly.” Att’y Gen. Op. 03-IB06 (revised Feb. 11, 2003). “[O]nce a forum is open for the expression of views” the government may not “pick and choose those views which may or may not be expressed.” Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir. 1973)). A public body can set reasonable ground rules for public participation, for example, by limiting the time for each speaker.
The issue presented by this case is somewhat different than the issue in Att’y Gen. Op. 03-IB06 (revised Feb. 11, 2003) because the meeting of the Board on September 19, 2003 was not a regular meeting of a public body to discuss legislative and other matters. Rather, the Board was sitting in a quasi-judicial capacity to decide a controversy between the Planning Commission and Cottingham & Associates based either on the evidence presented by the parties or their legal argument. See Att’y Gen. Op. 03-IB26 (Nov. 13, 2003) (“hearings before administrative bodies like the New Castle County Planning Board are judicial in nature”). In that context, a citizen does not have standing to participate, unless he or she meets the criteria to intervene as an interested party. It is no different than in a court of law, where the trial may be open to the public to attend, but members of the public do not have any right to voice their opinion because they are not parties to the case.
We have reviewed the transcript of the Board’s meeting on September 19, 2003. The Board declined to allow either of you to speak after you requested an opportunity. The Board heard legal argument from three attorneys (Dennis L. Schrader, Esquire, on behalf of Cottingham & Associates; and M. Edward Danberg, Esquire and Walter W. Speakman, Jr., Esquire, on behalf of the City of Rehoboth). The Board also heard from one non-attorney, Mr. Harvey Shulman, a member of the Rehoboth Beach Planning Commission.
September 19, 2003 was the second day of a state of emergency declared by Governor Ruth Ann Minner in response to Hurricane Isabel. The Planning Commission’s outside counsel was unable to get to the meeting from Wilmington. After much discussion by the lawyers about the meaning of the unauthorized practice of law, the Board of Adjustment voted unanimously to proceed with the hearing “with Mr. Shulman representing [the Planning Commission] as their duly appointed representative.” Tr. at pp. 21-22.
We do not agree with the Board that Mr. Schulman was acting in the capacity as a lawful representative of the Planning Commission. After a careful review of he transcript, we believe that Mr. Shulman was acting in his capacity as a citizen who happens to be a member of the Commission. Mr. Shulman made it clear that “I am not counsel for the Planning Commission.” Tr. at p. 64. He asserted that the Commission had standing to appeal the building permit “not because they’re members of boards or agencies but because they as individuals have legal responsibilities as individuals.” Tr. at p. 86. He acknowledged that Board had made it clear in previous meetings that “we were not speaking as the Planning Commission, we were speaking as individuals.” Tr. at pp. 99-100.
Consistent with FOIA, the Board could have limited the right to speak at the September 19, 2003 hearing to the parties’ legal representatives. By allowing Mr. Schulman to speak in his individual capacity as a citizen, the Board opened the door for other citizens to have a right to speak on some equal basis. The Board should have afforded you the same opportunity to express your views as it did for Mr. Shulman because he was acting in his individual capacity as a citizen.
For the foregoing reasons, we determine that the Board of Adjustment violated the open meeting requirements of FOIA by listening to some members of the public but not to others at the hearing on September 19, 2003. We do not think that any remediation is necessary since the Planning Commission has decided not to appeal the standing issue to the Superior Court, and the building permit issue is now moot.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady
Lawrence W. Lewis, Esquire
Deputy Attorney General
Craig A. Karsnitz, Esquire
Ms. Nancy Martin
87 Henlopen Avenue
Rehoboth Beach, DE 19971
Phillip G. Johnson