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10001-declarations

96-IB20: FOIA-Georgetown Second Complaint

Written on: May 20th, 1996 in 10001 Declaration of Policy

Civil Division – New Castle County
May 20, 1996

Del. Op. Atty. Gen. 96-IB20 (Del.A.G.), 1996 WL 345801

(concluding that public bodies (a) are entitled, in their discretion, to make additions, deletions, and corrections to agendas, (b)need not list in the minutes the names of attendees and other matters not statutorily prescribed and (c) are not required to allow public input at public meetings)
Ms. Lynn M. DeLeon

307 Carolyn Street

Georgetown, DE 19947
Re: Freedom of Information Act

29 Del. C. §10005(e) – Second Complaint
Dear Ms. DeLeon:
Please consider this the Attorney General’s written decision on the above-referenced Complaint.

The operative facts are that on March 11, 1996 this office received your second Complaint filed against the Georgetown Town Council (“Town Council”) pursuant to 29 Del. C. §10005(e). The Complaint alleged that the Town Council held a public meeting and appointed Mr. Ernest Donald Coyman as Treasurer and Ms. Amy Lowe as Assistant Secretary/Assistant Treasurer without a public meeting and a vote. See 29 Del. C. §10004(e)(2)(3) and (4).

Paragraph two of the Complaint alleged that Councilpersons Calhoun, Givens and Hovington held an interview with Chris Ciffate of Channel 47 television. The Complaint stated that topics allegedly discussed were the termination of the Town Manager and the hiring of John Sergovic, Esquire by the Town Council. The Complaint alleged that all three Councilpersons, in this interview, stated for the record that there was a meeting and a vote in which Mr. Sergovic had been hired.

Paragraph three of the Complaint alleged the following. First, since the termination of the Town Manager, Ms. Hovington has assumed the responsibility for making sure the minutes are prepared. Second, it alleged that since November 15, 1995, all of the minutes have not been properly prepared and that until Mr. Coyman was hired, the minutes had been accepted as presented and no corrections had been made. Third, it alleged that the minutes failed to list visitors in attendance, left off cash receipts, building permits and when votes are taken. Fourth, it alleged that the minutes do not properly record the votes of Councilpersons. Fifth, it alleged that Town Council has restricted public comment to pertain only to items on the agenda and has not permitted questions and/or discussion of issues that the public would like to be addressed. Finally, it alleged in paragraph three that meetings have not been taped properly.

Paragraph four of the Complaint alleged that resolutions are not being added to the minutes and being placed in minute books for the public to review. The Complaint stated that the public has been “kept in the dark” since January, 1995 as to how “much money has come in” and how much money has been disbursed to pay bills. The Complainant enclosed copies of the minutes from the October 25, 1995, November 9, 1995, November 15, 1995, December 13, 1995, January 10, 1995 and January 24, 1995 meetings.

The Town Council filed an answer to the Complaint on April 18, 1996. The Town Council provided exhibits to its answer which included copies of the personnel policies for the Town Council. The Town Council also provided detailed answers to each one of the Complaint’s allegations.

The Law

29 Del. C. § 10004(e) provides in part:

(2) All public bodies shall 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. 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 or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office 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, and making a reasonable number of such notices available.

(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.

(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer. (Emphasis supplied).
Decision and Order

For the following reasons, the Attorney General finds no violations of the Act by the Town Council.

First, with regard to the allegation that the Town Manager Sandy Coyman and Town Clerk Amy Lowe were appointed as Treasurer and Secretary/Assistant Treasurer respectively without a public meeting vote, the Town denied these charges. The Town asserted that the Complainant held the position and that the titles of Town Clerk and Secretary/Assistant Treasurer are synonymous. The Town Council stated that an appointment was not necessary and that no such appointment occurred. No public records have been produced to date to substantiate this allegation. As Exhibit “1,” the Town Council attached a copy of the personnel ordinance addressing this issue. The Town Council correctly concluded that Ms. Coyman’s appointment as Treasurer did not occur. However, the responsibilities of Town Manager in the Town Charter do not include financial responsibilities. Finally, since no meeting minutes or public notices have been supplied to this office to support this allegation, we find it unfounded.

Second, with regard to the claim that the minutes have been improperly prepared from November 15, 1995 until Mr. Coyman was hired by the Town Council, we find that a public body has the discretion to determine the agenda and to determine what corrections and deletions, if any, are required when adopting the minutes pursuant to the Act’s record keeping requirements. See 29 Del. C. §10004(e)(2) and (3). Twenty-nine Del. C. §10004(e)(2) and (3) require a public body to give public notice and provide an agenda of its regular or special meetings. Applying plain meaning statutory rules of construction, this statute does not require or allow citizens to set the agenda. See, e.g. Chrysler Corp. V. State, Del. Supr., 457 A.2d 345 (1983) (where a statute is plain and unambiguous, a court should give statute effect with referring to traditional aids of statutory construction); Opinion of Justices, Del. Supr., 290 A.3d 645 (1972) (If statute is unambiguous, courts should not construe statute other than plain meaning of statute). While this office realizes certain public bodies have adopted informal written procedures to allow public input to the agenda by citizens, 29 Del. C. §10004(e)(2) and (3) does not require the same. The Town Council stated that although the Complainant disagreed with proposed corrections, deletions and adoption of the minutes, the Town Council is complying with the Act’s requirements. See 29 Del. C. §10004(f). That section provides that minutes “shall include a record of those members present in the record, by individual members . . . of each vote taken and action agreed upon.” The Town Council stated that the minutes attached to its answer the Complaint clearly demonstrate the statutory requirements for waiving the contents of minutes have been met by the Town Council. We agree.

Third, with regard to the Complaint’s allegation that the citizens are being denied the right to comment, and that public comment is restricted to items on the agenda, the Town Council asserts correctly that this is a legitimate exercise of a public body’s authority to determine the agenda. The Town Council asserts that it routinely honors good faith requests to place items of public concern on the agenda and that to the best of its knowledge, no request has been made by the complainant. If such a request is made, we fully encourage the Town Council as a public body to approve it consistent with the procedures permissible under the Freedom of Information Act. See 29 Del. C. §10001.

Fourth, with regard to the claim concerning the taping of public meetings, the Town Council correctly cites Attn’y Gen. Op. No. 95-IO23 in which we opined that, “[w]hile the public body is general required to tape ‘public hearings’, no such duty requires the taping of “public meetings.” This is a current statement of the law. Therefore, this allegation is unfounded.

Finally, the Complaint’s allegation concerns the manner with which public records have been maintained by the Town. The Town Council correctly asserted that there is no allegation in the Complaint that a request for public record has been denied. In addition, while this count in the Complaint appears to be an alleged violation of 29 Del. C. §10003(a), it lacks specificity and must be dismissed.

Very truly yours,
John K. Welch

Deputy Attorney General
APPROVED:
Michael J. Rich

State Solicitor
JKW/jb
cc: Brian D. Shirey, Esquire


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