July 25, 1996
Del. Op. Atty. Gen. 96-IB26 (Del.A.G.), 1996 WL 517421
(determining that reconsideration of AGO 96-IB19, solely with respect to whether remediation in the form of de novo review was appropriate or necessary, was appropriate in light of “unusual circumstances,” and that town council was in the best position to determine and weigh potential consequences of de novo review of zoning action)
Civil Division – New Castle County
Bridget A. Forder, President
Bacon Switch Preservation Society
RD2, Box 305
Delmar, Delaware 19801
Dennis L. Schrader, Esquire
Wilson, Halbrook & Bayard
107 West Market Street
P.O. Box 690
Georgetown, Delaware 19947
Re: Freedom of Information Complaint – April 24, 1996
Sussex County Council
Dear Ms. Forder and Mr. Schrader:
This is the Attorney General’s decision on the above referenced Freedom of Information Act (“FOIA”) complaint. The complaint was initiated by the Bacon Switch Preservation Society (the “Society”) against the Sussex County Council (the “Council”) by letter dated April 24, 1996 and received by the Attorney General on May 6, 1996. The Attorney General forwarded the complaint to the Council on May 9, 1996 and requested that it submit a response within 10 days. The response was received on May 30, 1996. We reviewed the foregoing submissions as required by 29 Del. C. § 10005(e), and for the reason stated below, we find no violation of FOIA.
The complaint concerns a visit by certain members of the Council to a manufactured housing facility in Pennsylvania. The Society states that it attempted to obtain information about the visit after a local newspaper reported that “seven members of the county council and administration participated in a tour of Skyline Homes in Leola, Pennsylvania on February 22, 1996.” The Society was concerned about the visit because it appeared to involve a quorum of the Council meeting with a group which the Society alleges has a special interest in Sussex County land use planning.
When the Society contacted the County Administrator’s office for information on the tour, the office indicated it had no information, and suggested the Society contact First State Manufactured Housing Institute (the “Institute”) which sponsored the tour. Thereafter, the Society filed this complaint in which it questions whether the tour constituted a non-public meeting in violation of FOIA.(1)
In response, the Council acknowledges that it accepted an invitation from the Institute to attend a tour of a manufactured housing facility. The Council felt it was appropriate for its members to attend the tour because the Sussex County government is in the process of formulating a land use plan which will include regulations for manufactured homes. The invitation and decision to accept it were discussed publicly at the January 23, 1996 and February 13, 1996 Council meetings (See excerpts from meeting minutes attached to the Council’s response). In addition, the date and time of the tour were reported in the County Administrator’s report of February 13, 1996, along with an invitation to the press to attend.
The Council states that it never appointed anyone to attend the tour; rather attendance was voluntary. The Council further states that only two members of the five member Council attended the tour. Other attendees included five County administrators and representatives of the manufactured housing industry. (See Council’s response and attached article and photograph from the Southern Delaware Business Review identifying the tour participants).
The Council contends that the tour was not a meeting because it lacked a quorum, and thus there was no need to comply with the public meeting requirements of FOIA. Based on the above record, we agree.
FOIA defines a meeting 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) (emphasis added). It’s clear there was no quorum of the Council on the tour as only two of the five members attended, and a quorum requires a majority. 9 Del. C. § 7002.
This leaves the question of whether the group participating in the tour represented a committee of the Council which constituted a public body in its own right. A public body includes any
committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, . . . established by any body established by the General Assembly of the State, . . . which . . . is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. 29 Del. C. § 10002(a).
Based on the representation of the Council’s attorney that “Members of the Council were not appointed as a committee to attend, rather a Member’s attendance was voluntary and a matter of personal choice” (Council’s Response at p. 2), we find that the group participating in the tour did not constitute a public body under FOIA.
In making this finding, we note that the facts in this case are similar to those recited in Atty Gen. Op. No. 95-IB20 which found that School Board Members who voluntarily attended breakfast meetings with school administrators did not constitute a public body since they were not appointed as a committee of the Board. We stated in that opinion, however, that the Board members who attended would be interpreted as constituting a committee if they later made recommendations to the full Board based on action proposed at the breakfast meetings. Since attendance at the tour was voluntary and included persons who were not Council members, and since there is no indication that any report or recommendation has been made to the Council by the members who attended, the conduct in this case does not violate FOIA.(2).
We caution the Council to keep in mind that non-public activities of Council members, such as the tour in question, will always be viewed with suspicion by the public and the courts. Such activities foster distrust which undermines the Council’s ability to govern effectively and leads to complaints such as this one. When facing such complaints, the Council will always have the burden of proving that the activity in question did not involve a non-public meeting of the Council in violation of FOIA, and any doubt about the issue will be resolved in favor of the public, rather than the Council.(3)
As a final matter, although not necessary to our decision, we briefly comment on another argument raised by the Council as it appears to represent a misunderstanding of FOIA. Specifically, the Council argues that even if the tour constituted a meeting, the Council gave public notice of the tour, and thus satisfied the public meeting requirements of FOIA. The Council refers to the fact that the date and time of the tour were announced at a Council meeting and reported in the County Administrator’s report, along with an invitation to the press to attend. These announcements, however, do not satisfy the specific notice requirements of FOIA.
Under FOIA, notice of the date, time and place of meeting, along with an agenda, must be conspicuously posted at the principal office of the public body holding the meeting, or in the absence of such office, at the place where meetings of the body are regularly held. 29 Del. C. § 10004. The purpose of such notice is to ensure that no member of the public will have to search out and discover public meetings. Thus, we caution the Council to strictly follow the notice requirements of 29 Del. C. § 10004 when giving notice of a public meeting.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michele C. Gott
Deputy Attorney General
Michael J. Rich
cc: Elizabeth Bacon, Opinion Coordinator
1. In its complaint, the Society raises several questions regarding the intent, sponsorship and outcome of the trip. Although not addressed question by question in this opinion, the information requested is provided in this opinion and in the Council’s response, a copy of which was provided to the Society.
2. We note that it is understandable that the public would assume that either the entire Council or a committee of the Council would be attending the tour given the statement in the minutes of the February 13, 1996 Council meeting that the “Sussex County Council will be visiting the Skyline Homes facility.” Thus, we caution the Council to be more careful in describing in its minutes what action is being taken and by whom.
3. See, Atty Gen. Op. No. 96-IB02 (finding that where Newark City Council members constituting less than a quorum of the City Council met, at the invitation of the University of Delaware, with University representatives in three separate gatherings over the course of ten days, and where each gathering involved different City Council members, but the same University representatives and discussion of the same topics, the only reasonable conclusion that could be drawn was that the City Council members at each gathering constituted ad hoc committees of the full City Council, and thus were public bodies under FOIA).