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10001-declarations

98-IB02: FOIA Complaint Against Town of Middletown

Written on: January 30th, 1998 in 10001 Declaration of Policy

January 30, 1998

New Castle County – Civil Division

Ms. Patricia McCune
P.O. Box 102
1182 Levels Road
Middletown, DE 19709

RE: Freedom of Information Act Complaint
Against Town of Middletown

Dear Ms. McCune:

This letter is our written determination in response to your
complaint alleging that the Town of Middletown (the “Town”)
violated the Freedom of Information Act, 29 Del. C. Sections
10001-10005 (“FOIA”).

Your letter of complaint dated October 14, 1997 was received by
this Office on October 27, 1997. By letter dated October 30,
1997, we asked the Town to respond within ten days to your
allegations that the City had violated the open meeting
requirements of FOIA. By letter dated November 10, 1997, the Town
responded, denying any violations of FOIA.

By letter dated November 18, 1997, we asked the Town to provide
us with copies of notices and agenda for various meetings, which
were sent to us under cover of letter dated November 21, 1997.

In your letter, you allege that the Town violated FOIA by failing
to give notice to the public of meetings to discuss the
development and eventual adoption of the Town’s Comprehensive
Plan. You also allege that the Town did not hold a public meeting
to review comments on the Draft Comprehensive Plan from the
Cabinet Committee on State Planning Issues and the Office of
State Planning Coordination.

As for your second allegation, the Town responds that it “merely
submitted plans, as required by law to these State agencies. What
happened, as far as they are concerned, is unknown to the Town,
and certainly there was no Town involvement either official or
unofficial with regard to the proceedings before the State
committees after submission of the proposed plan.”

The submission of local land use plans to state agencies is
required by the Land Use Planning Act (“LUPA”), 29 Del. C.
Chapter 92. To the extent you are complaining about whether the
Town complied with LUPA, that is outside the jurisdiction of this
Office and will not be addressed further. We will focus, instead,
on your allegations that the Town failed to give the required
notice to the public when it held meetings during 1997 to discuss
and finally adopt its Comprehensive Plan for land use.

Summary of the Law

Section 10004 of Title 29 of the Delaware Code provides that
“[e]very meeting of all public bodies shall be open to the
public” except as authorized by statute for executive session. A
“public body” is defined to include any “board, commission,
department, agency, committee, ad hoc committee, special
committee, temporary committee, advisory board and committee,
[or] subcommittee” appointed by any body which is “impliedly or
specifically charged” by another public body “to advise or to
make reports, investigations or recommendations.” 29 Del. C.
Section 10002(a).

Section 10004(e)(2) provides: “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; . . . .” Section 10004(e)(4) requires that
notice “shall include, but not be limited to, conspicuous posting
of said notice at the principal place of the public body holding
the meeting, . . . .”

“Agenda” is defined to “include but is not limited to a general
statement of the major issues expected to be discussed at a
public meeting, as well as a statement of intent to hold an
executive session and the specific ground or grounds therefor . .
. .” 29 Del. C. Section 10002(f).

Discussion and Findings

The Town’s Draft Comprehensive Plan was initially prepared by the
Institute for Public Administration of the College of Human
Resources, Education and Public Policy of the University of
Delaware. On January 9 and March 13, 1997, members of the
Institute staff, the Town Planning Commission, the Mayor, and
members of the Town Council held workshops to provide direction
for the development of the plan. According to the Town, “[t]hese
were not advertised meetings and were merely meetings to discuss
generally the proposed form of the comprehensive plan, as well as
the status of the study. Additionally, a quorum of the Council
members were not in attendance at the meeting.”

These two meetings “were followed by an advertised public
workshop which was held on April 23, 1997, the purpose of which
was to secure citizen input to the proposed plan.” According to
the Town, “[t]his meeting was actually called by personnel of
Wilmapco [Wilmington Area Planning Council], and was not in any
way called by Council of the Town of Middletown, nor any of its
functioning boards.” The Town claims that notice of this meeting
was published in The News Journal. The copy of the notice
provided to us advertised that there would be a “Mobility
Friendly Design Standards Workshop” from 4:00-8:00 p.m. on
Wednesday, April 23, 1997 at the Middletown Public Works
Building.

The Town states that there was another “advertised public meeting
on May 21, 1997 which was held in the Public Works Building of
the Town of Middletown . . . to secure citizen input.” Again, the
only notice of this meeting was published in The News Journal,
and it advertised a “Mobility Friendly Design Standards Public
Workshop.”

At a meeting on August 4, 1997, the Town Council reviewed the
status of the Comprehensive Plan and invited people from the
University of Delaware to answer questions about the plan. Notice
of this meeting was published in the Middletown Transcript on
July 31, 1997, as well as posted in the Town Hall (but on what
date is not certain). The Comprehensive Plan was included as an
item on the agenda for that meeting.

The Town Council again considered the Comprehensive Plan at its
meeting on September 8, 1997. The Town claims that notice was
given to the public in the newspaper as well as by posting in the
Town Hall, but it is not clear when this was done since the Town
did not provide us with copies of the notices which we requested.
The Town states that “[a]ction on the plan was deferred until the
Council meeting in October of 1997.”

At a meeting on October 6, 1997, the Town Council voted to adopt
the Comprehensive Plan. Notice of that meeting was published in
the Middletown Transcript on October 2, 1997, as well as posted
in the Town Hall (on what date, it is not clear). Approval of the
Comprehensive Plan was included as an agenda item.

A. The Institute Workshops

The Town admits that the two workshops held on January 9 and
March 13, 1997 “were not advertised.” Apparently, the Town
believes that since “a quorum of the Council was not in
attendance at the meeting,” the open meeting law did not apply.
This Office has previously determined that meetings of less than
a quorum of a public body may still be subject to FOIA if they
appear to be a deliberate attempt to circumvent the requirements
of the law. See Att’y Gen. Op. 96-IB02 (Jan. 2, 1996). Moreover,
just calling a meeting a “workshop” does not take it outside the
requirements of the open meeting law. See Att’y Gen. Op. 96-IB11
(Mar. 20, 1996).

Even if less than a quorum of the Town Council was present at the
Institute workshops, we find that they constituted an ad hoc
committee of the Council and therefore their meeting, without
notice to the public, violated FOIA. Since it would be
counter-productive to turn the clock back to the beginning of the
Comprehensive Plan process, we do not think that any remedial
action for these violations of FOIA is required. This conclusion,
however, is limited to the specific facts of this case, and our
Office does not consider this aspect of our determination to be
binding with respect to any similar complaint in the future.

B. The April-May Public Workshops

The Town describes the meetings on April 23 and May 21, 1997 as
designed “to secure citizen input to the proposed plan.” As such,
they were crucial to the public’s opportunity to be heard and to
influence the process by which local land use decisions would be
made. The only documents supplied to us by the Town evidencing
notice given of those meetings were published in The News
Journal, not by the Town, but by Wilmapco. Further, those notices
did not mention the Town’s Comprehensive Plan, but rather a
“Mobility Friendly Design Standards Public Workshop.” The Town
did not submit any evidence as to whether any members of the
public attended the workshops, or whether the Comprehensive Plan
is what was really discussed. In any event, the Wilmapco notice
in the newspaper — buried deep in the legal notices section —
would hardly give a citizen of the Town adequate notice that his
or her input into the Comprehensive Plan was being invited.

The Town suggests that it was not incumbent on it to provide the
required notice under FOIA, because Wilmapco arranged the public
workshops. This Office has previously determined that it is
irrelevant who is the formal sponsor of a public meeting. “[A] meeting as defined in Section 10002(e) does not cease to be a
meeting because the Council gathers as a result of an invitation
of another public official or body.” Att’y Gen. Op. 94-IO36 (Dec.
15, 1994). We find that the Town violated the public notice
provisions of FOIA by failing to post notices with agenda so as
to inform the citizens of the Town that their input was being
sought regarding the proposed Comprehensive Plan.

C. The Town Council Meetings

With regard to the August 4, 1997 meeting, the Town published
notice and the agenda (which included “Middletown Comprehensive
Plan”) in the newspaper five days before (on July 31, 1997).
TheTown did not provide us with copies of the notices for the
September 8, 1997 meeting, but the minutes show that the
comprehensive plan was not discussed; the Mayor merely indicated
that had copies for anyone’s review. The notice and agenda for
the October 6, 1997 meeting was published in the newspaper four
days before (on October 2, 1997). The agenda included
“Comprehensive Plan approval.”

Unless there are special circumstances, FOIA requires public
bodies to post notice of their meetings at least seven days in
advance. The Town Council did not, for either the August 4 or the
October 6, 1997 meetings, and therefore violated FOIA. The
violation is all the more serious since the Council was preparing
to vote on a land use plan that would have considerable impact on
the lives of all of the Town’s citizens.

The Town takes the position that it made every effort to involve
the public in the decision-making process leading up to the
adoption of the Comprehensive Plan. The Town points out that
there was a third public workshop on June 5, 1997, for which
notice was “personally delivered to all the residents of the
Town.” In addition to the three public workshops, “there were
presentations made to civic associations, the [Middletown] Chamber of Commerce, and the Appoquinimink School District.” The
Town maintains that “ample opportunity [was] given to each and
every citizen of the area as to the proposed plan and
opportunities to have input.”

We do not perceive any conscious intent by the Town to keep the
public in the dark about the Comprehensive Plan. Nevertheless, a
series of FOIA violations did occur, and they may have deprived
some members of the public of timely and complete information
about several crucial steps in the process that led to the
Council’s adoption of the Plan on October 6, 1997. Accordingly,
we believe that the action taken by the Council adopting the Plan
is void because it was done in violation of FOIA.

To remedy these FOIA violations, we direct the Town to call a
special meeting to consider anew whether to adopt (not simply
ratify) the Comprehensive Plan. Alternatively, the Town may
include the issue of adoption of the Comprehensive Plan as an
agenda item at a regular meeting provided that th notice of the
regular meeting adequately provides notice that the issue of the
Comprehensive Plan will be considered at such regular meeting.
Notice of that meeting must be given at least seven days in
advance, and the notice and agenda must be posted conspicuously
in the Town Hall as required by FOIA. While not required by FOIA
nor imposed by this office as a condition of FOIA compliance, the
Town should also consider additional means (e.g., newspaper,
personal mail) of giving the public notice so that all interested
citizens can attend to voice their views.

The courts of this state and the Department of Justice have been
consistent in requiring strict compliance with FOIA. The Town
should be vigilant to assure that all future meeting notices and
agenda meet that standard of strict compliance irrespective of
the matter of public concern under consideration.

Conclusion

Based on the complaint, and the Town’s written responses and
documents provided to us, we determine that the Town violated the
open meeting requirements of FOIA by failing to post the required
notices and agendas for the public workshops on April 23 and May
21, 1997, and for failing to provide the required notice for the
Town Council meetings on August 4 and October 6, 1997. We direct
the Town to take the remedial measures outlined above as soon as
practicable, and to provide us with satisfactory proof that such
measures have been taken in accordance with FOIA.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

Approved:

____________________
Michael J. Rich
State Solicitor

cc: The Honorable M. Jane Brady
Attorney General

Keith R. Brady, Esquire
Chief Deputy Attorney General

Robert E. Daley, Esquire
Town Solicitor

Chrystyna Lafferty
Opinion Coordinator





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