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10001-declarations

06-IB22 – RE: Freedom of Information Act Complaint Against Sussex County Council

Written on: November 16th, 2006 in 10001 Declaration of Policy

November 16, 2006

Civil Division-Kent County (739-7641)

06-IB22

Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950

Re: Freedom of Information Act Complaint
        Against Sussex County Council

Dear Mr. Kramer:

On September 7, 2006, our Office received your complaint under the Freedom of Information
Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that the Sussex County Council (“the Council”)
violated the open meeting requirements of FOIA by meeting in executive session on August 22, 2006
for a purpose not authorized by law. You attached to your complaint the agenda for that meeting
which listed for executive session “Personnel, Pending Litigation, and Land Acquisition.” You
allege that during the executive session the Council discussed which of two land use consultants to
hire.

By letter dated September 8, 2006, we asked the Council to respond to your complaint by
September 18, 2006. We granted the Council’s request for a brief extension of time in order to allow
the Clerk of the Council time to prepare the minutes of the executive and regular session of the Council held on August 22, 2006. We received the Council’s response on September 26,
2006. On October 26, 2006, we asked the Council for the minutes of the Council’s October 3, 2006
meeting, which we received on October 31, 2006.

The minutes of the Council’s August 22, 2006 meeting state that at a meeting the week
before (August 15, 2006), the Council invited “Johnson, Mirmiran & Thompson and Urban Research
& Development Corporation, the two top ranking consulting firms who submitted Land Use
Consultant Contract proposals, to give presentations at the August 22nd Council meeting on their
contract proposals to assist the County with the review and update of the 2007 Comprehensive Land
Use Plan.” According to the Council, during the August 22, 2006 meeting the public heard thirtyminute
presentations by the two consulting firms “to explain to Council and the public why their
company should be hired. Further, after each of the prospective consultant companies completed
their presentations Council members were given ample time to question the presenters.”

The minutes of the public session of the August 22, 2006 reflect that after the two consulting
firms made their presentations, the Council went into executive session for fifteen minutes. The
minutes of the executive session (which the Council provided to us for our in camera review) show
that the Council “discussed the presentations made in public session” by the two consulting firms
and “discussed the qualifications, abilities and competencies of the two firms.” 1

After the Council returned to public session, the minutes show that the Council voted to
authorize the County Administrator to enter into contract negotiations with Urban Research &
Development Corporation for the 2007 Sussex County Comprehensive Land Use Update.

The Council contends that under FOIA “it had the right to enter into a contract with a land
use consultant without holding any form of public session and Council’s decision to hold a public
session should not now be used as a basis for a complaint that after having heard the presentations
in public they were then barred from discussing them in private, subject to the County complying
with appropriate procedures for awarding such contracts, such as any applicable public bidding
requirements.”

At the executive session on August 22, the Council also discussed  in addition to the land
use consultants  the hiring of two persons for the positions of Director of Accounting and Budget
Manager.

By letter dated October 2, 2006, you alleged that the Council could not have discussed valid
personnel matters in executive session on August 22, 2006 because the two persons “were
interviewed by a committee and hired by Robert L. Stickles, County Administrator and/or David
Baker, Finance Director, not by the County Council.”

By letter dated October 6, 2006, the Council responded that FOIA’s authorization to discuss
personnel matters in executive session “is broad enough to allow Council to receive advice that its
administrative staff had interviewed 7 applicants for the positions of Director of Accounting and
Budget Manager and was prepared to offer those positions to the two individuals specifically
identified in the executive session minutes. The fact that Council was not required to approve the
awarding of those positions in open session should not preclude the Council from being advised in
executive session of the status of the selection process for the positions of Director of Accounting and Budget Manager.”

RELEVANT STATUTES

FOIA requires that “[a]ll 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.”
29 Del. C. §10004(e)(2).

FOIA authorizes a public body to meet in executive session to discuss “an individual citizen’s
qualifications to hold a job . . . .” Id. §10004(b)(1). FOIA also authorizes a public body to meet in
executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of
individual employees or students are discussed, . . . .” Id. §10004(b)(9).

LEGAL ANALYSIS

A. Job Qualifications

This exemption for executive session is often confused with the personnel exemption. The
personnel exemption allows discussion in private of “the names, competency and abilities of
individual employees . . . .” 29 Del. C. §10004(b)(9). The job applicant exemption only applies to
persons not yet hired.

In Att’y Gen. Op. 05-IB14 (June 8, 2005), our Office determined that FOIA’s job applicant
exemption for executive session did not apply when the city council met privately to decide which
consultant to hire as a full-time lobbyist.

A vendor or independent contractor does not share
the same privacy concerns as an individual public employee
or prospective public employee. When a business
bids for work from a public body, it is not applying for
a ‘job’ in any common sense meaning of that term. A
vendor or contractor has little if any expectation of privacy
when marketing its goods or services for sale to a public
body. . . . The experience, reputation, and qualifications
of vendors and contractors are subject to constant comparison
in the marketplace through advertising and the public
bidding process. To construe FOIA to deem them ‘job
applicants’ would cloak the decision-making process for
the expenditure of most tax monies from public scrutiny,
a result clearly inconsistent with the purposes of FOIA.

The two land use consulting firms which the Council discussed at the meeting on August 22,
2006 were not applicants for public employment but rather were contractors marketing their
credentials in order to do government business. FOIA did not authorize the Council to meet in
executive session to discuss the comparative qualifications of those two consultant firms. 2

We determine that the Council violated the open meeting requirements of FOIA when it met
in private on August 22, 2006 to discuss which of those two consulting firms to hire.

B. Personnel Matters

Our Office has previously determined that discussion of consultants and contractors does not
fall within FOIA’s personnel exemption for executive session. The personnel exemption “is limited
to discussion of ‘the names, competency and abilities of individual employees . . .’” Att’y Gen. Op.
02-IB17 (Aug. 6, 2002) (quoting 29 Del. C. §10004(b)(9)).

In Att’y Gen. Op. 02-IB17, our Office determined that FOIA did not authorize the school
board to meet in executive session with three private consulting firms to discuss their qualifications
to conduct a nationwide search for a new superintendent because a “search consultant is not an
‘employee’ of the School Board.” See also Att’y Gen. Op. 05-IB02 (Jan. 12, 2005) (personnel
exemption for executive session did not apply to discussion of legal fees for outside counsel because
they “are not employees of the City”).

We determine that FOIA’s personnel exemption did not authorize the Council to meet in
executive session to discuss which of two land use consultants to hire. That exemption would only
cover discussion of the names, competency, and abilities of County employees, not of an
independent contractor.

At the executive session on August 22, 2006 the Council discussed  in addition to the two
land use consultants  the positions of Director of Accounting and Budget Manager.

You contend that County Administrator or the Finance Director had the authority to hire for
those two positions and did not need the Council’s approval, therefore FOIA did not authorize the
Council to discuss the hiring process in private. The Council responds that, even if it “was not
required to approve the awarding of those positions in open session should not preclude Council
from being advised in executive session of the status of the selection process for the positions of
Director of Accounting and Budget Manager.”

We have reviewed in camera the minutes of the Council’s executive session on May 24,
2005. They show that the Finance Director informed the Council that seven persons were
interviewed for the positions of Director of Accounting and Budget Manager and the Finance
Director named the two individuals to whom he was offering the positions.

According to the County, the person hired for the position of Director of Accounting was
already on staff and next-in-line for that position when it became vacant. The person hired for the
position of Budget Manager was a new hire. Although the County relies on FOIA’s personnel
exemption for executive session, we believe the more appropriate exemption is the one for job
applicants. We do not believe that exemption for executive session turns of whether the Council or
the County Administrator had the authority to hire for those two positions. The purpose of the
exemption is to protect the individual privacy of the prospective public employee. See Att’y Gen.
Op. 05-IB12 (May 9, 2005) (“[T]he two applicants had a reasonable expectation of privacy . . .When
a job offer is extended and accepted, the name of the job applicant necessarily will become public
. . . .”).

We determine that FOIA authorized the Council to meet in private to hear about the
interviewing process and the names of the two successful applicants for the positions of Director of
Accounting and Budget Manager.

C. Remediation

The Council contends that even if it “should not have discussed the consultant selection in
executive session, its doing so did not violate the rights of the public who received notice and had
the opportunity to be present during the public presentations by the two prospective consultants and
to hear the questioning of those applicants by Council members. Further, as the October 3, 2006
agenda will indicate, the Council will act publicly when it further considers and possible awards the
contract to one of the two applicants.”

The Council provided us with a copy of the agenda for its October 3, 2006 meeting, which
listed “Land Use Plan Consultant Contract. The minutes of that meeting show the Council voted to
approve “an Agreement with Urban Research & Development Corporation (URDC) for a fee not to
exceed $225,000 for the Sussex County Comprehensive Land Use Plan Update, including zoning
and subdivision ordinance revisions, subject to final approval by the Assistant County Attorney,
County Administrator, and County Finance Director.”

We do not believe that any remediation is necessary for the Council’s having met in
executive session on August 22, 2006 to discuss which of two land use consultants to hire  a
purpose not authorized by FOIA for private discussion. The public was substantially involved in the
selection process, first hearing the 30-minute presentations by the two consultants and questioning
in public by the Council at the meeting on August 22, 2006. The Council awarded the contract in
a meeting noticed and open to the public on October 3, 2006. Because of the substantial public
involvement in the selection process, we do not believe that remediation would serve any purpose
at this time.

CONCLUSION

For the foregoing reasons, we determine that the Council did not violate FOIA when it met
in executive session on August 22, 2006 to hear from the Finance Director about the interview
process and the names of the two successful applicants for the positions of Director of Accounting
and Budget Manager.

We determine that the Council violated FOIA when it met in private on August 22, 2006 to
discuss the two applicants for a land use consulting contract. Neither FOIA’s personnel nor job
applicant exemption for executive session applied to the hiring of an independent contractor.

We do not believe that any remediation is necessary for this violation of the open meeting
law because the public was substantially involved in the process by which the Council awarded the
contract to one of the two consultants.

The Council is cautioned to strictly comply with the open meeting requirements of FOIA in
the future.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED
_________________________
Lawrence W. Lewis, Esquire
State Solicitor

cc:
The Honorable Carl C. Danberg
Attorney General

Malcolm S. Cobin, Esquire
Chief Deputy Attorney General

Keith R. Brady, Esquire
Assistant State Solicitor

James D. Griffin, Esquire

Phillip G. Johnson
Opinion Coordinator





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