OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General (Informal) Opinion No. 14-IB01
January 13, 2014
VIA EMAIL AND REGULAR MAIL
Gregory S. Welch
13 Thatcher Street
Frankford, DE 19945
Dennis L. Schrader, Esquire
Morris James Wilson Halbrook & Bayard LLP
107 West Market Street
P.O. Box 690
Georgetown, DE 19947
RE: FOIA Complaint Concerning Frankford Town Council
Dear Mr. Welch and Mr. Schrader:
I write with our determination with respect to Mr. Welch’s petition dated December 10, 2013 (the “Petition”). For purposes of this determination we are treating the Petition as a request pursuant to 29 Del. C. §10005(e) for a determination whether the Frankford Town Council (the “Council”) violated the open meeting provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), in connection with a proposed amendment to the town charter striking a provision of Section 18 “that any annual appropriation which is made by the [Council] under any . . . pension plan or any health and welfare plan, or both, shall not exceed a maximum amount of Fifteen percent (15%) of the total annual payroll of the Town . . . .” The proposed amendment was approved without discussion by vote taken at the December 2nd meeting. For the reasons set forth below, this Office has determined that the Council does not appear to have discussed or reached consensus on the proposed amendment outside of public view, and it therefore did not violate FOIA in approving the proposed amendment.
Mr. Welch acknowledges in the Petition that the Council has been aware since its June 23, 2013 Budget Hearing that the fifteen percent threshold has been exceeded each year since 2009. Mr. Schrader, the Town Solicitor, states “the Town Secretary noted that she had looked into reducing the costs of health insurance and had a discussion with [the Town Solicitor] to ‘. . . revise the Charter to reflect the increase in premiums.’” Mr. Schrader states Mr. Welch was in attendance at the meeting, which statement Mr. Welch does not deny. Mr. Welch also acknowledges he raised the issue at the July 1, 2013 Council meeting, but no further action was taken on the issue until the December 2nd meeting. Mr. Schrader further states that matters related to the cost of insurance and retirement plans and the effects of current federal health insurance laws have been discussed in general terms in several Council meetings since the July 1st meeting.
Mr. Schrader has submitted a copy of a “Management Letter” dated November 21, 2013, from Jefferson, Urian, Doane & Sterner, P.A., the Town’s auditors, to the Council. The Management Letter notes the limitation on employee health and pension benefits and recommends revision of the Town Charter to reflect the increase in health insurance premiums. Mr. Schrader states that, as a result of the general discussions at Council meetings, the Management Letter, and his advice, a draft charter amendment was prepared for consideration by the Council for submission to the General Assembly. He states that the proposed amendment was forwarded to the Council for inclusion in their meeting packets, and the topic was placed on the agenda for the Council’s December 2nd meeting. The agenda included the following agenda item under the heading “New Business”:
Review/Consider possible Charter Amendment entitled “AN ACT TO REINCORPORATE THE TOWN OF FRANKFORD” relating to Employee Benefits – (vote required to authorize Dennis Schrader to send it to Sen. Gerald Hocker and Rep. John Atkins for adoption by the General Assembly).
The Town does not have home rule, and it therefore cannot unilaterally amend its charter. In order to become effective, the proposed amendment requires the approval of the General Assembly.
At the beginning of the December 2nd meeting, the Council took public comment with respect to posted agenda items. There was no objection to the proposed amendment. During the “New Business” portion of the meeting, without discussion, a motion was made and approved to authorize Mr. Schrader to forward the proposed amendment to the local legislative representatives for action by the General Assembly.
The legal issue presented in this matter is whether the Council held a non-public “meeting” to discuss the proposed amendment in violation of FOIA’s open meeting requirements. That term is defined as a “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(g). The dispositive question is whether a quorum of the Council gathered to discuss or reach agreement on issues related to the proposed amendment outside of public view. We answer that question in the negative.
As we have previously determined, the quorum requirement in section 10002(g) may be satisfied by a single in-person meeting involving a quorum of the members of a public body, or through a “constructive” quorum involving a series of sub-quorum meetings or telephone calls that collectively involve a quorum. See Op. Att’y Gen. 08-IB03 (“[A] public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body ‘to receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take.’”). The record in this case reflects, and we find, the issue the Council has attempted to address through the proposed amendment was discussed informally at several prior public meetings, at least some of which Mr. Welch attended. Mr. Welch himself brought the issue to the Council’s attention at least once. There is no allegation or evidence that there was any meeting of a quorum of the Council to discuss the proposed amendment outside of public view, nor is there any allegation or documentation of “serial discussions” about the proposed amendment that could constitute a meeting in violation of FOIA. On this basis, we conclude that the Council met and discussed the proposed amendment in public view and not in violation of FOIA.
/s/ Edward K. Black
Edward K. Black
Deputy Attorney General
cc: Allison E. Reardon, State Solicitor (via e-mail)
Gregory S. Welch (via e-mail