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10001-declarations

15-IB06 08/19/15 FOIA Opinion Letter to Ms. Marcia L. Schieck and Ms. Dell Tush re: FOIA Complaint Concerning the Town of Dewey Beach

Written on: August 19th, 2015 in 10001 Declaration of Policy10004(c) Requirements to Meet in Executive Session10004(f) Minutes Requirements

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB06
August 19, 2015

VIA EMAIL

Marcia L. Schieck                                                        Dell Tush
34144 Pinewood Circle                                             12 Rodney Avenue
McNicol Place                                                             Dewey Beach, DE 19971
Lewes, Delaware 19958                                            rodneydunes@deweybeachvacation.com
mlschieck@gmail.com

Re:    FOIA Complaint Concerning the Town of Dewey Beach

Dear Ms. Shieck and Ms. Tush:

On February 13, March 11, and March 15, 2015, the Delaware Department of Justice (“DOJ”) received from Ms. Marcia L. Schieck and other property owners several complaints (collectively, the “Schieck Complaint”) alleging violations by the Town of Dewey Beach, Delaware (the “Town”)1 of the open meetings and public records provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).

On March 3, 2015, the DOJ received from Dell Tush and several other property owners a separate complaint (the “Tush Complaint”) raising issues substantially similar to those raised by the Schieck Complaint.

On March 11 and June 19, 2015, respectively, we received the Town’s responses to the Tush and Schieck Complaints.  In accordance with 29 Del. C. § 10005(e), we are treating the Schieck and Tush Complaints jointly as a petition for a determination (hereinafter referred to jointly as the “Petition” or the “Petitions”) by the DOJ as to whether the Town violated FOIA. We render no opinion regarding compliance with any other applicable law of the State of Delaware.

FACTS2

The Petition arises out of the facts and circumstances surrounding the Town’s attempts to construct a new and larger town hall.  The Town had long acknowledged a need to develop or construct a larger space for its town hall, and in 2011, negotiated the right to develop and occupy 3000 square feet of potential office space within a residential community under development by Delaware Beach Enterprises (“DBE”) (the “Ruddertowne Space”).3

At a meeting held on July 19, 2013, the Town Commissioners voted to delay the development and occupation of the Ruddertowne Space.4  The Commissioners also discussed other potential locations for the new town hall.5  Commissioner Legates stated that she had looked around town and saw other interesting spaces worth pursuing and that she wanted the town manager,6 Marc Appelbaum, “to look into” those locations.7

The Commissioners continued to discuss a possible site acquisition for a new town hall at meetings held during June and October, 2014.8  Each of these discussions was held in executive session.  According to a local reporter, Mr. Appelbaum allegedly stated that the Commissioners gave him permission to explore a potential site acquisition during the October, 2014 meeting.9

The Town Commissioners voted to sell the Town’s option to develop and occupy the Ruddertowne Space during a public meeting held on January 24, 2015.10  The office space was sold to DBE for a lump sum of $500,000 and an additional annual payment of $37,500 in perpetuity.11

While these discussions were occurring, two properties, located at 1503 and 1505 Coastal Highway, respectively (the “Properties”), were listed for sale on November 26, 2014.12  Mayor Diane Hanson, Town Manager Mr. Appelbaum, and Commissioner David Jasinski exchanged several emails in December 2014 and January 2015 about the Town’s potential acquisition of these Properties.13  On December 12, 2014, Mr. Appelbaum, purportedly acting on behalf of the Town, entered a “Buyer Agency Agreement” that appointed a local realtor as “Buyer’s exclusive agent for the purpose of assisting Buyer in locating for purchase acceptable real property within the county(ies) of Sussex.”14

On January 31, 2015, Mayor Diane Hanson, purportedly acting on behalf of the Town, signed an Agreement of Sale for the Properties (the “Agreement”).15  The seller rejected the Town’s first offer of $830,000.  However, the seller signed the Agreement on February 5, 2015, accepting the Town’s offer of $875,000 for the Properties with a $25,000 deposit due upon signing of the Agreement.16  Final settlement of the Properties was expressly contingent upon Town Council approval of the Agreement.  Specifically, Clause 32 of the Agreement noted, among other things, that the “[c]ontract is contingent upon approval of Town Council and town support of this purchase on or before 3-16-15.  Buyer may elect to void this contract i[f] [sic] said approval is not obtained.  Upon town approval, settlement to occur on or before 3-30-15.”17

Mayor Hanson sent emails to the commissioners on January 31 and February 2, 2015 to inform them of the Agreement and potential purchase.18  Commissioner Legates responded via email on February 4, 2015, expressing her concern that the Agreement was signed without “commissioner awareness” and that “[a]ll terms including, the amount of the offer, were determined [without] a discussion of council.”19  Commissioner Legates also noted that the Agreement was signed before the Council “bothered to inform the property owners of the purpose of those executive sessions about site acquisition . . . [a]nd before asking them to . . . weigh in on the issue of buying property and potentially expanding town hall.”20

On February 14, 2015, the Town Council held a public meeting to discuss the possible acquisition of the Properties.21  At that meeting, the Town Council announced that it planned to take a formal vote on the matter at the Town’s next meeting on March 14, 2015.  The Town Manager also held public information sessions on January 17, 2015 and March 7, 2015.22

On March 14, 2015, the Council held a second meeting to discuss the Agreement.  In relevant part, the agenda for this meeting noted the following:

2) Public Hearing regarding the possible purchase of real estate located at 1503 and 1505 Coastal Highway, Dewey Beach, Delaware.  See item 2 below.

***

2) Discuss and possible vote to accept the offer to sell the real estate located at 1503 and 1505 Coastal Highway, Dewey Beach by ratifying the conditional agreement dated February 5, 2015 upon the terms thereof and additionally to appropriate the necessary funding from monies.23

The Council approved the Agreement at the March 2014 meeting by a 3-2 vote.24

POSITION OF THE PARTIES

I. The Property Owner Petitions

On February 13, 2015, we received the first of several letter complaints from certain Town of Dewey Beach property owners (the “Property Owners”).  According to the Property Owners, Mayor Diane Hanson and Town Manager Marc Appelbaum met behind closed doors to decide to purchase the Properties and expand the town hall without engaging in any public discussion of these transactions.  The Property Owners argue that the actions of the Town Manager and Mayor Hanson violated FOIA and the Town of Dewey Beach Charter.25

To support their claims, the Property Owners point to a statement made by Town Manager Applebaum as reported in the February 3, 2015 issue of the Cape Gazette.  According to the article, Mr. Applebaum claimed that he was given permission by Town Council to move ahead with exploring the purchase of property during an executive session held by the town on October 11, 2014.26  The Property Owners point out that no minutes of this executive session were maintained in Town Hall and that the Town has yet to produce a copy of the minutes in response to Ms. Schieck’s February 10, 2015 FOIA request for those minutes.27  Further, the Property Owners argue that the Council failed to take a public vote at the October 11, 2014 meeting to actually permit Mr. Applebaum to explore the purchase of property for purposes of a town hall expansion.28

The February 13, 2015 letter also accuses the Town of the following FOIA violations:

• The Town violated FOIA because it did not maintain minutes of meetings held in executive session on June 20, 2014 and October 11, 2014; and

• There are no minutes of a special meeting held by the Town Commissioners on January 2, 2015 to discuss the sale of another real estate asset.

On March 11, 2015, we received from Ms. Schieck and various other property owners a second letter (the “March 11 Letter”) described by the authors as an “addendum” to the initial Schieck Complaint.  The March 11 Letter enclosed several email messages between Mayor/Commissioner Hanson, Commissioner Jasinski, Mr. Appelbaum, and Jim Deedes (Assistant Town Manager).  According to the March 11 Letter, the emails collectively demonstrate (among other things) that Hanson, Jasinski, Applebaum and Deedes colluded in private to sell and purchase the Properties without informing the other commissioners, conducted serial meetings in violation of FOIA, and intentionally delayed the fulfillment of Ms. Schieck’s February 6, 2015 public records request.  Ms. Schieck also concludes that the emails prove that Hanson, Jasinski, Appelbaum and possibly other administrative staff “had full knowledge of the Town’s interest in purchasing the land on Route 1” as early as December 7, 2014, and repeatedly provided property owners with misleading and/or false information.

The March 11 Letter also takes issue with a January 13, 2015 email from Mayor Hanson to the commissioners that urged them “to take advantage of meeting with Marc and/or Nancy so you are well informed about the budget,” and argues that any discussion of the budget between the mayor and the commissioners violated FOIA because the commissioners are required to discuss the town budget during public meetings.

On March 18, 2015, the DOJ received a third letter complaint (the “March 18 Letter”) from Ms. Schieck and other property owners.  The March 18 Letter requested an opinion as to whether:

1. The Dewey Beach Town Council violated [FOIA provisions] related to open meetings and any other provisions of FOIA laws by failing to convene a public meeting to discuss and vote to authorize Mayor Diane Hanson to identify property, determine contract terms and price, allocate $25,000.00 in escrow funds and to grant Mayor Hanson the authority to act on Council’s behalf in executing the Agreement of Sale for Delaware Commercial Property for the purchase of 1503 and 1505 Coastal Hwy, Dewey Beach, Delaware on January 31, 2015.

2. The Town Council violated [FOIA] by posting an agenda for its March 14, 2014 Council meeting under Regular Agenda item 2. The description did not accurately represent what was being discussed.

With respect to allegation 1 of the March 18 Letter, the Property Owners argue that Mayor Hanson signed the Agreement without the prior authorization of the Town Council in violation of the Town Charter.29  The March 18 Letter also questions the validity of the vote itself since of the three commissioners who voted in favor of the Agreement, two were involved in the negotiation of the purchase of the property.

With respect to allegation 2 of the March 18 Letter, the Property Owners contend that the Notice and Agenda of the March 14, 2015 Town Council meeting was misleading.  Specifically, item 2 of the agenda indicates that the Town will discuss the sale of real estate, and does not mention the purchase of the Properties.  Accordingly, the Property Owners contend that the public was not provided notice of the Council’s intention to discuss and vote on the approval of the Agreement.

On March 3, 2015, we received a letter complaint from Ms. Dell Tush and several other property owners raising concerns that are substantially similar to those raised by allegations 1 and 2 of the March 18 Letter.  The Tush Complaint alleges the following additional FOIA violations:30

• The Town failed to provide a timely response to a February 6, 2015 public records request;31

• The notices and agendas for the June 20 and October 11, 2014 Town meetings regarding a possible site acquisition were too vague; and

• The January 17, 2015 Town Manager’s Meeting violated FOIA’s notice requirements.

II. Position of the Town of Dewey Beach

Fred Townsend, Esq., writing on behalf of the Town, submitted responses to the Petitions on March 11 and June 19, 2015.  The Town contends that the Town Council did not violate FOIA because the Agreement was contingent upon the Town’s approval of the purchase of the Properties, and the approval vote occurred at the Town’s public meeting held on March 14, 2015.  Additionally, the Town submits that it did not violate FOIA when it did not disclose the minutes of the meetings held in executive session in June and October 2014.   The Petitioners requested those minutes in February; at that time, the disclosure of the June and October meeting minutes would have “defeated the purposes of the executive session” because the “site acquisition” was pending.  The Town further notes that a redacted version of the minutes was provided to Petitioners on March 11, 2015.  However, the Town admits that it did not prepare minutes for the meeting held on January 2, 2015.

DISCUSSION OF ALLEGED FOIA VIOLATIONS

Based on our review of the record of this case, we have identified several potential FOIA violations, each of which will be discussed below.

I. Failure to Provide Sufficient Notice of a Proposed Site Acquisition

The Petitions allege that the agendas for the June 20 and October 11, 2014 meetings failed to provide sufficient detail about the “site acquisition” to be discussed during the executive session portion of those meetings.32  FOIA requires that “[e]very meeting of all public bodies . . . be open to the public except those closed pursuant to subsections (b), (c), (d) and (h)” of 29 Del. C. § 10004.33  A public body “may call for an executive session closed to the public pursuant to subsections (c) and (e)” of Section 10004, but only for those reasons listed in Section 10004(b).34  Additionally, the purpose of the executive session must be listed in the meeting agenda, and must be limited to the purposes set forth in 29 Del. C. § 10004(b).35

Agenda item 15 of the June 20, 2014 meeting agenda provided notice of the executive session portion of the Town Commissioners meeting.  The only topic listed for discussion was a “[p]reliminary discussion on site acquisitions for any publicly funded capital improvements.”36  Similarly, the October 11 meeting agenda informed the public that the Commissioners would meet in executive session to discuss, among other things, a “possible site acquisition.”37

Section 10004(b)(2) permits a public body to hold “preliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property” in executive session.38  Additionally, although Section 10004(c) “requires public bodies to provide the reason for entering into an executive session, . . . that does not require public bodies to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed.”39

We find that the Town cited a proper purpose for entering executive session on June 20 and October 11, 2014, and that the respective agendas for the June 20 and October 11 meetings sufficiently described that purpose.  We therefore conclude that the June 20 and October 11, 2014 meeting agendas did not violate FOIA.

II. The Town’s Failure to Maintain Minutes of Executive Session Portion of Meetings Held on June 20 and October 11, 2014.

The Petitions allege that the Town violated FOIA because it failed to maintain minutes of the executive session meetings held on June 20 and October 11, 2014.40  The Town responded that it did maintain minutes for both meetings, and that redacted versions of the minutes were provided to the Petitioners on or about March 11, 2015.  The Town also provided redacted versions of the minutes for our review.41  Because the Petitioners have now received copies of the meeting minutes, this issue is moot and we do not address the question of whether the minutes were initially withheld for a purpose permitted under 29 Del. C. § 10004(f).42

III. Whether Email Communications between Mayor Diane Hanson, Town Manager Marc Appelbaum and Commissioner David Jasinski During December 2014 and January, 2015 Constituted “Serial” Meetings that Violated of FOIA.

The Petitions allege that certain email messages between Mayor Hanson, Mr. Abbelbaum and Commissioner David Jasinski, sent during December 2014 and January 2015, constituted “serial” meetings that violated FOIA’s open meetings laws.  The emails at issue included discussions of the Town’s potential acquisition of the Properties and discussions of negotiations between Mayor Hanson and a local realtor.  There is no evidence in the record to suggest that any commissioners other than Mayor Hanson and Commissioner Jasinski were involved in or aware of these email discussions.

We conclude that the collective email messages did not constitute a “meeting” for purposes of FOIA.   FOIA defines a public 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 either in person or by video-conferencing.”43  (emphasis supplied). “Public business” is broadly defined as “any matter over which the public body has supervision, control, jurisdiction or advisory power.”44

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.45  “‘It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum.”’46  “Serial discussions may amount ‘to a constructive quorum of the public body when there was an interactive exchange of thoughts and opinions and members were asked to vote or adopt a particular point of view or reach a consensus on what action to take.”’47

While the email discussions between Mayor Hanson, Mr. Appelbaum and David Jansinski indisputably involved “public business”, we cannot conclude that the discussions amounted to a meeting for purposes of FOIA.  No quorum of members was involved in the email discussions of the Properties.  Indeed, it appears that the other three Commissioners first became aware of the Agreement after Mayor Hanson sent email notifications to the Commissioners on January 31 and February 2, 2015.48  While it is perhaps troubling that the Commissioners were not involved in a public discussion regarding the potential acquisition of the Properties, the Agreement itself was expressly contingent upon final approval by the Commissioners.49  We cannot find that the email communications, standing alone, constituted a “serial” meeting in violation of FOIA.

IV. The January 2, 2015 “Special” Meeting

The Petitions allege that the January 2, 2015 special meeting violated FOIA because any topic discussed at that meeting should have been discussed during the regularly scheduled meeting on January 24, 2015. We find that this allegation lacks merit.  FOIA does not require public bodies to hold regularly scheduled meetings.  Rather, FOIA: (i) requires that a public body provide the public with notice of any meeting at least seven (7) days in advance of the date of the meeting, (ii) sets forth requirements for the contents of the meeting agenda, (iii) details where notices of public meetings must be published; and (iv) sets limitations on where public meetings may be held.50

Based on our review of the record, we find that the January 2, 2015 Town meeting complied with 29 Del. C. § 10004(h).  The notice of the meeting and meeting agenda were posted on December 24, 2014, nine (9) days prior to the date of the meeting.51  There is no evidence or allegation that the Town posted the notice and agenda in a manner that violated 29 Del. C. § 10004(4), or that the meeting was held in a location not permitted by 29 Del. C. § 10004(g).  The Town did not violate FOIA simply because the meeting was held immediately after the Christmas and New Year’s holidays and not at the “regularly” scheduled meeting time.52

V. Minutes for the January 2, 2015 Meeting

On July 29, 2015, we asked the Town Solicitor, Mr. Townsend, whether minutes were created for the January 2, 2015 Town meeting.  Mr. Townsend informed our office that no minutes were created for the open portion of the January 2 meeting.  However, minutes were created for the executive session portion of the January 2 meeting.  According to Mr. Townsend, no public business was discussed during the open session of the January 2 meeting.  Rather, the sole purpose of that portion of the meeting was to permit the Town Commissioners to vote to enter executive session.  Mr. Townsend further informed our office that the Town Commissioners agreed to adopt the minutes of the open portion of the January 2 Meeting at a public meeting held on August 14, 2015.

Section 10004(f) of FOIA requires a public body to “maintain minutes of all meetings.”53  We find that the Town’s failure to maintain minutes of the January 2, 2015 meeting constituted a violation of FOIA.

VI. Whether the Notice and Agenda of the January 17, 2015 “Town Manager’s Meeting” complied with FOIA’s notice requirements

The Petitioners allege that the notice and agenda of the January 17, 2015 “Town Manager’s Meeting” failed to comply with FOIA’s notice requirements.  We conclude that the January 17, 2015 notice and meeting agenda complied with FOIA.  The notice and agenda for the meeting were posted on January 10, 2015, at least seven days in advance of the January 17, 2015 meeting as required by 29 Del. C. § 10004(e)(2).  There is no evidence or allegation that the Town posted the notice and agenda in a manner that violated 29 Del. C. § 10004(4), or that the meeting was held in a location not permitted by 29 Del. C. § 10004(g).  Therefore, we find no FOIA violation in connection with the Town Manager’s January 17, 2015 public meeting.

VII. Failure to Provide a Timely Response to Maria Schieck’s February 6, 2015 Public Records Requests

On February 6, 2015, Ms. Schieck submitted a FOIA request to the Town seeking nine different categories of documents, including those related to the Ruddertowne Space and the purchase of the Properties.54  On February 27, 2015, a Town employee acknowledged Ms. Schieck’s request, informed Ms. Schieck that the Town was processing the request, but noted that the Town’s response would be ready within two weeks.55  No other explanation was provided for the delayed response.  Ms. Schieck argues that the Town failed to provide a valid response to the request within 15 business days as required by the FOIA statute.56  The Town eventually provided a response enclosing the requested documents on March 6, 2015.57

FOIA requires a public body to respond to a FOIA request “as soon as possible, but in any event within 15 business days after the receipt thereof.”58  The response must provide access to the requested records, deny access to the records or parts of them, or advise the requesting party that additional time is needed because the request is for voluminous records, the request requires legal advice, or a record is in storage or archived.59

In this case, the Town was required to, and did, respond to Ms. Schieck’s FOIA request by February 27, 2015.  However, the Town’s response did not comply with FOIA.  FOIA requires a public body to provide one of three permissible reasons for delayed delivery of public records.60  Here, the Town informed Ms. Schieck that it was processing her request and, without further explanation, explained that the records would be ready in approximately 2 weeks.  Ms. Schieck did not receive records responsive to her request until March 6, 2015.61  We find that the February 27, 2015 response to Ms. Schieck’s February 6, 2015 request for public records violated 29 Del. C. § 10003(h).

VIII. Accuracy of the Agenda for the March 14, 2015 Town Council Meeting

The Petitions allege that the March 14, 2015 meeting agenda was misleading because it did not adequately put the public on notice that the Town would take a vote to ratify the Agreement.  We disagree and find no FOIA violations with respect to the March 14, 2015 meeting agenda.

“FOIA requires that [meeting notices] include an agenda notifying the public of important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.”62  As noted by the Delaware Court of Chancery, the statute only requires a “general statement of the subject to be addressed by the public body.”63  However, agendas that include “broad generalities [that] fail to draw the public’s attention to the fact that [a] specific important subject” will be discussed “satisf[y] neither the spirit nor the letter of the Freedom of Information Act.”64

We find that the March 14, 2015 agenda provided adequate notice to the public of the Town’s intention to ratify the Agreement.  The agenda indicated that the Commissioners would discuss and potentially vote on the acquisition of the Properties at the March 14, 2015 meeting.  The agenda itself indicated the precise addresses of the properties under consideration.   There were no broad generalities concerning the Properties such that a member of the public could not determine that the Properties would be discussed and possibly voted on at the meeting.  Therefore, the agenda for the March 14, 2015 meeting complied with FOIA.

REMEDIATION

We find that only two of the numerous issues raised in the Petitions constitute FOIA violations:  the failure of the Town to provide a timely and appropriate response to Ms. Schieck’s February 6, 2015 request for public records; and the failure of the Town to record minutes of its January 2, 2015 public meeting.   However, we decline to find that any action taken by the Town was invalid because we do not believe that these violations affected substantial rights of the public.

Generally, our office views “the threat of invalidation as a serious sanction that ought not be employed unless substantial public rights have been affected.”65  In determining whether to require remediation, Delaware courts consider both “the nature of the infraction, i.e., whether the violation was unintentional or deliberate and whether it was an isolated incident or an ongoing pattern of infractions.”66  Additionally, our office has not recommend remediation where the underlying issue leading up to the FOIA complaint is resolved by the parties or other intervening events, or the FOIA violations were harmless and resulted in no prejudice to public rights.67

With respect to the February 6, 2015 FOIA violation, the Town provided responsive records to Ms. Schieck on March 6, 2015.  Ms. Schieck has not alleged that those records were not responsive or that the Town otherwise failed to comply with her request.  Ms. Schieck’s only complaint appears to be with respect to the timeliness of the Town’s response.   While we urge the Town to promptly respond to all public records requests in a manner that complies with 29 Del. C. § 10003(h), or to note with specificity that the request is under legal review or requires additional time for another statutorily permissible reason, we nonetheless find that Ms. Schieck’s complaint with respect to the February 6, 2015 request for public records is moot and requires no remediation.

The Town Solicitor informed us that the Town did not create minutes of the public session of the January 2 meeting until recently.  Mr. Townsend represented that no public business was discussed during the public session of the January 2 meeting.  According to Mr. Townsend, the purpose of the Town’s public session was to vote to enter executive session.  The Town voted to adopt the January 2, 2015 public session meeting minutes at a regularly scheduled meeting held on August 13, 2015.  We find no further remediation is required.

CONCLUSION

We understand that the Petitions are primarily concerned with the Town’s decision to enter the Agreement and potentially spend significant public funds without first discussing the issue at a properly noticed public meeting. We further understand that the petitioners believe this decision violated the Town’s Charter and other State laws.  However, FOIA is a limited statute designed to fulfill a particular purpose: to guarantee that “public business be performed in an open and public manner.”68  While Delaware’s general assembly granted enforcement powers to our office under Sections 100005(b) and (e) of FOIA, the scope of those powers is limited to reviewing and issuing determinations regarding actual or potential violations of FOIA.  FOIA does not carry with it the power to police towns’ compliance with their charters or any other applicable law.

We find that the Town did not violate FOIA when it voted to sell the Ruddertowne Space or when it voted to approve the purchase of the Properties.  The Town did violate FOIA when it failed to provide a statutorily acceptable response to Ms. Schieck’s February 6, 2015 request for public records.  Finally, the Town violated FOIA when it failed to prepare minutes of its January 2, 2015 meeting.

Very truly yours,

/s/ Katisha D. Fortune

Katisha D. Fortune
Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, Acting State Solicitor

cc: Danielle Gibbs, Chief Deputy Attorney General (via email)
Fred Townsend, Town Solicitor for the Town of Dewey Beach (via email)

FOOTNOTES

1 The Town of Dewey Beach is governed by the “Commissioners of Dewey Beach.”  The Town’s Charter provides that “[t]he government of the Town and the exercise of all powers conferred by [the] Charter  . . . shall be vested in the Commissioners of Dewey Beach.”  According to the Town’s Charter, the “Commissioners of Dewey Beach” (also known as the “Town Council”) consists of five members.  One of the Commissioners must have the title “Mayor of the Town of Dewey Beach.”  During all times relevant to this matter, the “Commissioners of Dewey Beach” included Mayor Diane Hanson, David Jasinski, Anna Legates, Gary Mauler, and Courtney Riordan.  See Charter of the Town of Dewey Beach at Section 3, available at http://ecode360.com/12077425 (last visited July 29, 2015).  See also http://www.townofdeweybeach.com/Town-Council/.  It is undisputed that the Town Council is a “public body” subject to FOIA’s open meeting laws.  See 29 Del. C. § 10002(h).

2 Because of the fact-specific questions raised in the Petition, we briefly summarize our understanding of the relevant facts.  Please note that we do not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body.  We have also omitted any factual information that does not directly relate to the FOIA violations raised in the Petition.

3 See March 11, 2015 Response Letter, at p. 1; Minutes of July 19, 2013 Town Commissioner Meeting (attached as “Exhibit F” to the Tush Complaint).

4 See id.

5 See id.

6 Section 15 of the Town Charter permits the Town Mayor, “with the concurrence of a majority of all elected Commissioners of the Town,” to appoint a “Town Manager.”  The Town Manager serves as the Chief Administrative Officer of the Town, the Secretary of the Commission of the Town, and the Treasurer of the Town.  The Town Manager is not a member of the Town Council, but is required to perform various duties described in Section 16 of the Town Charter.  Many of the Town Manager’s duties are subject to approval by the Town Commissioners.  See Charter of the Town of Dewey Beach, Delaware, at Section 16, available at http://ecode360.com/12461111.

7 See Minutes of July 19, 2013 Town Commissioner Meeting (attached as “Exhibit F” to the Tush Complaint).

8 See Town Commissioners Meeting Agendas for June 20, 2014 and October 11, 2014.

9 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit J” to the March 11 letter complaint received from Marcia Schieck and other property owners).

10 See Minutes of January 24, 2014 Town Commissioner Meeting.

11 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit F” to the Schieck Complaint dated February 13, 2015). The Petitions question whether this transaction was in the best financial interests of the Town and accuse the Commissioners of failing to explore other bids for the Ruddertowne Space.  Because such concerns are outside the scope of this opinion, no determinations concerning the propriety of the sale of the Ruddertowne Space are made herein.

12 See id.

13 See March 11, 2015 letter complaint from Marcia Schieck and other property owners.

14 See Buyer Agency Agreement, dated December 12, 2014.

15 See Agreement at p. 9.

16 See id. at p. 1.

17 Id. at p. 8.

18 See February 2, 2015 email from Mayor Diane Hanson to the Town of Dewey Beach Commissioners (attached as “Exhibit J” to the March 11 letter complaint received from Marcia Schieck and other property owners).

19 February 4, 2015 email from Anna Legates to Mayor Diane Hanson (attached as “Exhibit D” to the March 11 letter complaint).

20 Id.

21 See Agenda of Town Meeting, held on Saturday, February 14, 2015, at Agenda Item 6 (“Discuss and receive public input on purchase of 1503 and 1505 Coastal Highway properties for Town Hall expansion (vote whether to enter into contract planned for March business meeting).”)

22 See Town Manager Meeting Agendas for meetings held on January 17, 2015 and March 7, 2015.

23 Agenda of Town Meeting held on March 14, 2015.

24 See March 18, 2015 letter complaint from Marcia Schieck, et al.

25 The February 13 letter complaint raises numerous allegations that the Town Council, the Mayor, and the Town Manager, among other things, violated its charter and the public trust, and engaged in “haphazard and reckless” decision making regarding the Ruddertowne Space and the purchase of the Properties.   The Property Owners also complain that many of these critical meetings were held during the winter months when the majority of property owners would not be in attendance, that Mayor Hanson’s written communications to the Town’s property owners misrepresented critical information, and that Mayor Hanson and the Town Manager failed to obtain appraisals of the various real estate properties involved prior to entering the agreements of sale on behalf of the Town.

These accusations do not relate to the Town Council’s obligations under FOIA.  Rather, most of these claims relate either to alleged violations of the Town Charter or the alleged breach of fiduciary duties of the Town Council, the Mayor and the Town Manager.  As these issues fall outside the scope of this office’s review, we decline to address them in this Opinion.

26 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit F” to the Schieck Complaint dated February 13, 2015).

27 See Notice of Executive Session, dated October 11, 2014; February 10, 2015 email to Maria Schieck (attached as “Exhibit H” to the February 13 letter complaint).  According to Mr. Townsend’s March 11, 2015 response letter, the Petitioners were provided with a redacted version of the October 11, 2015 executive session meeting minutes on March 11, 2015.

28 See Photo, Elena L., Dewey enters contingency contract to acquire $875,000 property without any public meeting, discussion, or vote, Dewey Beach News (Feb. 3, 2015) (Claiming that the Town Commissioners did not vote on potential site acquisitions during the public portion of the October 2014 meeting even though Agenda Item 17 indicated that a vote would occur).

29 Because this allegation does not state a violation of FOIA, the legal significance of this claim will not be addressed by this Office.

30 The Tush Complaint raises several additional legal issues (i.e., breach of fiduciary duties, violation of the Town Charter and Town Code, etc) that do not relate to FOIA.  These matters will not be addressed by this Office in this determination.

31 For purposes of this determination, we assume that Ms. Tush submitted a separate request for public records on February 6, 2015.

32 Tush Complaint at p. 2

33 29 Del. C. § 10004(a).

34 29 Del. C. § 10004(b) allows a public body to convene an executive session closed to the public for nine specific purposes, including “[p[reliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property.”

35 See 29 Del. C. § 10004(c).

36 Town Commissioners Meeting Agenda for meeting held June 20, 2014.

37 Town Commissioners Meeting Agenda for meeting held October 11, 2014, at item 13.

38 29 Del. C. § 10004(b).

39 O’Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007).

40 29 Del. C. § 10004(f) requires all public bodies to maintain minutes of all meetings, including executive sessions, conducted pursuant to FOIA.  Although FOIA does not require that the Town store or maintain meeting minutes in any particular location, section 10004(f) requires public bodies to make meeting minutes available for public inspection and copying as a public record.

41 According to the October executive session meeting minutes, the Town discussed litigation matters, personnel matters, and a possible site acquisition during that portion of the meeting.  The minutes also indicate that “[n]o actions or votes were taken at this meeting.” Although the Petitions and a local newspaper allege that the Town voted to approve action taken by Mr. Appelbaum regarding a site acquisition during the October 2014 executive session portion of the meeting, the minutes clearly indicate that no such vote was taken.

42 Section 10004(f) permits a public body to withhold “minutes or any portions thereof” taken during the executive session portion of a meeting “so long as public disclosure would defeat the lawful purpose for the executive session.”  See also 29 Del. C. § 10004(l)(10) (exempting from public disclosure, “any record of discussions held in executive session pursuant to § 10004(b) and (c).”).

43 29 Del. C. § 10002(g).

44 29 Del. C. § 10002(j).

45 See Att’y Gen. Op. 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.’”).

46 Att’y Gen. Op. 06-ID20, at p.2 (quoting Att’y Gen. Op. 06-ID16, at p.4).

47 Id.

48 See February 4, 2015 email from Anna Legates to Mayor Diane Hanson, attached as “Exhibit H” to March 11 letter (expressing concern that the Agreement was signed without input from the Town Council).

49 Agreement at p. 9, Clause 32.

50 See 29 Del. C. § 10004(e)(2)-(5); (g).

51 See Agenda for Town Council Executive Session and Open Meeting, held January 2, 2015.

52 The Petitions also challenge the Commissioners’ decision to hold a meeting during the winter and shortly after the holidays when most property owners are not in town.  We are sympathetic to Petitioners’ concerns—the purpose of FOIA is to ensure “that public business be performed in an open and public manner.”  29 Del. C. 10001.   However, FOIA does not require that public meetings be scheduled in such a way to ensure maximum public attendance.  As discussed above, FOIA only requires that public bodies schedule meetings in a manner that complies with 29 Del. C. § 10004.

53 29 Del. C. 10004(f).

54 See March 6, 2015 Letter from Town of Dewey Beach Manager to Ms. Marcia Schieck, attached as “Exhibit A” to the March 11 Letter.  The Tush Petition also states that Ms. Tush requested public records on February 6, 2015.  Because the Tush Petition did not enclose the original FOIA request submitted to the Town, only the Schieck request is addressed herein.

55 See February 27, 2015 email from Ashleigh Hudson to Marcia Schieck (attached as “Exhibit B” to the March 11 Letter).

56 See 29 Del. C. § 10003(1).

57 See March 6, 2015 Letter from James Dedes, Assistant Town Manager, to Ms. Maria Schieck, regarding Ms. Schieck’s February 6, 2015 FOIA request (attached as “Exhibit A” to the March 11 Letter).

58 29 Del. C. § 10003(h)(1).

59 See id.

60 See id.

61 See March 6, 2015 Letter from James Dedes, Assistant Town Manager, to Ms. Maria Schieck, regarding Ms. Schieck’s February 6, 2015 FOIA request (attached as “Exhibit A” to the March 11 Letter).

62 Att’y Gen. Op. 12-IIB13, 2012 WL 6858971, at *4 (Dec. 21, 2012).

63 Ianni v. Department of Elections of New Castle County, 1986 WL 9610, at *5 (Aug. 29, 1986) (Allen, C.).

64 Id.

65 Att’y Gen. Op. 12-IIB13, 2012 WL 6858971, at *5 (Dec. 21, 2012).

66 Id.

67 See, e.g. Att’y Gen. Op. 08-IB07, at *9, 2008 WL 2397495 (May 23, 2008) (declining to recommend any remediation because the FOIA violations were harmless and resulted in no prejudice to the public rights created by FOIA); Att’y Gen. Op. 04-IB02, 2004 WL 257223, at *3 (Jan. 28, 2004) (remediation unnecessary where public body decided not to take the action agreed upon at public meeting held in violation of FOIA); Att’y Gen. Op. 97-IB18, 1997 WL 606482, at *3 (Sept. 2, 1997) (remediation unnecessary where decision reached during meeting held in violation of FOIA no longer applicable).

68 29 Del. C. § 10001.





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