SPECIAL COUNCIL WORKSHOP
A Special Council Workshop was held on October 6, 2003 at 11:30 a.m. with Council President McGlumphy presiding. Council members present were Mr. Carey, Mr. Pitts, Mrs. Williams, Mr. Ritter, Mr. Speed, Mr. Salters, Mr. Ruane, and Mayor Hutchison.
AGENDA ADDITIONS/DELETIONS
Mr. Carey moved for approval of the agenda, seconded by Mr. Speed and unanimously carried.
FREEDOM OF INFORMATION ACT (FOIA) - W. MICHAEL TUPMAN, DEPUTY ATTORNEY GENERAL
Mr. W. Michael Tupman, Deputy Attorney General, explained the role of the Attorney General’s Office for the State of Delaware as it relates to the Freedom of Information Act (FOIA) and investigations of complaints made by citizens. The Attorney General’s Office is prohibited by Statute from investigating their own state agency clients. Typical complaints received are usually directed to counties, city/town councils, or school boards. He advised members that approximately 40-50 complaints are received each year. To assist jurisdictions, the Attorney General’s Office has developed a Policy Manual.
Although there have been no substantial changes to the FOIA law itself, it has grown as it has encountered new fact situations, such as technology. As a result of advancements in communications, computers, e-mails, chat-rooms, etc., there has been a revised meaning for “what is a meeting”. Mr. Tupman advised members that a recent opinion concluded that “cyber meetings” are subject to FOIA. He explained that if there are a series of e-mails that involve a quorum of a group and there appears, at the end of this process, that a consensus has been reached, then, in this new “cyber age”, a meeting has been held.
Mr. Tupman assured members that the Attorney General’s Office was available to help and educate not to “catch” jurisdictions doing wrongs. He stated that the FOIA is about balance, not an absolute right to know. The legislature has decided that certain parts of the governmental process should be open and certain public records should be made available for inspection and/or copying, certain parts of the deliberative legislative process should be open - but not all - “too much sunshine will kill the plant”.
With regards to the public record law, Mr. Tupman stated that there are many exceptions, most of which deal with personal privacy. However, he noted that as a public employee, some personal privacy rights are “given up”, such as your position, title, and salary. Specifics such as social security number, deductions, etc. is privileged information that is protected by the privacy laws and should not be released. Mr. Tupman advised members of a request for information regarding retired public employees. The request was for names, home addresses, and amount of pensions of retired city employees. The Attorney General’s Office determined that names of retired city employees are public; however, home addresses and amount of pension is not. The public is only permitted information on active city employees. Once an individual leaves public employment and begins receiving a pension, then such information becomes a personal privacy right.
With regards to the open meetings law, Mr. Tupman explained that the general rule is that the process shall be open, the public must be given notice, and an agenda must be posted. The agenda is to provide the public with an idea of the topics to be discussed in order to make an informed decision as to whether they want to attend or not. However, there are exceptions for executive sessions at which the topics have been deemed sensitive and should be discussed in private. It was his feeling that the main objective is to recognize that government needs to work and in order to do so, there needs to be a compromise for what is discussed in public and private.
Mr. Tupman noted that there are three (3) areas of the FOIA which continue to be controversial: 1) amending the agenda; 2) procedures to go into executive session; and 3) what can be discussed in executive session. Although FOIA allows for agendas to be amended, there are only two (2) circumstances that would allow for such amendment:
1) the addition of an item that arises at the time of the meeting. Discussion must remain on the topic listed on the agenda. Members should be careful in allowing discussion to stray away from the item as specified on the agenda.
2) the addition of an item that arises after the posting of the agenda; however, the agenda must be amended no sooner that six (6) hours prior to the meeting. There must be a statement included explaining why it was necessary to amend the agenda.
Mr. Tupman also advised members that although FOIA provides individuals the right to attend an open meeting, they do not necessarily have the right to speak. As an example, he explained that criminal court cases are opened to the public. During a court proceeding, the public has a right to observe but does not have a right to speak. The same is true for governing bodies. Should the governing body allow for public comment; however, they must allow everyone the opportunity to speak; there can be no discrimination in this regard, and ground rules may be set, such as allowing a three (3) minute maximum, one person per group, etc.
Mr. Tupman explained that the perception of an executive session is that “they are always up to no good”. The procedure for going into executive session is simple: while in the public session, a motion is necessary to go into executive session, a reason for the executive session must be given, and then a vote taken. The FOIA requires that minutes of executive sessions be maintained and, because the executive session is confidential, the minutes are as well. The result would require two (2) sets of minutes, one of the open session and one of the executive session. Mr. Tupman stated that minutes must reflect enough information to meet the burden of proof that the discussion qualified for the executive session. He cautioned against the taping of executive sessions.
Mr. Tupman reviewed the qualifications for an executive session, indicating that there is much confusion regarding the use of “personnel matters”. Allowable personnel matters for an executive session must be for an individual already on the payroll, an employee, usually discussing their performance evaluation, pay raise, termination, disciplinary action, etc. Discussions of applicant qualifications are also permitted for an executive session, but do not qualify as a personnel matter.
Preliminary discussions on site acquisitions also qualify for executive sessions. Mr. Tupman indicated that the Attorney General’s Office has determined that this section includes the sale of property. The most misunderstood section to qualify for executive session is for “legal matters”. The qualification includes only those matters for legal advice as it pertains to collective bargaining or for pending or potential litigation. Public bodies are different from individuals with this respect as it would not cover routine legal advice; however, any discussion relating to strategic planning on a legal matter would be protected. A more difficult area is potential litigation since so many issues could be construed as such. He suggested that caution be given to the holding of executive sessions for this reason. Mr. Tupman stated that discussion of exempted public records also qualifies for an executive session; however, the jurisdiction should be careful that the public record is exempt from FOIA.
Responding to Mrs. Williams, Mr. Tupman reiterated that the cyberspace issue is an area that has and is being reviewed on a case by case basis. He explained the difficultly in determining if a FOIA violation has occurred without obtaining the specifics.
In response to Mr. Ritter, Mr. Tupman stated that agencies that receive public funds are typically subject to FOIA. For further clarification, Mr. Ruane requested criteria used by the Attorney General’s Office for determining when a body is in fact subject to FOIA. Mr. Tupman stated that there are several formality issues that must be considered, including the regularity of meetings, the composition of membership, how the body was established, etc. Mr. Ruane indicated that the Central Delaware Economic Development Council is funded by public monies, both the county and city, in addition to private funds. Its representation includes representatives from the county and city and meets regularly. It was noted that it was not created by a legislative act. Based on this information, Mr. Tupman felt that the Central Delaware Economic Development Council does not appear to be one that would be classified as a public body.
With reference to cyberspace, Mr. Ruane noted that with the posting of draft documents on a website, there is a suggestion that members of Council would provide commentary. There is a great possibility that, based on that commentary, a revised draft may be developed and presented to members for action. He questioned if the commentary would constitute a public record. Mr. Tupman suggested that such question be referred to the City Solicitor; however, he stated that the Attorney General’s Office has observed interpretations by other states that it is arguable that this would be a laudable part of the process. He reminded members that there is much still to be determined with regards to FOIA as a result of technology.
Responding to Mayor Hutchison, Mr. Tupman explained that the recording of executive sessions is not required. As a result of his experience, he would not suggest that executive sessions be recorded.
In response to Mr. Salters, Mr. Tupman stated that when a motion is made to adjourn into executive session, it must include the reasons why to inform the public. He reiterated that the idea of an agenda requires items to be listed in such a manner that citizens can make an informed decision in advance whether they would want to attend the meeting or not. The courts in Delaware have been very understanding with regards to these types of technical challenges because there is an understanding that government has to work.
During an executive session, Mr. Ruane questioned if the Chair could obtain some type of feeling of a consensus. Mr. Tupman explained that one would do so at a certain risk because the idea is when you come out of executive session, and vote in public session, it should not simply be a “rubber stamp”. He stated that discussion occurs during an executive session, and it is sometimes apparent how particular members may feel regarding a subject matter but the Chair should recognize when the discussion is at a point that they should ask the question “does everybody feel informed enough and has the issue been discussed enough so that when we go into public session, you are in a position to vote?”. With concurrence, at that time, members would resume the open session and vote on the matter in public.
Mr. Tupman thanked members for allowing him the opportunity to discuss this issue. He advised members that he conducted a search this morning and, although no track record is kept by his office, he noted that the City of Dover has the finest track record in the area for any municipality in Delaware and asked that members “keep up the good work”.
Mr. Salters moved for adjournment, seconded by Mr. Speed and unanimously carried.
Note from City Clerk’s Office: City Solicitor Rodriguez took notes of this Workshop and submitted a letter dated October 21, 2003, which has been attached to these minutes for reference purposes.
Meeting Adjourned at 1:04 P.M.
TRACI A. MCDOWELL
ASSISTANT CITY CLERK
All orders, ordinances and resolutions adopted by City Council during the Special Workshop of October 6, 2003, are hereby approved.
JAMES L. HUTCHISON
MAYOR
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Exhibits Attached to Original Minutes and File Copy
Exhibit #1 - Letter from City Solicitor Rodriguez dated October 21, 2003