by Terry Rogers
At a recent meeting, Milford City Council tabled a vote on a proposed change to council assignments. In the past, council members were assigned to various committees throughout the city. In an effort to reduce the number of meetings each council person would have to attend, Mayor Archie Campbell suggested changing to a liaison process that would allow council members to meet with staff and then bring items to the full council for discussion.
“What constitutes a quorum is really the issue, City Solicitor David Rutt said. “If you look at 29 Delaware Code, there’s a section on that that says a quorum requires you to follow all advertising requirements and minutes and so forth. Under our charter, a quorum is five people which means three would form a quorum. So, ostensibly, if you had a meeting, three people that meet together, they make a decision, then they would be considered a quorum or majority of the quorum requirements under the charter. Two people can’t transact business, but three could. It’s a fine line and chances are nobody would object since it is informational, but just in case there was one of these group meetings, you had a quorum of three people, you offer or reach some decision, you would be transacting public business. That’s the standard, if you are transacting public business with a sufficient number to constitute a quorum, you have to meet the notice requiremetns and you have to have meeting minutes.”
Rutt continued pointing out that council members were given homework assignments at a recent retreat. Since he was not present at the retreat, he cannot say that the assignments could violate FOIA, but that council needed to be very careful. Councilman Jason James requested that council be provided specific instructions to which Rutt stated that he doesn’t know what the members were told to meet about in their homework assignments.
“It would have been different assignments,” Councilman Andy Fulton said. “Myself, Councilman Baer and Councilman Boyle were given an assignment related to open space. One did one part, one did another part and so on. That way, we could all build up a single packet at the very end. It was at the point it was going to reach me and we were all going to get together so I could start putting the information together. At the very end, FOIA training came out and that’s where the three percent rule came in and I was like, hold up, stop.”
Rutt then explained that the assignments from the retreat were basically ad hoc committees, an informal committee designed to investigate a particular city matter. Because they were official committees, there needed to be advertising, minutes and the meetings were required to be open to the public. Rutt explained that these types of committees were different than standing committees, like the Finance or Police Committee as they would be used for a specific purpose, using land use as an example. Councilman Fulton stated that the open space assignment included three council members, while the rest of the assignments were divided between two council members and a staff person.
“Councilman James and I were assigned the survey we just sent out to a variety of residents,” Councilman Todd Culotta said. “Our group was myself, Councilman James and Terri Hudson. The official business was just between two council members and one employee.”
Rutt stated that that was still a committee. City Manager Mark Whitfield explained that the assignments were issued so that council could investigate details and come back to council with information, not necessarily to meet and make a decision, but to offer recommendations. Councilman Jason James asked if having two council members and a staff member was as much a violation as having three council members.
“An ad hoc committee of council and it could be the Bicycle Advisory Committee or it might be the Bikeway Advisory Committee,” Rutt said. “I don’t know if there are any council members on that, but Rob is in charge of it and there are members of the community. That’s a committee of the council. And they advertise, they take minutes and they report back to council. You can put stripes on a mule, it’s still a mule, you can’t call it a zebra. It’s still a committee and it needs to follow FOIA.”
According to Rutt, if just one council member is in attendance, FOIA requirements are not applied as one council person cannot make a decision. However, if a committee has more than one council person, it could be construed as doing public business and, if a decision could be made, the city must comply with FOIA. Councilman James asked if these were simply information gathering committees and only information was brought back to council, would FOIA apply.
“You’re splitting hairs here,” Rutt said. “I suggest erring on the side of complying with FOIA. If you’re going to have a meeting and you’re going to gather information, you’re going to be making some decisions. What information do we gather? What do we present to council? What is the implication of A versus B versus C that we present to council.”
Councilman James suggested tabling the liaison assignments until Rutt could review Attorney General opinions that would clarify the rulings. Councilman Culotta pointed out that the whole point of serving as a council was so decisions were not made by a few people. Rutt pointed out that just because a decision was made in a meeting that may violate FOIA, it did not void the decision.
“There is a way to correct it,” Rutt said. “Bring it to council with a notice that there was an error, put it on the agenda and take care of it there. There have been rulings by the Attorney General which says this was a violation, however, it has been cured, no harm, no foul.”
City Clerk Terri Hudson pointed out that Dewey Beach had several FOIA complaints against them and the Attorney General’s investigation found one violation after another. The town had to go back over a year and a half in order to redo all decisions at meetings. Rutt stated that Dewey Beach was the “poster child of what not to do.”
Rutt agreed to bring the Attorney General opinions back at a future meeting.
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