Dewey Beach FOIA Violations

Editorial, Cape Gazette July 31

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Public bodies: heed AG’s warning

D
elaware’s Attorney General’s Office recently fired a volley of cannonballs across the bow of Dewey Beach’s ship of state. Finding that the town violated requirements of the state’s Freedom of Information Act laws at least 28 times in the past two years - by not properly notifying the public about the nature of sessions closed to the public - the AG’s Office stated firmly that the town needs to change course.

Every town in Sussex County, every school board and every other public entity whose ac­tivities fall under the provisions of the Freedom of Information Act should take a careful look at the AG’s findings. We would bet without hesi­tation that many of the public entities we regu­larly cover, if formally challenged the way Dewey Beach has been challenged, would also be found guilty of Freedom of Information Act violations, according to the standard the AG’s Office is using. In a meeting last week, Attor­ney General Beau Biden said his office doesn’t routinely inspect the proceedings of public en­tities like towns and cities to make sure they are complying with Freedom of Information Act requirements. “We address complaints when we get them,” said Biden. “In reviewing the way Dewey Beach goes about its public business, it was clear to us that they weren’t complying with some of the very basic require­ments of Title 29 Chapter 100 [the Freedom of Information Act provisions in Delaware].

What we’re most concerned about is trans­parency and openness in government.”

Clearly, the government of Dewey Beach, in its divided community, should expect any and every misstep, no matter how small, to be chal­lenged. In fact, the AG’s Office is investigating other complaints.

However, the message from this should be clear to all public entities in Delaware: closed sessions are not in keeping with transparent and open government. Public bodies thinking it necessary to go into closed session to discuss public business related to personnel or litiga­tion better review notification requirements for such sessions and be very specific about their nature so they too don’t find themselves on the wrong end of an Attorney General’s Office opinion.

Cape Gazette editorials are considered and written by members of the Cape Gazette editorial board which includes Dennis Forney, publisher; Trish Vernon, editor; Dave Frederick, sports editor; Laura Ritter, news editor; and Jen Ellingsworth, arts and entertainment editor.

Dewey to reveal minutes from closed meetings

Council conforms to some of attorney general’s remedies

Cape Gazette, July 31

By Kara Nuzback

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Dewey Beach Town Council is aiming to improve transparency since it was cited for open meeting viola­tions by the Delaware Attorney General's Office. At council's July 27 meeting, commissioners said they would comply with some remedies provided by Deputy Attorney General Kent Walker, who issued the opinion July 13.

If council does not comply with the remedies, Attor­ney General Beau Biden said it would likely face litiga­tion in Superior Court. Among the remedies is a re­quirement that council obtain consent from the AG to modify its meeting agendas 48 hours in advance of a meeting and an agreement to provide the AG's office with a list of possible remedies for illegal actions taken at the meetings in violation.

In a 3-2 vote, council decided it would make all minutes of exec­utive session meetings held since Jan. 15, 2011 available to the attor­ney general and to the public. Commissioners also voted to conform to the attorney gener­al's standards for noticing and conducting meetings.

Council also voted to ask the Attorney General’s Office to re­word its opinion, taking into ac­count that Dewey commission­ers acted in good faith and under the advice of counsel when noticing and conducting all 28 meetings found to have violated Freedom of InformationAct laws.

Mayor Diane Hanson pro­posed voiding all votes taken af­ter executive session meetings since January 2011. Hanson said council should discuss the issues in public, accept public com­ment and re-vote on every issue discussed in a closed-door meet­ing.

But Town Attorney Fred Townsend said council does not have the authority to undo any of the policies that have been en­acted at previous meetings. 'There needs to be a consensus that we're not undoing anything tonight,' Townsend said.

Commissioners Jim Laird and Marty Seitz voted against releas­ing executive session minutes to the public. 'Sound to me like we want to seize an opportunity,' Laird said.

Laird and Seitz voted to ap­prove a Feb. 26, 2011 agreement between the town and developer Dewey Beach Enterprises to re­develop the Ruddertowne site in excess of the town's 35-foot height limit. The issue was a point of contention for years be­fore it was voted on. Hanson was the only member of council to vote against the agreement.

Minutes of the closed-door meeting held minutes prior to the vote on the agreement will become public under council’s vote.

Commissioners Anna Legates and Joy Howell, who were not on council when the agreement with DBE was approved, spoke publicly in opposition to its ap­proval. Howell is a cofounder of Citizens to Preserve Dewey, a group that formed in 2007 to push for a referendum vote on the fate of the Ruddertowne site. According to Delaware law, any citizen can challenge the ac­tions of town council in a Court of Chancery up to six months af­ter the action is taken or within 60 days of the citizen’s learning of the action.

Delaware Coalition for Open Government President John Fla­herty wrote a July 27 letter say­ing he disagreed with statements made by the attorney general. Howell read the letter at the close of council's July 27 meet­ing.

Flaherty states DelCOG sup­ported CPD in its battle against DBE over the fate of the Rudder­towne site. Flaherty said the Ruddertowne decision was ap­proved unlawfully during a closed-door meeting. 'The deputy missed those violations and did not bother to note that he was writing about two differ­ent town councils,' he wrote.

Flaherty said the Attorney General's Office did not call wit­nesses or allow testimony before issuing its opinion. 'In other words, members of the Dewey Beach Town Council have had no real chance to defend them­selves,' he wrote.

In the letter, Flaherty said he could recall no other time a pub­lic body was asked to sign a con­fession based on the assumption that it acted in bad faith because it had a lot of executive sessions. Flaherty said the AG seemed to ignore Townsend's March 6 re­sponse to Tush's complaint, in which Townsend gives reasons, including job interviews, for each meeting held behind closed doors. 'Privacy is an important consideration that trumps trans­parency sometimes,' he wrote.

Flaherty also said the Attorney General's Office answered a FOIA complaint last year that said town council was noticing its meetings properly. 'So we hope the attorney general will listen to the Dewey Town Coun­cil's side of the story before he undertakes further action,' Fla­herty wrote.

Executive session meeting minutes are scheduled to appear on the town’s website. For more information, visit townofdewey­beach.com.

AG finds Dewey council violated FOIA

By Kara Nuzback

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The Attorney General’s Office says Dewey Beach officials have habitually violated open meeting laws under the Freedom of Infor­mation Act. The attorney gener­al is giving town council an ulti­matum: Follow a list of rigorous remedies or face litigation in Su­perior Court. In a July 13 opinion, Deputy At­torney General Kent Walker said Dewey Beach Town Council committed obvious, prolonged and habitual Freedom of Infor­mation Act violations when noticing town council meetings. “We find that in Dewey Beach, executive sessions have been the rule, not the exception,” Walker wrote.

The Department of Justice found 28 open meeting viola­tions for public and executive session council meetings held between Jan. 15, 2011, and April 14, 2012.

The opinion was issued in re­sponse to a Jan. 25 letter from former Dewey Beach Mayor Dell Tush. In her letter, Tush said council violated FOIA laws at 20 town council meetings.

At two meetings in November 2011, council discussed and voted to pay Mayor Diane Hanson’s le­gal fees to appeal a ruling that she committed ethics violations. But the agendas posted to notice the meetings did not specify what council would be dis­cussing. “Each of these agendas simply note: ‘Executive Session – Personnel and Litigation.’ These notations fell far short of FOIA’s agenda requirements,” Walker wrote.

Delaware law requires that meetings closed to the public must be noticed, and the agenda must include a specific reason to hold the meeting in private.

“And we have determined that council’s failure to identify those reasons on its agendas violates FOIA and renders an action tak­en at those unlawful meetings voidable,” Walker wrote.

Walker also said council’s rou­tine use of the phrase, “subject to change to include additional items…which arise at the time of the public body’s meeting,” on its agendas is a FOIA violation.

In his opinion, Walker states all but one meeting on Tush’s list violated open meeting require­ments. In addition, the DOJ found violations at 11 meetings not referenced by Tush.

“I was really surprised at how hard the AG’s office came down on them,” Tush said. She said the office never called her to say her petition was being considered. “Basically, I kind of felt it was be­ing ignored.”

Tush said she is pleased with the opinion. “It’s what I’ve main­tained for a long time,” she said. “This group goes to great lengths to make sure the people don’t know what’s going on.”

Remedies

In lieu of requesting a declara­tory judgment from Delaware Superior Court, Walker says the town can agree to comply with a list of six remedies. If council agrees, it must deliver the min­utes of all meetings since Nov. 10, 2011 to the attorney general with­in 10 days of the date of the agreement. Council must also provide the attorney general with a list of proposed remedies for all illegal actions taken at those meetings.

Council will have to email the DOJ all meeting agendas 10 days in advance of each town council meeting for one year, including the time, date and place the agen­da was posted. The agenda can­not include any mention of a right to amend the agenda.

Council would not be able to amend any posted agenda with­out the consent of the Attorney General’s Office at least 48 hours before the meeting.

“We remind council that FOIA provides significant remedies to private persons, as well as the At­torney General, who may chal­lenge actions taken by council in violation of FOIA,” Walker