FOIA complaint filed against County over agenda order

In October, Greenwood resident Dan Kramer filed a complaint with the Delaware Attorney General’s Office, contending that the Sussex County Council had violated the Freedom of Information Act (FOIA) by allegedly listing an agenda item, “Additional Business,” out of the order listed in its internal Rules of Procedure.

In his complaint, Kramer stated that FOIA requires all voting take place in public.

“The out-of-order item was listed after the listing of the Executive Session (Caught the Public by Complete Surprise),” wrote Kramer in the October complaint. “When I questioned the County Clerk why the item was posted out of order, her reply was, ‘I only follow orders.’ Who had the authority to tell the County Clerk to post this item out of order? Nobody, when you look at the County Council’s Rules of Procedures, which the Council votes and approves every January.”

Kramer’s concern, which has been voiced at council meetings, is that in changing the order of the items, public comment may not occur until after the council concludes its executive session, which can vary in length and are a point in the agenda when many members of the public may choose to leave.

“Some of the executive sessions last over two hours,” wrote Kramer.

Earlier this week, Kramer told Coastal Point that the change could negatively affect county residents who wish to speak during the “Additional Business” portion of the meetings.

“The average Joe coming in off the street, wanting to say something, do you think they’re going to sit there for two hours while they go into executive session?” asked Kramer, adding that, in contrast, he recalls a recent executive session that lasted approximately 15 minutes. “If I had left a minute earlier, I would’ve missed my chance, and that applies to all people.”

“The change occurred to place additional business at the end of the meeting after all matters have been brought before Council,” Chip Guy, communications director for the County told Coastal Point earlier this week. “That is a logical place on a meeting agenda since, based on its labeling, ‘additional business’ implies all other matters have been brought up, discussed and presumably acted upon.

“Thus, anything else is ‘additional business,’” he explained. “It was a minor scheduling change intended to improve efficiency. Certainly if a matter is expected to take longer in executive session, we can and have adjusted the agenda in those instances to accommodate the public.”

In his complaint, Kramer stated that items in the Aug. 12 council agenda were listed out of order.

In County Attorney J. Everett Moore’s response to Kramer’s FOIA complaint, he stated that in Rule 1.1 of the Sussex County Rules of Procedure it “does not have a set placement for ‘Executive Session,’” and that it may be placed anywhere in the meeting, as long as the placement has received a majority vote, taken in public.”

While in previous meetings “Additional Business” had been placed prior to the council’s executive sessions, Moore said the change in the order of the agenda was properly noticed, as required by Delaware Code.

Moore added that, while the County, by law, must guarantee public access to meetings, the inclusion of “Additional Business” is “not a legal requirement.”

“The County acknowledges that it discussed ‘Additional Business’ prior to going into Executive Session, which was not the order of business set forth on the adopted agenda,” wrote Moore of the County’s Sept. 23 meeting. “However, as stated previously, no action is ever taken on ‘Additional Business’ items. Therefore, the public suffered no harm.”

He added that “no substantive County business” was discussed during the “Additional Business” portion of the Sept. 23 meeting.

“At this time, the County is awaiting a response from the Attorney General regarding the complaint. It is our position that no violation has occurred,” Guy stated.

The new council term begins Jan. 6, at which time new councilman Rob Arlett will be sworn in. According to Guy, at that meeting the council will consider its Rules of Procedure, including the Order of Business, and could make changes.