AG’s Office dismisses complaint against Dewey

Staib: Lunch not subject to FOIA laws
The Attorney General's Office says Dewey Beach Commissioner Joy Howell, left, Mayor Diane Hanson, center, and Commissioner Anna Legates did not violate open meeting laws by going out to lunch together. SOURCE SUBMITTED
June 21, 2013

Two sitting commissioners and the mayor of Dewey Beach did not violate open meeting laws by having lunch together, a deputy attorney general says.

Commissioners Anna Legates and Joy Howell and Mayor Diane Hanson were the subject of a Freedom of Information complaint, filed by Dewey Beach resident and former Commissioner Zeke Przygocki May 15.

In the complaint, Przygocki said the women went to lunch together after hearing arguments in a case before Delaware Supreme Court; he accused them of holding a private meeting to discuss town business.

Town Attorney Fred Townsend responded to Przygocki’s complaint June 13, denying any violation of open meeting laws.  “FOIA does not prohibit a quorum of elected officials from gathering for the purpose of social interaction,” he wrote.  “The spontaneous decision to go to lunch together was a natural consequence of finding themselves on the courthouse steps.”

In a June 14 email to Przygocki, Deputy Attorney General Jason Staib sided with the town, saying no meeting took place that would be subject to the Freedom of Information Act.

“Based on the Town's response, and specifically the representations of counsel therein, it appears that no ‘public meeting’ took place within the meeting of FOIA, as alleged in your petition.  If you are not satisfied with the Town's response, for whatever reason, please let us know so that we may prepare a formal written determination.  Otherwise, we plan to consider this matter closed,” Staib wrote.

Townsend: No violations occurred

Delaware Supreme Court justices heard oral arguments April 10 in a lawsuit filed by property owners, who say an agreement between Dewey Beach and Ruddertowne developer Dewey Beach Enterprises should be invalidated.  The court sided with the developer and dismissed the complaint June 10.

The Feb. 26, 2011 agreement allowed DBE to build in excess of a townwide, 35-foot height limit in exchange for certain amenities, such as designated town space, public restrooms and a baywalk.

Citizens to Preserve Dewey, a volunteer group of property owners, opposes the agreement.  Commissioner Joy Howell, who attended the April 10 court proceeding, was a founding member of CPD.

CPD co-founders Joan Claybrook and Marcia Schieck and Commissioner Anna Legates and Mayor Diane Hanson also attended the oral arguments, and all the women met for lunch at Fraizer’s Restaurant in Dover afterwards.

In the complaint, Przygocki said town council and CPD were colluding to undermine the agreement with DBE.  “It would be ridiculous to suggest that these matters were not discussed during the luncheon meeting,” he wrote.

In the town’s response, Townsend said it was a mutual interest in the outcome of the oral arguments that brought CPD and town council together April 10, not the desire to hold a private meeting.

“Beyond the admitted gathering of a quorum of its members, critical elements of a FOIA violation are lacking here,” Townsend wrote.  According to Delaware Code, a meeting must include a quorum of members of a public body who gather to discuss or take action on public business.  “Of note, ‘public business’ is defined by FOIA to include matters over which the public body has supervision, control, jurisdiction or advisory power,” he wrote.

Townsend argued the gathering was not pre-planned, and the Murray case was well beyond the supervision or control of Dewey Beach Town Council.  “They were utterly powerless to exercise influence at that stage of the proceedings,” he wrote.

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