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Rehoboth Beach Commissioner Dennis Barbour and two Rehoboth residents have filed a Freedom of Information Act complaint against the city.
The complaint, signed by Barbour and Rehoboth residents Mabel Granke and James Barnett, alleges city officials committed three violations of the Freedom of Information Act (FOIA) in posting notice of a meeting in which the planning commission was reduced to seven members.
The three alleged violations are: issuance of two incomplete and misleading agendas for a workshop meeting on Oct. 1 and a regular meeting on Oct. 15, votes by city commissioners at the Oct. 15 meeting on matters exceeding the agenda and the conducting of one or more meetings via email and possibly other nonpublic communications with a majority of city commissioners prior to the meeting.
The plaintiffs are asking the Delaware Attorney General’s office to set aside the 4-3 vote to reduce the commission from nine members to seven and consider the matter again only after compliance with FOIA.
In their first allegation, the plaintiffs say the agendas of two meetings regarding the planning commission reduction are incomplete and misleading, causing reduced attendance and ineffectiveness of public participation. The Oct. 1 agenda says “Discuss city committee structure,” which the plaintiffs say gave no hint of the suggestions by commissioners Paul Kuhns and Ron Paterson to reduce the commission or impose term limits on planning commissioners.
According to the complaint, “No member of the public would have any idea from the workshop agenda that was publicly disclosed that wholesale changes to the composition of the RBPC were going to be discussed at the Oct. 1 workshop meeting.”
The reduction of the planning commission came up again at the Oct. 15 meeting and the agenda lists the item as, “Consider ordinance to amend Chapter 51 of the Municipal Code, reducing the number of planning commission members from nine to seven.” According to the complaint, the idea of term limits, which was eventually voted down, was not listed as part of the agenda item.
Finally, the complaint says that Kuhns had been “straw-polling” other commissioners about the proposed changes to the planning commission. Four emailed drafts of the ordinance did go out to all the commissioners and City Solicitor Glenn Mandalas for comments; however, the complaint also alleges some emails, private meetings or phone calls involved only two, three or four of the other commissioners.
Barbour said one reason the complaint was filed is that no rationale has been given for reducing the size of the planning commission. He said a substantial number of emails were written to the commissioners opposing the ordinance but were ignored. Barbour said the complaint was about having transparency in government and the exchange of emails amounted to withholding information from the public.
The FOIA complaint was filed on March 28, to which Mandalas drafted a response on behalf of the city on April 12. Mandalas’ response lists six reasons why the complaint should be dismissed.
First, the city says the complaint is untimely. According to FOIA, any violation may be challenged within 60 days but no later than six months. The plaintiffs filed the complaint just three days before the passage of six months between Oct. 1 and Oct. 15. While the complaint would be considered timely in most circumstances, the city says, in this case, Barbour’s status as a city commissioner made him well aware of the matters at issue the moment they occurred. The city also says Granke, a former chairwoman of the planning commission, was also well aware of the matters complained of during the time the alleged violations occurred.
Two more reasons, the city said, are the Oct. 1 and Oct. 15 agendas both made a general statement notifying the public that committee structure and a reduction in the planning commission, respectively, would be considered. The city’s response also says all the commissioners, including Barbour, approved the minutes for both meetings.
Barbour said the law states he could file within six months and it Complaint
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is his right to file within that time whether he is an elected official or not. He called the city’s argument “bogus.”
Lastly, the city’s response says the plaintiffs have not shown proof that an electronic serial meeting occurred, that such a meeting did not occur and if a violation has occurred, remedial action is not appropriate. The city, which included copies of Kuhns’s emails to his fellow commissioners in its response, said the emails were passive and at no time did a quorum of commissioners reach a consensus on taking an action.
Barbour said he was not informed about the city’s response until he had to ask the Attorney General’s office for a copy. He said he did not think the city has been forthright with him on its response and did not inform him that the plaintiffs had a chance at rebuttal.
“The city goes to remarkable lengths to achieve compliance with the Freedom of Information Act. It is unfortunate that our efforts have been questioned in the form of a formal complaint to the Attorney General’s office because it requires a significant amount of the city’s time and resources to provide a comprehensive response to such a complaint,” Mandalas said. “Nevertheless, the Attorney General’s Office plays a significant role in ensuring transparency in government. Consequently, the city has worked with the Attorney General’s Office to provide everything it needs to make a reasoned and informed decision.”
The plaintiffs are allowed a rebuttal to the city’s response and Barbour said he hopes one will be filed with the Attorney General’s Office on Monday, April 28.
Contact Ryan Mavity at ryanm@capegazette.com
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