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The state Attorney General’s Office has decided the city of Rehoboth Beach violated the Freedom of Information Act by discussing items not included in the agenda. But the ruling also found the violations harmless and found they “resulted in no prejudice to the public rights.”
The complaint, filed by Commissioner Dennis Barbour and residents Mabel Granke and James Barnett, alleged the city violated the Freedom of Information Act in regard to two meetings, held on Oct. 1 and Oct. 15, when reducing the planning commission from nine to seven members was discussed.
At the Oct. 1 meeting, the agenda said the city commissioners would discuss “committee structure.” The plaintiffs alleged that item was confusing and gave no hint that a reduction of the planning commission would be discussed. The Attorney General’s Office decision said the city did violate the Freedom of Information Act by not clarifying that commissions and boards, as well as committees, would be discussed.
At the Oct. 15 meeting, the agenda stated that reducing membership of the planning commission would be considered. The complaint alleges that the ordinance, when introduced, also had a caveat that would impose term limits for commission members and that this item was not properly noticed. Again, the Attorney General’s office agreed the agenda item was not properly noticed and therefore the discussion during the meeting violated the law.
Because term limits were voted down, the Attorney General’s Office found no harm had occurred as a result of improperly noticing the meeting.
A third allegation by the plaintiffs said that Commissioner Paul Kuhns sent out a series of emails, soliciting comments from the other commissioners on the proposed ordinance and that this constituted a closed meeting. The Attorney General’s decision disagreed, saying the emails did not stimulate a discussion and no action took place.
City Solicitor Glenn Mandalas said of the decision, “My view is that this case could have went either way since the infractions were marginal at best. However, the Attorney General’s Office has always taken the position that it would err on the side of caution, thereby strictly interpreting FOIA, and that, I suspect, is the reason the AG’s Office determined there was a violation in two of the three instances raised.”
Granke said she was glad the Attorney General’s Office acknowledged that the city did not notice the meetings properly. Echoing a line from the decision, she said just because there was no remediation, it did not give the city a green light to intentionally or persistently violate the Freedom of Information Act.
“The city has, and will continue to observe FOIA in the finest possible way,” Mandalas said. “I am hopeful that this matter can be put to rest, and the city can spend its time and resources on matters more critical to the continued vibrancy of the city, especially as we enter the summer season.”
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