AG: Rehoboth personnel committee violated open meetings law

First it was Rehoboth’s utility-rate study working group. Now, it’s the city’s personnel committee. In both cases, the state attorney general has ruled Rehoboth violated the Freedom of Information Act by holding secret meetings. Going forward, both groups will meet publicly.

In a Feb. 22 opinion from Deputy Attorney General Dorey Cole, the personnel committee was deemed a public body. She found the city violated open meeting laws by conducting a meeting Jan. 3 without proper notice.

The meeting of the personnel committee was revealed during a Jan. 18 commissioner meeting in which the commissioners were discussing possible changes to the city’s personnel code.

Immediately following the meeting, Mayor Paul Kuhns said he decided to have the committee begin meeting in private because it often has to go into executive session to discuss individual employees. According to the city’s website, the committee met at least six times in 2018 – in January, February, March, June, August and September.

Kuhns also said the committee, composed exclusively of city commissioners, had only three members, which is not a quorum. The city’s website lists Commissioners Toni Sharp, Richard Byrne, Lisa Schlosser and Pat Coluzzi as members; four members is a quorum.

Hours after the conclusion of the Jan. 18 commissioner meeting, former Rehoboth Mayor Sam Cooper submitted a FOIA complaint, questioning three specific violations – an executive session in November between the city and Sussex County regarding the county’s possible takeover of the wastewater system; the unnoticed and private meeting of the personnel committee; and the unnoticed and private meeting of the utility rate study working group.

“There appears to be a pattern whereby the City of Rehoboth Beach is knowingly and consistently ignoring this important statute,” he wrote.

Cole used the same two-prong test as was used with the utility-rate study working group decision to determine if the personnel committee is a public body.

Cole said the city’s reply to the FOIA complaint indicated the committee was formed by another public body, which satisfies the first prong of the test. City officials said the committee makes recommendations to the commissioners, satisfying the second prong.

“Based on these submissions, we conclude that the personnel committee is a public body and subject to the open meeting laws,” wrote Cole. “As such, the city violated FOIA by failing to meet the open meeting requirements for the Jan. 3, 2019 meeting.”

In the same Feb. 22 opinion, Cole issued an opinion saying the city did and did not violate FOIA by calling an executive session with the county. First, she said discussions relating to a memorandum were a violation, because they did not meet attorney-client privilege. Second, she said discussions related to the possible sale of wastewater real estate were properly noticed, because it is necessary to preserve the city’s bargaining position in the commercial market whether one or more buyers are currently at the table.

The Feb. 22 ruling comes almost two weeks after the attorney general issued an opinion Feb. 11 saying the working group was a public body, and recommended that it comply with open meeting requirements in the future. The utility-rate working group opinion was issued separately from the other two complaints because another group of citizens also questioned the working group meetings. Since that ruling, the working group has met publicly twice.

When asked for comment about the attorney general’s decision regarding the personnel committee, Kuhns said that he would let city Solicitor Glenn Mandalas answer.

Mandalas didn’t give his thoughts on the ruling, stating only that in the future, the committee would follow FOIA rules.

“The personnel committee will function as a public body, subject to FOIA. No meetings have been scheduled. The four commissioners remain on the Personnel Committee, and we will address that if it becomes necessary to convene the committee,” he wrote in a March 6 email.