FOIA Violations Again
Hiring of Hudson as OIC
SC Online Content Editor
The state Attorney General's office has ruled that the Fenwick Island Town Council violated the state Freedom of Information Act (FOIA) when it refused to allow a police officer to speak at a Nov. 15, 2002 council meeting.
The attorney general's office handed down its ruling on Tuesday, Jan. 21, 2003. Council was also reprimanded in May 2002 for six FOIA violations.
In addition, the AG's office has required that Fenwick Island Town Council hold a special meeting to revisit the announcement to hire Glenn Hudson as Officer in Charge of the police department. The ruling requires council to hold that meeting within 30 days of Jan. 21, to allow public comment on the issue, and then vote on Hudson's hiring.
Major William Manning filed a FOIA complaint against the council on Nov. 22. Manning had asked to speak at the Nov. 15 meeting to respond to a comment by Public Safety Commissioner Edward "Buzz" Henifin that "there is a problem of communication and trust between the council and Major Manning."
Henifin made the comment in response to Fenwick Island resident Bobbi Lednum, who asked why Manning had not been named officer in charge after the dismissal of Chief George Dickerson when Manning was the department's second-in-command.
Town Council President Peg Baunchalk refused to let Manning speak, though, using the rationale that he was not a resident of the town.
But another officer, Sgt. Michael Bruette, was allowed to speak during the same meeting even though he is not a Fenwick Island resident.
The town's response to the complaint, according to a Jan. 21 letter to Manning from Deputy Attorney General W. Michael Tupman, denies any violation on the grounds that FOIA does not have a "requirement for public participation."
While Tupman acknowledged that FOIA does not require public participation at meetings, he noted that Fenwick meeting agendas do include a time for public comment.
Therefore, Tupman concluded, "If a public body chooses to allow public participation in a meeting ... then it must treat members of the public fairly and even-handedly." He quotes a Boston ruling that said allowing one person to speak but not another "raises an equal protection claim that is closely intertwined with First Amendment interests."
Tupman specifically cited the fact that Baunchalk had allowed Bruette to speak while denying Manning the ability to speak.
In his letter to Manning, Tupman wrote, "For the foregoing reasons, we find that the Town violated the open meeting requirements of FOIA at the November 15, 2002 Council meeting by: (1) restricting public comment to Town property owners, and then allowing some non-property owners but not you to comment on the proposal to hire Glenn Hudson as the officer-in-charge of the Town police department;"
Tupman's letter further noted that a 1996 Attorney General's opinion found that while a town council could refuse to answer a question from an out-of-state resident because Delaware's FOIA only applies to Delaware residents, "a public body cannot derogate from FOIA by affording rights to a more restrictive group of citizens, such as the owners of property within a municipality."
Manning's complaint also addressed the minutes of the Nov. 15 meeting.
"The minutes of the Nov. 15, 2002 meeting do not reflect much of what happened at the meeting," Tupman said in his ruling.
Manning's complaint asked the Attorney General's office to rule on whether FOIA was violated because those minutes did not contain a reference to a vote on a new contract between the town and Glenn Hudson. Hudson had been hired as a consultant for the town, in the wake of Dickerson's suspension. Hudson's responsibilities were to include suggesting ways to recruit and retain officers.
At a Nov. 1 special council meeting, Hudson was named officer in charge for the police department, following Bruette's resignation from the post. In the interim, Henifin had served as the officer in charge for 11 days. Hudson's contract was to expire Dec. 5 -- which was to be the day after a scheduled hearing on Dickerson's termination. That hearing has since been rescheduled for Feb. 12.
At the Nov. 15 meeting, Henifin announced during his public safety report that Hudson's contract had been extended for a maximum of six months and that his consulting contract had been nullified.
But the council took no vote on the new contract at the Nov. 15 meeting, according to council member Vicki Carmean. Carmean said a copy of Hudson's new contract was in her mailbox on Nov. 15 -- which she did not have a chance to read until after the meeting.
Because Dickerson has not been officially fired, council, at a special meeting on Nov. 22, then had to clarify that Hudson's contract as officer in charge was only good until the day after Dickerson's termination hearing.
Carmean made reference to the lack of a vote at the Nov. 15 meeting in her own FOIA complaint, filed Jan. 10, 2003: "As per the issue of Glenn Hudson's mysterious six-month contract announced during the November 15th meeting, the completed minutes should show that Council did not agree to this, but only to the OIC appointment through December 5th. If the finalized minutes were not so sanitized, the November 1st Special Meeting minutes would show that in the Executive Session, this point was emphatically clarified. It is unfortunate that while open session meetings are taped, the executive sessions are not, thus lending themselves to editing and rewriting history."
In his conclusion, Tupman wrote that council violated FOIA by "failing to prepare minutes of that meeting reflecting the vote, by individual members of the Council, to hire Mr. Hudson."
In addition to developing a recruitment and retention plan, Hudson's new duties would include:
Since that time, three officers -- Manning, Bruette and Pete Brennan -- have decided to leave their positions, with Manning retiring and Bruette and Pete Brennan resigning. A fourth, Ethan Kaplan, resigned late last fall but later rescinded his resignation.
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