Sussex County Delaware

F.I. Found in Violation
of FOIA Over Minutes
 
Fenwick Island ...

New Complaint Filed
Over Auditor's Report

By KERIN MAGILL
SC Online Content Editor

In a decision dated Feb. 5, 2003, Delaware's Deputy Attorney General found the Fenwick Island Town Council violated the state's Freedom of Information Act (FOIA) by failing to prepare minutes of council meetings in a timely manner.

The decision comes in response to a complaint filed Nov. 22, 2002 by Vicki Carmean, the town council's newest member.

Signed by Deputy Attorney General W. Michael Tupman, the decision states that " FOIA does not set a time limit for a public body to prepare minutes of its meetings," but adds, "we believe that a reasonable time is by the time of the public body's next regularly scheduled meeting."

On three other points Carmean brought up in the same complaint, the Attorney General's office found no violations. Carmean had asked the department to rule on three other concerns. They were:

  • Whether the council met without notice in November to discuss the term of then-consultant Glenn Hudson's contract;
  • Whether the town provided adequate notice of a special meeting held Nov. 22, 2002; and
  • Whether that Nov. 22 meeting was legal.

On the issue of the meeting minutes, Tupman's letter to Carmean stated the Attorney General's office reviewed the agendas and minutes for all town council meetings in 2002. The records show that some minutes were not approved up to seven months after they were held.

In fact, on Sept. 26, 2002, the council approved minutes of eight closed meetings in February, March, April, May, June, August and September. Minutes of three meetings held Sept. 27 and two held Oct. 18 were not prepared until Nov. 15. Minutes of four special meetings held Sept. 26, Sept. 27, Oct. 18 and Nov. 1 were not prepared until Dec. 2.

In his letter, Tupman quoted a 2001 Georgia Court of Appeals opinion which held that minutes serve the important purpose of "letting the general public know when and where to find an official accounting of the business that transpired."

"We can understand why, because of personnel absences, the minutes of a particular meeting might be delayed," Tupman wrote. "But the town has not adequately explained why it did not prepare and approve minutes of 15 meetings in 2002 for periods ranging from two to seven months. The town may have hired a new town administrator in June 2002, but a third of the overdue minutes were for meetings prior to that date," Tupman's letter stated.

On the other complaints, the Attorney General's office said the town council did not meet without notice to the public to discuss the terms of Glenn Hudson's contract in November 2002. Tupman said council authorized Public Safety Commissioner Edward "Buzz" Henifin to hire Glenn Hudson as officer in charge of the town's police department until Dec. 5, 2002.

The minutes of the regular meeting of the town council on Nov. 15, Tupman wrote, stated that the town had "today hired (Glenn Hudson) as a temporary full time officer for a period of 180 days and designated his status as officer in charge until December 5.'

Tupman also said he found no evidence that certain members of council met in secret between Nov. 1 and Nov. 15 to agree to hire Hudson for six months instead of five weeks, saying the only meeting of council "noticed to the public" between Nov. 1 and Nov. 15 was a special meeting on Nov. 6 and that council had not discussed Hudson's contract in either the public or executive sessions of that meeting.

Council eventually found it necessary to clarify the terms of Hudson's contract at the special meeting on Nov. 22, saying he was to be hired as officer in charge until Dec. 5, the day after the original date for the termination hearing of suspended police chief George Dickerson, and not for six months as had been stated by Henifin during the Nov. 15 meeting.

On Jan. 21, Tupman, finding council in violation of FOIA for refusing to allow Major William Manning (since retired) to speak at the regular council meeting on Nov. 15, ordered council to rehire Hudson as officer in charge at a publicly advertised meeting and to allow public comment on the issue within 30 days of Jan. 21.

Such a meeting with that specific purpose has not yet been publicly announced, although a special meeting, including an executive session to discuss personnel and potential litigation, has been scheduled for Friday, Feb. 14, at 1 p.m.

In response to two other questions from Carmean, Tupman said council had legally met in executive session on Nov. 22 "for a purpose authorized by statute" and that it provided adequate public notice of the special meeting on Nov. 22.

Tupman said the agenda for the Nov. 22 meeting explained the reason for the short notice -- "because of need to meet potential litigation issues; only time a quorum could be gathered in a timely manner."

"We conclude that the Town was justified in calling a special meeting with two days' notice to the public in order to discuss Chief Dickerson's civil rights lawsuit (filed on Nov. 20, 2002) and how to respond. The Town also needed to address the issue of the venue for Chief Dickerson's administrative hearing, which our Office had called into question."

Meanwhile, Carmean has filed another FOIA complaint against her fellow council members. This one, filed in a letter dated Feb. 8, alleges that the council has illegally kept from the public a management report based on findings of the town's auditor, Sombar & Co.

Carmean's letter said that "... a decision has been made, apparently by the council president (Peg Baunchalk) and a small group of council members to delay this presentation until sometime during the spring, when the audits for the past four years have been completed.

"Because of the serious nature of the audit results for 1999 and 2000 as well as the need to rectify past mistakes promptly, I would like to see this document made public at the next available opportunity," Carmean's letter said.

Carmean's letter also alleges that "there continues to be the possibility that certain members of the council are conducting public business behind the scenes" in violation of FOIA.

Carmean said the auditor's management letter is "another example of how business is conducted behind the scenes by one group while other council members and the public are excluded from the decision-making process."

She continued that she suspects some of her fellow council members are using private meetings, memos and e-mails as tools for the "crystallization of secret decisions to a point of just ceremonial acceptance."

In a telephone interview Monday, Feb. 10, 2003, Carmean said, "I take no joy in this." She said when she got a copy of the management letter, "I kind of thought it would summarize" the same points Thomas Sombar, president of Sombar & Co., made at a Jan. 31 council meeting regarding results of the 1999 and 2000 audits.

But Carmean said the management letter "goes well beyond" what was made public at the Jan. 31 meeting. "I was so stunned by what I saw," she said. "It contains recommendations and points out things the taxpayers need to know."

Carmean and several representatives of the Fenwick Island Concerned Citizens, a watchdog group formed in the wake of the town's spate of personnel and financial problems, met with Attorney General Jane Brady on Friday, Feb. 7 to discuss a number of issues.

While neither Carmean nor the Concerned Citizens would go into detail on the content of the meeting, they said they hope it will result in a large scale investigation into the council's actions. "I believe that this goes on and on," Carmean said.


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