Delaware’s Open Meeting laws – “Sunshine Law”
Who is Covered?
“Public body” means any regulatory, administrative, advisory, executive, appointive, or legislative body of the state, or of any political subdivision of the state, as well as anyone that receives or disburses state funds. This includes, for example, county, city, and town councils, school boards, and commissions, either elected or appointed.
Who is Excluded?
The General Assembly exempted itself and its party caucuses. (Conduct of legislative sessions is governed by the state constitution and House/Senate Rules.) The University of Delaware (except the Board of Trustees) is also exempt.
What are the Requirements?
Notice: §10004 (e)(2)(3)
- 7 days’ notice of all regular meetings and of intention to hold an executive session
(closed to the public)
- Shall include the date and time, as well as meeting agenda, if it has been determined.
- Notice requirements shall not apply to any emergency meeting that is necessary for the preservation of public peace, health, or safety.
- All bodies shall give notice of special or rescheduled meetings no later than 24 hours
- before such a meeting, along with a brief explanation of why the usual seven days notice could not be provided.
Agenda: §10004 (e)(2)(5); §10002 (f)
- An agenda shall contain:
- A general statement of major issues expected to be addressed at a public meeting.
- A statement of intent to hold an executive session and the specific ground(s) for executive session (see “Grounds for Closing a Meeting”)
- The posted agenda may be changed to include matters, including the need for executive sessions, that do not arise until the meeting.
- Normally, the agenda should be posted at least 7 days before the meeting (along with the public notice).
- If an agenda is not available at the time public notice is posted, it must be added at least 6 hours in advance of the meeting, along with a brief explanation for the delay in posting.
Minutes: §10004 (c), (f); §10002 (d) (10)
- Each public body must maintain minutes of all regular, special and emergency meetings, including executive sessions.
- Minutes are to be available for public inspection and copying.
- Minutes must include a record of members present, actions agreed upon, and votes taken, including votes on whether to go into executive session.
A public body may go into an executive session closed to the public only for one of the purposes set forth in the law. Executive sessions may be held only for discussion. All voting must take place in public.
Procedure for Closing a Meeting:
- The specific purpose of the proposed executive session must be set forth in the agenda and the minutes.
- The vote on whether to close the meeting for the stated purpose must take place in public and must be recorded in the minutes.
- A majority vote of the member’s present is required to close a meeting to the public.
- Discussions during executive session shall be limited strictly to the purpose stated in the agenda.
- Minutes of executive sessions are to be kept (recording, at the very least, members Present and participating in the discussion). Such minutes may be withheld from the Public only so long as disclosure would defeat the purpose of the executive session.
Grounds for Closing a Meeting:
Executive sessions are allowed only for the following purposes. The public body must be prepared to prove that the required facts existed and that the proper procedures were followed.
- Discussion of an individual citizen’s qualifications to hold a job or pursue training (unless the citizen requests that such a meeting be open)
- Preliminary discussions on site acquisitions for any publicly funded capital improvements (e.g., condemnation)
- Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension.
- Strategy sessions, including those involving legal advice or opinion from an attorney at law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body
- Discussions that would disclose the identity of a charitable contributor who has requested anonymity
- Discussion of the content of documents protected from disclosure as public records
- The hearing of student disciplinary cases (unless the student requests a public hearing)
- The hearing of employee disciplinary or dismissal cases (unless the employee requests a public hearing
- Personnel matters in which the names, competency, and abilities of individual Employees or students are discussed (unless the employee or student requests that such a meeting be open)
The law was amended by the General Assembly in 1985 to eliminate or limit several grounds that had formerly been available.
- Emergency meetings are covered by another part of the law (see “Notice” above).
- Closing a meeting for legal advice is limited to the situation described in (4) above.
- Meetings may no longer be closed for the purpose of “training and orientation sessions.”
- Meetings may not be closed to discuss public school management, fiscal policy, attendance zones, or personnel needs.
While meetings may no longer be closed for the above purposes, it is possible that, in some situations, one of the remaining grounds for executive session may exist.
How is the Law Enforced?
- Any action taken at a meeting in violation of the Sunshine Law may be challenged by a citizen in the Chancery Court.
- A lawsuit must be filed within sixty days of the citizen’s learning of the action, but no later than six months after the date of the action.
- Legal remedies available include an injunction, a declaratory judgment (e.g.., declaring actions taken in violation of the law to be void), and a writ of
mandamus (directing a public official to perform his/her duty under the law).
- The public body bears responsibility for justifying any failure to comply, including a decision to convene an executive session.
Persons who are willfully, seriously disruptive of the conduct of such public meeting may be removed from said meeting.
Posting of School Board Meetings:
14 Delaware Code §208
Digital recordings of school board meetings are to be posted on the school districts’ website within 7 business days of the meeting being conducted.
- Be mindful of a board quorum gathering during unofficial meetings and other events!
- Be mindful of e-mail correspondence:
- E-mails shared among all board members regarding details of school district business and related board actions are subject to FOIA laws
- E-mails distributed among all board members will constitute a quorum
- Guard your discussions at school functions (ball games, staff meetings etc.) – NO district related business in such public forum
- When in doubt – stop the conversation – postpone it until such time that it can be continued in a manner that complies with Delaware’s Open Meeting Laws.
Attorney Generals’ Office
Carvel State Office Building
820 French Street
Wilmington, DE 19801
New Castle County 302.571-.2500
Kent County 302.736.4211
Sussex County 302.856.5352