FENWICK ISLAND – A complaint against Fenwick Island was dismissed last week after the Delaware Attorney General’s Office reported it found no evidence to support allegations the town had violated the state’s Freedom of Information Act.
In a Fenwick Island Town Council meeting last Friday, town solicitor Luke Mette announced the results of a FOIA petition against the Town of Fenwick Island.
The complaint, filed by resident and former council member Bill Weistling, alleges the town violated FOIA’s open meeting requirements by limiting public comments during a March 4 public hearing to consider four proposed code amendments.
Mette said the attorney general’s opinion, issued last week, found no violation had occurred.
“A FOIA petition had been filed with the attorney general in connection with a public meeting that was conducted on March 4,” he said in last week’s town council meeting. “The attorney general’s opinion was returned two days ago and concluded that the factual record did not support the alleged violations in the petition.”
Last month, Weistling filed a petition with the attorney general’s office alleging the Town of Fenwick Island violated FOIA’s open meeting requirements during a March 4 public hearing on four ordinance changes.
“The last ordinance change regarded Ch. 153 of the code and prohibited low speed vehicles (lsv) within town limits,” his petition reads. “The Mayor stated that although not required, for transparency, this change to Ch. 153 would be included in the public hearing.”
Weistling said the public hearing included public attendance, as well as Zoom and phone callers. His petition, however, alleges the specific violation occurred when the town’s mayor, Vicki Carmean, announced those who had submitted written statements would not be permitted to speak.
“One member of the public who Zoomed in to the meeting, James Simpson, had submitted a written response to council members and town officials that included 155 signatures of property owners in opposition to the ordinance change,” he wrote. “He was not allowed to speak. His comments, along with many others who wrote responses, could have been beneficial to a large number of people who attended the hearing.”
When public comments exceeded the allotted time, officials opted to continue the public hearing at the following town council meeting. Weistling, however, argued that Simpson was allowed to speak during public participation, when most of the public had left and after the town council had voted on the ordinance change.
“In case number 19-ib58 10/24/19 the Attorney General’s office stated that although not required, when a comment period appears on an agenda it is subject to FOIA’s open meeting requirements,” he wrote. “I believe the Town of Fenwick Island violated FOIA by not allowing all members of the public to speak at this public hearing.”
Weistling requested the town council read the written comments at the start of the next council meeting, should his complaint be validated.
In an opinion issued April 20, however, the attorney general’s office concluded the evidence provided did not support the alleged violation.
The opinion states the town provided its response to the petition on March 30, as well as copies of approved minutes for the March 4 public hearing and town council meeting.
“The Town asserts that it ‘did not prohibit any member of the public from providing written or verbal comment,’” the opinion reads. “Prior to the vote, the Town states that the public was specifically asked whether there were additional comments. The Town asserts that ‘[i]f some members of the public chose to leave the meeting, or otherwise chose not to make verbal comment, that was their choice, not the Town’s.’”
The town also argued the public had an opportunity to speak during public participation.
“Further, if certain members of the public chose to speak at the ‘Public Participation’ period after the ordinance passed, the Town asserts that it was their decision to do so,” the opinion reads. “The Town contends that there is no FOIA provision requiring that written public comments be read aloud at a meeting, and such a requirement would hinder the efficiency of the meeting and only serve to discourage public bodies’ acceptance of written comments.”
Ultimately, the attorney general’s office ruled it found no FOIA violation had occurred at the March 4 meetings. The opinion stated anyone who wanted to voice their opinions had the opportunity to do so.
“Based on this evidence, we find that this ordinance’s public comment period, although it was conducted in a bifurcated format, allowed for verbal comments from citizens who submitted written comments,” the opinion reads. “Thus, we determine that the factual record submitted by the parties in this case does not support the alleged violation.
The opinion continues, “To the extent that this dispute perhaps arose out of a misunderstanding regarding the acceptance of verbal public comments, we recommend the Town Council clearly inform attendees at future meetings how to offer verbal comments during the public comment period, especially when that comment period must be bifurcated.”
