Rehoboth violated FOIA when deciding city manager contract

The state’s Attorney General Office has determined Rehoboth Beach officials violated the Freedom of Information Act several times during the process of hiring City Manager Taylour Tedder earlier this year.

In an opinion issued June 26, Deputy Attorney General Dorey L. Cole said her office has determined that city commissioners violated FOIA by holding an executive session for an improper purpose, by failing to properly notice two executive sessions, and by failing to notice a public comment period on the agendas of multiple meetings.

After months of a nationwide search, the city announced the hiring of Tedder in early April. Among other things, his contract calls for a $250,000 annual salary, plus $50,000 in moving expenses and a $750,000 home loan that will be forgiven in full if he stays for seven years.

A petition was submitted May 31 to the AG’s Office by dozens of concerned citizens. The city was required to submit its response by June 11. To date, commissioners have never explained how they reached the terms of Tedder’s contract.

The ruling says that FOIA does not allow private discussion of an employment agreement. Cole said her office has found that FOIA does not allow public bodies to engage in private strategy sessions regarding employment-related contracts outside of a collective bargaining or litigation context. Discussions of salary and other compensation involve the expenditure of public funds and are not related to the individual’s qualifications to hold a job, she said.

The city violated FOIA by engaging in discussions of Tedder’s employment contract, especially the compensation package, in executive session, said Cole. 

“Public employees’ compensation is a matter of public record, as it is ‘well settled that citizens have a right to know how their public servants are compensated with taxpayer monies, in whatever the form that compensation might take,’” said Cole.

The AG’s Office ruled the city further violated FOIA by failing to notice time for public comment on its agendas for each of the seven meetings with an executive discussion about city manager candidates and a special meeting April 8.

“Agendas are required to include a general statement of all major items expected to be discussed at a public meeting. A citizen should be able to review an agenda and determine whether an issue important to them will be under consideration and decide whether to attend. A public comment period is a major issue for discussion, and citizens must receive public notice of their opportunity for public comment so they can decide whether they wish to attend the meeting,” said Cole.

The city also improperly noticed two executive sessions, said Cole. For a meeting Nov. 6, 2023, and a meeting Jan. 8, 2024, the city cites a section of FOIA code pertaining to discussions related to city personnel matters involving current city staff, as opposed to candidates for city employment, she said.

Mayor Stan Mills said commissioners always believed they were following FOIA requirements and that discussion, and approval, of the city manager’s employment agreement in executive session was permissible. The city is disappointed with the attorney general’s determination, he said. 

“Transparency in government is important, and the state’s Freedom of Information Act is our guide,” said Mills. “To have been found in violation of FOIA laws signals a failure in the city’s transparency and is an injustice to our citizens. We are committed to adhering to FOIA principles. We can and will do better.”

As for remediation, Cole recommends commissioners discuss Tedder’s contract, including the compensation package, and ratify the vote associated with the contract at a future meeting held in compliance with FOIA’s open meeting requirements. This meeting agenda must include time for public comment, she said.

Lynne Coan, city spokesperson, said a date has not yet been set for when commissioners will follow the AG’s Office recommendation.

The AG’s Office didn’t comment on two of the issues raised by the petitioners. The first was related to commissioners violating the city charter by hiring a city manager who doesn’t meet the qualifications listed in the charter. The second is related to actions taken by the personnel committee. In both instances, the opinion states the office has to stick with FOIA issues, which neither are.

This is the second time this year the AG’s Office has determined the city violated FOIA law when making a hire. In February, the office also determined commissioners violated FOIA when they voted to hire Alex Burns in November without sufficient public notice. As a result, at a meeting soon after the finding, commissioners had to publicly vote on the hiring and give their reasons for choosing him as city solicitor.