‘Secret’: Wilmington City Council seeks permission from state lawmakers to meet in private, outside of open meetings law

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Wilmington City Council members are asking state lawmakers to pass legislation allowing them to meet behind closed doors outside of Delaware’s open meetings law. But opponents say there needs to be more transparency, not less.

Delaware law requires public bodies, including city and county councils and school boards, to conduct business transparently so the public can observe discussion of agenda items and votes, and make comments. Agendas must be posted at least seven days in advance. But the law also allows entities to move into executive session, where they can discuss certain topics.

Wilmington City Councilman Coby Owens sponsored a resolution calling for lawmakers to approve a bill allowing the council to caucus like members of the General Assembly are allowed to do under the state’s Freedom of Information Act. State lawmakers are the only people currently allowed to do that. Republicans and Democrats in each chamber have their own caucuses, respectively, where they can discuss legislation and count votes without it being considered a public record.

Under the state’s open meetings law, public bodies can meet privately to discuss a select number of issues, such as litigation, personnel and real estate transactions. Owens said he wants the council to be able to caucus to discuss issues outside of those FOIA exemptions, such as property tax re-assessments. He said Wilmington City Council would also continue to meet publicly.

“Right now, it’s very restrictive to talk about different issues without having to have a public meeting,” he said. “This just gives us an opportunity to be able to come together and talk about some issues — very similar to how the General Assembly works.”

The resolution had 12 of the 13 members of City Council co-sponsoring it. A spokesperson for Wilmington Mayor John Carney said he had no comment.

Councilman Chris Johnson said the council is unable to discuss policies like housing and crime effectively because it has to be done in public. Under Delaware law, two council members of the same committee can talk alone. For the entire City Council, six members of the body can be together in the same room in private without engaging in an illegal executive session.

“We’re not doing backroom deals,” Johnson said during the City Council meeting. “We just need a way to be able to discuss policy.”

John Flaherty, a board member of the Delaware Coalition for Open Government and a Wilmington resident, said Delawareans need increased transparency in government.

“I see no reason why they have to talk policy issues in secret,” he said. “There’s plenty of opportunities they can have to meet in secret. They don’t need more.”

It’s unclear what kind of support state leaders in Dover would have for such a proposal.

Owens said he had given Wilmington lawmakers a heads up about the resolution and was planning to reach out more this week to discuss the proposal. A state Senate spokesperson said senators representing Wilmington declined to comment on the resolution.

No House members commented about the resolution for this story. A spokesperson for Gov. Matt Meyer said he would not offer an opinion on hypotheticals.

If such an exemption were signed into law by Meyer, it could be something other public bodies try to pursue. Wilmington City Councilman James Spadola, an at-large Republican, said during the debate over the resolution he thought all cities should be able to meet secretly outside of FOIA exemptions.

“Municipalities should be accorded the same privileges as the state. Not even privileges, be consistent,” he said during the City Council meeting. “Whatever state is doing, other municipalities should have the same prerogative.”

Spadola co-sponsored the resolution, but it was unclear whether he would be able to caucus with the rest of the council, who are all Democrats. He did not respond to a request for comment.

School boards could also seek a caucus exemption to avoid having certain discussions in public. A Christina school board member argued that four members of the board were “caucusing” during its May 2024 board meeting, disputing a Delaware Department of Justice ruling that they had engaged in an illegal executive session.

Flaherty said he agreed with Spadola that the state has a two-tiered system where the legislature is allowed by law to be less transparent than other public bodies.

“I don’t think the solution to that concern is to increase the level of secrecy,” he said. “I would say he made a very good point, but I don’t think his solution is something that is in the public interest.”

Delaware is not known for high levels of transparency in government and strong anti-corruption measures. Ten years ago, Delaware got an “F” for government accountability and ethics. Not much has improved since then, with recent scandals involving government cover-ups of missing taxpayer funds, campaign finance violations and unreported lobbyist-funded trips to conferences. Delaware scored 44 out of 100 in 2020 on the Coalition for Integrity index for its anti-corruption regulations. The highest score was the state of Washington, with 80.

Some progressives were hopeful late last year that state lawmakers would introduce legislation bringing more transparency, including looking at removing legislators’ emails from FOIA exemptions, making policing more transparent and providing more transparency around lobbyists and disclosure requirements. No legislation on these issues has been filed so far this year.

Gov. Meyer has endorsed creating an Inspector General Office to investigate waste, fraud and abuse. State Sen. Laura Sturgeon has sponsored the bill again this session after it died in committee last year.

This story was supported by a statehouse coverage grant from the Corporation for Public Broadcasting.