AG: Georgetown violated FOIA meeting requirements

Officials acted on Juneteenth holiday via email

By Glenn Rolfe
Posted 7/31/21

GEORGETOWN — The town’s decision whether to recognize Juneteenth 2021 as a holiday, which included email polling of council members, triggered a Freedom of Information Act complaint …

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AG: Georgetown violated FOIA meeting requirements

Officials acted on Juneteenth holiday via email

Posted

GEORGETOWN — The town’s decision whether to recognize Juneteenth 2021 as a holiday, which included email polling of council members, triggered a Freedom of Information Act complaint shortly after the June 18 federal observance.

Town offices remained open as usual June 18 and did not close in observance of Juneteenth, traditionally on June 19.

In response to the complaint, on July 23, the state Attorney General’s Office determined that the town violated FOIA’s open-meeting requirements and offered strong recommendation for future protocol rather than remediation.

The FOIA petition, filed by William Pickett, cited a news article and alleged that the town of Georgetown violated FOIA by conducting a vote via email correspondence, instead of voting during a “properly announced public session.”

In responding to the complaint, the town argued that the council did not violate FOIA’s open-meeting requirements.

Noting that the state’s announcement of its closure for the holiday came only a few days before June 18, the town maintained that the decision to close was not a council decision but instead “a last-minute administrative decision made by the Town Manager, albeit in consultation with members of town council.”

The town further argued that it was not officially adopting a holiday and attached its code, which states that “the following days and such other days as Town Council may designate are holidays with pay for full-time regular employees” and that the actual date of the holiday shall be determined annually by council resolution.

The town noted that Town Manager Eugene Dvornick polled council members for their positions by sending an email addressed to all of them.

Furthermore, Mr. Dvornick’s initial email asked each member to reply to him directly and to not reply to all and stated: “The Town usually follows the State and County with respect to holidays, accordingly, please advise your agreement or disagreement with the Town closing this Friday as well.”

In response, three members responded by email stating agreement or disagreement directly to the town manager, and one of those members copied the entire council on his reply, Georgetown officials said.

According to the AG’s report, the other two members called the town manager and spoke with him by phone. After collecting answers from all members, which resulted in a 3-2 split favoring the town not recognizing the holiday, Mr. Dvornick then sent an email to all employees notifying them that “the Town Council has determined that the Town of Georgetown will not be observing the Juneteenth holiday this year, on Friday, June 18, 2021,” and adding that a discussion of the 2022 town-adopted holidays would occur in December.

The town also provided a sworn affidavit from Mr. Dvornick affirming that the response was accurate and specifically noting that he polled the council “for their feedback … prior to making a decision as to whether to close Town offices on June 18, 2021,” and that “no discussion by email on the subject was intended or occurred; simply a poll of each Councilperson’s position on the issue.”

The town maintains that:
• An informal polling of council members’ positions does not create a meeting under the definition of FOIA.

• The town manager did not have an email discussion of the topic with a quorum of members.
• There is no evidence of serial communications or any attempt to sway the councilmembers’ decisions.

The AG’s Office offered only a recommendation, without remediation.

“When our office finds a violation of the open meeting requirements, we may recommend remediation when a public body has taken final action on a matter affecting substantial public rights,” stated Deputy Attorney General Dorey L. Cole in the state’s response.

“However, the authority to invalidate a vote or impose other injunctive relief is reserved for the courts. The town council took a vote in this instance and opted to not recognize the holiday, conducting its regular business as usual; the town indicated in its response that it plans to discuss the adoption of this holiday at an upcoming council meeting. Accordingly, we recommend that the town follow through with its intent to discuss this holiday at a future properly noticed meeting where it can be observed by the public.”

Georgetown Mayor Bill West shared the AG’s decision at the Wednesday Town Council meeting, along with a directive.

“That’s what happened, and the AG’s Office said that, due to the circumstances of it being a short notice, they saw what was done and they approve with it,” he said. “We have to stop all the emails and do everything in front of the public like we are tonight.”

Councilman Penuel Barrett offered explanation on his response to Mr. Dvornick.

“Well, the sad thing with that is, after the vote — which with council you would think is protected as far as not getting out in the open — I had three reporters call me wanting me to tell them why I didn’t approve it,” he said. “I told them the reason I didn’t approve it is because in December is when we talk about holidays. That’s when we approve the holidays.

“(Juneteenth) wasn’t an approved holiday,” Councilman Barrett said. “But how it got out to the reporters was from council. So hopefully, what the mayor just said, we stand behind it, and we don’t talk outside the room here.”

Councilwoman Angela Townsend said she got “a call from a reporter, who said, ‘I heard you voted against it.’ How would he have known? He didn’t even ask me how I voted. He already knew I voted against it.”

Mayor West added, “When the news calls and they ask you how you voted, what am I supposed to say? ‘I didn’t vote for it.’

“When you start playing games with the news media, you’re going to lose.”

Councilman Barrett said, “Well, I think that’s personal business.”