By Brian Gilliland

DOVER — While imposing no penalties other than to generally begin acting like a public body, the Attorney General of Delaware decided the Association of Coastal Towns violated Freedom of Information Act open meeting requirements.

The association, for its part, unsuccessfully argued it was not a public body, that it was instead “voluntary organizations consisting of members from various coastal towns in Delaware.”

As a result, the attorney general’s opinion, signed by Dorey Cole, deputy attorney general and approved by state solicitor Patricia Davis, the association is going to have to change some of the procedures it’s been following.

Actions taken during disputed meetings on Dec. 1, Dec. 5, Dec. 7 and Dec. 20, 2023, can be invalidated by the Delaware Court of Chancery, which considers this remedy a “serious sanction that ought not be employed unless substantial public rights have been affected,” and therefore the attorney general suggests the association perform a do-over.

“We recommend that ACT and its US Wind Committee discuss those items considered at noncompliant meetings, and ratify any votes taken, at a future meeting held in compliance with FOIA’s open meeting requirements,” the opinion reads.

If minutes from those meetings exist, they should be published in accordance with FOIA regulations, and the board should adopt a FOIA compliant process.

With this determination in hand the complainant, identified as Edward Bintz in the opinion, can file a lawsuit based on the board’s actions. However, the law imposes a six-month time limit, which expires June 1, 2024 for the Dec. 1, 2023 meeting.

In making its determination if the ACT was a public body, the attorney general’s office used a two-part test.

First, whether an entity in question is “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State,” which includes an “association, group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity,” the opinion reads.

If that condition is met, the state must ask itself if the entity is supported in whole or in part by public funds, or is specifically assigned to make reports, investigations or recommendations at the behest of a public official, body or agency.

Members of the Association of Coastal Towns include the seven Delaware coastal municipalities: Fenwick Island, South Bethany, Bethany Beach, Dewey Beach, Henlopen Acres, Rehoboth Beach and Lewes.

“All seven municipalities were established by charters enacted by the General Assembly, and thus, the municipalities are bodies established by the General Assembly. Therefore, ACT, established by bodies established by the General Assembly, is itself a public body,” the opinion reads. “Alternatively, even if we assume that the seven mayors formed this entity without any needed authorization from their legislatures, the conclusion remains the same, as ACT’s members were collectively appointed by public officials of the State.”

In either case, the opinion determines the first prong is met.

As for the second prong, ACT collects annual dues from its members and disburses those public funds for expenses, including consultant services, meeting the test, according to the opinion.

Mr. Bintz did not immediately respond to an email soliciting comment.