County council reaffirms P&Z director appointment in response to AG’s ruling on FOIA complaint

GEORGETOWN – Greenwood resident Daniel Kramer is chalking it up as a victory.

Sussex County Councilman Rob Arlett is puzzled over “personnel.”

Redoing action taken nearly 10 months ago, Sussex County Council at its Aug. 8 meeting unanimously reaffirmed Janelle Cornwell as the successor to longtime Sussex County Planning & Zoning Director Lawrence Lank, who retired effective Jan. 6 of this year.

County council’s appointment of Ms. Cornwell as first director appointee and subsequently director following executive session at the Oct. 4, 2016 meeting was challenged by Mr. Kramer, whose Freedom of Information Act complaint received a favorable ruling from the Delaware Attorney General’s Office.

Mr. Kramer’s FOIA beef was the Oct. 4 meeting agenda failed to provide adequate notice to the public that county council would vote on a succession plan for leadership at the Sussex County Planning and Zoning Office.

The topic was covered under “Personnel” under executive session on the posted agenda.

In the ruling dated July 19, 2017, Deputy Attorney General Jason Staub wrote that the “agenda for Oct. 4, 2016 meeting did not expressly state that county council intended to discuss and vote on succession planning for top management at the Planning and Zoning Office.  Instead, the agenda included a statement of county council’s intent to convene in executive session to discuss a “personnel” issue and other sensitive matters, as permitted under 29 Del. C. § 10004(b).  The agenda also indicated that county council might take action on one or more items discussed in executive session.”

The AG’s ruling further states: “We agree that the agenda failed to comply with FOIA’s open meeting requirements.  The agenda did not include a “general statement” of all “major issues” that county council expected to discuss at the Oct. 4, 2016 meeting, as required by 29 Del. C. § 10002(a).  The agenda included no reference to an anticipated vacancy in the top position at the Planning and Zoning Office.  Nor did it disclose any plan to fill that vacancy at the Oct.  4, 2016 meeting.  County council’s disclosure of the possibility that it might take action on unspecified matters discussed in executive session was not sufficient to put the public on notice of expected discussions and action on an important topic in open session.  Accordingly, the agenda did not satisfy the requirements of 29 Del. C. § 10002(a).

For remediation, the Attorney General’s ruling recommended: “In light of the passage of time since the filing of the petition, as well as other factors, we do not believe that invalidation is an appropriate remedy in this case.  We nonetheless suggest that county council, in the spirit of transparency, revisit its Oct. 4, 2016 vote regarding the Planning and Zoning Office and explain, in a public forum, its reasons for selecting Ms. Cornwell as Mr. Lank’s successor.”

“About a month and a half ago, give or take a day or two, you guys tried to make me look like … whatever you want to call it when you put something on the agenda about a FOIA complaint. Well, I will tell you what, now it has come back to bite you in butt, because you made the statement, ‘We never came even close to a violation of a FOIA,’” said Mr. Kramer. “Now, it has cost you even more because you had to go back and correct something from the other one where you didn’t quite send the whole truth up there.”

“Now, this morning, you’ve got to redo something. So, I am going to make it very clear: I didn’t get exactly what I wanted out of this FOIA complaint but I came very close. And she (Cornwell) would have not had this job if they had ruled back in December, I guarantee you,” said Mr. Kramer. “Hey, if you don’t want to be called turkeys, don’t act like one.”

“As is our general practice within our agenda creation we listed ‘personnel’ under the executive items that we had proposed to meet in executive session on,” said Sussex County Administrator Todd Lawson. “So, to rectify this issue the Attorney General is recommending the county council revisit the county’s Oct. 4 vote regarding the planning and zoning office and explain in a public forum its reasons for selecting Miss Cornwell as Mr. Lank’s successor.”

Mr. Lawson reiterated that this rectification “has nothing to do with the qualifications of Miss Cornwell or the position, nor her ability to fulfill that position. This is simply just an agenda correction and what the Attorney General believes is a FOIA violation.”

Mr. Arlett asked, “You just referenced that on the executive session agenda that we had back in October, it was mentioned on there that we had ‘Personnel’ as an item to discuss. Is Miss Janelle not a personnel?”

“If I understand your line of questioning she would qualify as a personnel under county personnel, yes,” said Mr. Lawson.

“I’m confused, if we have that on the agenda …?” Mr. Arlett said.

“I think where the Attorney General is going with their opinion is that the county in just listing ‘personnel’ did not go into enough detail on our agenda because the attorney general deemed this decision a major decision or as they quote ‘major issue’ for the council to take. Instead of just listing ‘Personnel’ we should have listed something of more detail,” said Mr. Lawson. “I guess in hindsight we could have listed the consideration of the planning and zoning director position or something of more detail just beyond personnel. I’m not certain that we agree with this opinion but instead of trying to argue whether or not we agree, we would just go forward and reaffirm as they indicated and in the future, try to do a better job.”

Friction between county government and Mr. Kramer, a self-proclaimed governmental watchdog, has been simmering for years. It reached the boiling point in June.

Sussex County Council president Michael Vincent, left, and podium speaker Daniel Kramer engage in a verbal exchange at the June 27 county council meeting. Councilman George Cole listens in.

Sussex County Council members Michael Vincent and Irwin G. Burton at the June 27 council meeting responded to podium comments made by Mr. Kramer.

During “Public Comments” Mr. Kramer addressed council and staff on an agenda item under County Administrator Todd Lawson pertaining to the state attorney general’s opinion on one of Mr. Kramer’s FOIA complaints. The complaint alleged the violation specifically of FOIA’s open meeting provisions by failing to provide a public notice of several focus group meetings conducted by McCormick Taylor on June 23 and June 24 of 2016. McCormick Taylor is the primary consultant firm contracted by the county in preparing Sussex County’s comprehensive land-use plan due by June of 2018.

“Those focus groups were held in secret and in 10 days were not disclosed and no private citizens were provided the opportunity to request to attend these meetings,” stated Mr. Kramer.

“The ruling of the attorney general did not support my initial FOIA request. However, it did confirm my concerns that you turkeys have misled your voters by portraying that you are concerned and working hard on the comp plan,” said Mr. Kramer during his podium presentation before council. “How concerned can you be when you let the consultant that does not know this county do what they want without guidance, input or approval by the county administrator, planning and zoning commissioners or you? Why don’t you do your job – or quit.”

That sparked a verbal exchange with Mr. Vincent, the council president.

“You know Mr. Kramer … there is going to be a point in time that you are going to realize you’d get a lot more respect by giving respect. And to come up here and refer to anybody … as a turkey is totally uncalled for,” said Mr. Vincent.

“Let me tell you something …,” said Mr. Kramer.

“No, no … I have the floor. You don’t. You had your three minutes,” said Mr. Vincent. “You need to start giving people proper respect.”

“Well, then earn it, and you don’t,” Mr. Kramer said.

“Now you can have a seat,” said Mr. Vincent. “We’re almost done with listening to you, I’ll can tell you.”

Later in the meeting Mr. Burton chimed in following Sussex County Administrator Todd Lawson’s update on the Attorney General’s ruling on Mr. Kramer’s FOIA complaint.

“I don’t like what is going on with Mr. Kramer at all,” said Mr. Burton, adding the council chamber demands decorum and respect. “It’s time to change the direction that we are giving. I think that public comment is welcome. But I tell you I don’t want to follow that act. It’s not how I was brought up to live. I share your frustrations Mr. Chairman (Vincent). I think the direction needs to be given as to what is acceptable and what is not.”

County councilman Rob Arlett inquired about the cost to the county in responding to FOIA complaints.

“We did do some research regarding what it costs us in just complaints alone,” said Mr. Lawson at the June 27 meeting. “And going back a few years on FOIA complaints in which we had to engage staff and county attorney time it has cost us nearly $25,000 to respond to these FOIA complaints. And I would say not one of them has rendered the county in violation to which we had to ever re-do or undo an action taken by the county as a government. Not every complaint gets a response from the attorney general. We still have some outstanding complaints that we have responded to and not been given an official response from the AG’s office.”

“Has this county ever been proven to be in violation of a FOIA request?” Mr. Arlett asked at the meeting in June.

“In my tenure as county administrator, no. But we have had opportunities in the past where we have had to correct items due to FOIA violation,” said Mr. Lawson.

That was prior to the recent attorney general’s ruling.

Mr. Kramer disputes the county’s contention that his FOIA complaints alone have accounted for the bulk of that $25,000. Mr. Kramer claims he was filed fewer than a half dozen FOIAs against Sussex County since 2011. The county, meanwhile, provided a stack of copies of what it says is 11 complaints/responses in reference to FOIA complaints filed by Mr. Kramer.

To view the Attorney General’s rulings on Mr. Kramer’s FOIA complaints, click here.

Mr. Kramer addressed the cost issue at the Aug. 8 meeting.

“So, you want to tell me that, ‘Oh, we’ve done everything right.’ No, you haven’t come close to right. And you want to chew me out; (that) I cost this county $25,000. No, I didn’t cost you anything. And I’ll keep repeating that till hell freezes over because if you had done your jobs right I wouldn’t have to file a FOIA,” said Mr. Kramer. “And as long as you keep doing dumb stuff I’m going to keep filing FOIAs. I guarantee that.”

News Editor Glenn Rolfe can be reached at grolfe@newszap.com

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