State clears Dewey Beach town manager

Dewey Beach Town Manager Gordon Elliott did not violate the Freedom of Information Act when he polled town commissioners by telephone on whether to accept stimulus funds, the Attorney General’s Office has found.

“Because the decision-maker was the town manager, and not the Town Council, the phone calls he made to the council members did not violate FOIA,” reads a statement issued by Deputy Attorney General Jody Oken Hodas Tuesday, Nov. 24. She said the calls were for the sole purpose of polling individual council members, and did not allow commissioners to deliberate with one another.

The Freedom Of Information Act (FOIA) complaint, filed by Vivian Barry on Sept. 15, also alleged that the town violated open government rules by denying public comment on the transfer of $250,000 into a legal defense fund at an Aug. 14 council meeting. Hodas said FOIA does not mandate that town governments allow for public comment at meetings.

The act empowers citizens to access public documents and public meetings. If a Delaware citizen believes open government laws have been bypassed, he or she can file a complaint with the Attorney General’s Office.

Barry filed the complaint 15 days before her death. The complaint was resumed by her husband, Bob, and her friend, Georgia Leonhart. It also alleged the town improperly discussed and decided on the funds transfer during executive session, which is closed to the public.

“Whether it was a divisive vote is not the issue,” Vivan Barry wrote. “Discussions, deliberations and actions on public business – the entire decisional process – must be conducted openly.”

Hodas upheld the town’s right to discuss legal strategy during executive session.

“The fact that the town met in executive session to discuss directing resources to the litigation fund in connection with pending or potential litigation does not run afoul of FOIA,” she wrote.

Town attorney Glenn Mandalas said, “The town makes every effort to observe both the letter and the intent of the Freedom of Information Act. We are thrilled with today’s decision.”

Bob Barry said, “I’m not surprised. Vivian wanted to give it a shot. She thought it was worth the effort. I do definitely think there is a problem, but what are you going to do?”

He said he hadn’t yet read the decision, and wasn’t sure what, if anything, he could do further.

“I wouldn’t rule out taking further action,” Barry said “if there’s something that’s doable.”