The Association of Coastal Towns (ACT) was dissolved on Friday, Dec. 13, by majority vote of the mayors of its constituent seven coastal Delaware beach towns, with a vote of five members in favor of dissolution. Fenwick Island Mayor Natalie Magdeburger voted against dissolving ACT unless an amendment on transparency on wind power issues that she offered was added. Lewes Mayor Andrew Williams was not present at the meeting.
Delaware Attorney General Kathy Jennings in May judged ACT to be acting as a governmental entity of the member town jurisdictions, and thus subject to Freedom of Information Act (FOIA) requests and compliance. ACT will officially disband on Dec. 31. The group will return any unused funds or member dues to the municipalities it comprises, and representatives said it had already reimbursed all local funds as of Dec. 13, when the vote was taken to dissolve.
The Delaware Freedom of Information Act (FOIA) gives citizens access to public records and government meetings. State FOIA was enacted in 2011, with a purpose of ensuring that the government is open and accountable to its citizens. It establishes that “It is vital in a democratic society that public business be performed in an open and public manner,” and that “It is vital that citizens have easy access to public records in order that the society remain free and democratic.” FOIA applies to state agencies and, according to the AG’s Office, to ACT.
Among those voting in favor of dissolving ACT were Bethany Beach Mayor Ron Calef, host chairman this year of ACT, and South Bethany Mayor Edie Dondero — who, along with Calef, noted that she was not on the ACT council group during the FOIA inquiries that led to the vote. Also voting to dissolve ACT, after nearly 10 years as part of its latest configuration, were Rehoboth Beach Mayor Stan Mills, Dewey Beach Mayor Bill Stephens (who wrote the resolution to dissolve) and Henlopen Acres Mayor Joni Reich.
The 90-minute meeting grew contentious, both among the mayoral members and during the public comment period. Because FOIA requests have revealed private meetings and e-mails to discuss U.S. Wind’s proffer of community benefit agreements (CBAs) of $100,000 per year, per town, the public and the elected town officials became concerned about some towns acting on behalf of the full ACT group. The total offer was up to $2 million over 20 years.
The FOIA-requested information and e-mails between U.S. Wind’s Delaware development manager and then-ACT Chairman Tim Saxton of South Bethany shows a proclivity to keep the meetings on the CBA deals private.
Stephens said, “As most here are aware, on May 28, the Attorney General said that ACT violated FOIA rules. They recommended to ACT that if our decisions are deemed to have a material effect on the public, we must comply, or the FOIA petition for disclosures could go to the Chancery Court.”
“At the time, last May, none of us here had taken any action on the U.S. Wind community benefit agreements,” said Stephens. “With FOIA requests, we would need to post all of our minutes, have a FOIA portal and likely retain a FOIA compliance consultant.”
The motion was made to dissolve the ACT organization.
Over the past decade, as an unincorporated entity, ACT’s mission has been to collectively preserve and protect the unique character of coastal Delaware by focusing on the preservation of coastal ecosystems and other critical issues, such as beach replenishment, maintenance of navigable waterways, tidal flooding and sea-level rise. ACT was also an advocate for coastal industry and coastal tourism — cornerstones of Delaware’s economy.
The group has worked on reducing the local cost-share burden of beach replenishment, and new federal legislation — the Water Resource Development Act (WRDA) — will increase the federal share of beach nourishment, with the U.S. Army Corps of Engineers now picking up 80 percent of the cost, the group also announced Friday night.
The contentious meeting lasted more than 90 minutes, including statements from all mayors and a public comment period. Bethany Beach Town Manager Cliff Graviet was the timekeeper for respondents. Saxton and former Bethany Beach Mayor Rosemary Hardiman were also in attendance to provide historical context.
No motion was made at the meeting to reconstitute ACT as a non-profit organization. It appears likely that the ACT entity will be dissolved entirely.
Reich said, “I have enjoyed my time and involvement with ACT. In the beginning, it was a shoestring operation, and we each gave $3,000 per town, per year, to advocate for this coastal region, mostly focused on our beaches and our waterways.”
“We did not think we were a public body. I am uncomfortable proceeding under an unincorporated association. My vote is to disband,” said Reich. “As soon as the FOIA complaint was filed, we have no longer operated in the same say and could not work as closely as before. We cannot operate in the same manner.”
The FOIA complaint was filed by retired attorney Ed Bintz of South Bethany.
“We have been advised now, and we need to act accordingly,” said Reich, “It’s too bad, and it’s a shame.”
Calef said, “ACT serves as an exploratory and an advisory group, much like the Sussex County Association of Towns. I am the newbie here as chair, but we do have signatory responsibilities. We as individual mayors cannot decide what is good for our whole towns, and we need to bring any decisions back to our full councils.”
“These decisions we make do not come from the mayors alone,” emphasized Calef as he tried to keep order in the meeting. “We have had guidance from our attorney now.”
“The Attorney General found that we at ACT are a formal organization,” said Magdeburger, who has been part of the opposition to the wind farms. “We have had FOIA violations going back over the past six months. And those private discussions or communications should not have gone on.”
“ACT is supported by tax dollars, and these U.S. Wind meetings were non-compliant with our disclosures requirements,” she said. “If those ACT meetings or private meetings were recorded in any way, we would still be obligated to produce the minutes under state FOIA.”