Senate Elections and Government Affairs Committee Draft Minutes 151th General Assembly Wednesday, April 21st, 2021 11:30am – 12:00pm Virtual Meeting

Meeting Attendance

Committee Members Present: Senator Kyle.Gay@.gov Senator Stephanie L. Hansen [email protected] Senator [email protected] Senator [email protected] Senator Ernesto B. Lopez [email protected]

Absent: Senator Darius J. Brown [email protected]

Staff: Mary Grace Colonna [email protected] Taylor Hawk [email protected] Christella St. Juste [email protected] Jesse Chadderdon [email protected] Deanna Killen [email protected] Meghan Mullennix [email protected]

Attendees: Lauren Vella, DDOJ James Dechene, Armitage DeChene & Associates Rick Armitage, Armitage DeChene & Associates Robert Scoglietti Anna Shields Sara Poore, Delaware State Senate Julie Fedele, CGO Kristin Dwyer, DSEA Lincoln Willis John Richard Jannelli, Delaware United Holly Wagner, Division of Research Jenn Parrish, Delaware State Senate Alexa Adams, Delaware State Senate Christine Schiltz Deborah Gottschalk, Division of Research Patricia Davis, DOJ Keri Rapa, Delaware General Assembly Cara Gannon

Agenda:

I. Introduction

Senator Gay opened the meeting by reviewing the committee’s authorization and technical logistics. Senator Gay conducted attendance, observing that four members were present. Senator Gay indicated that absent members would be joining subsequently.

The meeting minutes were reviewed.

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Senator Lopez motioned to approve the minutes.

Senator Hansen seconded.

The minutes were approved unanimously at 11:35am.

Senator Gay recognized that Senator Poore had joined the meeting.

II. House Bill 84 w/ HA 1: AN ACT TO AMEND THE CHARTER OF THE TOWN OF SOUTH BETHANY RELATING TO TOWN COUNCIL, MUNICIPAL ELECTIONS, AND ORGANIZATION OF TOWN COUNCIL.

Synopsis: This bill removes from §C-5 (Town Council) of the Charter of the Town of South Bethany sections regarding qualifications of Town Council Members, terms of office, and Prohibition of Employment with the Town and relocates the sections to §C-6. It also amends §C-6 (Municipal Elections) to conform with the mandatory provisions of Delaware Code, Chapter 75 of Title 15 of the Delaware Code (entitled “Municipal Elections); adds a requirement that the Town post a Notice of Solicitation of Candidates at least 20 days prior to the Town’s candidate filing deadline; changes the Town’s Notice of Election requirement to include posting such notice on the Town website and one newspaper of general circulation, while no longer requiring notice to be posted in 5 public places; changes the date of the annual election for municipal offices to the second Saturday in May; renames all references of “Freeholder” to “Property Owner”; removes “spouse of a freeholder” as a qualification to vote in an election; denies Trusts, Corporations, Partnerships and Limited Liability Corporations (LLCs) the right to vote; revises the definition of “resident of town” to include a person who has physically resided in the town corporate limits for at least 30 days prior to the election; requires persons appearing to vote to present proof of identity and address; allows personal recognition of a voter by a majority of Election officers at the polling place to attest to a voter’s identity and address; removes the requirement a Notice of Intention of Candidacy be filed 45 days before the election; requires the Town to submit the names of candidates to the Department of Election within one day of the filing deadline; allows the Mayor to call a Special Meeting regarding candidate eligibility 20 days before the election; requires a candidate for a municipal office to file a Certificate of Intention establishing a campaign committee with the State Election Commissioner; allows the Board of Elections to declare candidates elected where the number of qualified candidates are equal to or less than the number of seats up for election; adds a provision barring members of the Board of Elections from being elected officials or immediate family members of elected officials; and adds new procedures for Election Day. The bill also removes references to Town Aldermen; removes the option of the Town Council Secretary and Treasurer not being members of the Town Council; renames the President pro-tempore as the Mayor pro-tempore; further expands the definition of “sudden emergency”; allows the City Treasurer to be assisted by Town Staff in their responsibilities; removes the requirement that an audit of town funds be performed upon the expiration of a Treasurer’s term in office; requires a member to pay at the member’s own expense if they retain counsel at a hearing for a forfeiture of office; requires notice requirement of Special Meetings be made in accordance with the provisions of the Delaware Freedom of Information Act; and authorizes the Town Council to allow participation and vote by remote electronic access to the extent permitted by a state of emergency and the Delaware Freedom of Information Act. This Act requires a greater than majority vote for passage because §1 of Article IX of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to amend a municipal charter.

Senator Gay expressed familiarity and fondness for the town of South Bethany. Senator Gay welcomed Senator Hocker and Representative Gray to discuss the legislation.

Rep. Gray introduced the legislation, explaining that the detailed bill would reorganize the town council and town charter. Rep. Gray stated that the town had brought the bill forward.

Senator Gay inquired about the bill’s creation process and the town’s position on the legislation.

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Rep. Gray stated that he had worked closely with the president of the town council. Rep. Gray noted that several towns were making similar changes to their charters. Rep. Gray stated that the legislation affected terms of office, prohibitions on town employment, elections, eligible voters, limited liability companies, and full-time residents. Rep. Gray stated that they had worked on the legislation for three to four months.

Senator Gay thanked Rep. Gray for speaking on the bill.

Senator Richardson stated that Seaford had recently changed their town charter to allow voter registration through the Board of Elections. Senator Richardson asked if this bill made similar changes.

Rep. Gray responded that the legislation did not make that change.

Senator Richardson recounted that while voting in Seaford the previous weekend, he had encountered a woman seeking to vote who could not because she was registered with the Dept. of Elections and not the town. Senator Richardson stated that next election, someone in this situation would be allowed to vote in Seaford.

Rep. Gray mentioned that Milford made a similar policy change, which increased their registered voters two or three fold. Rep. Gray discussed the difficulties of registering for municipal elections, especially for those moving to Delaware from out of state. Rep. Gray stated that towns can be particular with their registration process.

Senator Richardson stated that Seaford allows property owners to vote, although they must be registered with the town.

Senator Gay commended the Senator for attention to efficiency in government, stating that this was a beneficial focus for towns.

Senator Hocker thanked the chair and explained that the legislation would allow electronic voting in South Bethany, as long as it is in accordance with state law.

Senator Gay thanked Senator Hocker for speaking on the legislation.

Rep. Gray explained that there was a house amendment to allow electronic voting.

There was no public comment.

III. Senate Bill 94: AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE AND CHAPTER 265, VOLUME 82 OF THE LAWS OF DELAWARE RELATING TO THE FREEDOM OF INFORMATION ACT.

Synopsis: Senate Substitute No. 1 for Senate Bill No. 243 (150th General Assembly) enacted § 10006A of Title 29, which allows an advisory body to hold a virtual meeting, if there is an anchor location that is open to the public, allows any public body to hold public meetings during a state of emergency, and clarified that public bodies must allow a member with a disability to attend a meeting electronically as a reasonable accommodation under § 4504 of Title 6, unless doing so would present an undue burden. Senate Substitute No. 1 for Senate Bill No. 243 sunsets on June 30, 2021. During the last year, citizens and members of public bodies have become comfortable with virtual meetings and attendance and participation in public meetings has increased because virtual meetings are more convenient and accessible to many citizens. Thus, this Act makes permanent changes to the Freedom of Information Act (“FOIA”), Chapter 100 of Title 29, that allow any public body to hold a virtual meeting if there is a physical anchor location where the public can attend the meeting in person and other notice and access requirements are met. Specifically, this Act does all of the following: 1. Repeals the current video- conferencing provision of § 10006 of Title 29 and the temporary provisions of § 10006A of Title 29 and replaces these sections with permanent virtual meeting requirements. 2. Maintains the requirement that a public body must allow a member with a disability to attend a meeting electronically as a reasonable accommodation except if doing so imposes an undue burden on a public body whose members are all

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elected by the public. 3. Requires that a virtual meeting conform to all requirements under FOIA, including adequate notice that includes information on how the public may view and provide comment, if public comment is accepted. 4. Provides that during a state of emergency, or to prevent a public health emergency, all public bodies may hold virtual meetings without an anchor location. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. This Act requires a greater than majority vote for passage because § 1 of Article IX of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to amend a charter issued to a municipal corporation.

Senator Gay introduced the bill by reading its title and invited the bill’s sponsor to speak on the legislation.

Senator Hansen explained that the bill followed previous legislation on virtual meetings that would sunset in June. Senator Hansen stated that the bill would take affect outside the context of the governor’s state of emergency. Sen. Hansen stated that it would allow public bodies to continue to meet virtually, as long as there is an anchor place with at least one member where public can come. Sen. Hansen mentioned some individuals’ issues with poor connection and difficulty utilizing the technology as reasons for this anchor location. Sen. Hansen discussed the evolution of virtual meetings since the beginning of the Covid-19 pandemic. Sen. Hansen observed that there were access issues for broadband in western Kent County and some portions of Sussex County. Sen. Hansen stated that boards and commissions had suggested extending the law on virtual meetings to all public bodies. Sen. Hansen stated that this was an important issue for the disability community. Senator Hansen explained that this bill would change the previous legislation by including all public bodies. Senator Hansen also discussed some ongoing dialogue with the Delaware League of Local Governments on their concerns. Senator Hansen explained that the concerns were based on misunderstandings. Senator Hansen expressed her commitment to continuing to work with League on their concerns. Senator Hansen reviewed some of the misunderstandings. Sen. Hansen emphasized that the law would only apply outside the context of the state of emergency orders. Senator Hansen highlighted that virtual meetings would be at discretion of the public body, optional and not mandatory. Senator Hansen explained that the law requires reasonable accommodation for persons with disabilities. Senator Hansen stated that public bodies have to make accommodations unless there is an undue burden. Senator Hansen explained that the language is from disability law and is elaborated on in detail in case law. Senator Hansen elaborated that the bill does not describe “undue burden” because this standard is described in detail elsewhere in case law. Senator Hansen expressed the belief, shared by the League of Local Governments, that the concerns and misunderstandings were not insurmountable, and these details would be worked out.

Senator Richardson asked about the specific concerns of League of Local Governments.

Senator Hansen explained that four municipalities came forward with comments. Sen. Hansen recalled that one was unsure how they would determine how many members of the public would be able to attend due to public health guidelines. Senator Hansen explained that the legislation would only apply after the state of emergency order is lifted post Covid-19 restrictions and public bodies would have the ability to run meetings as they always have. Senator Hansen recounted that one local government asked why the anchor location was required. Sen. Hansen stated that there were people in the community that did not have ready access to joining meetings virtually. Senator Hansen also noted that one local government asked about the “undue burden” and why it was not defined in the legislation. Sen. Hansen restated that “undue burden” was well established in case law.

Senator Richardson asked if the bill would affect certain committees he attended.

Senator Hansen explained that the legislation would apply to all public bodies.

Senator Gay thanked Senator Hansen and spoke on her personal experience as an attorney working with municipalities on their facilitation of constituency participation. Sen. Gay stated that the local governments wanted to work with their constituency and to work within the law. Sen. Gay discussed the challenge in coastal towns, with many stakeholders living much of the year in other areas. Sen. Gay spoke on the excitement of many to incorporate technology into local government.

Ms. Colonna, Senate Staff, explained the logistics and guidelines of public comment.

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Lauren Vella, Department of Justice, appreciated the sponsor’s cooperation with the Department of Justice. Ms. Vella stated that the legislation would allow a path for public bodies to utilize virtual meetings after the state of emergency concludes.

John Richard Janneli, Delaware United, enthusiastically supported SB 94, recounting the uncertainty around virtual meetings at the beginning of the pandemic. Mr. Janneli stated that the virtual space had become a huge success. Mr. Janneli spoke on the benefits for advocates. Mr. Janneli discussed his personal experience getting involved with legislative committees for the first time during the pandemic. Mr. Janneli stated that driving down to Dover was not accessible to everyone. Mr. Janneli stated that virtual meetings brought the people to Dover and Dover to the people. Mr. Janneli spoke on the befits to democracy.

Patricia Davis, Department of Justice, echoed Ms. Vella’s comments.

Rick Armitage, City of Newark, expressed support for the bill’s efforts on transparency. Mr. Armitage pointed out that lines 76 and 78 did not mandate where an agenda should be posted. Mr. Armitage also asked that the legislation clarify which members may participate virtually, council members or appointed committee members.

Kristin Dwyer, Delaware Education Association, stated that as local governments and state governments have seen increases in public participation, so have school boards. Ms. Dwyer expressed gratitude for the allowance to keep virtual meetings for this reason. Ms. Dwyer mentioned incidents where some school boards mandated that public comment be in person even if virtual participation was facilitated. Ms. Dwyer asked that the bill include clarification that public comment would be allowed virtually. Ms. Dwyer explained that these incidents had been a big problem, as they were seen as way to stifle public comment.

IV. Conclusion

Senator Gay asked that committee members provide their instructions for each bill by email after the meeting.

The meeting was adjourned at 12:02pm.

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