Why Should Delaware Care?
The Dover City Council’s decision to fire City Manager Dave Hugg earlier this spring has had costly and messy implications for the city government, including an age-based discrimination complaint and now a lawsuit alleging open meeting law violations.
Former Dover City Manager Dave Hugg filed a lawsuit this week in Delaware’s Court of Chancery against the city of Dover, alleging officials violated open meeting laws in the process of firing him.
The lawsuit marks the latest development in the months-long turmoil over the city’s decision to oust its top administrative official.
Hugg claims in the lawsuit that the public hearing during which the Dover City Council voted to fire him from his position was not conducted in compliance with Delaware’s Freedom of Information Act (FOIA).
According to Hugg’s complaint, the city violated FOIA by improperly labeling what would take place during the April 13 meeting where he was fired – the public notice did not explicitly say a vote to fire Hugg would be taken during the meeting. The complaint also alleges that holding the hearing at the end of an already long city council meeting prevented members of the public from attending.
Hugg’s lawsuit represents another step in what is becoming a costly and litigious battle between the fired city manager and Delaware’s capital city. Hugg also filed an Equal Employment Opportunity Commission (EEOC) age-based employment discrimination complaint against the city last month, which will turn into a separate legal conflict once the investigation wraps up and he receives a “right to sue” letter.
Dover is simultaneously dealing with a number of other controversies and financial roadblocks, including a $7 million budget shortfall, unrest between the Dover Police Department and city leaders, and an ongoing debate about a potentially unconstitutional panhandling ordinance.
Hugg and the law firm representing him in the case, Offit Kurman, did not respond to Spotlight Delaware’s request for comment on Wednesday.
Dover City Attorney Dan Griffith confirmed the city is aware of the lawsuit, but said the city has not yet been served any court documents.
The city has also not yet determined whether Griffith or an outside attorney will represent them, a spokesperson for the city told Spotlight Delaware. Keri Morris-Johnston, an attorney with the firm Marshall Dennehey, is representing the city against Hugg’s EEOC claim.
The arguments
The thrust of Hugg’s case against the city focuses on the public hearing directly before he was fired. His attorneys say that meeting intentionally “lacked transparency” and “deprived the public” of the opportunity to defend Hugg’s performance as city manager.
The saga began earlier this spring, when Hugg was quietly placed on administrative leave by city council. Hugg said that leave placement came after he was told by city leaders that he could either retire, resign, or be fired.
The Dover city charter requires a city manager to be given a public hearing and a “written statement of the reasons alleged for their removal” before the city council can take a final vote on removing them.
And this, Hugg’s lawyers argue, is where the open meeting law issues arise.
Hugg’s public hearing was listed on the April 13 council meeting agenda as “City Managers’ Request for Hearing Pursuant to City of Dover Charter, Article III, Sec. 33.”
His lawyers say the city misrepresented the nature of the hearing in the pre-meeting notice, suggesting the agenda item was city council merely considering Hugg’s request for a public hearing, rather than actually conducting the hearing and voting on his employment status that same night.
In addition, the lawyers argue the city’s decision to situate the hearing as the meeting’s 20th agenda item – so it did not begin until roughly two hours after the council meeting started – was another effort by the city to defy open meeting laws.
“Because the Council was substantially delayed in beginning the termination hearing, at least one individual could not stay for several hours and was forced to leave before the hearing commenced,” the complaint says.
Hugg’s attorneys also say he submitted a FOIA request for a number of documents cited by the city council in its written statement of reasons for his removal, and the city denied the FOIA request. This prevented Hugg from being able to review the relevant records to prepare for the hearing, his lawyers argue.
The lawsuit also makes mention of Hugg’s separate claim of age-based discrimination, which is currently playing out through an ongoing EEOC complaint and investigation.
The lawsuit alleges the city council wanted to remove Hugg so that they could “replace him” with assistant city manager Sharon Duca, who is “over twenty years younger” than him.
Duca was appointed the acting city manager in early March when Hugg was first placed on administrative leave. Then, at the June 8 city council meeting, she was named the full-time city manager.
Griffith, the city attorney, and the city spokesperson declined to comment on the arguments laid out by Hugg’s team.
Dover Mayor Robin Christiansen told Spotlight Delaware he is concerned about the lawsuit’s implications on the city’s financial situation and “the credibility of the city.”
Other FOIA violations
While it remains to be seen how the court proceedings will unfold, there have been other questions raised in recent months about the city of Dover’s compliance with open meeting laws.
Since last fall, city officials have been criticized for cutting the public comment section of city council meetings short and not including those public comments in the virtual livestream of the meeting, nor in the meeting recording posted online afterward.
Then, in December, Delaware Attorney General Kathy Jennings ruled the city had violated FOIA by denying a Spotlight Delaware public records request.
The city had used an overly broad interpretation of what documents are exempted from FOIA due to ongoing or potential litigation, the Attorney General’s office wrote in its December ruling. Hugg’s attorneys wrote in the Chancery Court complaint that the city also denied Hugg’s FOIA request based on the same public records exemption – pending or potential litigation.
Most recently, the Department of Justice ruled in favor of a citizen’s complaint that the city government did not follow FOIA rules by “failing to properly notice its rescheduled meeting.”
This has forced the city council to reconsider its controversial panhandling ordinance, which the Attorney General’s office said was not properly advertised as being on the agenda for a final vote at the Feb. 25 council meeting.
Once the city is formally served Hugg’s recent Chancery Court complaint, it will have 20 days to respond, according to Chancery Court rules.
Maggie Reynolds is a Report for America corps member and Spotlight Delaware reporter who covers rural communities in Delaware. Your donation to match our Report for America grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://spotlightdelaware.org/support/.
