FENWICK ISLAND, DE - Fenwick Island is questioning the actions of fellow Association of Coastal Towns (ACT) and their approach to negotiations with offshore energy company US Wind, alleging violations of open government principles.
We spoke with Mayor Natalie Magdeburger today, who told us she advised ACT from the beginning they were violating FOIA. It's one of the reasons she said Fenwick did not want to be involved.
"From the get-go, when it was being offered to have this sort of secret negotiation going on with the wind companies, Fenwick didn't want any part of it," said Magdeburger.
ACT President and Bethany Mayor Rosemary Hardiman did provide WBOC with a statement today. It responds to Magdeburger's claims that she warned ACT they were violating FOIA two years ago, and touches on negotiations about a potential community benefits package. Hardiman's full statement is below:
Re: The Attorney General’s Opinion: We are going to review the opinion of the Attorney General’s office on the issue presented. We will consult with our legal counsel on options and decide on a way forward in the best interests of our separate communities.
Re: Mayor Magdeburger’s assertions: There are no facts in the verbatim record to support Mayor Magdeburger’s assertions that she “warned” or “affirmatively advised” the other Mayors in the Association of Coastal Towns (ACT) two years ago that hiring a consultant during consideration of offshore wind issues violated FOIA.
On the contrary, the verbatim record of the meetings at that time, including Mayor Magdeburger’s statements, clearly show that she wanted to emphasize that while Fenwick Island was opposed to U.S. Wind’s planned wind farms, and a consultant contract, they did not want to waive any right to negotiate community benefits with U.S. Wind or Orsted if the wind farms were built. (See attached for Mayor Magdeburger’s verbatim statements.)
The record further shows that in an ACT meeting in April 2024, after Mr. Edward Bintz had requested documents from ACT under FOIA, Mayor Magdeburger did raise a FOIA issue.
Regarding the proposed Community Benefit Agreement from US Wind, in January 2024, each of the municipalities involved considered the proposal the same way they would treat any other agreement or contract, that is, they submitted the proposal to their respective councils or commissions at open meetings for consideration and deliberation, all of which was subject to FOIA. For example, the public meeting in Bethany Beach was well attended and everyone who wished to comment on the proposal had an opportunity to do so.
ACT, which includes Henlopen Acres, Rehoboth Beach, Dewey Beach, Bethany Beach, and South Bethany have been in discussions with US Wind to evaluate possible benefits of offshore wind to the coastal communities.
WBOC acquired a letter sent on May 10th to the Delaware Attorney General, in which Fenwick Mayor Natalie Magdeburger raises concerns with ACT’s apparent decision in 2022 to contract with a paid consultant in their negotiations with US Wind. In her letter, Magdeburger claims ACT has used public taxpayer money to retain the consultant and thus the decision to hire and all communications with the consultant should have been made public.
Magdeburger further claims discussions between the town and US Wind have been prevented from being publicly disclosed. The letter specifically addresses a Freedom of Information Act (FOIA) request for public access to the contents of discussions between ACT and US Wind. ACT, through legal representation, denied the FOIA, citing the Association not being a public body, according to an attorney’s response to the Deputy Attorney General.
“ACT is a voluntary organization consisting of members from various coastal towns in Delaware,” the attorney’s response to the Attorney General’s office arguing that they are not subject to FOIA. “ACT is not an organization created by the General Assembly or any other Legislative body.”
In her letter addressing the FOIA request and denial, Magdeburger goes on to allege US Wind asked certain Mayors from the coastal towns to prevent Fenwick’s request to make an ACT meeting regarding a moratorium on windfarm development a public agenda item.
“It appears that the Mayors of Henlopen Acres and South Bethany asked the then President of ACT to remove/limit the request from the agenda and later further actively intervened to prevent robust discussion at the ensuing meeting,” Magdeburger says in her letter to the Attorney’s Office. “US Wind thanked these Mayors for their efforts in intervening and referenced the difficulty imposed by Fenwick's "public tactics" with a promise to work toward producing a monetary package for them.”
Fenwick Island ultimately withdrew from ACT talks with US wind according to Magdeburger and insisted that no dues from Fenwick would be used to finance ACT’s consultant. Ocean City has taken a similar public stance in rejecting any cooperation with US Wind's offshore development plans.
Magdeburger concludes her letter to ask the Attorney General to support the FOIA request to “ensure that this type of behavior does not compromise open dialogue about the involvement of US Wind with our governmental and scientific decisionmakers.”
On May 28th, Delaware Attorney General Kathy Jennings's office issued an opinion on the concerns over the FOIA debate, ruling the ACT did violate FOIA. In her response, the DOJ recommends the Court of Chancery weigh voiding any actions taken at ACT meetings as remediation for violating the public transparency law and urged ACT to establish FOIA protocols.
"If minutes exist or any meetings have been recorded or otherwise preserved, it is recommended that ACT make available those existing minutes or use the available meeting materials to create minutes compliant with Section 10004(f).[29]," Deputy Attorney General Dorey L. Cole writes. "Additionally, it is recommended that ACT appoint a FOIA coordinator, implement a FOIA request policy in accordance with the FOIA statute, and create an online portal for accepting FOIA requests."
"For the foregoing reasons, we conclude that ACT is a public body, and ACT violated FOIA by failing to conduct certain meetings in accordance with the open meeting requirements and by failing to comply with the above-referenced requirements of Section 10003," Cole concludes.
This is a developing story. WBOC's Kyle Orens will have more details on WBOC News at 6.
