Wilmington City Council illegally picked new members in secret vote, state DOJ says

A procedure Wilmington’s City Council used to select individuals to fill two vacant seats on the public body violated government transparency laws, according to a decision by the Delaware Department of Justice.

The DOJ reviewed the issue after receiving a letter from Christopher T. Curry, pastor of Ezion Fair Baptist Church in Wilmington, alleging the council’s candidate selection process violated the Freedom of Information Act.

In March, Delaware's top law enforcement agency agreed.

It said that the City Council's Committee of the Whole violated FOIA when it went into executive session and voted by secret ballot on who would fill the vacant council seats of council's latest vacancies.

In its response to the attorney general's inquiry, the city's attorney acknowledged that votes conducted during the committee's executive session were "improper." However, the city argues that because the candidate recruitment process was carried out publicly any “technical violation” was inconsequential.

This stance infuriates Curry. He said city officials operate from a place of arrogance instead of respect for constituents.

"The citizens of Wilmington are not poor paupers who just don't care. We do care. We just don't always know the process to use in order to get our voices heard," Curry said.

The pastor said he has no desire to seek political office nor did he favor one council seat candidate over another. He said his petition to the attorney general was about transparency. "What about those other candidates who sincerely went through the process?" Curry asked.

He said because of the way the vote was held, residents don't know who voted for whom and questioned whether "the results were really the results or are they rigged results."

As a matter of recourse, the Department of Justice recommended that the secret votes be recast during an open session of a Committee of the Whole meeting that complies with FOIA.

Why did the City Council vote instead of residents?

A vacancy on the City Council was created when longtime council member Loretta Walsh resigned from her at-large seat on Oct. 6 due to health concerns. She died three weeks later.

A second vacancy soon followed after the unexpected death of 1st District council member Linda M. Gray in November. Gray had been hospitalized for pneumonia. Both of these vacancies come on the heels of the one left by former council member Rysheema Dixon, who resigned from her seat in January 2022 to pursue private endeavors. She later died unexpectedly in September.

The city charter grants the City Council, by majority vote, the authority to appoint a qualified person to fill a vacancy to serve the remainder of the previous incumbent's unexpired term — a power some on the council would like to see conferred to district voters.

However, Wilmington maintains that the City Council followed the candidate selection process to fill the vacant seats as prescribed.

In its response to the DOJ, the city said following Walsh's resignation, the council publicly announced the vacancy and began soliciting applications for candidates for the at-large seat. Qualified candidates were publicly identified. On Nov. 28, the committee met and interviewed these candidates in open session. Following the interviews, a public comment period was held. Then the Committee of the Whole entered executive session.

This is where DOJ finds that the City Council violated FOIA laws meant to maintain government transparency.

How did the City Council violate state laws?

The Freedom of Information Act codifies the public's right to request documents from its government or bear witness to government proceedings.

According to the executive session minutes provided to the DOJ, the members discussed their “preference for not announcing their choices" because they were afraid that their selections would be made public even though they were in executive session.

In consideration of this hesitation, each candidate was given an "identifier," and the committee voted by secret written ballot. The committee then returned to open session where the council voted on the recommendation to approve the appointments of the top candidates.

FOIA explicitly describes the circumstances in which a public body is allowed to go into executive session and what can be discussed while in that forum.

According to the attorney general's FOIA manual, if a matter discussed during an executive session is a vote, "the vote may not be taken in executive session. The public body must return to the public session to take the vote."

What happens next?

Council President Ernest "Trippi" Congo admits that the City Council violated FOIA and said the body will comply with the DOJ's recommendation. They are planning to recast their votes during the May 4 council meeting.

After presiding over the exercise of filling seven vacancies, Congo, president since November 2020, said he believes a special election would be more appropriate if a council vacancy arises and that council members shouldn't even be "a part of the process" of electing council representatives.

Unless state legislators in the General Assembly decide to change the city's charter, council members will be tasked with choosing who will represent constituents in the event of an untimely vacancy.

As for Curry, he doesn't believe the recommendation from the DOJ goes far enough. Calling the process of these appointments "illegal," Curry said he wants to see the appointments of the new council members annulled and any legislation that they voted on invalidated.

"The way you fix it is that you remove the things that they put in place and let them start over again," Curry said.

Who did the council appoint to fill the vacant seats?

Latisha Bracy was appointed to the council member at-large seat during the Dec. 1 City Council meeting.

Bracy is a former staffer for U.S. Rep. Lisa Blunt Rochester and U.S. Sens. Carper, Biden and Kaufman. She also served as U.S. Sen. Chris Coons' instate outreach/projects director. She is a graduate of Delaware State University and Wilmington University. Her LinkedIn profile said she works as a consultant.

Vincent White's appointment to the 1st District council seat was approved on Feb. 2.

According to the City Council's website, White is a member of the Northwest Civic Association and the First District Planning Council. He grew up in Wilmington's Eastside and Southbridge communities and was a founding board member of the Henrietta Johnson Medical Center and the Southbridge Community Action Association. He is a real estate broker and heads a real estate development company.

Terms for both representatives will end in December 2024.

WILMINGTON CITY COUNCIL, 108TH SESSION

• Council President: Ernest "Trippi" Congo 

• 1st District: Vincent M. White 

• 2nd District: Shané Darby 

• 3rd District: Zanthia Oliver 

• 4th District: Michelle Harlee 

• 5th District: Bregetta Fields 

• 6th District: Yolanda McCoy 

• 7th District: Chris Johnson 

• 8th District: Nathan Field

• At-large: Maria Cabrera

• At-large: Albert "Al" Mills

• At-large: James Spadola

• At-large: Latisha Bracy

UNEXPECTED: A known neighborhood activist, Wilmington city councilwoman dies suddenly at 73

REMEMBERED: Longtime Wilmington City Councilwoman Loretta Walsh dead at 73

Contact reporter Anitra Johnson at ajohnson@delawareonline.com with tips and story ideas. Become a subscriber to access more stories and the best in local reporting.

This article originally appeared on Delaware News Journal: DOJ: Wilmington City Council's secret vote on new members broke state law