Steven Linehan and Thomas Mills v. Stanley A. Mills, Jr.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

STEVEN LINEHAN and THOMAS )
MILLS, )
)
Plaintiffs, )
)
v. ) C.A. No. 2024-0851-BWD
)
STANLEY A. MILLS, JR., PATRICK )
GOSSETT, EDWARD CHRZANOWSKI, )
FRANCIS MARKERT, TIM BENNETT, )
TONI SHARP, DONALD PRESTON, )
THE CITY OF REHOBOTH BEACH )
BOARD OF COMMISSIONERS, )
TAYLOUR TEDDER, and THE CITY OF )
REHOBOTH BEACH, )
)
Defendants. )

MEMORANDUM OPINION
RESOLVING DEFENDANTS’ MOTION TO DISMISS

Date Submitted: March 28, 2025
Date Issued: May 28, 2025

Theodore A. Kittila, William E. Green, Jr., HALLORAN FARKAS + KITTILA
LLP, Wilmington, DE; Attorneys for Plaintiffs Steven Linehan and Thomas Mills.

James H. McMackin, III, Albert J. Carroll, Michelle G. Bounds, MORRIS JAMES
LLP, Wilmington, DE; Attorneys for Defendants Stanley A. Mills, Jr., Patrick
Gossett, Edward Chrzanowski, Francis Markert, Tim Bennett, Toni Sharp, Donald
Preston, the City of Rehoboth Beach Board of Commissioners, and the City of
Rehoboth Beach.

Laurence V. Cronin, SMITH, KATZENSTEIN & JENKINS LLP, Wilmington, DE;
Attorneys for Defendant Taylour Tedder.

DAVID, V.C.
The Charter of Rehoboth Beach (the “Charter”) vests the Commissioners of

Rehoboth Beach (the “Commissioners”) with the authority to appoint a City

Manager for the City of Rehoboth Beach, Delaware (the “City”). In the spring of

2024, the City hired a new City Manager and approved an employment agreement

that entitles him to an annual salary of $250,000 and a $750,000 forgivable housing

loan, among other benefits. The plaintiffs in this action, homeowners in the City,

ask the Court to rescind that agreement and enjoin the City from using municipal

funds to pay the City Manager.

The plaintiffs do not challenge the City Manager’s compensation package as

excessive. The Charter is clear that the Commissioners have the authority to fix the

City Manager’s compensation; that is not for the Court to decide. Instead, the

plaintiffs bring two other claims to support the relief they seek. First, the plaintiffs

allege that the City Manager lacks certain qualifications mandated under the Charter.

Because the language of the Charter is ambiguous, further proceedings are necessary

to determine whether the City complied with the Charter when hiring the City

Manager. Second, the plaintiffs allege that the Commissioners violated Delaware’s

Freedom of Information Act (“FOIA”) when they negotiated and offered the City

Manager his “exorbitant employment agreement.” The plaintiffs’ FOIA claims are

time-barred or fail to state a claim.

1
I. BACKGROUND

The following facts are taken from Plaintiffs’ Verified Complaint for

Declaratory and Injunctive Relief and Rescission (the “Complaint”) and the

documents it incorporates by reference.1 See Pls.’ Verified Compl. for Decl. &

Injunctive Relief & Rescission [hereinafter Compl.], Dkt. 1. At this procedural

stage, the Court is required to assume that the allegations in the Complaint are true.

The plaintiffs in this action, Steven Linehan and Thomas Gaynor

(“Plaintiffs”), are homeowners in the City. Id. ¶ 10.

The City’s Charter vests the Commissioners with the authority to “appoint a

City Manager who shall be Chief Administrative Officer of the City” and to fix

“[t]he compensation which the [City] Manager shall receive for the performance of

his duties[.]” See Charter of Rehoboth Beach [hereinafter Charter] § 17(a), (d).2

The Charter states that “[t]he City Manager shall hold office for an indefinite term

and may be removed by a majority vote of the Commissioners.” Id. § 17(c). The

Charter also states that:

1
See Freedman v. Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When a
plaintiff expressly refers to and heavily relies upon documents in her complaint, these
documents are considered to be incorporated by reference into the complaint[.]” (citing
Albert v. Alex. Brown Mgmt. Servs., Inc., 2005 WL 1594085, at *12 (Del. Ch. June 29,
2005))), aff’d, 58 A.3d 414 (Del. 2013).
2
A copy of the Charter can be accessed at:
https://charters.delaware.gov/rehobothbeach.pdf.
2
No person shall be appointed to the office of City Manager of the
Commissioners of Rehoboth Beach unless he shall have received a
degree in engineering from an approved college or university, or shall
have served as City Manager of some other incorporated municipality
for a period not less than four (4) years or shall have had practical
engineering experience for a period of not less than four (4) years;
provided, however, that nothing contained herein shall prohibit the
Commissioners of Rehoboth Beach from imposing such other
qualifications as may be deemed necessary . . . .

Id. § 17(b).

In late 2023, the City began a search for a new City Manager. Compl. ¶ 23.

The City first issued a job posting that identified as “[m]inimum requirements” for

the position “a bachelor’s degree in public administration or related field and seven

(7) years of local government experience with at least five (5) years in progressively

responsible management positions, including human resources and budget/finance

management.” Id. The posting included an annual salary range of $140,000 to

$175,000. Id. ¶ 24. When the City’s initial job posting failed to yield viable

candidates for the City Manager position, the Commissioners “increased the offered

compensation range to $250,000, and added (among other benefits) an additional

$750,000 in the form of a no-interest housing loan that would be forgiven over seven

years.” Id. ¶ 25.

Taylour Tedder applied for the position. Although Tedder holds a B.A. in

Economics and a Master’s in Public Administration (with specialties in city and

county management, public finance, and economic development), he does not have

3
a four-year engineering degree. Id. ¶ 32; id., Ex. D. And while Tedder previously

worked as city manager of Boulder City, Nevada for two years and ten months and

as assistant city manager of Leavenworth, Kansas before that, he did not have four

years of experience working as a city manager in any city. Compl. ¶ 33; id., Ex. D.

Between November 2023 and March 2024, the Commissioners held seven

meetings in nonpublic executive sessions to “discuss[] the qualification[s]” and

conduct “individual interviews of the candidates” for City Manager. Compl. ¶ 27

(quoting id., Ex. B at 3). Then, on April 8, the Commissioners held a public meeting

to consider the appointment of a City Manager. At the meeting, the Commissioners

unanimously resolved to appoint Tedder as City Manager and to authorize the City’s

Mayor, Stanley A. Mills, Jr., “to execute and deliver an employment agreement as a

condition of [Tedder’s] employment.” Id. ¶ 29 (quoting id., Ex. B at 3).

The next day, the City and Tedder executed an employment agreement (the

“Employment Agreement”) under which Tedder would serve as City Manager. Id.,

Ex. C § 1.1. The Employment Agreement includes a May 15 start date and provides

for an annual salary of $250,000 and a $750,000 forgivable housing loan, among

other benefits. Compl. ¶ 30; id., Ex. C §§ 2.2, 3.1(a), 8.3

3
The Employment Agreement also states that, “during the period of time 90 days prior to
an annual municipal election and 90 days after an annual municipal election, a super
majority vote (at least six Commissioners) of the Commissioners is required to terminate
the services of the City Manager.” Compl., Ex. C § 13.
4
Several weeks later, on May 31, Plaintiffs filed a petition with the Office of

the Attorney General of the State of Delaware (the “AG’s Office”) to determine

whether the Commissioners had violated FOIA by holding nonpublic meetings to

discuss the appointment of a City Manager. 4 On June 26, the AG’s Office issued an

opinion (the “AG Opinion”) determining that the Commissioners violated FOIA by

“engaging in discussions of the City Manager’s employment contract, and especially

the compensation package, in executive session” and by “giving improper notice for

. . . planned discussions of the qualifications of City Manager candidates at its

November 6, 2023 and January 8, 2024 executive sessions.” Compl., Ex. B at 4–5.5

4
See 29 Del. C. § 10005(e) (“Any citizen may petition the Attorney General to determine
whether a violation of this chapter has occurred or is about to occur.”).
5
See also Compl., Ex. B at 4 (“This Office has found that ‘[o]n its face, FOIA does not
permit public bodies to engage in private strategy sessions regarding employment-related
contracts outside of a collective bargaining or litigation context.’ Discussions of salary
and other compensation involve the expenditure of public funds and are not related to the
individual’s qualifications to hold a job. Public employees’ compensation is a matter of
public record, as it is ‘well settled that citizens have a right to know how their public
servants are compensated with taxpayer monies, in whatever the form that compensation
might take.’ Accordingly, we find that the City violated FOIA by engaging in discussions
of the City Manager’s employment contract, and especially the compensation package, in
executive session.” (footnotes omitted) (citations omitted)); id. at 5 (“Although the seven
meetings with an executive discussion about the City Manager candidates and the April 8,
2024 Special Meeting were public meetings, time for public comment was not scheduled
on the meeting agendas. Agendas are required to include a general statement of all major
items expected to be discussed at a public meeting. A citizen should be able to review an
agenda and determine whether an issue important to them will be under consideration and
decide whether to attend. A public comment period is a major issue for discussion, and
citizens must receive public notice of their opportunity for public comment so they can

5
The AG Opinion recommended “that the [Commissioners] discuss the City

Manager’s contract, including the compensation package, and ratify the vote

associated with the City Manager’s contract at a future meeting held in compliance

with FOIA’s open meeting requirements[,]” which “must include time for public

comment.” Compl. ¶ 42 (quoting id., Ex. B at 6).

On July 8, as the AG Opinion recommended, the Commissioners held a

special meeting to consider the Employment Agreement, including Tedder’s

compensation package, and “for the purpose of ratifying the Employment

Agreement.” Id. ¶¶ 42–43. At the meeting, “the Mayor specifically instructed the

public in attendance that comments regarding the Charter’s requirements or the

qualifications of Tedder to serve as City Manager would be deemed out of order.”

Id. ¶ 44. The Commissioners heard public comment from eighteen residents, who

“spoke out against the compensation package, the hiring of Tedder, the lack of

transparency, and the violations of the Charter.” Id. ¶ 45. Thereafter, the

Commissioners voted unanimously to ratify the Employment Agreement. Id. ¶ 46.

On August 15, 2024, Plaintiffs initiated this action through the filing of the

Complaint. The Complaint seeks a declaratory judgment that the Employment

decide whether they wish to attend the meeting. As such, we also find that the City further
violated FOIA by failing to notice time for public comment on its agendas for each of these
meetings.” (footnotes omitted) (citations omitted)).
6
Agreement violates the Charter, that Tedder’s salary therefore constitutes an illegal

use of municipal funds, and that the City hired Tedder in violation of FOIA. See id.

¶¶ 49–73. The Complaint also seeks rescission of the Employment Agreement and

an order enjoining the payment of municipal funds under the Employment

Agreement. 6 See id. ¶¶ 74–89.

6
On September 12, 2024, the Mayor, the Commissioners, and the City moved to dismiss
the Complaint (the “Motion to Dismiss”). Defs.’ Mot. to Dismiss, Dkt. 17. The same day,
Tedder filed a joinder to the Motion to Dismiss. Def. Taylour Tedder’s Joinder to Defs.’
Mot. to Dismiss, Dkt. 8. On October 18, the Mayor, the Commissioners, and the City filed
their Opening Brief in Support of the Motion to Dismiss (the “Opening Brief”). Defs.
Stanley A. Mills, Jr., individually & as Mayor of City of Rehoboth Beach; Patrick Gossett,
Edward Chrzanowski, Francis Markert, Tim Bennett, Toni Sharp, & Donald Preston,
individually & as Comm’rs of City of Rehoboth Beach Bd. of Comm’rs; City of Rehoboth
Beach Bd. of Comm’rs; & City of Rehoboth Beach’s Opening Br. in Support of Defs.’
Mot. to Dismiss Pls.’ Verified Compl. [hereinafter OB], Dkt. 11. Tedder filed a joinder in
support of the Opening Brief on October 21. Def. Taylour Tedder’s Joinder in Support of
Defs.[’] Opening Br. in Support of Mot. to Dismiss, Dkt. 12. On November 18, Plaintiffs
filed an answering brief in opposition to the Motion to Dismiss. Pls.’ Answering Br. in
Opp’n to Mot. to Dismiss [hereinafter AB], Dkt. 13. On December 3, the Mayor, the
Commissioners, and the City filed their reply brief in further support of the Motion to
Dismiss (the “Reply”). Defs. Stanley A. Mills, Jr., individually & as Mayor of City of
Rehoboth Beach; Patrick Gossett, Edward Chrzanowski, Francis Markert, Tim Bennett,
Toni Sharp, & Donald Preston, individually & as Comm’rs of City of Rehoboth Beach Bd.
of Comm’rs; City of Rehoboth Beach Bd. of Comm’rs; & City of Rehoboth Beach’s Reply
Br. in Further Support of Defs.’ Mot. to Dismiss Pls.’ Verified Compl. [hereinafter RB],
Dkt. 14. The next day, Tedder filed a joinder in support of the Reply. Def. Taylour
Tedder’s Joinder in Support of Defs.’ Reply Br. in Support of Mot. to Dismiss, Dkt. 15.
The Court heard oral argument on March 28, 2025. See JAF, Dkt. 19.
7
II. ANALYSIS

Defendants have moved to dismiss the Complaint under Court of Chancery

Rule 12(b)(6). 7 When reviewing a motion to dismiss under Rule 12(b)(6), Delaware

courts “(1) accept all well pleaded factual allegations as true, (2) accept even vague

allegations as ‘well pleaded’ if they give the opposing party notice of the claim, [and]

(3) draw all reasonable inferences in favor of the non-moving party . . . .” Cent.

Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del.

2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).

The Complaint includes five counts. Counts I and II seek a declaration that

the Commissioners violated the Charter by hiring a City Manager who does not meet

the qualifications mandated under the Charter, and that paying Tedder’s salary and

other benefits therefore constitutes an illegal use of municipal taxpayer funds. Count

III seeks an order invalidating the Employment Agreement under FOIA. Counts IV

and V seek related relief.

As explained below, the Complaint states a claim for violation of the Charter

but does not state a claim under FOIA. At this early stage, the Court will not decide

7
Defendants also moved to dismiss under Court of Chancery Rule 12(b)(1), but did not
brief that motion. See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues
not briefed are deemed waived.”).
8
what relief might be appropriate in the event Plaintiffs’ challenge under the Charter

ultimately is successful.

A. The Complaint States A Claim For Violation Of The Charter.

Counts I and II of the Complaint assert that the Commissioners violated the

Charter by hiring a City Manager who does not meet the qualifications mandated

under the Charter. Defendants first contend that, rather than deciding whether a

Charter violation has occurred, the Court should leave these issues to play out

through the political process. OB at 17. Defendants also argue that Plaintiffs

unreasonably delayed in bringing their challenge under the Charter, and that the

Charter permits the Commissioners to impose different qualifications for the City

Manager as necessary. See id. at 27, 30. Those arguments are addressed below.

1. Compliance With The Charter Is An Appropriate Issue For
Judicial Resolution.

The Motion to Dismiss raises one threshold argument that warrants discussion

at the outset: whether this Court should interfere with the Commissioners’ choice of

City Manager. As Defendants see it, this lawsuit threatens the City’s ability “to hire

a competent, experienced, and educated individual as City Manager,” and “[t]he

proper avenue for relief in this circumstance is through the political process, not the

judicial process.” Id. at 16–17. In other words, if the City’s residents disagree with

the Commissioners’ hiring decisions, they can vote their public officials out of

office, but they should not be permitted to challenge hiring decisions in court.

9
It is true that “this Court is cautious not to impermissibly encroach upon the

independent authority of each separate branch of . . . government.” Korn v. New

Castle Cty., 2005 WL 396341, at *1 (Del. Ch. Feb. 10, 2005). Elected officials must

manage the City’s affairs for the benefit of its residents; “courts have no right to

substitute their judgment of what is best for the judgment of the officers upon whom

the law casts the responsibility of deciding.” Taylor v. Smith, 115 A. 405, 409 (Del.

Ch. 1921). “Embodied in this approach is the notion that most disputes concerning

the [City]’s policies are political in nature and must be resolved at the polls, not in

the courts.” Korn, 2005 WL 396341, at *1. In this case, though, Plaintiffs allege

that the City “exceeded its own authority established by law” under the Charter,

making it “appropriate for the Court to resolve this controversy[.]” Id. Because the

City and its Commissioners are bound by law to comply with the Charter, the Court

must decide Plaintiffs’ challenge.8

8
See Charter § 1(d) (“All powers of The Commissioners of Rehoboth Beach, whether
expressed or implied, shall be exercised as prescribed by this Charter . . . .”). Cf. Korn,
2005 WL 396341, at *1 (“[T]he concept of fidelity to the law ‘presupposes a commitment
by the governing authority to abide by its own rules.’” (quoting Lon L. Fuller, THE
MORALITY OF LAW 234 (Yale Univ. Press, 1964))) (cleaned up); Schadt v. Latchford, 843
A.2d 689, 691–92 (Del. 2004) (“[A city’s] Charter ‘stands as its constitution,’ and . . .
ordinances enacted by the City Council: ‘. . . must conform to, be subordinate to, not
conflict with, and not exceed the charter, and can no more change or limit the effect of the
charter than a legislative act can modify or supersede a provision of the constitution of the
state.’” (footnote omitted) (first quoting Bivens v. City of Grand Rapids, 505 N.W.2d 239,
243 (Mich. 1993); and then quoting 5 McQuillin, Municipal Corporations § 15.19 (3d
ed.))).
10
2. The Court Cannot Find As A Matter Of Law That Plaintiffs
Unreasonably Delayed In Bringing Their Challenge Under
The Charter.

Defendants next argue that Plaintiffs’ challenge under the Charter is barred by

the equitable doctrine of laches. “The doctrine of laches protects defendants from

prejudice by prohibiting the unreasonably slow filing of equitable claims.” Quill v.

Malizia, 2005 WL 578975, at *14 (Del. Ch. Mar. 4, 2005) (first citing Wright v.

Scotton, 121 A. 69, 72 (Del. 1923); and then citing 27A AM. JUR. 2d Equity § 141).

“To sustain a laches defense, a defendant must show that it was prejudiced because

the plaintiff unreasonably delayed bringing suit after being on at least inquiry notice

of its claims.” Id. (first citing Fed. United Corp. v. Havender, 11 A.2d 331, 334

(Del. 1940); and then citing Fike v. Ruger, 752 A.2d 112, 113 (Del. 2000)).

Defendants contend that “Plaintiffs unreasonably delayed in filing suit and

their delay will severely prejudice Defendants.” OB at 31. Defendants argue that

Plaintiffs were on notice of their claims by April 19, 2024, when they attended the

public meeting at which the Commissioners resolved to appoint Tedder as City

Manager and approved the Employment Agreement. Id. at 5, 19. Plaintiffs then

waited four months, until August 15, to file this lawsuit. In that time, Tedder

relocated his family and began working as the City Manager, a position he now has

held for over a year since Plaintiffs chose not to seek an expedited case schedule.

Defendants urge that “undo[ing] the financial transactions and expenses related to

11
the commencement of Tedder’s employment . . . would impose a substantial

hardship on Defendants, constitute a waste of City resources, and be logistically

impossible to enact with fidelity.” Id. at 40.

A laches defense “is generally determined by a fact-based inquiry.”

Homestore, Inc. v. Tafeen, 888 A.2d 204, 210 (Del. 2005). As a result, “laches is

‘not ordinarily well-suited for treatment on’ a Rule 12(b)(6) motion to dismiss[,]”

where the Court must assume the truth of the allegations in the complaint.9 Sykes v.

Touchstream Techs., Inc., 2024 WL 1299928, at *8 (Del. Ch. Mar. 27, 2024)

(quoting Reid v. Spazio, 970 A.2d 176, 183 (Del. 2009)). “[U]nless it is clear from

the face of the complaint that an affirmative defense exists and that the plaintiff can

prove no set of facts to avoid it, dismissal of the complaint based upon an affirmative

defense is inappropriate.” Stephen G. Perlman, Rearden LLC v. Vox Media, Inc.,

2015 WL 5724838, at *12 (Del. Ch. Sept. 30, 2015).

Although Defendants’ laches argument is compelling, given the limited

factual record before it, the Court cannot conclude that there is no set of facts

9
For this reason, it is unsurprising that all of the cases on which Defendants rely were
decided on a different procedural posture. See, e.g., Steele v. Ratledge, 2002 WL
31260990, at *1 (Del. Ch. Sept. 20, 2002) (entering summary judgment in favor of
defendant on laches grounds); Porach v. City of Newark, Del., 1999 WL 458624, at *1
(Del. Ch. June 25, 1999) (same).
12
Plaintiffs could prove to avoid a laches defense. The Court therefore declines to

dismiss Counts I and II on laches grounds at this early stage.

3. Because The Charter Is Ambiguous, The Motion To Dismiss
Must Be Denied.

I next consider the merits of Plaintiffs’ claim that the Commissioners violated

the Charter by hiring a City Manager without the qualifications mandated under the

Charter. That claim raises a matter of statutory interpretation. “It is well-settled

under Delaware law that, if the statutory language at issue is ‘unambiguous, then

there is no room for judicial interpretation and the plain meaning of the statutory

language controls.’” Jimmy’s Grille of Dewey Beach, LLC v. Town of Dewey Beach,

2013 WL 6667377, at *2 (Del. Ch. Dec. 17, 2013) (quoting CML V, LLC v. Bax, 28

A.3d 1037, 1041 (Del. 2011)) (citing Borden, Inc. v. City of Lewes, 1989 WL

147366, at *2 (Del. Super. Nov. 13, 1989)). “However, if the language at issue is

ambiguous, i.e. ‘if it is susceptible of two reasonable interpretations or if a literal

reading of its terms would lead to an unreasonable or absurd result not contemplated

by the legislature,’ then the motion to dismiss must be denied.” Id. (footnotes

omitted) (quoting CML V, LLC, 28 A.3d at 1041) (citing Kahn v. Portnoy, 2008 WL

5197164, at *3 (Del. Ch. Dec. 11, 2008)).

The statutory language at issue—Section 17(b) of the Charter—is susceptible

to two reasonable interpretations. It states as follows:

13
No person shall be appointed to the office of City Manager of the
Commissioners of Rehoboth Beach unless he shall have received a
degree in engineering from an approved college or university, or shall
have served as City Manager of some other incorporated municipality
for a period not less than four (4) years or shall have had practical
engineering experience for a period of not less than four (4) years;
provided, however, that nothing contained herein shall prohibit the
Commissioners of Rehoboth Beach from imposing such other
qualifications as may be deemed necessary . . . .

Charter § 17(b) (emphasis added). The parties agree that Section 17(b) sets

qualifications for the City Manager: he or she must (1) have a college degree in

engineering, (2) have served as a city manager for at least four years, or (3) have at

least four years of practical engineering experience. The parties disagree, however,

on how to interpret the clause emphasized above: “provided, however, that nothing

contained herein shall prohibit the Commissioners of Rehoboth Beach from

imposing such other qualifications as may be deemed necessary . . . .” Plaintiffs

interpret that language to permit the Commissioners to impose additional, but not

conflicting, qualifications when selecting a City Manager. See AB at 14–15 (arguing

that “‘other’ means ‘additional’ and not ‘different’”). Defendants instead read

Section 17(b) to provide default qualifications that the Commissioners may change

if necessary. Such flexibility is important, Defendants say, because the position of

“City Manager” is not defined in the Charter, and individuals holding that position

in other municipalities may have different titles (“Town Manager” or “Town

Administrator”) or cover varying responsibilities (an “Assistant City Manager” in

14
one city may do the same work as the “City Manager” in another). Id. at 28–29.

Here, for instance, Tedder held the title of “city manager” in Boulder City, Nevada

for less than three years, but worked as an assistant city manager in Leavenworth,

Kansas for approximately five and a half years before that, potentially doing

comparable work. Compl., Ex. D.

Plaintiffs’ interpretation is reasonable. At least one Delaware case has

interpreted the word “other” to mean “additional” rather than “different.” See

Telcom-SNI Invs., L.L.C. v. Sorrento Networks, Inc., 2001 WL 1117505, at *5 (Del.

Ch. Sept. 7, 2001) (“The word ‘other’ means ‘more, additional.’ Thus, a fair reading

of ‘any other equity security’ equates to ‘any additional share.’” (footnote omitted)

(quoting Other, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (3d ed.

1993)), aff’d, 790 A.2d 477 (Del. 2002)). But see Other, THE MERRIAM-WEBSTER

DICTIONARY (9th prtg. Aug. 2024) (defining “other” to mean “different” or

“additional”).10

10
Plaintiffs also argue that “under the rule of ejusdem generis, ‘other qualifications’ means
other, additional qualifications, and not other, different qualifications.” AB at 15. Under
the interpretive canon ejusdem generis, “where general language follows an enumeration
of persons or things, by words of a particular and specific meaning, such general words are
not to be construed in their widest extent, but are to be held as applying only to persons or
things of the same general kind or class as those specifically mentioned.” Texas Pac. Land
Corp. v. Horizon Kinetics LLC, 306 A.3d 530, 559 (Del. Ch. 2023) (quoting Aspen
Advisors LLC v. United Artists Theatre Co., 861 A.2d 1251, 1265 (Del. 2004)), aff’d, 314
A.3d 685 (2024). That canon does not apply here because Section 17(b) does not contain
a list.
15
Defendants’ interpretation is also reasonable. “Provided, however” is a

phrase used to introduce a carve-out or exception. See, e.g., Alta Berkeley VI C.V.

v. Omneon, Inc., 41 A.3d 381, 387 (Del. 2012) (noting that the phrase “provided,

however” “excepts or ‘carves out’” what follows). “Provided, however” is

disjunctive; it should not be used to clarify a clause that is already clear, like “for the

avoidance of doubt.”11 Reading “such other qualifications” to mean additional, but

not different, qualifications would clarify what is already clear—that setting

minimum qualifications does foreclose imposing additional qualifications. By

contrast, interpreting Section 17(b) to impose default qualifications unless the

11
Delaware’s Legislative Drafting Manual explains that “‘provided, however, that’ should
be purged from a drafter’s toolkit because the phrases violate Drafting Rules 1 and 2; they
are unclear, uncertain in their reach, and create unwieldy sentences. Replace the terms by
ending the sentence and beginning a new one with ‘But,’. As Bryan Garner notes, ‘[t]hat’s
how the drafters of the U.S. Constitution did it—eight times—and they were grammatically
unimpeachable on that score.” MARK J. CUTRONA, Delaware Legislative Drafting Manual,
DEL. GEN. ASSEMBLY, DIV. OF LEGIS. SERVS. 111–12 (Holly Vaughn Wagner ed.) (2024
ed.) (quoting Bryan A. Garner, Ax These Terms from Your Legal Writing, ABA J.: BRYAN
GARNER ON WORDS (Apr. 1, 2014, 3:30 AM),
https://www.abajournal.com/magazine/article/ax_these_terms_from_your_legal_writing).
More recently, Garner has recognized “provided however that” can encompass both
exceptions and conditions. Bryan Garner & Joseph Kimble, Essentials for Drafting Clear
Legal Rules, U.S. CTS.: FORMS & RULES 94 (2024 ed.),
https://www.uscourts.gov/sites/default/files/essentials_for_drafting_clear_legal_rules_20
24.pdf (“[P]rovided that, provided however that: reword to eliminate all provisos, usually
with if (for conditions), or except or but (for exceptions).”).
16
Commissioners decide it is necessary to impose different qualifications interprets

“provided, however” as disjunctive, as it should. 12

Because Section 17(b) of the Charter is susceptible of two reasonable

interpretations, the Motion to Dismiss Counts I and II must be denied.

4. The Court Will Not Decide The Remedy At This Stage.

Counts IV and V of the Complaint seek equitable rescission of the

Employment Agreement and an injunction prohibiting the payment of municipal

funds to Tedder under the Employment Agreement.

Defendants seek to dismiss those “claims” on the grounds that such remedies

would be impractical. Tedder moved his family across the country and has since

worked as City Manager for over a year. Plaintiffs do not allege that he did anything

wrong. He cannot be expected to work for free. And in two months, he will have

12
Whether a conjunction is copulative (“and”) or disjunctive (“or”) matters. For example,
in a statute providing that “[t]he State Fire Prevention Commission shall employ a Director
for the Delaware State Fire School who shall be especially trained and qualified in fire
fighting, fire experimental work, and emergency services training or shall have such other
qualifications as deemed appropriate by the State Fire Prevention Commission including,
but not limited to, educational and administrative experience[,]” “other qualifications”
means qualifications different than those listed in the preceding clause. 16 Del. C. § 6619.
But in a statute stating that “[a]ny person appointed pursuant to this section shall have a
minimum of 10 years experience as a ‘police officer,’ . . . significant investigatory
experience while working as a police officer, shall be in good standing with the previous
or present law-enforcement agency where such person is or was employed, and shall have
such other qualifications deemed appropriate by the Secretary,” “other qualifications”
seems to mean “additional” qualifications. 29 Del. C. § 9016.
17
the four years’ experience working as a City Manager allegedly required under the

Charter.

Defendants make good points. But at this stage, the Court cannot determine

what remedy will be awarded if Plaintiffs succeed on their Charter claim. On a

motion to dismiss, the Court only determines whether the plaintiffs have stated a

claim for which relief might be granted. 13 “Because the determination of relief is

beyond the scope of this motion and premature without an established evidentiary

record, I will not address this issue[]” further. Crescent/Mach I P’rs, L.P. v. Turner,

846 A.2d 963, 991 (Del. Ch. 2000); see also, e.g., Eni Hldgs., LLC v. KBR Gp.

Hldgs., LLC, 2013 WL 6186326, at *24 (Del. Ch. Nov. 27, 2013) (“Rescission is not

a cause of action but a remedy available only where facts indicate equity so requires.

Because such an inquiry is fact specific, I decline to address it in connection with

this Motion to Dismiss . . . .” (footnote omitted) (citing Crescent/Mach I P’rs, L.P.,

846 A.2d at 991)).

13
For this reason, it is unsurprising that the cases on which Defendants rely were decided
after trial. See, e.g., Midland Grange No. 27 Patrons of Husbandry v. Walls, 2008 WL
616239, at *9 (Del. Ch. Feb. 28, 2008) (deciding post-trial that rescission would be
impracticable); Ravenswood Inv. Co., L.P. v. Est. of Winmill, 2018 WL 1410860, at *22
(Del. Ch. Mar. 21, 2018, revised Mar. 22, 2018) (same), aff’d, 210 A.3d 705 (Del. 2019).
18
B. The Complaint Fails To State A Claim Under FOIA.

Count III seeks an order voiding the Employment Agreement under Title 29,

Section 10005(a), which states that “[a]ny action taken at a meeting in violation of

[FOIA] may be voidable by the Court of Chancery.” 29 Del. C. § 10005(a).

Plaintiffs allege that the Commissioners violated FOIA (1) at seven executive

sessions in November 2023 through March 2024, and (2) at the July 8 meeting to

ratify the Employment Agreement.

1. Plaintiffs Are Barred From Bringing FOIA Claims
Challenging Executive Sessions In November 2023 Through
March 2024.
Plaintiffs first allege that the Commissioners violated FOIA at seven

executive sessions in November 2023 through March 2024. Defendants move to

dismiss those challenges on grounds that they are time-barred.

Title 29, Section 10005 provides two paths for determining whether a FOIA

violation has occurred. Section 10005(a) states that “[a]ny action taken at a meeting

in violation of [FOIA] may be voidable by the Court of Chancery.” 29 Del. C.

§ 10005(a). A citizen who files a lawsuit in the Court of Chancery must do so

“within 60 days of the citizen’s learning of such action but in no event later than 6

months after the date of the action.” Id.

Alternatively, under Section 10005(e), “[a]ny citizen may petition the

Attorney General to determine whether a violation of [FOIA] has occurred or is

19
about to occur.” 29 Del. C. § 10005(e). If a citizen goes that route, the Attorney

General must “make a written determination of whether a violation has occurred or

is about to occur” within twenty days of receiving the petition. Id. Then, “[i]f the

Attorney General finds that a violation of [FOIA] has occurred or is about [to] occur,

the citizen may: (1) File suit as set forth in this chapter; or (2) request in writing that

the Attorney General file suit on the citizen’s behalf.” Id. If the citizen asks the

Attorney General to file suit, the Attorney General must notify the citizen of its

decision within fifteen days, and “[t]he citizen shall have the absolute right to file

suit regardless of the determination of the Attorney General . . . .” Id. As a result, a

diligent citizen could file a petition with the Attorney General upon learning of the

conduct at issue; receive a determination from the AG’s Office within twenty days;

ask the Attorney General to file suit on the citizen’s behalf and receive a response;

and still file a lawsuit in the Court of Chancery “as set forth in this chapter”—i.e.,

within the sixty-day limitations period under Section 10005(a)—if the Attorney

General declines to file suit on the citizen’s behalf.

Plaintiffs did not do that here. Instead, Plaintiffs knew of the actions taken at

the executive sessions by the end of May, when they petitioned the AG’s Office, but

waited to file this action until more than sixty days later, on August 15, 2024.

20
Plaintiffs are therefore time-barred from bringing a claim to void actions taken at the

executive sessions.14 See 29 Del. C. § 10005(a).

Plaintiffs argue that although they were aware of the actions identified in their

FOIA petition, they did not know for certain that the actions violated FOIA until

they received the AG Opinion on June 26. See AB at 21. That argument conflicts

with the plain language of Section 10005(a), which requires a citizen to “fil[e] suit

within 60 days of the citizen’s learning of such action”—not of learning that the

action actually violates FOIA. 29 Del. C. § 10005(a) (emphasis added). Cf. Reeder

v. Del. Dep’t of Ins., 2006 WL 510067, at *8 (Del. Ch. Feb. 24, 2006) (rejecting

FOIA claim as untimely, despite plaintiff claiming “he did not understand FOIA,”

because he “was immediately aware of the conduct . . . that he contend[ed] violated

FOIA and began accusing the DDCC of FOIA violations that same month”), aff’d,

931 A.2d 1007 (Del. 2006). Because Plaintiffs failed to file this lawsuit within sixty

days of learning about the November 2023 through March 2024 executive sessions,

such challenges are time-barred.

14
While the Attorney General can determine “whether a violation of [FOIA] has occurred
or is about to occur” and may recommend remediation, under Section 10005, only the
Court has the power to invalidate a public body’s action. 29 Del. C. § 1005(a), (e); see
also Compl., Ex. B at 6 (“The authority to invalidate a public body’s action, or to impose
other relief, is reserved for the courts.”).
21
2. The Complaint Fails To Allege A FOIA Violation At The July
8 Meeting.

Plaintiffs also contend that the Commissioners violated FOIA at the July 8

meeting to ratify the Employment Agreement. Section 10004(2) states that “[a]

meeting that is open to the public under paragraph (a)(1) of this section must include

time for public comment . . . .” 29 Del. C. § 10004(2). Although “[a] public body

may impose reasonable time, place, and manner restrictions on the length of the

public comment period and the amount of time allotted for each public comment,”

“[t]he time for public comment must provide a meaningful opportunity for the public

to engage with the public body.” 15 Id. § 10004(2)(a)–(b).

The Complaint alleges that the purpose of the July 8 meeting was to consider

the Employment Agreement, including Tedder’s compensation package, and “for

the purpose of ratifying the Employment Agreement.” Compl. ¶¶ 42–43. Although

the Complaint alleges that “the Mayor specifically instructed the public in

attendance [at that meeting] that comments regarding the Charter’s requirements or

the qualifications of Tedder to serve as City Manager would be deemed out of

order[,]” id. ¶ 44, it does not allege that the Commissioners failed to provide

adequate time for public comment, prevented any resident from speaking,

15
FOIA allows a public body to remove “any person from a public meeting who is
wil[l]fully and seriously disruptive of the conduct of such meeting.” 29 Del. C. § 10004(d).
22
interrupted any comment, or removed any person from the meeting. In fact, the

Complaint alleges the opposite—that during the meeting, eighteen members of the

public “spoke out against the compensation package, the hiring of Tedder, the lack

of transparency, and the violations of the Charter.” Id. ¶ 45. Such allegations do not

support an inference that the Commissioners failed to provide a meaningful

opportunity for public engagement in violation of FOIA at the July 8 meeting.16

Count III must be dismissed.

III. CONCLUSION
For the reasons explained above, the Motion to Dismiss is denied in part and

granted in part. The Complaint states a claim for violation of the Charter. It does

not state a claim for violation of FOIA. The parties are directed to meet and confer

on a proposed case schedule to move this action forward.

16
Plaintiffs also contend that the July 8 meeting failed to “cure” earlier FOIA violations,
but again, such claims are time-barred under the statute. See supra pp. 19–21.
23