Craig T Eliassen approved as Kent County Row Office Attorney

MEMORANDUM

OFFICE OF THE ADMINISTRATOR

555 BAY ROAD

DOVER, DELAWARE 19901

PHONE: (302)744-2305

TO:  Levy Court Commissioners

FROM:  Mike Petit de Mange, AICP County Administrator

DATE: SUBJECT:  May 3, 2018

Appointment of Kent County Row Office Attorney

As you are aware, Row Office Attorney Mary E. Sherlock, Esquire has formally tendered her resignation in correspondence dated April 23, 2018. Attorney Sherlock’s resignation became effective on Tuesday, May 1, 2018.

In order to fill this vacancy, with the concurrence of Levy Court Leadership, I contacted former Row Office Attorney Craig T. Eliassen, Esquire to inquire about his availability and interest into returning to the post he held from 1995 through 1999. I am pleased to report that Mr. Eliassen has expressed that he would be very interest and available to resume the post of Row Office Attorney effective upon the appointment of Levy Court.

Should Levy Court wish to appoint Mr. Eliassen to the vacant post of Row Office Attorney, the following Motion is offered for consideration:

MOTION:     I move to appoint Attorney Craig T. Eliassen to the post of Row Office
Attorney in and for Kent County, Delaware effective immediately upon the passage of this Motion on this day, May 8, 2018 with said  appointment continuing until such time as a successor is selected and appointed by Levy Court.

is item is scheduled for consideration during the Business Meeting of Tuesday, May 8, 2018 under New Business.  Should  you have any questions or concerns,  please contact me.

 

Thank you.

 

 

 

 

Fenwick gets FOIA lesson from Coastal Point

Fenwick gets FOIA lesson

Grievances about public meetings aired

Thursday, September 13, 2018 – 12:08pm

Government works for the people, and Delaware’s Freedom of Information Act (FOIA) is how the law ensures the public gets information.

“You should not try to bypass FOIA. … It doesn’t hurt to discuss things in public,” said William Pepper Sr. of Schmittinger & Rodriguez P.A., a native Sussex Countian and longtime attorney for various local Delaware governments.

Pepper was asked to review FOIA law for the Fenwick Island Town Council on Aug. 30. Council members Vicki Carmean, Julie Lee and Roy Williams had requested the meeting in July, hoping it would be scheduled before the August Board of Adjustment hearing, which stemmed from the Town’s Building Committee issuing a decision without public meetings.

Although the Building Committee members have for decades individually reviewed and made recommendations to the Town’s building official, without public meetings, now that the process has raised questions about transparency, the Town Council may consider disbanding the committee and simply assigning the building official to review all building permits, as is done in many neighboring towns.

Pepper’s role was to educate, not to offer opinions on the specific situation. He started by reviewing definitions, including “meeting,” a “formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.” Pepper said Delaware courts had warned about “serial meetings,” where a chairperson meets with a few members at a time to discuss the same business, which could circumvent the quorum element of FOIA requirements.

There are a number of reasons why public boards can hold private meetings, or “executive sessions.” But Pepper reminded Fenwick officials that theirs is a public body, and all votes must occur in public.

“My default is that any meeting is open to the public. … Discussion of personnel is not a talisman. You can’t wave it and then suddenly the meeting closes. There are specific sections for personnel discussions to be held in private,” Pepper said.

The same goes for discussion of legal issues, which only closes a meeting when a public session would have an adverse effect on collective bargaining or potential litigation. Getting a lawyer’s opinion doesn’t automatically count as fodder for a closed executive session, either, Pepper opined.

Meeting minutes can likewise be vague, although they must record those present and all votes or actions. But details can help future councils understand why decisions were made, Pepper said. He said Fenwick includes more detail in its minutes than is required, but said he would like more information on department/committee reports.

Town councils cannot hold meetings outside of town limits, but Pepper made an allowance for circumstances such as the Aug. 23 Board of Adjustment hearing, which was moved to the Roxana fire hall in anticipation of more people attending than Fenwick Island Town Hall could hold.

“You have to move it some place that will hold” that many people, he said, and prior notice should be given.

Who gets attorney-client privilege?

Williams asked who is really an attorney’s client: the individual council members or the Town?

“In our case, we must go through the mayor to request to speak to an attorney,” Williams said.

“Your solicitor represents the Town of Fenwick Island. The Town is governed by the council, so your solicitor doesn’t represent each one of you. But to control attorney’s fees, it’s usually a good idea that not everyone can contact the solicitor. So that’s something you have to work out among yourselves,” Pepper said.

Also, he said, “generally” every council member should be allowed to read a town solicitor’s opinion, in their role as council members — but that’s also case-by-case. He warned against distributing such an opinion broadly, because once it’s declassified, it’s no longer privileged information. A solicitor should also explain why particular information is limited to certain council members.

“It’s no secret that three of us were very unhappy about an ordinance that was longstanding in this community being reversed, which we saw in secret,” Carmean said. “I am not against replacing the Sands — I am all for it. I just want it done in public. I believe in transparent government. I am adamant about it.”

She insisted upon the Town discussing issues together, because secrets lead to misunderstanding, she said.

“What I was not happy about was that there was a long conversation that went on over two months with emails, and I didn’t know, and a decision was made before I even had a chance to give any input,” Carmean said.

The building committee

“I’m not sure why you have a building committee. Issuing building permits is a ministerial act, and his or her decision can be appealed to the Board of Adjustment,” Pepper said.

Some 20 years ago, the three-person advisory group was called a committee, but Mayor Gene Langan agreed that most towns don’t have something like that. The Charter & Ordinance Committee will review the issue.

It’s also not customer-friendly for an applicant to have to wait for a whole committee to meet publicly, just to obtain permits.

Pepper refused to dig too deeply into the specifics of recent situations, but he said it’s not uncommon for planning or building officials to get legal advice from the town solicitor. That prevents mistakes later, he said.

He also encouraged public bodies to use their lawyers to make sure policies are written well the first time.

Pepper also reviewed for the council members various types of government, such as council-manager, where everyone has voice; or mayor-council, with more leadership coming from a mayor. In Fenwick, Pepper said, the mayor is a voting member of council, but is also more of a chief executive officer, based on duties delineated in Charter Section 17.

The Aug. 30 meeting began with some bickering as to whether there should be a public-comments session, which was not written on the agenda, but had been intended. The public was invited to speak after the legal presentation.

The BOA process

Pepper said Sussex County towns use variances frequently, but variances should be held to a high standard, such as no other reasonable use for that property.

Carmean asked about the standards for a BOA member to recuse him/herself from voting.

“We had someone recuse for something that happened a few years ago,” she explained.

It’s the same as a council member, Pepper replied.

“Usually, a recusal is required when there is a personal issue in what’s coming before you,” such as financial interest, relatives or the member themselves being impacted by the result.

That can be tricky in a small town with deep roots, Pepper said.

“I’m related to half the people down here,” Pepper joked. “Peppers came in the 1620s and, for the most part, didn’t leave.”

He also warned against public servants discussing topics publically when they will be issuing a court-like decision. Everyday town politics is one thing, he said, but BOAs and occasionally town councils act in a more judgement-type role.

“You cannot take a public position on a matter that is coming before you. … You’re supposed to make a decision based on what’s presented at the hearing,” Pepper said. “So, don’t talk about stuff. You know — coffeeshop chats, people come up to you at church or whatever,” he advised them, just shut it down. “I know what life in a small town is like.”

Tradition isn’t always ideal

“It’s always been done this way” isn’t a good enough reason to continue as such, Pepper said. Even laws should be reviewed or rewritten to keep up with the times.

Asked why Town Solicitor Mary Schrider-Fox wasn’t doing the presentation herself, Town Manager Terry Tieman replied, “We believe that you wanted to discuss her qualifications at the end of this, and we believed [Pepper] would be an impartial person to discuss this.”

In a straw poll, Carmean, Lee and Williams shared their preference for seeking new legal representation. However, the majority of the council members said they felt they have received sound legal advice from Schrider-Fox, occasionally backed up by second opinions. Williams suggested they get second opinions on every decision anyway.

“Part of the problem goes back to the legal advice that we have received,” Carmean said of six years and six figures’ worth of discussion on building height. “I feel like the advice that we’ve been given has been negligent. … Lawyer 101 will tell you that when you’re looking on a building. … You’re also talking about the top part. … We all worked hard and diligently” to write ordinances that were clear, she said, but now she felt like any mistakes made in writing those ordinances were being hidden when they later came to light.

 

By Laura Walter
Staff Reporter

 

Requests for Admissions

REQUESTS FOR ADMISSIONS

DOUGLAS B. CATTS, ESQUIRE

Recently the lawyers at Schmittinger & Rodriguez, P.A. settled a case against a well-known automobile insurance company where the insurance company refused to pay medical bills.  To receive compensation for medical bills, The Plaintiff must prove that the bills are related to the vehicular collision at issue and are reasonable and necessary.  The client had pre-existing injuries and the insurance company insisted that the bills were related to previous problems.  Medical providers usually may testify about these matters insofar as other health care providers are involved.  However, in this case a chiropractor could not testify about bills from medical doctors and the numerous medical doctors were not familiar with the different specialties in the case.

The law provides that parties may file Requests for Admissions.  Our client, the Plaintiff filed requests asking the Defendant to admit or deny that the medical bills were reasonable and necessary.  If the defense admits, there is no reason to take the depositions of multiple doctors at great expense.  If the Defendant denies, then the depositions would have to be taken, but the party filing the requests may also apply to the Court for fees and costs.  In response to the Requests for Admissions, the defense was evasive and Plaintiff’s counsel filed a Motion to Compel.  The Judge gave the Defendant insurance company a time certain to admit or deny that the medical bills were or were not reasonable and necessary.  The defense had to decide whether to admit that the bills were reasonable and necessary or deny and risk payment of fees and costs including expert witness costs.  The day before the response was due, the Defendant settled the case so that the medical bills were paid.

Requests for Admissions can cut through and eliminate expensive litigation and bring matters to a head.  That happened in this case.

If you have been involved in a motor vehicle collision and your insurance company is not paying your medical bills, contact Schmittinger & Rodriguez, P.A. at (302) 674-0140.

S&R Attorney Appointed as Judge of Superior Court

Schmittinger & Rodriguez is proud to have one of our attorneys selected by Governor Carney to become a Judge on the Delaware Superior Court in Kent County.  Noel Primos, Esquire, practiced law with Schmittinger & Rodriguez from 1993 until June 1, 2017, handling civil litigation including primarily employment matters, municipal law and education law.  Mr. Primos follows a number of Schmittinger & Rodriguez attorneys who have gone on to judicial posts, including most recently The Honorable Jeffrey J. Clark, who left Schmittinger & Rodriguez in 2015 to become a Judge in the Superior Court, as well as The Honorable James T. Vaughn, Jr., (previously a Kent County Superior Court judge and presently a Justice of the Delaware Supreme Court) and The Honorable Mardi Pyott of the Kent County Family Court.

Following his confirmation by the Delaware Senate, Mr. Primos assumed the bench upon his investiture on June 1, 2017.  The attorneys and staff of Schmittinger & Rodriguez join with Noel’s family and others in congratulating him on his nomination and confirmation.

Grandparent and Third party visitation rights in Delaware

A grandparent’s right to visit with a grandchild differs from state to state.  In Delaware, grandparent visitation is covered under the third party visitation statutes contained in Title 13, Chapter 24 of the Delaware Code.  Delaware’s third party visitation statutes allow for any adult person to petition for third party visitation as long as that person can show a substantial and positive prior relationship with the child.  Family members in addition to grandparents (such as aunts, uncles, or adult siblings) can also petition for visitation under the third-party visitation statutes.

It should be noted that a grandparent or third party’s rights regarding a child are subordinate to a parent’s fundamental right to the care, custody, and control of the child.  The United States Supreme Court has opined that as long as a parent is fit, that parent has a fundamental right to parent and raise the child, and it is fully within the parent’s right to decide if visitation with a grandparent or third party is in the child’s best interest.  This does not mean that hope is lost for a grandparent seeking visitation; rather, the Court gives special weight to a parent’s objection to visitation. The special weight requires petitioning third parties to prove additional factors to obtain visitation with a child.

Before the Court can award third party visitation, the Court needs to find that visitation with the third party is in the child’s best interest.  To make that determination the Court looks to the best interest factors contained in the Delaware Code.  In addition to visitation being in the child’s best interest, the Court needs to find one of the following for each parent: (1) the parent consents to the third-party visitation; (2) the child is dependant, neglected, or abused in the parent’s care; (3) the parent is deceased; or (4) the parent objects to the visitation, but the adult seeking visitation has shown that the objection is unreasonable and that visitation will not substantially interfere with the parent/child relationship.

Many different events, such as divorce, a parent’s death, or termination of a parent’s rights can drastically alter family dynamics affecting the time a child spends with extended family members.  A child should be able to enjoy time with the people who would positively impact that child’s life.  To discuss third party visitation in more detail, or if you have any other family law related issue, please call Schmittinger and Rodriguez at (302) 674-0140 to schedule a consultation.

 

Custody Proceedings in Delaware

Divorce can be a trying, stressful undertaking and when children are involved it only becomes more complicated. Custody disputes cause parents to question the uncertainty of their child’s future. Where will our child live? Will my ex and I be able to work together in raising our child?  How does the Court know what is truly best for our child?  If you find yourself asking some of these questions while in the midst of a changing family dynamic, there are a few things you should know.

There are two main concerns when custody is being determined: who will make the important decisions for the child, and where will the child live.  The important decisions primarily relate to the educational, religious, and medical aspects of the child’s life.  This is what the Delaware law considers “Custody.”  Custody is either joint (where the parents communicate and work together to make the important decisions in their child’s life) or sole (where only one parent in charged with the responsibility of making the important decisions in the child’s life.)  If sole custody is determined to be best for your child, that does not mean the other parent is left on an island.  Each parent has the right to receive information regarding the child’s progress in school, medical treatment, and significant developments in the child’s life.

The other concern is where the child will live, or “Placement” of the child.  Will one parent have primary placement of the child, or is a shared placement arrangement more suitable?  If primary placement with one parent is determined to be best, then the non-residential parent is typically entitled to visitation with the child.  The best outcome here is for the parents to come to a visitation agreement that fits their circumstances and the child’s life. If the parents cannot agree, Family Court may order visitation with the goal of encouraging frequent, meaningful contact between both parents and the child.  Family Court uses standard contact guidelines that strive to accomplish that goal.

In order to make the custody and placement determinations, Family Court considers the factors contained in Title 13, Section 722 of the Delaware code.  These factors are more commonly known as the “best interest factors.”  The best interest factors explore the relationships the child has with his/her family; how the child is performing in school; the child’s involvement in the community; the conditions of the child’s living arrangements; and a myriad of other details that provide the Court insight into your family life.  The factors are then weighed by the Court to determine joint or sole custody, and if primary or shared placement is best for your child.

Quality legal representation helps to ensure a result that will work best for you and your child.  To discuss the factors the Court considers in custody disputes or if you have any other Family Law related questions, please call Schmittinger & Rodriguez at (302) 674-0140 to schedule a consultation.

Do I need an attorney?

By Gary E Junge

Most people do not intentionally break the law. Many people get caught in that gray area between right and wrong. You may drive after having a few drinks, you may touch or bump someone in a moment of anger, or you may take someone else’s property. Depending on the facts, each of these actions may or may not be illegal. If you are arrested, the State suspects you committed a crime. But, they still must prove that you committed the crime. If you’ve been charged with a crime, an attorney can navigate these gray areas.

In addition, an attorney can make sure the arrest was legal. Just as you must follow the law, so must the State follow the law. Our forefathers found that random stops, unreasonable search and seizures, unauthorized detention, and many other state actions violated our natural rights. The United States Constitution and the Delaware Constitution protect these rights. Just as the State will punish you for breaking the law, the courts will punish the State for violating your rights. This punishment usually takes the form of suppressing evidence or possibly even dismissing your case.

Take, for instance, a situation where you drive after having a few drinks. You believe you are within the legal limit, but are pulled over by a police officer and arrested for driving under the influence. At trial, the State must prove you were driving under the influence. Generally, the State must prove that the police officer had reasonable suspicion to stop you, probable cause to arrest you, and that proper procedures were followed when field sobriety tests were administered. Whether the police officer had reasonable suspicion to pull you over or probable cause to arrest you may be challenged. Improperly performed tests may lead to inaccurate results and therefore may not be admissible. Remember, the State is represented by an attorney who understands the nuances of the law. You can also be represented by an attorney who understands the nuances of the law.

In another instance, you get into an argument with someone and grab their shoulder or bump them. You may be arrested for offensive touching. Yet, you may not have intended to alarm the person. You may have been trying to emphasis a  point, or you may have intended to just walk away. You may be convinced you are guilty just  because you  did touch  them, but you may not be guilty. There are numerous elements to the charge, and the State must prove each one. Once again, the State will be represented by an attorney. Remember, you too can be represented by an attorney.

The same concept applies to theft. Did you intend to keep the property? Did you have permission from someone you assumed was the owner of the property? What was the property actually worth? The value of stolen goods determines whether you will be charged with a misdemeanor or a felony. Being convicted of a felony instead of a misdemeanor not only results in a higher fine or longer prison sentence, but also impacts other areas of your life such as your right to carry a weapon and even your right to vote. Again, the State will be represented by an attorney. Remember, you can be represented by an attorney also.

The law is constantly changing. When asking whether you need an attorney, remember this: The State has an attorney. A criminal defense attorney understands the law. While no attorney can guarantee the outcome of your case, he will fight for you. He will fight to ensure your constitutional rights have not been violated, he will force the State prove each element of the crime, and fight to make sure you are not convicted of a higher-level crime.

Being accused of a crime can be a scary and confusing proposition. There is no need to face the court system alone. If you’ve been accused of a crime, contact Schmittinger & Rodriguez for a consultation.

Underinsured Motorist

Your right to Underinsured Motorist (UIM) benefits changed just last year, on January 3, 2014, following the amendment of 18 Del. C. § 3902(b)(2). The purpose of UIM coverage is to allow an insured to establish a fund to protect against losses caused by underinsured motorists. This is done by contracting supplemental insurance coverage from your automobile insurer. In a nutshell, UIM coverage provides additional insurance coverage when the tortfeasor’s bodily injury liability coverage fails to offer enough compensation for the injuries and damages sustained in a motor vehicle accident. (A tortfeasor is an individual who commits a tort, and in this context, is the individual who caused the motor vehicle accident).

While the purpose of the UIM coverage has remained the same, it is now easier to access this coverage. Prior to the statutory amendment, your right to UIM benefits was potentially limited and depended upon the amount of coverage under your own policy in comparison to the amount of coverage available through the tortfeasor’s policy. This comparison is no longer necessary. Now, so long as you have properly elected for UIM benefits, you are entitled to this coverage, regardless of the coverage available through the tortfeasor’s policy.

This amendment serves to benefit Delaware insureds and should be taken advantage of, as most, if not all, policies now in existence have been issued and/or amended following January 3, 2014.

If you have been involved in a motor vehicle accident and question whether you may be entitled to such coverage, please contact Schmittinger & Rodriguez at (302) 674-0140.

Delaware Landlord Tenant Code

Are you a residential landlord or tenant, or have considered becoming a landlord or tenant? If so, you should familiarize yourself with Title 25 of the Delaware Code as it governs the obligations of a landlord and a tenant. Title 25 is incredibly detailed and may certainly leave you confused, particularly if you find yourself in conflict with your landlord or tenant.

Conflict often arises in the landlord/tenant scenario, and the reasons for such conflict vary. One common area of conflict arises when a tenant is late in paying his rent. However, the idea of a landlord marching down to the courthouse the moment the tenant’s rent is late is a farce. Eviction, otherwise known as summary possession, can certainly be done; however, specific guidelines must be followed under the Code to perfect such eviction. In fact, a tenant must be given specific written notice under the statute before summary possession may be properly sought.

In addition to late rental payments, the Landlord Tenant Code also addresses when a landlord is entitled to a late fee, a landlord’s obligation in producing the Landlord Tenant Code, the time period in which a security deposit must be returned, what a pet deposit may be used for, how much pet deposit is permitted, whether attorney fees are recoverable, and so on.

In addition to the Code, you should also be familiar with the terms of your rental agreement, as your rental agreement likely provides for additional duties and rights beyond the Code, such as whether a landlord is entitled to late fees.

There are many pitfalls and nuances associated with serving as a landlord and/or tenant. If you are a landlord or a tenant, or want additional information on what your obligations and/or rights might be, please call Schmittinger & Rodriguez at (302) 674-0140.