The Delaware Freedom of Information Act protects the public's right to participate in New Castle County Council's deliberations regarding skate park liability and fiscal concerns. The Clark Administration appears to want to preclude the public from discussion of the ramifications of this $750,000 public expenditure.

When the concept of a county-owned skateboard park was proposed in 2002, I joined other county officials in expressing concern that careful research and planning was needed before a skateboard park opens in Glasgow County Park.

On Dec. 11, I witnessed hundreds of skateboarders, BMX bikers and Scooter riders, most not wearing any safety equipment, using the county's skateboard facility, which was technically still "under construction," and thus still under the legal control of the construction company.

Unsupervised children, as young as 6, appeared to be in harm's sway. County Administration noted that it had not been able to keep users out of the park.

I expressed and many other council members expressed our safety and liability concerns two days later during a public meeting of the Public Safety Committee.

The Clark administration took appropriate short-term precautionary action on Friday Dec. 23, by requesting the contractor post part time security guards at the construction site and increasing county police surveillance.

According to the administration officials, NCCo Council will have the opportunity to consider the administration's ideas about appropriate long-term safety and liabilities strategies at our Jan. 10 public executive committee meeting, 4:30 p.m. in Wilmington's City/County Building at Eighth and French Streets.

According to a Dec. 24 News Journal article, an administration official said:

"There will be no security guard at the park once it opens. People can use it from dawn to dusk. ... We'll have rules, but it's going to be an unmanned facility. It will be skate at your own risk. We'll recommend that people wear helmets and pads, but if they choose not to, it will be their own risk and their own liability."

Unfortunately the public may be excluded from hearing and participating in much of this discussion.

The Clark administration has advised Council that a motion to "move into executive session" [thus excluding the public from our deliberations] is appropriate, even though there is no actual pending or threatened litigation.

Based on emails sent to Council members, it appears the Clark administration is claiming on one hand that there is little likelihood of a successful lawsuit against NCCo, while on the other hand, contending that the applicability of a narrow exception to FOIA [presumably based on "potential litigation"] precludes the public from being present during Council's discussions of these concerns.

The Clark administration cannot have it both ways. This specific narrow exception to FOIA has been interpreted to apply only to actual "pending or potential litigation." The exception does not extend to theoretical "potential litigation."

Posting "skate at your own risk" signage is never an absolute defense, when the activity is legally deemed to be "hazardous" and/or "an attractive nuisance." New Castle County would be well advised to adopt an ordinance requiring the wearing of safety equipment and reference the ordinance on posted signs.

This is a public matter of grave concern to all taxpayers, parents and citizens. Everyone's right to participate in this discussion needs be protected.

There are competing schools of legal thought as to whether or not NCCo should:

» Outsource the management of the skate park to a private vendor with provisions for a "hold harmless" contract to reimburse the county for legal or other expenses.

» Construct additional fencing to prevent scaling the fence.

» Charge a user fee.

» Require users to wear protective equipment.

» Limit users to skateboards, prohibiting small bikes and other equipment.

» Require the signing of a waiver.

I look forward to a public discussion of the pros and cons of these and other concerns.

The public's right to participate in these discussions should be fully protected.