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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


AO-06-03

March 20, 2003

Mr. John F. Newhard, Jr.
Deputy City Attorney
Virginia Beach, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of December 10, 2002.

Dear Mr. Newhard:

You have asked whether the Virginia Freedom of Information Act (FOIA) would allow a school board to discuss whether a teacher's grievance is grievable in closed session, when the subject of the grievance does not involve issues such as employee performance, discipline, or resignation.

In answering your question, it is first necessary to summarize the grievance procedure to provide proper context for the FOIA question. Article 3 ( 22.1-306 et seq.) of Chapter 15 of Title 22.1 of the Code of Virginia sets forth the procedures for grievances initiated by teachers. After an informal attempt to resolve the grievance with the teacher's most immediate, appropriate supervisor, the teacher must put the grievance in writing and specify the relief sought through the use of the grievance procedure. Section 22.1-306 defines a "grievance" as a complaint or dispute by a teacher relating to his or her employment. The definition of a grievance also states that the school board has the exclusive right to manage the affairs and operations of the school division. As such, complaints about the methods, means and personnel by which the school division's operations are carried out do not fall under the definition of a grievance.

Section 22.1-314 allows either the school division administrator or grievant to ask the school board to determine whether a particular matter is grievable (i.e., falls under the definition of a grievance). Such a request would occur after the teacher has filed a written grievance, but prior to a hearing on the merits of the written grievance. The school board must receive arguments on the issue of grievability from the teacher and the administration, but has the discretion to choose whether these arguments will be written or oral. The statute is silent as to whether oral arguments before the school board must be open or closed to the public. Decisions of the school board on the issue of grievability may be appealed to the appropriate circuit court. Upon receipt of the record of the school board's decision, the court, sitting without a jury, must hear the appeal on the record transmitted by the school board and in its discretion may receive additional evidence.

Once an issue has been declared grievable, or if no question of grievability has been raised, the grievant may elect to have the grievance heard before a fact-finding panel or the school board. Section 22.1-312 sets forth the procedures for a hearing before a fact-finding panel, and subsection C of 22.1-312 states that at the request of the teacher, the hearing shall be private. Section 22.1-311 states that a hearing before the school board shall be private unless the teacher requests a public one.

Turning to the relevant provisions of FOIA, the policy provision at subsection B of 2.2-3700 states that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. Furthermore, this subsection states that the provisions of FOIA must be liberally construed and any exemptions must be narrowly construed. The personnel records exemption at subdivision A 4 of 2.2-3705 exempts [p]ersonnel records containing information concerning identifiable individuals. The relevant portion of the corresponding meetings exemption found at subdivision A 1 of 2.2-3711 exempts the discussion of assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body.

Addressing your question specifically, you ask whether FOIA would allow a school board to convene in closed session to discuss whether an issue is grievable in accordance with 22.1-314, even though the subject of the grievance does not involve issues such as employee performance, discipline, or resignation. You present an example of a teacher seeking to grieve class scheduling and bus routes. You indicate that the teacher complained that students were arriving late to his class due to city construction on the bus route. He asserted that the city should reschedule the construction, buses should be rescheduled, or class schedules should be changed so that students would no longer arrive late to his class. The school administration said that this issue was not the proper subject for a grievance because it deals with management and operation of the school, which by definition is not grievable. Because this matter does not specifically involve "performance," "demotion," or "discipline" issues, you ask whether arguments of grievability and ensuing discussions by the school board pursuant to 22.1-314 could be closed.

The Office of the Attorney General of Virginia had the opportunity to address a related issue of access to a copy of a fact-finding panel's written award in a grievance hearing.1 The Attorney General stated that if a document were introduced at a grievance hearing, it would not automatically become a personnel record for purposes of FOIA. The content of the document would still need to be examined to determine if it were, indeed, a personnel record. If a record did fall under the personnel exemption, it would be exempt from mandatory public disclosure but nothing in FOIA would prohibit the dissemination of the record.

The Attorney General went on to address whether disclosure of the fact-finding panel's written award would be prohibited by either the provision requiring a grievance hearing before the school board to be private unless the teacher requests a public hearing, or by the provision requiring a hearing before a fact-finding panel to be private if requested by the teacher. Although the Attorney General opined that records did not automatically become personnel records by virtue of being introduced at a grievance hearing, he found that the written award, as well as the other documents and exhibits that made up the record of the hearing, should not be disclosed to the public unless those records had some existence independent of the grievance hearing. In reaching this conclusion the Attorney General followed a principle of statutory construction that statutes be read in pari materia in order to give full force and effect to each provision, and to promote the legislative purpose.2 In pari materia literally means "on the same subject; relating to the same matter."3 As such, statutes relating to the same matter must be construed together so that an inconsistency in one statute may be resolved by looking at another statute on the same subject. The Attorney General found that the General Assembly had manifestly established a teacher's right to a private hearing in a grievance situation, and that FOIA did not override this express right. Therefore, absent clear legislation to the contrary, a school board could not publicly disclose its findings of fact in a privately held grievance.

The rule of statutory construction that statutes be read in pari materia is also relevant in answering the question that you present. In order to file a grievance, the teacher would have to reduce the grievance to writing. This office has previously held that the personnel exemption for records at subdivision A 4 of 2.2-3705 applies to any record held by a public body that relates to an identifiable employee concerning the nature of employment, job capacity or performance, or is otherwise related to the scope of employment.4 A written grievance would clearly be related to the scope of the teacher's employment, and could be withheld from public disclosure. Likewise, the sections relating to the grievance hearing before the school board or fact-finding panel allow the hearing to be private, at the discretion of the teacher. The Code of Virginia section setting forth the procedure for questions of grievability is silent on whether oral arguments should be open or closed. However, looking at the relevant statutes in pari materia, it is apparent that the intent of the General Assembly was that a grievance could be kept private and out of the public eye. To opine that a discussion about whether an issue is grievable must take place in public could result in inconsistencies in the law and negate a teacher's right to keep a grievance private.

To illustrate the potential inconsistencies, I will use the fact scenario that you presented. As noted above, once this grievance is reduced to writing, that writing may be withheld as a personnel record. The school administration did not feel the issue that was the basis for filing the grievance was, by definition, a grievable issue. Regardless of whether the school board chose to receive oral or written arguments from the administration and the teacher on the issue of grievability, it is hard to imagine that these arguments would not be intertwined with the facts and background of the grievance itself. Furthermore, the arguments would likely spring from the written grievance, which we have already established to be a personnel record. Any written arguments received could likewise be considered personnel records, because they would deal with an issue in the scope of an identifiable employee's employment. However, if the school board elected to receive oral arguments, it is less clear that such hearing could be closed to the public. One could argue that any grievance relates to the performance of the teacher, which is allowed to be discussed in closed session under subdivision A 1 of 2.2-3711. However, FOIA also requires any exemption to be construed narrowly, and interpreting "performance" to include an issue such as students being late to class because of the bus route may be an improperly broad interpretation of that language.

Proceeding on the assumption, without deciding definitively, that oral arguments on this issue could not be closed under subdivision A 1 of 2.2-3711, continue the hypothetical to the next step. Assume that the hearing on the issue of grievability and any ensuing discussion by the school board was held in an open meeting. If the school board found that the issue was indeed grievable, the grievant would have the right to have the issue heard by either a fact-finding panel or the school board. In either scenario, the grievant has a right for the hearing to be private. Any records relating to the grievance, such as the statement of grievance or written arguments on grievability, could be withheld from public disclosure. But if the hearing on grievability was required to be open to the public, and the arguments were intertwined with the facts of the grievance itself, the ability of the grievant to keep the grievance process private has, essentially, been negated.

In many, if not the majority of cases, it seems that a grievance would clearly fall under subdivision A 1 of 2.2-3711, which would allow a school board to go into closed session to discuss the assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of teachers. A grievance would likely fall under one of these categories. In addition to the right of a teacher to keep a grievance hearing private pursuant to 22.1-311 or 22.1-312, the FOIA exemption would also protect these hearings, as well as any discussion on the issue of grievability.

The situation becomes more complex when a grievance does not clearly fall within the confines of the FOIA exemption, which must be construed narrowly. The Attorney General has opined that the express right of a private hearing in a grievance situation cannot be overridden by FOIA. In this instance, requiring a discussion of grievability to be open to the public in essence nullifies the grievant's right to keep the issue private at future stages of the process. Reading all the relevant statutes in pari materia, it is apparent that the General Assembly's intent was to allow a teacher to keep the process private, at his discretion. The written grievance can be protected as a personnel record, a hearing before a fact-finding panel or the school board can be kept private, and the Attorney General opined that the findings of fact by a fact-finding panel can also be kept private. Therefore, even though 22.1-314 is silent as to whether it may be private, to require it to be open would result in potential inconsistencies in the application of the law.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1 See 1983-84 Op. Atty. Gen. Va. 314.

2 See 1983-84 Op. Atty. Gen. Va. 314, citing 1980-81 Op. Atty. Gen. Va. at 265, Dowdy v. Franklin, 203 Va. 7, 121 S.E. 2d 817 (1961).

3 See Black's Law Dictionary (7th Edition).

4 See Freedom of Information Advisory Opinion 04 (2003).

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