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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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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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