VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-17-03

July 7, 2003

Mr. David L. Wilkinson
Hamilton, 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 March 20, 2003.

Dear Mr. Wilkinson:

You have asked whether the Virginia Freedom of Information Act (FOIA) would allow an elected school board to meet in closed session pursuant to subdivision A 1 of § 2.2-3711 of the Code of Virginia to discuss whether and how to formally censure, reprimand, or otherwise discipline one of its members where the board has no lawful power to formally censure, reprimand, or otherwise discipline its constituent members.

Subsection A of § 2.2-3707 requires that [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. Subdivision A 1 of § 2.2-3711 allows a public body to convene in closed session for the discussion, consideration or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Subsection B of § 2.2-3700 provides that the provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed. At issue is whether the exemption at subdivision A 1 of § 2.2-3711 should be interpreted as to allow an elected school board to discuss the disciplining of one of its members when that board does not have any formal powers of discipline.

In narrowly construing this exemption, the Office of the Attorney General of Virginia has opined that a city council may not use the exemption to discuss specific city council employees other than those directly appointed by the council.¹ In that fact scenario, the city council's charter allowed for it to appoint a city manager, city clerk and city attorney. The city manager was given the authority to appoint, supervise and remove all other city employees. The Attorney General found that while the term "employee" was not defined by FOIA, four elements at common law determine the existence of an employer/employee relationship: (i) the employer's selection and engagement of the employee; (ii) the payment of wages to the employee; (iii) the employer's retention of the power of dismissal; and (iv) the employer's retention of the power of control of the employee. The Attorney General found that the crucial question of control was whether the employer had the right to control not merely the results but also the progress, details, means and methods of the work. This element of control did not exist between the city council and the employees hired by the city manager; therefore, the city council could not go into closed session to discuss individuals with whom it did not have an employer/employee relationship. This opinion was reiterated two years later, when the Attorney General opined that the phrase "employees of any public body" could not be narrowly construed to be synonymous with the phrase "employees of any locality."²

These two opinions dealt with the interpretation of the phrase "employee of any public body" in subdivision A 1 of § 2.2-3711. However, the exemption also applies to discussions of specific public officers and appointees of any public body. To answer the instant question, one must determine which public officers are subject to the exemption, since a public officer or appointee is not necessarily an employee. Like the term "employee," the term "public officer" is not defined by FOIA. Where no applicable statutory definition of a term exists, it must be given its ordinary meaning, considering the context in which it is used.³ Black's Law Dictionary refers to an officer, as used in a public affairs context, to mean "a person holding public office under a national, state, or local government, and authorized by that government to exercise some specific function."⁴ The Attorney General has listed criteria to be considered in determining whether a position constitutes a public office by noting, "One important consideration is that, to constitute a public office, the position must be created by the Constitution or statutes. It is a position filled by election or appointment, with a designation or title, and duties concerning the public, assigned by law. A frequent characteristic of such a post is a fixed term of office."⁵

Based on this definition, an elected member of a school board is a public officer. The exemption at subdivision A 1 of § 2.2-3711 clearly applies to certain discussions about public officers. However, to say that the exemption applies to discussions about all public officers across the board would result in a broad, and often times illogical, application. Such interpretation would potentially allow, for example, members of a city council to convene in closed session to discuss a member of a county board of supervisors, a public officer of a different public body. Such an interpretation and result does not seem to be the intent of the law, and belies the policy of openness guaranteed by FOIA. The exemption must be narrowly construed to mean that a public body utilizing the exemption can only discuss its own public officers, appointees, or employees, and not those of another public body.

In determining to which public officers the exemption applies, the opinion of the Attorney General discussed above relating to employees of a public body provides an important analogy. In that opinion, the Attorney General emphasized the importance of control in establishing an employer/employee relationship. There, a public body could not go into closed session to discuss an employee over whom it did have direct control to hire, fire, or supervise the day-to-day activities. In the public officer context, the element of control also seems relevant. Charters and statutes creating public bodies delineate certain powers and responsibilities to those public bodies. If a public body is given the power to assign or appoint certain of its members to perform delegated responsibilities, then it follows that the plain language of § 2.2-3711 would allow discussions of the appointment of a particular member to take place in a closed meeting.⁶ Likewise, if the public body has the formal power to discipline a fellow public officer, then a discussion of the performance of that officer and what disciplinary action to take could likewise take place in closed session. However, if a public body, such as a school as referenced in your question, does not have the authority or power to formally censure or otherwise discipline one of its members, then it follows that the public body cannot exercise the exemption at subdivision A 1 of § 2.2-3711 to discuss something over which it has no control, and upon which it can take no action, in a closed meeting.

In further examining this interpretation of the law, it is important to consider the public policy behind the creation of exemptions for certain public records and meetings generally. In no instance are the exemptions created purely for the convenience of the public body, or to allow a public body to keep somewhat embarrassing or sensitive issues out of the public light. Instead, each of the records and meetings exemptions was enacted to benefit the public in some way. For example, several exemptions are privacy-based, created not to protect the privacy of the public body, but to protect the privacy of the citizens whom the public body serves. For example, the scholastic and medical records exemptions, and their corollary meeting exemptions, protect private information. Other exemptions protect the public safety, such as exemptions protecting the tactical plans of law-enforcement agencies or plans to prevent and respond to terrorist activities. Some exemptions are designed to protect the financial interests of public bodies, and hence taxpayer dollars, such as the exemption for the discussion of the acquisition of real property when such a discussion in open session would adversely affect the bargaining position of the public body. These are but a few examples of the public policy underlying several commonly-used exemptions.

Turning this discussion to subdivision A 1 of § 2.2-3711, the exemption appears to be designed to protect the privacy of a public officer, appointee or employee when discussing particular issues over which a public body has direct control and supervision. Public policy seems to dictate that discussions of an elected public officer's handling of business and decisions related to the public business should be held in open session. An officer is elected by the citizens he represents, and often times the only recourse for unpopular actions or positions is at the polls, where citizens vote to retain an incumbent or to elect a new representative. In most instances, public officers of an elected board have little or no authority to manage the day-to-day performance of fellow officers on the same board. A public officer chooses to place himself in the public light by running for office, and public scrutiny of his performance is an important part of the democratic process. If such discussion by fellow members of the elected body is held out of the public view, then the only people who have the actual power to remove a public officer -- the voters -- would be kept in the dark and not be able to make an informed decision at the next election. Furthermore, if the exemption at subdivision A 1 of § 2.2-3711 were used in such a situation, the public body would essentially be going into closed session to vent frustrations and discuss a situation over which it has no authority to act. It is the role of a public officer to make decisions and form opinions about issues of public policy that will best benefit his constituents. While other public officers of the same public body may disagree with and perhaps even criticize those decisions or positions, it is not generally their role as elected officials to punish or censure the public officer with whose opinions any or all of the other elected officials disagree. In fact, discussion or criticism about the prudence of a particular public officer's opinions or actions as they relate to the public business may be the essence of the discussions that FOIA was designed to keep in the public light. Exemptions are generally created so that a public body may hold certain discussions that are necessary for its transaction of the public business, but that public policy allows to be held out of the public view. If a public body has no authority to discipline or censure one of its public officers, then such a discussion by the public body is not necessary and public policy dictates that such a discussion take place at an open meeting.

In conclusion, the relevant piece of the analysis for any closed session to be held under subdivision A 1 of § 2.2-3711 is whether the public body retains some level of control over the individual whom it wishes to discuss. This was clearly articulated by the Attorney General in the employer/employee context. However, the same analysis for determining the issue of control holds true when examining whether the exemption applies to a discussion of a public officer or appointee of a public body.⁷ If a public body has the authority to censure, reprimand or otherwise discipline a fellow member of the elected body, then it may exercise this exemption to discuss the performance and subsequent discipline of the member. If no such authority exists, then the exemption is not applicable. It is important to note, however, that even if the public body does have the authority to discipline a fellow member and properly convenes in closed session for such a discussion, no disciplinary action of the public body will become effective or official until its substance is substantially identified and voted on in an open meeting pursuant to subdivision B of § 2.2-3711.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ 1998 Op. Atty. Gen. Va. 9.
² 2000 Op. Atty. Gen. Va. 19.
³ Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., § 46:01.
⁴ Black's Law Dictionary, 7th Ed. (1999).
⁵ 2000 Op. Atty. Gen. Va. 24.
⁶ This example is distinguishable from the conclusion reached by the Attorney General that a school board could not convene in closed session under this exemption to elect a chairman. See 1999 Op. Atty. Gen. Va. 15. In that instance, statute dictated that the school board elect a member. The opinion turned on the fact that the exemption did not specifically allow for an election. The exemption does, however, specifically allow for the appointment…of specific public officers, appointees or employees. It follows then that an appointment would be allowed under this exemption, and that such conclusion would not be contrary to the Attorney General's published opinion.
⁷ This opinion is in conformity with the earlier opinion of the Attorney General in 2000 Op. Atty. Gen. Va. 24 in that it concludes that the exemption at subdivision A 1 of § 2.2-3711 would not allow members of a public body to convene in closed session to generally discuss the performance of a fellow member. However, to the extent that the opinion of the Attorney General may be read to hold that the exemption only applies to discussions about employees and appointees of a public body, and not public officers, this opinion does not follow the reasoning or holding of the Attorney General. Instead, this opinion concludes that in the limited circumstances where a public body has the authority to censure, discipline, or otherwise take action relating to the performance of a public officer, the exemption would allow discussions relating to such actions to take place in a closed meeting.