FREEDOM OF INFORMATION
COMMONWEALTH OF 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 correspondence of January 5, 2005.
have asked whether a motion and vote taken by the Orange County
School Board (the Board) at its meeting of November 2, 2004,
violated the Virginia Freedom of Information Act (FOIA). According
to the meeting minutes, one of the topics of the Board's closed
meeting on that date was "[e]valuation of the Superintendent
as authorized by Section 2.2-3711(A)(1) of the Code of Virginia."
The minutes further indicate that after reconvening in an
open meeting, and certifying the closed meeting, the Board
voted "to approve the recommendation of the School Board
in Personnel Case #45-50 as recommended in Closed Session."
You indicate that this vote approved the Board's decision
not to renew the contract of the Superintendent.
policy of FOIA, expressed by the General Assembly in subsection
B of § 2.2-3700 of the Code of Virginia, is to ensure
the people of the Commonwealth ... free entry to meetings
of public bodies wherein the business of the people is being
conducted. Subsection A of § 2.2-3707 states that
[a]ll meetings of public bodies shall be open, except as
provided in §§ 2.2-3707.01 and 2.2-3711. Among
other purposes, subdivision A1 of § 2.2-3711 allows a
public body to convene a closed meeting for assignment,
appointment, promotion, performance, demotion, salaries, disciplining
or resignation of specific public officers, appointees or
employees of any public body. Convening the closed session
for the purpose of evaluating the Superintendent is therefore
permitted under FOIA.
In addition to limiting the purposes for which a closed meeting
may be held, FOIA establishes certain procedural requirements
for convening a closed meeting. To convene a closed meeting,
subsection A of § 2.2-3712 requires a public body to
first approve by vote a motion that (i) identifies the
subject matter, (ii) states the purpose of the meeting and
(iii) makes specific reference to the applicable exemption
from open meeting requirements provided in § 2.2-3707
or subsection A of § 2.2-3711. In this case the Board's
motion (i) identified the subject matter as "the Superintendent,"
(ii) stated the purpose of the meeting as "evaluation,"
and (iii) cited the exemption of § 2.2-3711(A)(1). The
minutes reflect that this motion was approved by unanimous
vote. The Board therefore properly convened its closed meeting.
The minutes further reflect that the Board properly certified
the closed meeting after reconvening the open meeting, as
required by subsection D of § 2.2-3712. Based upon the
facts presented, it appears that the Board complied with FOIA
in moving to convene a closed meeting to evaluate the Superintendent
and reconvening in an open meeting afterward.
also has provisions addressing how a public body transacts
business by vote. Subsection A of § 2.2-3710 states that
[u]nless otherwise specifically provided by law, no vote
of any kind of the membership, or any part thereof, of any
public body shall be taken to authorize the transaction of
any public business, other than a vote taken at a meeting
conducted in accordance with the provisions of this chapter.
In regard to a closed meeting, subsection B of § 2.2-3711
states that [n]o resolution, ordinance, rule, contract,
regulation or motion adopted, passed or agreed to in a closed
meeting shall become effective unless the public body, following
the meeting, reconvenes in open meeting and takes a vote of
the membership on such resolution, ordinance, rule, contract,
regulation or motion that shall have its substance reasonably
identified in the open meeting.
minutes reflect that after reconvening publicly and certifying
the closed meeting, the Board proceeded to vote "to approve
the recommendation of the School Board in Personnel Case #45-50
as recommended in Closed Session." Taking such a vote
after reconvening the open meeting was the proper course of
action under FOIA. However, FOIA requires that the motion
for that vote "shall have its substance reasonably identified
in the open meeting." FOIA does not define the word "substance."
According to statutory construction rules, in the absence
of a statutory definition, a term is considered to have its
ordinary meaning, given the context in which it is used.1
According to Webster's Third New International Dictionary
(2002) "substance" is defined as a fundamental
part, quality or aspect; the essential quality or import of
motion, as reflected in the Board's minutes, does not reasonably
identify the essential import of the action taken by the Board;
that is, the nonrenewal of the Superintendent's employment
contract. The Board's motion is vague at best. On its face,
it is not clear that this motion referred to the Superintendent
in any way. Referring to this undisclosed recommendation and
the case number do not reasonably identify the substance of
the Board's vote. The motion made by the Board to effectuate
its decision not to renew the contract of the Superintendent
failed to meet the requirements of FOIA to reasonably identify
the substance of the action.
Thank you for contacting this office. I hope that I have been
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., §