VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-03-06

March 27, 2006

The Honorable R. Edward Houck
Member, Senate of Virginia
Richmond, 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 inquiry of March 22, 2006.

Dear Senator Houck:

You have asked under what circumstances a gathering of the members of a joint committee of conference of the General Assembly of Virginia is a meeting subject to the Virginia Freedom of Information Act (FOIA). Generally, FOIA defines a meeting in § 2.2-3701. However, meetings of the General Assembly are addressed in a separate section, § 2.2-3707.01, and are not subject to the general definition of meeting found in § 2.2-3701.

Subsection B of § 2.2-3707.01 provides as follows: Floor sessions of either house of the General Assembly; meetings, including work sessions, of any standing or interim study committee of the General Assembly; meetings, including work sessions, of any subcommittee of such standing or interim study committee; and joint committees of conference of the General Assembly; or a quorum of any such committees or subcommittees, shall be open and governed by this chapter. Therefore, meetings of a joint committee of conference of the General Assembly or a quorum of any such joint committee of conference shall be open and governed by FOIA.

What constitutes a quorum for the purposes of joint committees of conference is not addressed in § 2.2-3707.01, nor elsewhere in the Code of Virginia. Turning to common usage in the absence of statutory definition, the American Heritage Dictionary defines a quorum as the minimum number of officers and members of a committee or organization, usually a majority, who must be present for the valid transaction of business.¹ Black's Law Dictionary defines a quorum as the minimum number of members (usu. a majority of all the members) who must be present for a deliberative assembly to legally transact business.² Just as the Code does not define a quorum of a joint committee of conference, the Rules of the respective houses that govern joint committees of conference also do not explicitly state what constitutes a quorum of a joint committee of conference. Rule 80 of the House of Delegates and Rule 54 of the Senate provide reference to Jefferson's Manual of Parliamentary Practice (Jefferson's Manual) for guidance in interpreting the respective Rules. However, Jefferson's Manual is also silent on what constitutes a quorum for joint committees of conference. However, other provisions in the Rules of both houses provide the foundation for an argument that a quorum of a joint committee of conference is comprised of a majority of conferees from each house, rather than a simple majority of all conferees.³ The FOIA Council lacks the authority to interpret laws outside of FOIA, and cannot offer an interpretation of the Rules of either house. It would be beyond the authority of the FOIA Council, therefore, to issue a definitive opinion regarding what constitutes a quorum of a joint committee of conference.

As stated previously, FOIA specifically provides that its open meeting requirements are triggered any time (i) a quorum of a joint committee of conference assembles or gathers or (ii) the joint committee of conference meets or gathers as a body and the purpose of any such meetings or gatherings is to discuss the bill for which the joint committee of conference has been appointed. As noted above, the question to what constitutes a quorum of a joint committee of conference is open to debate, as a quorum of such a committee is not defined in FOIA or the Rules of the respective houses.

In the specific instance of the joint committees of conference appointed to House Bill 29 and House Bill 30 (2006 Regular Session), hereinafter referred to as the Budget Bills, I note parenthetically that a further issue must be taken into consideration. As a practical matter, as of the adjournment sine die of the 2006 Regular Session of the General Assembly on March 11, 2006, there are no remaining joint committees of conference of the General Assembly. Any bills for which a joint committee of conference was appointed and for which a joint committee of conference report was not adopted by both houses are failed bills. As of adjournment sine die, the Budget Bills failed to pass and no further action can be taken upon them. Bills introduced during the 2006 Regular Session of the General Assembly that did not pass both the House and the Senate before adjournment sine die cannot be resurrected. The topic(s) addressed by such failed bills may be the subject of new bills introduced in the next Session of the General Assembly, whether a Regular or Special Session. The new bills may use the same or similar language as the failed bills, but even if the new bills use identical language, they are not a continuation or resurrection of the failed bills from the previous Session. As such, the authority of any joint committee of conference appointed to resolve matters under dispute in a particular bill that ultimately fails to pass likewise extinguishes. In colloquial legislative parlance, the Budget Bills introduced during the 2006 Regular Session are dead. The demise of the authority of the Budget Bills upon adjournment sine die also ends the authority to act on those bills and the joint committees of conference appointed to those bills.

There is also the matter of Senate Joint Resolution 306 (SJR 306), which passed during the 2006 Regular Session. SJR 306 resolves that there is to be a Special Session of the General Assembly, and that conferees appointed to House Bill 29 and House Bill 30 of the 2006 Regular Session shall continue their deliberations to resolve the matters under dispute in regard to the 2004-2006 and 2006-2008 Budget Bills. SJR 306 implicitly recognizes that there are no joint committees of conference because House Bill 29 and House Bill 30 failed to pass. SJR 306 does direct the individual members who formerly comprised the joint committees of conference on the Budget Bills during the 2006 Regular Session to continue their efforts to resolve the matters under dispute. Nonetheless, SJR 306 cannot be read to create or continue the joint committees of conference, or to resurrect the failed Budget Bills.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹American Heritage Dictionary 1018 (2d College ed., 1982).
²Black's Law Dictionary 11284 (8th ed., 2004).
³Rule 75(b) of the Rules of the House of Delegates states that [a] majority of the members of each house on the conference committee shall agree to the committee of conference report prior to its submission and consideration by the House. Similarly, Rule 20(l) of the Rules of the Senate states that [a]ny conference report must be agreed to by the majority of the members of each house on the conference committee before it may be filed with the Senate. By contrast, Rule 17 of the Rules of the House of Delegates and Rule 20(e) of the Senate state that, in the instance of standing committees, the quorum for the conduct of business is a simple majority. Arguably, these Rules imply that a quorum of a joint committee of conference (i.e., the minimum number of members necessary to transact business) is not a simple majority, but is instead a majority of the members of each house designated as conferees to the joint committee of conference. However, such an argument could lead to the conclusion that any time the transaction of public business requires something more than a simple majority vote, then the corresponding quorum is also something more than a simple majority. This conclusion does not conform to standard practices for public bodies, whereby a simple majority of members constitutes a quorum in the absence of laws, by-laws, regulations, or rules specifically defining a quorum to be something other than a simple majority. This conclusion is also contrary to standard practices of interpretation, which define terms by their common usage and meaning when the law is silent. However, this argument is specific to joint committees of conference and the Rules governing them, and so reference to standard practices of other public bodies and standard rules of interpretation may be misplaced. Lacking the authority to interpret the Rules of either house, the FOIA Council may only note these competing arguments without deciding between them.