VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-13-07

October 29, 2007

David J. Scanlan
Geoffrey Moore
Concerned Citizens of Exmore
Exmore, 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 facsimiles of September 19, September 26, and October 24, and a telephone conversation with Paul Berge, Director of the Accomack-Northampton Planning District Commission, on October 23, 2007.

Dear Mr. Scanlan and Mr. Moore:

You have asked questions regarding the propriety of closed meetings held by the Accomack-Northampton Planning District Commission (A-NPDC).¹ You stated that A-NPDC contracted in 2005 to purchase 53 acres of land in Exmore, Virginia to develop a 204-unit low-income housing project. You included with your facsimile two pages of a contract dated March 30, 2007. The March 30, 2007 contract refers to a purchase contract dated September 26, 2005 that lists a purchase price of $650,000 for 53 acres of undeveloped land. The March 30, 2007 contract appears to exercise an option to extend the contract period in order to conduct additional studies for a six month period in exchange for the consideration of $20,000 as a non-refundable deposit that will be credited toward the purchase price if and when the property is conveyed. This contract indicates that this is the fourth such six-month study period, and that the purchaser will have the option for a fifth six-month period for an additional $20,000 non-refundable deposit. It appears that the conveyance of the undeveloped land is dependent, at least in part, upon the results of a survey, wetland delineation, phase I environmental study, and an appraisal. My understanding is that as of the time of this writing, the last study period has expired and A-NPDC has chosen not to purchase the property in question or pursue the project further.

You stated that all of the closed meetings at issue concerned this property and were held after the parties entered into the 2005 contract and agreed upon the purchase price. All of the closed meetings at issue were held pursuant to subdivision A 3 of § 2.2-3711 (the real property exemption). That exemption allows a closed meeting to be convened for the purpose of [d]iscussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. Because a purchase price was already agreed upon, you feel that holding these meetings in the open would not have adversely affected A-NPDC's bargaining position or negotiating strategy, and therefore these meetings were improperly closed in violation of the Virginia Freedom of Information Act (FOIA).

The general rule for meetings of public bodies set forth in subsection A of § 2.2-3707 is that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711. Section 2.2-3711 lists numerous purposes for which a public body may hold closed meetings, including the real property exemption previously quoted. In interpreting these exemptions, this office must apply the narrow construction policy established in § 2.2-3701: Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. Construing the real property exemption narrowly, the language used establishes two requirements that must be met in order for the exemption to be invoked properly. First, the purpose of the closed meeting must be the discussion or consideration of either the acquisition of real property for a public purpose, or of the disposition of publicly held real property. Second, the matter(s) discussed must be such that discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. Both requirements must be met in order to convene a closed meeting pursuant to this exemption.

Based upon the facts you provided, it appears that these closed meetings were held to discuss whether or not A-NPDC would purchase the property in question for use in providing low-income housing, and/or extend its option to buy for additional six month study periods. Such use appears to come within the public duties of the A-NPDC as a planning district commission and regional housing authority. Therefore the requirements of the first clause of the exemption, allowing a closed meeting for the [d]iscussion or consideration of the acquisition of real property for a public purpose, have been satisfied. The second clause makes clear the additional requirement that the exemption only be invoked where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. Given the presumption that the purchase price was fixed by the September, 2005 contract, then an open discussion regarding whether to extend the contract through a six-month study period could not change that fixed purchase price. Therefore such a discussion would not adversely affect the bargaining position or negotiating strategy of the public body, and the exemption could not be invoked. However, the Director of A-NPDC indicated that the purchase price was in fact re-negotiated and changed several times since the parties entered into the September, 2005 contract. He also indicated that the closed meetings concerned both the re-negotiations and the decisions to extend the contract for four six-month study periods. The essence of this exemption is to protect the public purse and ensure efficient use of the taxpayers' money whenever a public body conducts real estate transactions. Therefore, to the extent the discussions at issue concerned contract extensions that had no effect on the bargaining position or negotiating strategy of the public body, those discussions would not be covered by the exemption and should have been held in open meeting. However, this exemption does allow closed meetings to be held to the extent the discussions of the public body concerned continuing negotiations that would adversely affect the bargaining position or negotiating strategy of the public body. Re-negotiating the purchase price would be such a discussion.

As an additional matter, although you did not specifically raise the issue, you provided numerous pages from minutes of A-NPDC meetings that quote the motions used to convene the closed meetings in question. Pursuant to subsection A of § 2.2-3712, public bodies convening closed meetings must approve by recorded 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 the minutes you provided, it appears that A-NPDC made several motions in 2005 and 2006 that cited § 2.2-3711 and quoted the real estate exemption in full, but did not identify the subject of the closed meeting. However, beginning in January, 2007 and in all subsequent minutes you provided, the motions identify the subject as the proposed Occohannock Neck Road Development, as well as continuing to cite and quote the real estate exemption. I would like to take this opportunity to commend A-NPDC for correcting their motions practice to conform with FOIA's procedural requirements in including all three elements for a motion to convene a closed meeting: (1) subject, (2) purpose, and (3) citation.

However, in addition to citing the proposed Occohannock Neck Road Development, recent closed meeting motions have also cited the 2008 Tax Credit Application. You indicated that at the September 24, 2007 meeting of the A-NPDC both subjects were listed consecutively in a single motion that read as follows:

It is requested that the Commission move to enter Closed Session according to Section 2.2-3711 of the Code of Virginia of 1950, as amended, for the purpose of:

Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.

OCCOHANNOCK NECK ROAD DEVELOPMENT
2008 TAX CREDIT APPLICATION

[Emphasis in original.] You further indicated that at this meeting, citizens overheard the Commissioners discussing a matter other than the Occohannock Neck Road Development during the closed session.² Subsection C of § 2.2-3712 clearly states that a public body holding a closed meeting shall restrict its discussion during the closed meeting only to those matters specifically exempted from the provisions of this chapter and identified in the motion required by subsection A. If the A-NPDC discussed matters not identified in the motion to convene the closed meeting, or matters not covered by the cited exemption, either event would be a violation of FOIA. However, based upon conversation with the Director of A-NPDC, it appears that the Occohannock Neck Road Development and the 2008 Tax Credit Application are two separate subject areas, but both involve the acquisition of real property.³ It appears in this case that this practice of listing two subjects in a single motion has led to confusion and an appearance that the A-NPDC may have violated FOIA by discussing topics not described in the motion. Presuming that the topic overheard was the 2008 Tax Credit Application, there was no substantive violation of FOIA, because that topic was in fact included in the motion to convene the closed meeting. However, this situation serves as an example demonstrating that the better practice is to make a separate motion for each topic that will come under consideration during a closed meeting.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹It is my understanding that this entity acts both as a planning district commission, as set forth in Chapter 42 of Title 15.2 of the Code of Virginia, and as a regional housing authority, as set forth in Chapter 1 of Title 36 of the Code.
²Apparently the citizens were standing in the hallway after the closed meeting was convened, and the Commissioners' voices carried through the closed doors of the meeting room.
³The Occohannock Neck Road Development is the matter at issue concerning the purchase of 53 acres of undeveloped land. As described by the Director, the 2008 Tax Credit Application concerns the purchase of lots of real property in connection with project funding and tax credits issued by the Virginia Housing Development Authority (VHDA). The two matters are unrelated, except that both rely on the same real property exemption from the open meeting requirements of FOIA.