VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-10

March 17, 2010

Kenneth M. Shepard
Cedar Bluff, 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 electronic mail of February 23, 2010.

Dear Mr. Shepard:

You have asked whether two motions made by the Cedar Bluff Town Council (the Council) to convene closed meetings met the requirements of the Virginia Freedom of Information Act (FOIA). You included meeting minutes of the Council meetings held on January 5, 2010 and January 12, 2010, and indicated the sections that concern you, quoted separately below. From the January 5, 2010 meeting minutes:

Mayor Smith called the meeting to order at 5:15 p.m. The purpose of the meeting was stated: to discuss legal contract and personnel positions for the newly formed Fire and EMS Department.

At 5:17 p.m., Tonya Wicks made a motion to meet in closed session to discuss legal contracts and personnel positions for the Cedar Bluff Fire/EMS Department, seconded by Timothy Trent, all Council Members voted "aye" in favor.

From the January 12, 2010 meeting minutes:

At 8:35 p.m., Tonya Wicks made a motion to meet in closed session under state code sections 2.2-3711A1, 2.2-3711A7, and 2.2-3711A29, for discussion of legal litigation related to town boundaries, legal contracts, and Fire/EMS personnel position issues, seconded by Timothy Trent, all members voted "aye" in favor.

As additional background information, note that the header for the January 5, 2010 meeting indicates that it was a special council meeting regarding Cedar Bluff Fire/EMS Dept. Legal and Personnel. You indicated that you spoke with the Town Manager and Town Attorney and that as a result of that conversation, the Council started citing the Code sections of the exemptions, as demonstrated by the January 12, 2010 minutes quoted above. However, in your opinion, the motions still fall short of full compliance with FOIA.

As we recently opined,¹ the specific requirements for a motion to convene a closed meeting are set forth in subsection A of § 2.2-3712, which reads in full as follows:

No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving 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. The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.

Following these provisions, a motion to convene a closed meeting must contain three essential elements: (1) the subject of the meeting, (2) the purpose of the meeting, and (3) a citation to an applicable exemption. The law clearly states, and this office has previously opined, that a motion that lacks any of these three elements would be insufficient under the law.² Furthermore, when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to why the closed meeting will be held.³

Applying the law to the facts you present, the January 5, 2010 meeting motion was to meet in closed session to discuss legal contracts and personnel positions for the Cedar Bluff Fire/EMS Department. As quoted from the minutes, this motion contains two of the three required elements: the purpose and the subject. The reference to the Cedar Bluff Fire/EMS Department is more than a general reference to the statutory exemptions and satisfies the need to identify the subject matter without being so specific as to defeat the purpose of the meeting, to wit, the discussion of legal contracts and personnel positions. Additionally, note that this meeting was identified as a special meeting of the Council. Pursuant to § 15.2-1418, special meetings of local governing bodies must be called and noticed to discuss specific matters. As stated in that section, the notice shall specify the matters to be considered at the meeting. No matter not specified in the notice shall be considered at such meeting, unless all members are present. The header of the meeting minutes indicated the overall subject of the meeting as Cedar Bluff Fire/EMS Dept. Legal and Personnel, the paragraph before the closed meeting motion explicitly stated that the purpose of the meeting was to discuss legal contract and personnel positions for the newly formed Fire and EMS Department, and the motion itself stated the closed meeting was convened to discuss legal contracts and personnel positions for the Cedar Bluff Fire/EMS Department. There is no indication in the minutes that any other matters were discussed. In a 1982 case, Nageotte v. Board of Supervisors, the Supreme Court of Virginia held that a motion to meet in executive session that follows the language of the statutory exemption and identifies the agenda item or items to be discussed ... is sufficient.⁴ In a companion case decided the same day, City of Danville v. Laird, the Court considered a closed meeting convened to discuss legal matters, and stated as follows:

Acknowledging that there were two items on the agenda relating to legal matters, the trial judge observed that it could not be determined from the motion whether Council would consider one or both in closed session. He was of opinion that if the motion had designated the item on its agenda to be discussed in closed session it would have met the requirement of specificity.

Both items on the agenda related to actual pending litigation. It is apparent that Council desired to confer with its attorney in closed session about both items....

The policy expressly stated in [§ 2.2-3700] is that the Act shall be liberally construed to enable citizens to observe the operations of government and that the exemptions shall be narrowly construed "in order that no thing which should be public may be hidden from any person." A motion, however, to confer privately with counsel over two pending legal proceedings, which were the sole items on Council's agenda, comes within the terms of the exemption in [§ 2.2-3711(A)(7)] and is not an effort to hide anything that should be publicly disclosed. ⁵

This instance is similar in that the Council's closed meeting on January 5, 2010 reflected the only items on its agenda for this special meeting: to discuss legal contracts and personnel positions for the Cedar Bluff Fire/EMS Department. Following the precedent set by the Court, the identification of the purpose and subject of this closed meeting were sufficient. However, you correctly identified that this motion was deficient in that it lacked any citation to the relevant statutory exemptions. It appears that the Council has since corrected this deficiency in its practice, as demonstrated by the minutes of its next meeting on January 12, 2010.

The motion quoted in the January 12, 2010 meeting minutes appears to address three separate topics under three different exemptions: to meet in closed session under state code sections 2.2-3711A1, 2.2-3711A7, and 2.2-3711A29, for discussion of legal litigation related to town boundaries, legal contracts, and Fire/EMS personnel position issues. Addressing each separately, it appears that two parts of the motion fully satisfy the requirements of FOIA, but the part regarding legal contracts does not identify the subject of the contracts. Specifically, it appears that one part of the motion concerns the subject of town boundaries with the purpose of discussing litigation related thereto pursuant to subdivision A 7 of § 2.2-3711.⁶ Another part of the motion appears to address the subject of Fire/EMS with the purpose of discussing personnel position issues pursuant to subdivision A 1 of § 2.2-3711.⁷ The rest of the motion appears to address the purpose of discussing legal contracts pursuant to subdivision A 29 of § 2.2-3711, but it is not clear what the subject is.⁸ The phrase legal contracts, by itself, is merely a general reference to what will be discussed. As quoted above, subsection A of § 2.2-3712 states that a general reference...shall not be sufficient to satisfy the requirements for holding a closed meeting. Also, I note that the order in which the exemptions are cited does not appear to correspond with the order used to describe the subjects and purposes. As previously opined by this office, the better practice is to make a separate motion for each topic that will come under consideration during a closed meeting.⁹ By using separate motions, it will be clear on the face of each what is the subject, the purpose, and the relevant cite.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Freedom of Information Advisory Opinion 13 (2009).
²See, e.g., Freedom of Information Advisory Opinions 13 (2009), 04 (2009), 04 (2008), 06 (2007), 01 (2007), 01 (2005), 24 (2004), 8 (2002), 45 (2001), 38 (2001), and 8 (2001).
³Supra n.1.
⁴Nageotte v. Board of Supervisors, 223 Va. 259, 266, 288 S.E.2d 423, 426 (1982); see also
City of Danville v. Laird, 223 Va. 271, 275, 288 S.E.2d 429, 431 (1982); Marsh v. Richmond Newspapers, Inc., 223 Va. 245, 254, 288 S.E.2d 415, 420 (1982).
⁵City of Danville, id. at 276 (also citing Nageotte and Marsh; internal Code citations changed to the equivalent sections in the current Code).
⁶Subdivision A 7 of § 2.2-3711 being the exemption for consultation regarding litigation or consultation with legal counsel on specific legal matters. Note also that the discussion of certain boundary issues may be exempted from FOIA pursuant to subsection D of § 15.2-2907; see Freedom of Information Advisory Opinion 04 (2009). As you did not question this issue, it will not be addressed further in this opinion.
⁷Subdivision A 1 of § 2.2-3711 being the closed meeting exemption for the discussion of various personnel matters.
⁸Subdivision A 29 of § 2.2-3711 being the exemption for the discussion of the award of, or terms and scope of, certain public contracts.
⁹Freedom of Information Advisory Opinion 13 (2007).