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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-03-13

May 8, 2013

Debbie Bender
Community Relations Spokesperson
Old School Cape Charles
Cape Charles, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in your electronic mail messages date March 27, 2013 and March 31, 2013.

Dear Ms. Bender:

You have asked whether a closed meeting held by a Town Council to discuss the sale of a town owned historical property was conducted in accordance with the requirements of the Virginia Freedom of Information Act (FOIA). You further asked that if the meeting was improper, what effect would that have on the actions of the Town Council, and what remedies could be sought by a local citizens group. As further background, you indicated that the property at issue was a historic school, an adjacent lot used for parking, and a park area with a basketball court (collectively, the school property). You stated that the sale has been a controversial matter for over a year, and that the Town Council eventually sold the land and buildings, which were assessed at a value over $800,000, for $10. You indicated you feel the Town Council violated FOIA by failing to properly specify the subject matter of closed meetings held to discuss the sale of the property, and by improperly using the relevant exemption which allows closed meetings to be held for the purpose of discussing the acquisition or disposition of real property. Each of those points will be addressed below, along with additional facts as necessary.

First, we must consider the policy and legal requirements of FOIA that apply to a closed meeting held to discuss the disposition of real property. The policy of FOIA, set forth in subsection B of § 2.2-3700, states that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public....All public records and meetings shall be presumed open, unless an exemption is properly invoked. The same subsection goes on to provide the rule of interpretation for exemptions: 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. Pursuant to subsection A of § 2.2-3712, in order to convene a closed meeting, a public body is required to take 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 same subsection clarifies that 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. In this instance, the exemption cited was subdivision A 3 of § 2.2-3711, which provides that a public body may convene a closed meeting 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.

This office has previously opined that 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. A motion that lacks any of these three elements would be insufficient under the law.1 We opined further that quoting or paraphrasing statutory exemptions does not properly identify the subject of the meeting. Quoting or paraphrasing from a statutory exemption, by itself, identifies the purpose of the meeting but is no more than a general reference to an authorized exemption from open meeting requirements. Therefore, following subsection A of § 2.2-3712, it is clear that merely quoting or paraphrasing a statutory exemption and providing a citation to that exemption, without more, is not sufficient to satisfy the requirements for holding a closed meeting. However, note that by quoting or paraphrasing a statutory exemption, and by providing the proper statutory citation, two of the three elements for a closed meeting motion are satisfied, leaving identification of the subject as the only remaining element.2 In identifying the subject matter to be discussed, this office has further opined that 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 session will be held.3

You contend that the Town Council failed to sufficiently identify the subject matter of its closed meetings when discussing the sale of the school property at issue. Specifically, you mentioned the Town Council meeting minutes of January 12, 2012. The relevant portion of the meeting minutes, as posted on the Town Council website,4 read in full as follows:

Motion made by Councilman Veber, seconded by Councilwoman Natali and unanimously approved to go into Closed Session in accordance with Section 2.2-3711-A of the Code of Virginia of 1950, as amended for the purpose of:

Paragraph 3: 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 bargain position or negotiating strategy of the public body.

Specifically: Unsolicited Confidential Proposal

[Bold emphasis in original; italics added.] It appears on its face that this motion has identified the subject of the closed meeting as Unsolicited Confidential Proposal, has identified the purpose by quoting the real property exemption in full, and has cited that same exemption.5 Based on your inquiry, it seems you feel that the identification of the subject as Unsolicited Confidential Proposal is insufficient under the law. However, as stated above, the identification of 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 additional information as to the nature of the discussion to be held in closed meeting. In this instance, it is not clear what was the unsolicited proposal - i.e., whether it was about the sale of the school property, or some other real property matter. Given the subject described, it could have been an offer to purchase or lease property from the Town, or an offer to sell or lease property to the Town. In hindsight, the motion could have specified the type of transaction involved, or been more specific in other ways,6 without defeating the reason for holding the closed meeting. However, while this identification as Unsolicited Confidential Proposal could have been more specific, it does identify a subject. Again, it appears that all three elements of a closed meeting motion - subject, purpose, and cite - are present, as required by subsection A of § 2.2-3712. Therefore we cannot say that it is in violation of FOIA. However, as a matter of best practices, greater specificity in identifying the subject of a closed meeting is recommended whenever possible.

Additionally, note that later minutes of Town Council meetings did contain more specific identifications of the matter in question. For example, the February 22, 2012 meeting minutes identified the subject as Sale of Former School and Real Estate Parcels in Town and the March 22, 2012 Executive Session meeting minutes identified the subject as Former Cape Charles School Property, South Port Lease & Palace Theatre. Also note that it appears that at least some aspects of this matter were discussed publicly on several occasions after the January 12, 2012 meeting, judging by other meeting minutes from February and March, 2012, including a public hearing on February 9, 2012, and public information meeting on March 10, 2012. After the public hearing and public information session, the identification of the closed meeting subjects became more specific in referring to the sale of the school property. It appears from viewing all of these meeting minutes together, little or no information about the proposal was publicly known until sometime after the January 12, 2012 closed meeting, and during that time period identification of the subject in the closed meeting motions was less specific.7 As negotiations progressed and information about the proposal became public, the Town Council was more specific in identifying the subject of its closed meetings. It appears that the specificity of the motions roughly corresponded to the amount of information about the proposal that had been made public. I further note that you indicated that your citizens group and local media also insisted on greater specificity in the closed meeting motions. To that end, it appears you were successful and the Town Council has become more specific in identifying its closed meeting subjects, in this matter and others. Both you and the Town Council should be commended for improving government transparency in this regard.

You also asserted that you felt the Town Council had misused the real property exemption in this instance, because it was only negotiating with one developer, and the deal was to the developer's benefit, not the Town's. In a different opinion looking at the real property exemption, we opined that 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.8 In the instant matter, it is clear that the discussion concerned the disposition of publicly held real property, as it was about the sale of property owned by the Town, so the first element is satisfied. In regard to the bargaining position or negotiating strategy of the public body, you object to the use of the exemption because there was only one other party involved in the proposal, the developer, and because you felt that the final deal was to the advantage of the developer, not the Town.

However, in analyzing the use of this exemption we must keep in mind that there is no requirement for there to be multiple offers in play. The language of the exemption does not require multiple parties sitting down to the negotiating table. Even when negotiating with only a single developer, the public body would still have a bargaining position or negotiating strategy in regard to getting the best deal possible from that developer. Therefore, the exemption may be used no matter how many parties or proposals may be involved. As further factual background, I note that the materials you provided and the Town Council meeting minutes indicate that there had been other proposals concerning the school property that were discussed at various times, including proposals to use the school property for a library or a community center or to lease the building to a private school, but none of them were carried through to fruition. It appears therefore that while the Town may have only been negotiating with a single developer, there may have in fact been other offers or proposals involved in this situation.

Next, as you have described it, the Town Council sold the property in question for $10 when it was valued at over $800,000. It appears that you believe this was a bad deal for the Town, and therefore the exemption was not used to protect the Town's bargaining position or negotiating strategy. However, whether the final deal was a good one or a bad one is not for this office to judge,9 nor is it the relevant inquiry when determining whether the exemption was used properly. The proper inquiry is whether or not the Town's bargaining position or negotiating strategy - at the time the meeting was held - would have been adversely affected had its discussions been held in an open meeting. While we do not know what was actually discussed in those closed meetings, it appears self-evident that any discussion of an unsolicited proposal made in public would necessarily inform anyone who attended of the Town Council's concerns, including matters relevant to the Town Council's negotiating position and bargaining strategy in reacting to the proposal. The developer and others could have attended such a public meeting, and therefore could use the information to their own advantage and to the detriment of the Town in further negotiations. In a prior opinion we considered a situation where it was alleged that a contract had been agreed to, including a final price, and yet the public body continued to use the exemption to hold closed meetings. In that situation we said such a use of the exemption would be improper, because having reached a final agreement, there would no longer be a bargaining position or negotiating strategy to protect.10 However, that is not the case here, given the facts provided. In this context, it appears that the Town Council was discussing the unsolicited proposal to purchase the school property, and that it was trying to protect its bargaining position and negotiating strategy by holding those discussions in closed meeting. That you disagree with the Town Council's ultimate decision does not invalidate the use of the exemption. Therefore, after considering all of the facts presented, we cannot conclude that the Town Council violated FOIA in this matter.

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

Sincerely,

Maria J.K. Everett
Executive Director

1See, e.g., Freedom of Information Advisory Opinion 13 (2009)(footnote citing additional advisory opinions omitted).
2Id.
3See, e.g., Freedom of Information Advisory Opinion 04 (2009) (footnote citing additional advisory opinions omitted).
4Available at http://www.capecharles.org/minutes.htm (last visited May 8, 2013).
5While the citation format is different, it clearly references subdivision A 3 of § 2.2-3711.
6See Freedom of Information Advisory Opinion 13 (2009)(providing examples of using the real property and legal advice exemptions).
7From reviewing earlier minutes, it appears that identical motions to consider an Unsolicited Confidential Proposal were made in September and December of 2011. The article you included with your inquiry appears to indicate that confidential negotiations began in 2011, but the proposal concerning the school property did not become public knowledge until early in 2012, which appears to coincide with the specificity of the closed meeting motions under consideration. ANALYSIS: Judge Dismisses Old School Lawsuits, Cape Charles Wave, Mar. 4, 2013, available at http://capecharleswave.com/2013/03/analysis-judge-dismisses-old-school-lawsuits/.
8Freedom of Information Advisory Opinion 13 (2007).
9I note that a thorough review of the Town Council meeting minutes on the topic reveals several countervailing considerations, such as the cost to renovate the property, to what other purposes it could be used, tax and utilities issues, etc. Again, it is not the place of this office to second-guess the decision of a local governing body regarding how it may best use its resources, including its real property assets.
10Freedom of Information Advisory Opinion 13 (2007).

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