|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-14
April
17, 2014
Abby
Proch
The Smithfield Times
Smithfield, 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 March 12, 2014.
Dear
Ms. Proch:
You have asked whether certain committee meetings
of the Smithfield Town Council (the Council) have
been held in violation of the Virginia Freedom of
Information Act (FOIA). As background, you wrote that
the seven-member Council has six committees, and that
committee meetings are held on the last Monday and
Tuesday of each month, with three committee meetings
held consecutively on each day beginning at 4:00 PM.
You further stated that three Council members are
appointed to each committee, but all seven Council
members actually attend all of the committee meetings.
You added that all of the Council members sit at "a
configuration of U-shaped tables and actively discuss
issues during committee meetings, regardless of whether
they sit on that particular committee." Further,
you indicated that each committee meeting is announced
one at a time, and the chair of that committee puts
a sign on the table to show which committee is meeting
at that time. You stated that the Council members
(whether they sit on the committee or not) only miss
committee meetings if they have scheduling conflicts
or are unable to attend due to illness. As a specific
example, you described a parks and recreation committee
meeting in which another Council member participated,
as reflected in the committee meeting minutes, despite
not being appointed to that committee. You indicated
that such participation happens at "nearly every
committee meeting," sometimes by stating "yay"
or "nay," sometimes by "engrossed discussion."
You added that sometimes the participation by Council
members who are not on the committees is solicited
by committee members, and at other times it occurs
on the other Council members' own initiative.
The
general policy of FOIA expressed in subsection B of
§ 2.2-3700 is to promote free entry to meetings
of public bodies wherein the business of the people
is being conducted because the
affairs
of government are not intended to be conducted in
an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken
at any level of government....The provisions of
this chapter shall be liberally construed to promote
an increased awareness by all persons of governmental
activities and afford every opportunity to citizens
to witness the operations of government.
Section
§ 2.2-3701 defines a public body to
include, among other things, municipal councils
as well as any committee, subcommittee, or other
entity however designated, of the public body created
to perform delegated functions of the public body
or to advise the public body. The Council and
its committees thus created fit squarely within this
definition as public bodies subject to FOIA. The same
Code section defines the term meeting to
include work sessions, when sitting physically,
or through telephonic or video equipment pursuant
to § 2.2-3708 or 2.2-3708.1, as a body or entity,
or as an informal assemblage of (i) as many as three
members or (ii) a quorum, if less than three, of the
constituent membership, wherever held, with or without
minutes being taken, whether or not votes are cast,
of any public body. When considering whether
a gathering is a meeting subject to FOIA,
one must also consider subsection G of § 2.2-3707:
Nothing
in this chapter shall be construed to prohibit the
gathering or attendance of two or more members of
a public body (i) at any place or function where
no part of the purpose of such gathering or attendance
is the discussion or transaction of any public business,
and such gathering or attendance was not called
or prearranged with any purpose of discussing or
transacting any business of the public body or (ii)
at a public forum, candidate appearance, or debate,
the purpose of which is to inform the electorate
and not to transact public business or to hold discussions
relating to the transaction of public business,
even though the performance of the members individually
or collectively in the conduct of public business
may be a topic of discussion or debate at such public
meeting.
When
reading these provisions together, we look at two
threshold requirements: (1) the presence of three
or more members, or a quorum (if a quorum is less
than three members), of a public body sitting as a
body or assemblage, and (2) the purpose of discussing
or transacting the public business of that public
body by those members.1 The procedural requirements
for conducting a meeting are set forth in §§
2.2-3707 through 2.2-3712; it does not appear that
you have alleged any procedural violations except
the possibility that the committee meetings were in
fact meetings of the full Council.
In examining this matter, we must keep in mind that
all of the committee members are also Council members.
We must also keep in mind that as each committee is
carrying out a delegated function or advising the
Council, the public business of the committees is
also public business of the Council. Under the general
fact pattern you have presented, it appears that each
committee meets consecutively, and each meeting is
attended by all three members of the respective committees.
Additionally, you indicated that all of the other
Council members not only attend the committee meetings,
but actively participate in them as well. Under these
facts it appears that the full Council is discussing
public business, and therefore the committee meeting
is in fact a meeting of the Council, despite not being
noticed as such. Effectively, this fact situation
sounds as if it were a Council meeting being led by
different members (the committee chairs) on specific
topics (the subject matter delegated to the respective
committees), rather than actual committee meetings.
Under these facts, the order of committee meetings
appears to be more akin to a means of setting the
Council's agenda since the other Council members are
present and participating the entire time. The notice
requirements for regular meetings set forth in subsection
C of § 2.2-3704 mandate that [e]very public
body shall give notice of the date, time, and location
of its meetings. The meetings you have described
appear to have been noticed, open to the public, and
minutes were taken, but the notice itself appears
to have been lacking in that these meetings were noticed
as committee meetings, but in practice were Council
meetings. Note that it appears from the facts you
presented that meeting minutes are taken at these
meetings. FOIA would not require that minutes be taken
if the committees' membership does not include a majority
of the Council.2 However, as it appears
that in practice the full Council does in fact meet
at the committee meetings, then meeting minutes would
be required.
The policy of FOIA quoted previously is to promote
an increased awareness by all persons of governmental
activities and afford every opportunity to citizens
to witness the operations of government. When
a meeting is announced as a committee meeting but
is in fact held as a full Council meeting, this policy
is circumvented because the public remains unaware
of which public body is actually meeting. While you
have not alleged that the Council actually transacted
any public business improperly, the situation as you
have described it highlights the possibility that
such transaction of public business could occur. When
all of the Council members are present and participating
in the discussion of public business at these committee
meetings, they have sufficient numbers so that they
could also choose to transact public business as the
Council. By contrast, if only the three designated
committee members were present and participating in
the discussion, they would not constitute a majority
of the Council and so there would be no possibility
that they could take Council action under the guise
of a committee meeting. This notice problem can be
cured in several ways, one being to simply announce
these meetings as Council meetings and keep conducting
them as you have described. Another option would be
for the committees to meet as noticed, and the other
Council members either not to attend, or to merely
attend and observe the proceedings, but not participate
in the committee's discussion. If the other Council
members were present but not participating, their
presence alone would not turn the committee meeting
into a Council meeting. Note subsection G of §
2.2-3712, which provides as follows:
A
member of a public body shall be permitted to attend
a closed meeting held by any committee or subcommittee
of that public body, or a closed meeting of any
entity, however designated, created to perform the
delegated functions of or to advise that public
body. Such member shall in all cases be permitted
to observe the closed meeting of the committee,
subcommittee or entity. In addition to the requirements
of § 2.2-3707, the minutes of the committee
or other entity shall include the identity of the
member of the parent public body who attended the
closed meeting.
Under this provision, a member of the Council could
observe closed meetings of the committees without
being in violation of FOIA. Following that reasoning,
and noting that elected officials still retain their
FOIA rights as citizens, a member could also observe
open meetings of the committees without violating
FOIA. In fact, members are to be commended for taking
extra time to attend committee meetings and become
fully aware of the issues presented and the positions
expressed in such a situation. However, when the member
strays from merely observing to participating in the
discussion or transaction of public business, then
it turns the committee meeting into a meeting of the
Council. The critical element then is not the mere
presence of the Council member at a committee meeting,
but the Council member's participation in the discussion
or transaction of public business. This type of situation
is a reminder that while members of public bodies
do retain their rights as citizens under FOIA, at
the same time they remain subject to the heightened
meeting requirements FOIA imposes on them as members
of public bodies.
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 Opinions 03 (2009), 12 (2008)
and 02 (2006).
2Subsection
I of § 2.2-3707 provides in relevant part that
minutes shall not be required to be taken at deliberations
of... study commissions or study committees, or any
other committees or subcommittees appointed by the
governing bodies or school boards of counties, cities
and towns, except where the membership of any such
commission, committee or subcommittee includes a majority
of the governing body of the county, city or town
or school board.
|