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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH 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.

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