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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-07-14

December 19, 2014

Roger C. Wiley, Esq.
Hefty & Wiley, P.C.
Richmond, 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 messages dated September 17, 2014, and December 2, 2014.

Dear Mr. Wiley:

You have asked whether a county administrator who is appointed to serve as a local board of social services (local board)1 is subject to the open meeting requirements of the Virginia Freedom of Information Act (FOIA). As background you indicated that your client, the Board of Supervisors of Amelia County, recently changed its local board consisting of county residents from an administrative board to an advisory board, and designated the county administrator to carry out the administrative functions of the local board, as allowed under §§ 63.2-302 and 63.2-305. In this context, section 63.2-302 provides in relevant part as follows:

The local board serving a single county shall be, at the discretion of the governing body of the county, either a local government official or a local board consisting of residents of the county who are...appointed by the governing body of the county. If residents of the county constitute the local board, such board shall consist of three or more members....

If a local government official constitutes the local board, he may designate a senior staff person in the local department to act in his behalf, in his absence, to approve, cancel or change grants made under the provisions of this title.

Subsection A of § 63.2-305 addresses advisory boards by providing in relevant part as follows:

If the governing body of a city or county... designate[s]...a local government official as constituting the local board, such governing body or bodies shall appoint a board to serve in an advisory capacity to such local government official with respect to the duties and functions imposed upon him by this title.

Each such advisory board shall consist of no fewer than five and no more than thirteen members....The local government official shall be an ex officio member, without vote, of the advisory board.

Reading these provisions together, it is clear that a county board of supervisors has two choices in establishing a local board: (1) it can establish an administrative board consisting of at least three members, or (2) it can designate a local official as the local board, vesting in said official the administrative powers and duties of the board, while appointing a separate advisory board of five to thirteen members to advise the local official. In the instance you described, the county had created a local board with administrative power under the first option but recently decided to utilize the second option instead to designate the county administrator as the local board, and converting the prior board into an advisory board.

In the context of FOIA, this office has previously opined that a single individual member of a board designated as a liaison to staff cannot be considered a public body and required to comply with FOIA's meetings provisions, although any records such an individual prepares, owns, or possesses in the transaction of public business would be public records subject to FOIA.2 The same considerations that led to that conclusion in the prior opinion also apply in this instance, and so the same course of analysis will be used.

First, consider whether an individual local official designated as a local board under § 63.2-302 is a public body. The definition of public body in § 2.2-3701 includes any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions. [Emphasis added.] This would appear to include a local board as a matter of black-letter law, but just as in the prior opinion, we must consider the policy of FOIA set forth in § 2.2-3701: to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The policy statement illustrates that FOIA was created with two closely related but separate aspects, one addressing access to public records, and the other addressing access to public meetings. In considering whether or not a single local government official designated as a local board under § 63.2-302 can be considered a public body for FOIA purposes, we must examine whether and how that designation will affect access both to public records and to public meetings.3

The definition of public records set forth in § 2.2-3701 includes all writings and recordings...however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Following that definition, any records of the county administrator concerning the transaction of public business would be public records subject to FOIA. Whether the county administrator may also be considered a public body when acting as the local board will not change that result. Therefore FOIA's policy of public access to public records is achieved regardless of whether the county administrator is considered a public body by designation as the local board, and need not be considered further for purposes of this opinion.

By contrast, if the county administrator is to be treated as a public body subject to FOIA's open meetings requirements, it would have profound and absurd effects in practice. FOIA defines meeting in § 2.2-3701 to include

the meetings including 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. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter.

In addition, subsection G of § 2.2-3707 describes situations that will not be considered meetings under FOIA:

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.

Reading these provisions together, we have derived that for a gathering to be a meeting subject to FOIA it must meet two threshold requirements: (1) the presence of three or more members, or a quorum, of a public body sitting as a body or informal assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members.4

In the prior opinion, we concluded that an individual member of a board of supervisors who was designated as a liaison to staff did not fit within the definition of public body given in § 2.2-3701. There we found that a single member designated as a liaison simply did not fit within any part of the definition of public body, but we went on to consider hypothetically what would happen if FOIA's meetings provisions were applied to a single individual. The initial consideration is different here in that § 63.2-302 explicitly provides that the local board may be constituted by a single local government official. FOIA itself does not provide a statutory definition of the term board, but a relevant dictionary definition in this context is an "organized body of administrators or investigators." 5 Looking at the various entities listed in the definition of public body quoted above, it is clear that they are deliberative bodies or entire agencies, not single persons acting individually. In the meetings context, the definition of public body refers to deliberative bodies comprised of multiple members, not single individuals. Note that the definition also includes individual constitutional officers, but does so only [f]or the purposes of the provisions of this chapter applicable to access to public records. That the meetings provisions do not apply to constitutional officers is further evidence that the meetings provisions of FOIA were not meant to apply to individuals.

For hypothetical purposes, as we did in the prior opinion, let us consider what would happen if a single local government official was required to comply with the meetings requirements of FOIA. The definition of meeting as described above includes any gathering of three or more members of a public body - or a quorum - gathered to discuss or transact the public business of that body. FOIA does not define the term quorum; in common usage, it is defined as the minimum number of officers and members of a committee or organization, usually a majority, who must be present for the valid transaction of business.6 If an individual constitutes a public body, then as the sole member, he must also constitute a quorum of that body sufficient for the valid transaction of business. Therefore, following the definition of meeting as presented above, any time that individual discusses or transacts the public business as a liaison, it is a meeting. The individual would then be required to give public notice before discussing or transacting any business as the public body, would have to discuss or transact that business in a location open to the public, and would have to take appropriate meeting minutes, all as required under § 2.2-3707. On a practical level, how does a single individual hold such a discussion with himself or herself? Or transact business as a body comprised of a single member? Typically deliberative bodies hold discussions among the individuals comprising the membership, and conduct business by motion and vote. Are we to require an individual acting as a public body to give public notice, then to think out loud and in public about a topic (i.e., the discussion of public business), then make a formal motion and vote (i.e., the transaction of public business by the public body - which would obviously be a unanimous vote, every time), and record it for posterity, whenever he or she wishes to make a decision? The answer to these questions is no.

As further illustration, you asked hypothetically whether a meeting of the county administrator with the social services director would be considered a meeting, noting that the definition of meeting excludes the gathering of public employees. Reading that definition in conjunction with the prior holding of the Supreme Court of Virginia that only members of the public body count for meetings purposes,7 it is clear that the presence of the social services director or any other employee, or even a member of a different public body, would be irrelevant to the determination of whether a meeting of the local board occurred. To the contrary, the mere presence of the county administrator would automatically constitute a meeting of the local board, and would trigger all of the attendant meeting requirements, unless one of the exceptions from subsection G of § 2.2-3707 applied. Such a result is clearly absurd and utterly impractical, as were the examples given in the prior opinion. As stated in that opinion, the meetings provisions of FOIA were not designed to apply to individuals. Such an interpretation of the definition of public body, as including individuals for purposes of meetings, leads to absurd results, contrary to well-established rules of statutory interpretation.8

Turning to the facts presented here, when a group of county residents is appointed to be the local board under § 63.2-302, that group would clearly be a public body under the definition in § 2.2-3701 as a board of a political subdivision of the Commonwealth. By the black-letter definition, the county administrator also appears initially to be a public body because § 63.2-302 specifically provides for a local official to constitute the local board. However, from a practical perspective, although the county administrator may be designated to serve as the local board, this is really an assignment of duties using the same nomenclature as would be applied to a group serving the same purpose. While the county administrator may be called the "local board" and may carry out the same administrative function, assigning duties and calling someone a "board" still cannot transform a single individual into a deliberative body. Further, the provisions of § 63.2-305 would appear to compensate for the lack of an administrative deliberative body by requiring that if a single local official acts as the local board in an administrative capacity, there must also be an advisory board comprised of multiple members to advise that local official. It is this advisory board that is the deliberative body under FOIA's meetings rules in instances where a local official carries out the administrative duties of the local board. The advisory board comprised of multiple individuals clearly fits within the definitions of board and public body as quoted above. Thus reading §§ 63.2-302 and 63.2-305 in conjunction with FOIA's meetings requirements, it appears that the practical application is to consider the deliberative board comprised of multiple members - whether administrative or advisory - to be the public body subject to FOIA for meetings purposes, while an individual local government official designated to carry out the administrative duties of a local board under § 63.2-302 is not subject to FOIA's meeting requirements. Both the deliberative board and the individual official would remain subject to FOIA for public records purposes. This interpretation allows public access to the meetings of the deliberative body and all of the relevant public records, thus furthering FOIA's policy goals, without imposing FOIA's meetings requirements on an individual in an impractical and absurd fashion.

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

Sincerely,

 

Maria J.K. Everett
Executive Director

 

1Va. Code § 63.2-100 provides the following definition: "Local board" means the local board of social services representing one or more counties or cities.
2Freedom of Information Advisory Opinion 12 (2008).
3Id.
4Id. (citing Freedom of Information Advisory Opinion 02 (2006)).
5
The American Heritage Dictionary 192 (2d College ed. 1982).
6American Heritage Dictionary 1018 (2d College ed. 1982).
7See Beck v. Shelton
, 267 Va. 482, 593 S.E.2d 195 (Va. 2004).

8Freedom of Information Advisory Opinion 12 (2008), supra n. 2 (citing Porter v. Commonwealth, 276 Va. 203, 230, 661 S.E.2d 415, 427 (2008)("The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd. On the contrary, it is well established that every act of the legislature should be read so as to give reasonable effect to every word.").

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