VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-18

February 27 , 2018

Mark Egger
Front Royal, VA

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 November 5, 2017, and February 15, 2018.

Dear Mr. Egger:

You have asked whether a closed meeting held by the Board of the Front Royal-Warren County Economic Development Authority (the EDA) on June 23, 2017, was conducted in violation of the Virginia Freedom of Information Act (FOIA). As background, you stated that a break-in had occurred at the EDA in May 2017, which was being investigated by the police. You indicated that the Board of the EDA (the Board) held the closed meeting in question to discuss this police investigation, and that after this closed meeting the EDA hired a private investigator to investigate the break-in. In addition to your description of what happened, you included a link to a video recording of this meeting and the minutes of this meeting.¹ The minutes state that one of the directors of the EDA made a motion to convene a closed meeting as follows:

that the Board of the EDA vote to go into Closed Meeting under the provisions of Section 2.2-3711 of the Virginia Freedom of Information Act for the following purpose(s):

Section 2.2-3711.A.1: Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body.

Section 2.2-3711.A.3: Discussion or consideration of the acquisition of real property for a public purpose or the disposition of publicly held real property where discussion in open meeting would adversely affect the bargaining position or negotiating strategy of the EDA. I further move that discussion be limited to a parcel or parcels in Warren County or town of Front Royal.

Section 2.2-3711.A.5: Discussion concerning a prospective business or industry or expansion of an existing business or industry where no previous announcement has been made of the business’s or industry’s interest in locating or expanding its facilities in the community.

Section 2.2-3711.A.7: Consultation with legal counsel employed by the EDA regarding specific legal matters requiring the provision of legal advice by such counsel. Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

Note that the wording of the motions as recorded in the minutes conforms almost word-for-word to the wording of the exemptions cited as written in the Code. The minutes indicate that this motion passed by unanimous vote. The video footage confirms that this motion was read substantially as written and that the vote was unanimous.

As further background, you also included a copy of a letter from the chair of the Board dated July 17, 2017, apparently addressed to the chief of the Front Royal Police Department. The body of the letter reads in full as follows:

The Board of Directors of the Economic Development Authority discussed during closed session the investigation regarding the EDA office building that is currently being conducted by the Front Royal Police Department. The EDA hired a Private Investigator to assist in the investigation and we are now requesting that the Front Royal Police Department put the investigation on inactive status.²

You allege that the conduct of this meeting violated FOIA in three ways: (1) the motion to convene the closed meeting did not identify the subject or state the purpose of the meeting; (2) the discussion of the investigation of the break-in was not an appropriate topic for a closed meeting; and (3) the Board hired the private investigator and sent the letter to the police chief without taking a vote to do so in open meeting, which you believe indicates that the Board voted during the closed meeting. You also alleged that the Board's actions amount to the obstruction of a law-enforcement officer in conducting his duties, but correctly noted that criminal matters fall beyond the authority of this office. Additional facts will be set out as needed below.

The policy of FOIA set out in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted." The policy goes on to state 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 and .... [a]ll meetings shall be presumed open, unless an exemption is properly invoked." The policy statement further provides that all exemptions "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."

The procedure to convene a closed meeting is set out in subsection A of § 2.2-3712 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 as authorized in subsection A of § 2.2-3711 or other provision of law and (iii) cites the applicable exemption from open meeting requirements provided in subsection A of § 2.2-3711 or other provision of law. 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.

As stated in an advisory opinion last year, a motion to convene a closed meeting must contain all three elements (subject, purpose, and citation) in order to comply with FOIA; a motion that lacks any of these elements is insufficient under the law. We have previously observed that there is often confusion in differentiating between the subject and the purpose of a closed meeting. Conceptually, it may be helpful to think of the subject as what the meeting is about, while the purpose is why the meeting is to be held. This office has previously opined that when identifying the subject of a closed meeting, the public body need not identify the subject with such specificity as to defeat the reason for going into closed session but should at least provide the public with general information as to the object of the discussion. Observing that the prefatory language of subsection A of § 2.2-3711 states that "[p]ublic bodies may hold closed meetings only for the following purposes," we also opined that quoting or paraphrasing from one of the exemptions in that subsection satisfies the requirement to state the purpose of the meeting, but it does not suffice to identify the subject matter. We concluded this analysis by noting that by quoting or paraphrasing from one of the statutory exemptions, and providing a proper citation to the exemption, two of the three required elements of the motion to convene a closed meeting are satisfied. The public body must still identify the subject in order to make a proper motion to convene a closed meeting. Determining whether any particular motion meets the statutory requirements depends on the facts of each situation and requires a case-by-case analysis.³

Regarding voting, subsection A of § 2.2-3710 sets out the rule that votes must be taken at meetings conducted in accordance with FOIA and may not be by secret or written ballot:

Unless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter. No public body shall vote by secret or written ballot, and unless expressly provided by this chapter, no public body shall vote by telephone or other electronic communication means.

In the context of closed meetings, subsection B of § 2.2-3711 makes clear that decisions made in a closed meeting do not take effect until voted upon in open meeting:

No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.

Subsection H of § 2.2-3712 further builds upon this concept in stating that "[e]xcept as specifically authorized by law, in no event may any public body take action on matters discussed in any closed meeting, except at an open meeting for which notice was given as required by § 2.2-3707."

Turning to the specifics of your inquiry, you indicated you believe the Board of the EDA violated FOIA in three different ways, the first being a failure to identify the subject and state the purpose of the closed meeting that was held on June 23, 2017. As quoted above, the minutes indicate that in its motion to convene the closed meeting, the Board cited four different exemptions, and quoted or paraphrased from each. This office has opined that quoting or paraphrasing from one of the exemptions in subsection A of § 2.2-3711 satisfies the requirement to state the purpose of the meeting. Therefore, because the Board did quote or paraphrase each exemption, it did identify four purposes for the closed meeting. However, it appears that for three of the citations (to subdivisions A 1, A 5, and A 7 of § 2.2-3711) there was no additional information provided to identify the subject matter of the meeting. The only identification of the subject appeared in the cite to subdivision A 3 of § 2.2-3711, which added the sentence "I further move that discussion be limited to a parcel or parcels in Warren County or town of Front Royal." While this identification of the subject is still quite broad, it is at least something more than merely quoting or paraphrasing the exemption itself. Note that the other exemptions cited concern personnel matters (subdivision A 1 of § 2.2-3711), prospective business or industry or the expansion of business or industry where no previous announcement has been made (subdivision A 5 of § 2.2-3711), and legal matters (subdivision A 7 of § 2.2-3711), respectively.⁴ The nature of the subject identified ("a parcel or parcels in Warren County or town of Front Royal") is not a personnel matter, although hypothetically it could be related to the location or expansion of a business or industry, or to a discussion of specific legal matters or actual or probable litigation. However, the fact that it was identified only in connection with the exemption concerning the acquisition or disposition of real property makes it appear unrelated to the other exemptions cited. Therefore, it is unclear what were the subjects of discussion associated with the other three exemptions cited in the motion. As only one of the four exemptions has an identified subject associated with it, it would appear that the motion to convene this closed meeting was insufficient in that it cited four exemptions and stated four purposes, but only identified a single subject.

Secondly, you stated that you believe that discussing the investigation of the break-in during the closed meeting was improper, as it is not covered under any of the cited exemptions for closed meetings. Of the exemptions cited by the Board in this instance, it would appear that subdivisions A 3 (concerning the acquisition or disposition of real property) and A 5 (concerning business or industry) of § 2.2-3711 would not apply to a discussion of an investigation of a break-in. However, depending on the context, it is possible that subdivisions A 1 (concerning personnel) and A 7 (concerning legal matters) of § 2.2-3711 could cover at least some part of a discussion concerning a break-in.

Of these two exemptions, first consider subdivision A 1 of § 2.2-3711, which allows a closed meeting to be convened for the purpose of "[d]iscussion, consideration, or interviews of prospective candidates for employment," among other topics. The facts you presented indicate that the Board discussed hiring a private investigator during the closed meeting. Hypothetically, this exemption would allow for such discussion, consideration, or interviews of candidates to employ as a private investigator to look into the break-in. You inquired whether such as discussion must be limited solely to potential employees of the public body. My research did not reveal any precedents interpreting the phrase "candidates for employment" as being so limited. The term "employment" is not defined in FOIA. As stated by the Supreme Court of Virginia, "[a]n undefined term must be given its ordinary meaning, given the context in which it is used."⁵ Turning to a dictionary definition, "employment" is defined as "1. a. The act of employing. b. The state of being employed. 2. The work in which one is engaged; business. 3. An activity to which one devotes time."⁶ The term "employ" is defined as "1. To put to use or service. 2. To devote or apply (time, for example) to some activity. 3 a. To engage the services of; put to work. b. To provide with gainful work."⁷ Applying the ordinary meaning, a public body may employ an independent contractor to perform some task, such as hiring a private investigator to investigate a break-in. Therefore, a private investigator may be a "candidate for employment" and may be the subject of a closed meeting discussion, consideration, or interview under subdivision A 1 of § 2.2-3711. If the General Assembly had intended to limit this clause solely to candidates being considered for hiring as public employees of the public body, it could have used language similar to that in the second clause of the first sentence, which limits its application to discussions concerning "specific public officers, appointees, or employees of any public body."

Next, note that subdivision A 7 of § 2.2-3711 could have been used to discuss specific legal matters or actual or probable litigation related to the break-in. Again, this is a hypothetical speculation, as it is not known whether there were in fact any legal consequences or litigation related to the break-in. In any case, while it is hypothetically possible that subdivisions A 1 and A 7 could have covered certain discussions related to the break-in, you are correct that none of the exemptions cited would allow a discussion solely concerning the investigation of the break-in itself. The letter from the chair of the Board to the police chief stated that the Board "discussed during closed session the investigation regarding the EDA office building that is currently being conducted by the Front Royal Police Department." It does not specify that the Board discussed personnel or legal matters related to the break-in, which would be covered under subdivisions A 1 and A 7. The letter does not say anything about a discussion of the acquisition or disposition of real property, as would be covered under subdivision A 3. Finally, the letter does not say anything about the discussion of a prospective business or industry, which would have been covered under subdivision A 5. This topic - "the investigation regarding the EDA office building" - does not appear to fall within any of the exemptions cited for the June 23, 2017, closed meeting. More broadly, there does not appear to be any exemption within FOIA that would allow closed meetings to be held to discuss police investigations generally, although police investigations might come up as matters discussed in relation to other topics that are exempt.⁸ Given that the letter indicates that the investigation was discussed during the closed meeting,⁹ that the topic of the investigation was not identified as a subject in the motion to convene the closed meeting, and that there is no general exemption for the discussion of police investigations, it would appear that this discussion was not proper for a closed meeting.

Third, you stated that you believe that the Board voted during the closed meeting to hire the private investigator and to send the letter quoted above. The letter itself, as described, appears to have been sent from the chair of the Board to the police chief. It is unknown whether any vote was taken regarding the letter, whether it was necessary for the Board to authorize the chair to send the letter, or whether the chair simply decided to write and send it himself. The letter itself states explicitly that the Board discussed the police department's investigation during the closed meeting, and then the letter goes on to state that the EDA hired a private investigator. The letter does not explicitly state that the decision to hire the private investigator was made during the closed meeting, nor does it state that the Board voted to hire the private investigator. Nothing in the facts presented states whether a vote of the Board would have been required to hire the private investigator, or whether such hiring could be done by the chair of the Board or by staff of the EDA. Therefore, it is factually unclear whether any vote was taken regarding these matters. Hypothetically, if a vote was required for either matter and that vote was taken during the closed meeting, it would have been improper under the laws addressing voting as quoted above. As quoted previously, subsection A of § 2.2-3710 states that "no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter." A vote taken during the closed meeting at issue would violate that provision because of the procedural flaws in the motion to convene the closed meeting (the failure to identify the subjects to be discussed). Additionally, if a vote had been taken during the closed meeting, it still would not be effective until voted upon during an open meeting, as set forth in subsection B of § 2.2-3711 and subsection H of § 2.2-3712 quoted above.

To summarize the answers to your inquiries: (1) it appears that the motion to convene the closed meeting did contain citations to four valid exemptions and did state four purposes for the closed meeting, but only identified the subject associated with one of those cites and purposes, leaving the other three subjects unidentified; (2) it is possible that the closed meeting discussion included matters related to the investigation of the break-in that would have been covered under the exemptions cited for personnel and legal matters, but the details of that discussion are not known, and none of the exemptions cited would cover a discussion of a police investigation generally (in fact, there is no general exemption for discussing police investigations); and (3) it is unclear whether any vote was taken regarding sending the letter or hiring the private investigator, but in general, it is not proper to vote at a meeting that is not conducted in accordance with FOIA, and any action taken during a closed meeting would not be effective until voted upon during an open meeting.

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

Sincerely,

Alan Gernhardt
Executive Director

¹The video may be viewed at https://www.youtube.com/watch?v=jzLw0jKTP7w (last visited January 18, 2018). The minutes are available at http://wceda.com/wp-content/uploads/2012/11/Mins062317.pdf (last visited January 18, 2018).
²I would note that this letter does not specify when the Board discussed "the investigation regarding the EDA office building," but it is presumed from your description that this discussion occurred during the closed meeting on June 23, 2017. If that fact is not accurate, it would change the analysis that follows and the conclusions reached.
³Freedom of Information Advisory Opinion 03 (2017) (citing Freedom of Information Advisory Opinion 02 (2016)).
⁴Note that at the time of the meeting in question, former subdivision A 7 of § 2.2-3711 addressed both consultation with counsel regarding specific legal matters and the discussion of actual or probable litigation. This exemption was split into subdivisions A 7 and A 8 of § 2.2-3711 effective July 1, 2017, in order to distinguish between discussions about actual or probable litigation (now covered under subdivision A 7) and consultation with counsel regarding specific legal matters (now covered under subdivision A 8).
⁵Dressner v. Commonwealth, 285 Va. 1, 736 S.E.2d 735 (2013) (citations, internal quotation marks, and alterations omitted).
⁶The American Heritage Dictionary 450 (2d College ed. 1982).
⁷Id.
⁸For example, in addition to personnel and legal matters, consider subdivision A 19 of § 2.2-3711, which addresses certain public safety and security matters. A discussion of building security in light of a break-in could be a closed meeting topic under this provision, in which some aspects of the police investigation (i.e., how the break-in occurred and how to prevent such break-ins in the future) would likely be part of the discussion. Other aspects of the investigation (for example, who perpetrated the break-in, whether there would be criminal charges, etc.) would not be covered.
⁹Again presuming the letter is in fact referring to the June 23, 2017, closed meeting and not some other occasion (supra, n. 2).

© 2018 | FOIA COUNCIL HOME | DLS HOME | GENERAL ASSEMBLY HOME