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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-02-19

March 1 , 2019

J. David Griffin
Winchester Law Group, P.C.
Winchester, 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 5, 2018.

Dear Mr. Griffin:

You have asked whether it would violate the Virginia Freedom of Information Act (FOIA) if two Virginia public bodies convened in closed meetings both jointly and separately for purposes of mediating disputes if ordered to do so by a judge. You also pointed out aspects of the Virginia Administrative Dispute Resolution Act (VADRA) (Code § 2.2-4115 et seq.), which raises the related question of whether two public bodies may convene closed meetings for purposes of dispute resolution under VADRA.

Factual Background

You stated that a dispute arose between the Town of Stephens City (the Town) and the Frederick County Sanitation Authority (the Authority) over breaches of contract, overcharges, underpayments, and other ancillary matters. You further stated that the governing bodies of the Town and the Authority wish to mediate their dispute, and to do so will need to convene closed meetings both separately and jointly to discuss the various issues involved.

Applicable Law and Analysis - FOIA

The policy of FOIA stated in subsection B of § 2.2-3700 is 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 all public records shall be available for inspection and copying upon request." The definition of "public body" in Code § 2.2-3701 includes, among other entities, "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.] Therefore, both the Town and the Authority are public bodies subject to FOIA. The definition of "meeting" in the same section includes "the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2, 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 definition also explicitly excludes "the gathering of employees of a public body." The procedures applicable to closed meetings are set out in §§ 2.2-3711 and 2.2-3712. Subsection A of § 2.2-3711 lists 51 purposes for which a public body may hold a closed meeting. Among those, subdivisions 7 and 8 permit closed meetings to be convened to address actual or probable litigation and specific legal matters, respectively, as follows:

7. 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. For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.

8. Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.

Generally, both of these meetings exemptions correspond to the exemptions for attorney-client privileged communications and work product at common law and as codified within FOIA for records purposes at subdivisions 2 and 3 of § 2.2-3705.1.1 Subsection D of § 2.2-3711 states that "[n]othing in this section shall be construed to prevent the holding of conferences between two or more public bodies, or their representatives, but these conferences shall be subject to the same procedures for holding closed meetings as are applicable to any other public body." Subsection F of § 2.2-3712 provides that "a public body may permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting."

My general understanding is that typically a public body would not necessarily mediate by having the members meet as a deliberative body to participate in the dispute resolution proceedings, but would instead send a representative, often the public body's attorney, to meet with a representative of the opposing party and a neutral mediator. If the representatives and mediator reach a potential resolution, they would then go back to their respective public bodies to present any potential resolution(s) for the bodies to consider. In that scenario, the public bodies would meet separately from each other and could convene closed meetings pursuant to either the actual or probable litigation exemption (subdivision A 7 of § 2.2-3711) or the specific legal matters exemption (subdivision A 8 of § 2.2-3711) as quoted above, because there are specific legal matters and actual litigation for each public body to discuss or consider. As also quoted above, pursuant to subsection F of § 2.2-3712, a public body could invite a representative from the other public body into a closed meeting "if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting." In this type of scenario, for example, a representative of one body might be invited into the other body's closed meeting in order to present a settlement offer or other proposed resolution, then be excluded from the closed meeting while the body deliberates on whether to accept the offer. If a decision to go forward was reached, each body would then vote to approve any settlement agreement or other resolution in open meeting as required by subsection B of § 2.2-3711.2

However, you indicated that in this situation the public bodies do wish to meet together for at least part of the mediation process (i.e., a joint meeting with the members of both bodies, not just representatives from each public body). You further indicated you do not believe that the exemption for actual or probable litigation would apply as the Town and the Authority would need to meet together for at least a portion of the mediation and therefore their respective negotiation and litigation positions would be known to each other. As quoted previously, the exemption for actual or probable litigation only applies if "consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body." Following this language, this exemption would not apply if the opposing parties meet jointly and share information in such a way that it eliminates the adverse effect that might otherwise occur from discussing the matter in a public meeting (i.e. if they reveal their negotiating or litigating posture to the opposing party during the closed meeting).

Regarding the exemption for specific legal matters, it applies to "[c]onsultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel." You stated that the mediator would be an attorney retained by both parties for the purpose of mediation and ask whether this exemption could be used to convene closed meetings both jointly and separately with the mediator as the "legal counsel employed or retained" by the public bodies. Under VADRA, "mediator" is defined in § 2.2-4115 to mean "a neutral who is an impartial third party selected by agreement of the parties to a dispute to assist them in mediation." The same section defines the term "neutral" to mean "an individual who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services." In this context and with the facts you provided, it appears that while the mediator is an attorney retained by both public bodies, the mediator is retained to be a neutral to conduct dispute resolution proceedings, not to act as legal counsel to provide legal advice.3 Therefore, this exemption would not appear to allow two public bodies to convene a joint closed meeting to meet with a mediator as their (joint) legal counsel in order to conduct mediation.4 However, each public body could still meet separately with its own legal counsel under this exemption to consider specific legal matters related to the dispute that require the provision of legal advice from each public body's own counsel.

From your description it appears that the parties would meet jointly for part of the mediation but not necessarily for all of it. Depending on the actual matters to be discussed, it is possible that each public body could still use the actual or probable litigation exemption when meeting on its own, then convene jointly and publicly during other portions of the mediation. Procedurally, this may necessitate each body making multiple motions, votes, and certifications to go into and out of closed meetings as required under § 2.2-3712. This process would be cumbersome, but would comply with the requirements of FOIA.

Applicable Law and Analysis - Virginia Dispute Resolution Act

Outside of FOIA, you pointed out that § 2.2-4116 of the Virginia Administrative Dispute Resolution Act (VADRA) (Code § 2.2-4115 et seq.) "provides localities the right...to take issues between them to mediation" and that subdivision 11 of § 2.2-3705.1 provides a FOIA exemption for "[c]ommunications and materials required to be kept confidential pursuant to § 2.2-4119 of [VADRA]."5 The definition of "public body" in VADRA is very similar to that in FOIA; the relevant part of the definition in § 2.2-4115 includes "any authority, board, bureau, commission, district or agency of the Commonwealth or any political subdivision of the Commonwealth, including counties, cities and towns, city councils, boards of supervisors, school boards, planning commissions, governing boards of institutions of higher education." [Emphasis added.] Therefore, both the Authority and the Town are public bodies for purposes of VADRA as well as FOIA. The term "dispute resolution proceeding" is defined in the same section of VADRA as follows:

"Dispute resolution proceeding" means any structured process in which a neutral assists parties to a dispute in reaching a voluntary settlement by means of dispute resolution processes such as mediation, conciliation, facilitation, partnering, fact-finding, neutral evaluation, use of ombudsmen or any other proceeding leading to a voluntary settlement. For the purposes of this chapter, the term "dispute resolution proceeding" does not include arbitration.

Subsection A of § 2.2-4116 provides in relevant part that "[e]xcept as specifically prohibited by law, if the parties to the dispute agree, any public body may use dispute resolution proceedings to narrow or resolve any issue in controversy" and that "[n]othing in this chapter shall prevent the use of the Virginia Freedom of Information Act to obtain the disclosure of information concerning expenses incurred in connection with a dispute resolution proceeding or the amount of money paid by a public body or agency to settle a dispute." As mentioned above, FOIA contains an exemption that refers to the confidentiality provisions of VADRA in § 2.2-4119. That section, quoted in full below, provides that dispute resolution proceedings are subject to FOIA with certain exceptions:

A. Except for the materials described in subsection B, all dispute resolution proceedings conducted pursuant to this chapter are subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

B. All memoranda, work products, or other materials contained in the case file of a mediator are confidential and all materials in the case file of a mediation program pertaining to a specific mediation are confidential. Any communication made in or in connection with a mediation that relates to the dispute, including communications to schedule a mediation, whether made to a mediator, a mediation program, a party or any other person is confidential. A written settlement agreement is not confidential unless the parties agree in writing. Confidential materials and communications are not subject to disclosure or discovery in any judicial or administrative proceeding except (i) when all parties to the mediation agree, in writing, to waive the confidentiality; (ii) to the extent necessary in a subsequent action between the mediator and a party for damages arising out of the mediation; (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation; (iv) where communications are sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against the mediator; (v) where a threat to inflict bodily injury is made; (vi) where communications are intentionally used to plan, attempt to commit or commit a crime or conceal an ongoing crime; (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party, nonparty, participant or representative of a party based on conduct occurring during a mediation; (viii) where communications are sought or offered to prove or disprove any of the reasons listed in § 8.01-576.12 that would enable a court to vacate a mediated agreement; or (ix) as provided by law or rule other than the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege. Unless otherwise specified by the parties, no mediation proceeding shall be electronically or stenographically recorded.

My research found no relevant Virginia court opinions or opinions of the Office of the Attorney General interpreting VADRA. However, there was an article discussing VADRA before it was enacted that appeared in the Resolutions Quarterly Newsletter, December 2001, published by the Office of the Executive Secretary of the Supreme Court of Virginia entitled, "Legislation Drafted for ADR in Administrative Settings."6 Regarding FOIA, the article states that "[t]he proposed law contains provisions designed to protect the confidentiality of communications in dispute resolution proceedings while meshing confidentiality concerns with the provisions of the Virginia Freedom of Information Act."7 Unfortunately, the article did not make any specific statements regarding whether or how the provisions of VADRA were meant to interact with the meetings requirements of FOIA.

As quoted above, VADRA explicitly mentions FOIA in two places, §§ 2.2-4116 and 2.2-4119. The first section refers to the disclosure of information concerning expenses incurred and money paid as part of a settlement, but says nothing about closed meetings. Subsection A of § 2.2-4119 states that "[e]xcept for the materials described in subsection B, all dispute resolution proceedings conducted pursuant to [VADRA] are subject to [FOIA]." This language appears to mean that subsection B exempts certain materials (i.e., records) from mandatory disclosure under FOIA, but otherwise all dispute resolution proceedings under VADRA are subject to FOIA, which would include any records not addressed in subsection B and any public meetings. However, the second sentence in subsection B of § 2.2-4119 could be read as an exemption from FOIA's usual requirements for open meetings because it provides that "[a]ny communication made in or in connection with a mediation that relates to the dispute, including communications to schedule a mediation, whether made to a mediator, a mediation program, a party or any other person is confidential." In determining how this language affects access under FOIA, note that subsection A refers to "the materials described in subsection B" and the first sentence of subsection B also refers to "materials" twice. Within that context it appears that the communications to be held confidential under the second sentence of subsection B are also "materials" - in other words, written or other recorded communications. The language of subsection B of § 2.2-4119 and the relevant provision of § 2.2-4116 quoted earlier could then be interpreted as applying to access of public records of a dispute resolution proceeding, but would not necessarily address public meetings at all. Given the general understanding that dispute resolution proceedings typically are handled by representatives of a public body rather than by the public body itself, FOIA's public meetings requirements would not apply to such a dispute resolution proceeding conducted by representatives because the proceeding would not constitute a "meeting" as defined in FOIA.8 Therefore, it appears likely that VADRA simply did not contemplate that two public bodies would hold a joint meeting as part of a dispute resolution proceeding because that was not the practice when it was enacted, and therefore, while FOIA and VADRA both contain provisions addressing access to the records of a dispute resolution proceeding, neither FOIA nor VADRA appear to address joint meetings held by two public bodies to conduct dispute resolution.

Other laws

While you did not specifically inquire about them, I would note that at least two other laws also address mediation: Court-Referred Dispute Resolution Proceedings are addressed by statute in Chapter 20.2 of Title 8.01 of the Code (§ 8.01-576.4 et seq.), and Mediation is addressed in Chapter 21.2 of Title 8.01 of the Code (§ 8.01-581.21 et seq.). Both of those statutes have confidentiality provisions that are similar to VADRA's,9 but it appears that neither statute mentions FOIA or public bodies. The court-referred dispute resolution proceedings have a specific limitation on scope in § 8.01-576.4: "The provisions of this chapter apply only to court-referred dispute resolution services." It does not appear that VADRA or the chapter on Mediation have such an explicit limitation on scope. Given that the factual background of your question considers litigation between two public bodies who desire to mediate their dispute, it is not entirely clear whether either of these other chapters might apply instead of or in addition to VADRA and FOIA. Additionally, as with VADRA, there do not appear to be any relevant opinions from any Virginia courts or the Office of the Attorney General addressing how these statutes interact with FOIA. Therefore, because these statutes are beyond the statutory authority of this office to interpret and it appears there is no precedent available regarding their interaction with FOIA, if any, I can only make note of them without offering any specific guidance.

Finally, your inquiry could also be interpreted to ask whether a court has inherent authority to order parties in litigation before the court to attempt to mediate their dispute. My research did not reveal any precedent that would answer this question directly. I would note that the Virginia Judicial System website has a "Frequently Asked Questions" section on mediation that includes the following question and response:

9. Is mediation mandatory in Virginia?
No. Section 8.01-576.5 authorizes judges to refer appropriate civil matters to a dispute resolution orientation session. The orientation session is an informational meeting to allow the parties to learn about mediation and consider the appropriateness of their case for mediation. Parties may opt out of the orientation session. The orientation session is free of cost. Participation in an ADR process following the orientation session is voluntary.10

[Emphasis in original.] This question and response were clearly crafted in consideration of the court-referred dispute resolution proceedings statute cited, and do not appear to address the inherent authority of a court. As this office has no authority to opine on the scope of a court's authority, for purposes of this opinion this question remains unresolved.

Conclusion

Under FOIA, public bodies may convene closed meetings to consider actual or probable litigation or specific legal matters, either of which may apply when a public body has a dispute that may also be subject to dispute resolution proceedings such as mediation. Regarding dispute resolution, it appears that the typical practice is for public bodies to send representatives to engage in dispute resolution proceedings rather than participate themselves as public bodies. Because only the representative(s) meet with the party opponent and the neutral party, the dispute resolution proceeding would not have to follow the open meeting requirements of FOIA in such a circumstance. After such a dispute resolution proceeding between representatives of the opposing parties and a neutral mediator, the public body would convene a closed meeting pursuant to the litigation or specific legal matters exemption(s) to meet with its representative and consider any proposed resolution to the dispute. The public body would then vote on any proposed resolution in an open meeting. While this appears to be the typical practice, it does not appear that FOIA or the various laws concerning dispute resolution have considered or addressed situations where two or more public bodies wish to hold a joint meeting for the purpose of dispute resolution. As discussed above, the exemptions for litigation and specific legal matters could apply to meetings of each public body held separately, but these exemptions have limitations that would preclude their use for joint meetings between opposing public bodies. Therefore, as it appears the law is otherwise silent, the default rule requiring all meetings of public bodies to be open would appear to be controlling over such joint meetings.

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

Sincerely,

Alan Gernhardt
Executive Director

1Subdivision 2 of § 2.2-3705.1 exempts from mandatory disclosure "[w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other information protected by the attorney-client privilege." Subdivision 3 of the same section exempts from mandatory disclosure "[l]egal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711."
2That subsection states as follows: "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."
3Generally speaking, if an attorney were retained to provide legal advice to opposing parties in a dispute, it would appear likely to run afoul of the rules of professional conduct governing conflicts of interest. See Virginia Rules of Professional Conduct R. 1.7 (available at http://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-7/, last accessed January 2, 2019).
4Note that there may be factual circumstances other than mediation where this exemption could apply, such as if two public bodies have aligned legal interests and retain legal counsel to represent them both in the same matter.
5
The statutory authority of this office allows us to provide advisory opinions and guidance regarding FOIA pursuant to § 30-179. We consider VADRA as it interacts with FOIA and directly references FOIA, with the understanding that otherwise VADRA is outside the statutory authority of this office.
6Article available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/resources/resolutions/2001/december/legislation.html, last visited January 2, 2019.
7Id.
8
Keeping in mind that to be a "meeting" subject to FOIA it must involve "(i) as many as three members or (ii) a quorum, if less than three, of the constituent membership" of the public body (or bodies) and that a "gathering of employees of a public body" is specifically excluded from the definition of "meeting." Therefore, a meeting between representative employees such as the public bodies' respective attorneys would not constitute a "meeting" subject to FOIA.
9Sections 8.01-576.10 and 8.01-581.22, respectively.
10Available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/faq.html#9, last accessed January 2, 2019.

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