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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
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.
5The 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.
8Keeping 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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