VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-38-01

August 13, 2001

Mr. George T. Keller
Clifton Forge, 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 correspondence of May 30 and July 5, 2001.

Dear Mr. Keller:

You have asked a series of questions concerning the conduct of your local Board of Supervisors ("the Board) under the Virginia Freedom of Information Act (FOIA). Your first question concerns the selection of a new county administrator in closed session. Your second question asks about the sufficiency of a motion by the Board to convene in closed session. Your final question is a more general question as to what constitutes the discussion of public business for the purposes of FOIA.

You indicate that the Board convened in closed session to discuss the selection of a new county administrator. Upon reconvening in open meeting, the Board certified the closed session as required by subsection D of § 2.1-344.1 of the Code of Virginia, and voted that they had reached an informal agreement as to whom they would offer the job, but did not indicate the name of the selected individual. The Board announced that a press conference would be held immediately prior to the next Board meeting, at which the selected candidate would be introduced. At the press conference, the Board announced the name of the new county administrator. At the open meeting held immediately after the press conference, the Board formally voted to hire the named individual as the new county administrator. You ask whether the procedures used by the Board in selecting and announcing the new hire were proper under FOIA. Specifically, you ask if whether an improper vote took place during a closed session to select the new county administrator.

Generally, § 2.1-343.2 requires that all votes must be taken in an open session. The provision states that [u]nless 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. However, subsection B of § 2.1-344 states that [n]o 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 which shall have its substance reasonably identified in the open meeting. It is apparent from this provision that the law recognizes that in the discussion of a topic appropriate for a closed meeting, it may be necessary for the members of the public body to reach an informal consensus or agreement while still in closed session. However, such agreement will not become an official action of the public body until a vote is taken in open meeting, following the voting procedures set forth in FOIA. Thus, the law does not prohibit a public body from reaching a consensus on an issue while still in closed session; instead, it requires that if a consensus is reached during a closed meeting, the public body still must vote on the issue in public to make it official.

In applying these procedures to the facts that you have presented, it would appear that the Board did not violate FOIA by agreeing in closed session as to whom to offer the job of county administrator. When the Board announced the new county administrator at the press conference, the selection had not yet been made official because they had not yet held a public vote. However, the Board cured this problem when it voted to hire the new administrator at the meeting immediately following the press conference. While the timing in this fact scenario was not ideal, there was no violation of FOIA based simply upon the fact that the Board reached an agreement in closed session. Again, however, all agreements reached in a closed session must be voted on in an open meeting in order to become official.

Your second question relates to the sufficiency of a motion of the Board to go into closed session. The motion in the minutes of the meeting, which you provided, reads, "Closed meeting pursuant to Section 2.1-344(1) and (3) of the Code of Virginia for the purpose of discussing personnel matters and property acquisition." Subsection A of § 2.1-344.1 states that:

As can be seen from this provision, a motion to go into closed session must contain three elements: the subject, the purpose, and the specific statutory citation allowing the exemption. The motion that you question has provided two of these three elements. It has stated the purpose -- personnel matters and property acquisition -- and the specific Code provisions that exempt these subjects from the open meeting requirements. However, the motion has failed to state the subject matter of the closed session. The motion includes only a general reference stating that the closed session will be used to discuss personnel matters and property acquisition, which by statute is insufficient for a motion. As the Freedom of Information Advisory Council has previously opined, how specific the statement must be depends upon the situation.¹ The personnel exemption, for example, encompasses a number of different types of discussions such as employment, promotion, or discipline. Thus, the subject matter of the meeting could be described, by way of example, as a discussion of the hiring of a new county administrator or the discipline of an employee of the Board. Neither of these subject matter statements give away so much information as to defeat the purpose of holding the closed session, yet the statements provide the public with some guidance as to the business being conducted behind closed doors. In order to meet the requirements of subsection A of § 2.1-344.1, the Board would need to provide a more detailed motion to go into closed session that includes all three of the elements required by law.

Your final question is a more general question as to what constitutes the discussion of public business for the purposes of FOIA. You ask whether it is proper for the county administrator or Board chairman to discuss issues of public business with other members of the Board over the telephone or in small groups. You indicate that you think that members of the Board use these means to reach a consensus on issues even before they are placed on the agenda for an open meeting, and that public input is thus being eliminated from the decision-making process.

Section 2.1-341 defines a meeting as a gathering of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership of a public body. Thus, a gathering of two members of the Board with the county administrator, for example, would not be considered a meeting under FOIA even if public business were discussed. Please note, however, that FOIA defines a public body to include a committee or subcommittee of the public body created to perform delegated functions of the public body or to advise the public body. Thus, a committee comprised of three members of the Board would be considered a public body separate from the Board itself. According to the definition of a meeting, a gathering of two of the three members of the committee would constitute a quorum and would be considered a meeting if public business of the committee were discussed. In such a circumstance, a gathering of the two members with the county administrator might constitute a meeting under FOIA that would be subject to the open meeting requirements.

In your question, you also draw attention to § 2.1-343.2, which allows members of a public body to separately contact each other to ascertain a member's position with respect to the transaction of public business, so long as the contact does not constitute a meeting. Thus, one member could contact another member to ascertain how the other will vote on an issue of public business to be discussed at an upcoming meeting without violating the provisions of FOIA. This provision alludes to the balance that FOIA seeks to achieve between allowing the public to witness the workings of government while at the same time allowing government to operate efficiently and effectively. So long as none of the contact that you have described in your question falls under the definition of a meeting, it is not prohibited by FOIA.

As an aside to this question, you indicate that you think that the practices discussed above limit public input to public business, because issues appear to have already been decided by the time they are brought up at public meetings. This aspect of your question is not related to FOIA. The policy of FOIA, set forth at § 2.1-340.1, states that FOIA ensures the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted. Thus, FOIA is concerned more with allowing the public to witness the workings of government than with allowing participation in government. In fact, FOIA does not speak at all to public participation in meetings of public bodies. There are several provisions within Title 15.2 of the Code, relating to the administration of local government, that require governing bodies to conduct public hearings on certain issues. In addition, if you do not agree with how your representative on the Board is conducting public business, your remedy would be to vote for another candidate at election time, or possibly even run for local office yourself. This, however, is beyond the scope of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ Freedom of Information Advisory Opinion 14 (2001).