VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-01-03

January 23, 2003

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 letters of November 11, 2002 and January 7, 2003, and your fax of December 3, 2002.

Dear Mr. Keller:

You have asked four questions generally related to a discussion and vote of the Allegheny Board of Supervisors ("the Board") under the Virginia Freedom of Information Act (FOIA). You indicate that the Board held a closed meeting to discuss the purchase of 170 acres of land for economic development purposes. You were told that the Board reached an "informal agreement or consensus" to purchase the land at the closed meeting, and on October 30, 2002, the Board purchased the land at a public auction. The Board met in open meeting on November 6, 2002, and voted five to one to approve the purchase. You state that you believe that neither an agreement nor a consensus was reached by the Board in closed meeting prior to the purchase, because one member of the Board opposed the purchase. You question whether the vote and purchase were proper under FOIA.

Specifically, you ask if FOIA allows the Board to reach an agreement to purchase the land in closed meeting, and proceed with the purchase prior to a vote being taken in an open meeting. You also ask if FOIA allows the Board to purchase the land prior to a vote in open meeting if a majority, but not all, of the membership agreed to the purchase. You next ask if a public body must reopen a topic for discussion, including input from the public, when it reconvenes in open meeting to vote on an issue discussed in closed meeting. Finally, you ask for clarification of subsection B of § 2.2-3710 of the Code of Virginia, which allows members to be contacted individually, outside of the context of a public meeting, to determine their individual positions on a matter of public business. You ask if this provision only allows a member of a public body to poll other members about how they will vote in open meeting, but not about how they will vote in closed meeting.

Because three of your four questions address issues relating to voting by a public body, it may be helpful to set forth the voting requirements of FOIA and generally discuss how the various voting provisions can be read together. Subsection A of § 2.2-3710 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 public business, other than a vote taken at a meeting conducted in accordance with the provisions of [FOIA]. 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. Section 2.2-3707 requires that all meetings be properly noticed and open to the public, and that minutes be taken. Therefore, votes authorizing the transaction of public business may only be taken at a meeting that satisfies all three of these requirements. Until a vote in open meeting takes place, nothing agreed to by the public body will become effective.

While votes must be taken in an open meeting, other provisions of FOIA allow for the discussion of votes outside of the context of an open meeting, in certain circumstances. Subsection B of § 2.2-3711 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 that shall have its substance reasonably identified in the open meeting. It is apparent that the law recognizes that during a closed meeting, the course of the discussion may lead the members of the public body to take an informal vote to ascertain their position or to reach an informal agreement.¹ However, subsection B of § 2.2-3711 states that even if an agreement is reached in closed meeting, the action agreed upon will not become effective until it is voted on in open meeting. Because of this, a member would be free to change his position on an issue between the time it was discussed and agreed upon in closed meeting and when it was voted on at an open meeting. Stated another way, the public body can only authorize the transaction of public business with a vote in an open meeting, even if it is first discussed and agreed to in a proper closed session.

The "polling provision," found at subsection B of § 2.2-3710, also allows a public body to discuss a vote outside of the context of an open meeting. Subsection B of § 2.2-3710 states that nothing in FOIA prohibits separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business, whether such contact is done in person, by telephone or by electronic communication, provided the contact is done on a basis that does not constitute a meeting as defined by [FOIA]. This means that members may be contacted individually, outside of the context of a public meeting, to determine their individual positions on a matter of public business.

Reading these provisions together, the general rule that emerges is that in order for any action or decision of a public body to become effective, the public body must vote on such action or decision at an open meeting. If a public body has properly convened in a closed meeting, the members may reach a tentative agreement or decision during that meeting. However, that tentative decision is not binding on any of the members, and a public body cannot act upon the decision until it identifies the substance of the issue and takes a vote in an open meeting, because no decision becomes effective until then. Finally, FOIA allows one member of a public body to poll the other members individually, outside of the context of a meeting, to determine their individual positions on a matter of public business. Again, however, no action of the public body will be authorized until a vote on the matter is taken in an open meeting.

This opinion will now turn to the specific facts and questions you have asked. First, you ask if FOIA would allow the Board to reach an agreement to purchase the land in closed meeting and proceed with the purchase prior to a vote being taken in open meeting. As the discussion above indicates, a public body may reach an agreement about a course of action taken relating to the transaction of public business during a closed meeting. In this instance, it was proper for the Board to decide, while in closed session, to purchase a particular piece of property for public use. Applying the general rule of voting, however, the decision did not become effective until the Board reconvened in open meeting, identified the substance of the discussion, and took a vote in open meeting. The facts that you present indicate that the Board went ahead with the purchase prior to the public vote required by FOIA. Therefore, the Board had not yet authorized the purchase.

Next you ask whether FOIA would allow the Board to purchase the land prior to a vote in open meeting if a majority, but not all, of the membership, agreed to the purchase in closed meeting. As noted above, no decision of the Board becomes effective until voted on in an open meeting. The answer, therefore, remains the same -- the Board was not authorized to make the purchase because its decision had not yet been made effective by a vote in open meeting. The answer does not hinge on whether the decision in closed meeting was unanimous or merely agreed to by a simple majority. As an aside, the use of the terms "agreement" or "consensus" are not specific legal terms. When one speaks of a public body "reaching an agreement," this could generally be interpreted as meaning a majority of the members agreed to a particular course of action.

You next ask if a public body must reopen a topic for discussion, including input from the public, when it reconvenes in open meeting to vote on an issue discussed in closed meeting. As stated in subsection B of § 2.2-3705, all that is required is that a vote be taken in an open meeting after the substance of the decision reached in the closed meeting is reasonably identified. There is no mention in FOIA of requiring additional discussion by either the members of the public body or members of the public. As is stated in subsection B of § 2.2-3700, FOIA should be construed to afford every opportunity to citizens to witness the operations of government. (Emphasis added.) While other sections of the Code require that public hearings be held in certain circumstances for public input, FOIA does not generally give citizens the right to make public comment at meetings regarding the transaction of public business. Instead, FOIA gives citizens the right to attend public meetings and witness the operation of government by public bodies.

Finally, you ask for clarification of subsection B of § 2.2-3710, which allows members to be contacted individually, outside of the context of a public meeting, to determine their individual positions on a matter of public business. You ask if this provision would only allow members of a public body to poll about how they will vote in open meeting, but not about how they will vote in closed meeting. As discussed earlier in this opinion, no decision of a public body will become effective until it is voted on in open meeting. Ultimately, therefore, a vote on any issue relating to the transaction of public business must, by law, take place at an open meeting. This provision could be used by one member to poll another member about an issue that is the proper subject of a closed meeting or an issue that must be discussed in an open meeting. Even if the public body reaches a tentative agreement during a closed meeting, it still must be voted on at an open meeting. This section allows one member to ascertain how other members will vote generally; its application does not rest on whether the topic of the vote may or may not be discussed during a closed meeting.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ See Virginia Freedom of Information Advisory Opinion 15 (2002). See also Advisory Opinion 38 (2001) (issued prior to recodification of FOIA to Title 2.2 of the Code of Virginia).