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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-24-04
December
2 , 2004
W.M.
"Wally" Bunker
Culpeper, 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 October 21, 2004.
Dear
Mr. Bunker:
You
have asked for an opinion regarding whether a closed meeting
of your local Town Council ("the Council"), which
apparently resulted in a decision to terminate the Town Treasurer
("the Treasurer"), violated the open meeting provisions
of the Virginia Freedom of Information Act ("FOIA").
You
indicate that the Council entered into a closed meeting at
its regularly scheduled meeting on May 11, 2004. The minutes
of this meeting indicate that the Council convened a closed
meeting in order to discuss "issues relating to a specifically
named individual" pursuant to § 2.2-3711(a)(1) of
the Code of Virginia, among other reasons cited in the minutes.
The minutes further reflect that this closed meeting was certified
by a vote after the Council members reconvened as an open
meeting that same night.
You
indicate that on the following Monday, May 17, 2004 the Treasurer
was terminated. You also indicate that the Town Manager ("the
Manager") sent an electronic mail message that same day
notifying "Staff and Council" that the Treasurer
had been terminated. On May 18, 2004, the Council held a regular
meeting of the Committee of the Whole.1 The minutes of this
May 18 meeting, in relevant portion, read as follows: [The
Town Manager] stated Council at its regular meeting closed
session requested the Mayor, Town Manager and Town Attorney
to meet with the Town Treasurer as soon as possible to notify
him of his termination. He noted the Treasurer was informed
on May 17th of his immediate termination. He said the Town
Attorney had advised action be taken by Council in open session
to ratify its previous directive to effect the termination
of the Treasurer. A motion for immediate termination of
the Treasurer was then made, seconded, and approved by vote
of the Council.
In summary,
it appears based upon your description of events and the minutes
you provided that (1) the Council held a closed meeting on
May 11, at which the Council decided to terminate the Treasurer,
and directed the Manager, Mayor, and Town Attorney to terminate
the Treasurer; (2) the Treasurer was terminated on Monday,
May 17; and (3) the Council publicly voted to terminate the
Treasurer at an open meeting on Tuesday, May 18. Based upon
these circumstances you have asked for an opinion regarding
the closed meeting held on May 11, and the subsequent actions
taken in regard to the termination of the Treasurer.
Pursuant
to subsection A of § 2.2-3707 of the Code of Virginia,
[a]ll meetings of public bodies shall be open, except as
provided in §§ 2.2-3707.01 and 2.2-3711. Section
2.2-3707.01 refers to meetings of the General Assembly of
Virginia, and so does not apply to this situation. Section
2.2-3711 authorizes public bodies to hold closed meetings
for certain limited purposes. In the minutes of its May 11
meeting the Council cites subdivision (A) (1) of § 2.2-3711
as the applicable exemption in regard to its discussion of
"issues relating to a specifically named individual."
That subdivision of FOIA authorizes a closed meeting to be
held for the purpose of [d]iscussion, 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; and evaluation of performance
of departments or schools of public institutions of higher
education where such evaluation will necessarily involve discussion
of the performance of specific individuals. Thus the Council
could properly convene a closed meeting for the purpose of
discussing the termination of the Treasurer, an appointee
of the Council.
In addition
to limiting the purposes for which closed meetings are authorized,
FOIA establishes certain procedural requirements that must
be met for a closed meeting to be held. In order to convene
a closed meeting, subsection A of § 2.2-3712 requires
that a public body must approve by recorded vote a motion
that (i) identifies the subject matter, (ii) states the
purpose of the meeting and (iii) makes specific reference
to the applicable exemption from open meeting requirements
provided in § 2.2-3707 or subsection A of § 2.2-3711.
Subsection A of § 2.2-3712 further states that [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. This office
has previously opined that a motion that lacks any of these
three elements would be insufficient under the law.2
According
to the minutes of the May 11 meeting, the Council convened
the closed meeting pursuant to § 2.2-3711(A)(1) to discuss
"issues relating to a specifically named individual,"
among various other issues. While identifying the applicable
statutory citation, the motion does not appear to meet the
other requirements of subsection A of § 2.2-3712 to (i)
identify the subject matter and (ii) state the purpose of
the closed meeting. A discussion of "issues relating
to a specifically named individual" could concern any
topic and any person. It is too vague to identify either the
subject matter under discussion or the purpose of the discussion.
A comparison to the other topics listed on the agenda for
the closed meeting exemplifies the difference between sufficient
and insufficient identification, e.g. "an update on the
Washington vs. Town of Culpeper case," "appointments
to the Architectural Review Board and Culpeper Parking Authority."
Each of these reasons is reasonably clear as to the subject
of the discussion and the purpose of the discussion, while
the details of the discussion remain confidential. As previously
opined by this office, [t]he subject need not be so specific
as to defeat the reason for going into closed session, but
should at least provide the public with general information
as to why the closed session will be held. For example, a
public body might state that the subject of a closed session
would be to discuss disciplinary action against an employee
of the public body. This statement goes a step beyond just
stating that the purpose of the meeting is to consider a personnel
matter, but does not go so far as to disclose the identity
of the individual being discussed and defeat the reason for
the closed session.3 In these circumstances, a proper motion
should indicate that the Council was entering closed meeting
to discuss possible disciplinary action or termination of
a Council appointee as authorized by subdivision (A) (1) of
§ 2.2-3711. Such a motion sufficiently identifies the
subject matter and purpose of the closed meeting without compromising
confidentiality.
In regard
to actions taken at closed meetings, subsection B of §
2.2-3711 provides 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. FOIA thus allows
a public body to discuss various matters and reach agreement
as to a possible course of action during closed meetings,
but such agreement is ineffective until it has been approved
by vote at an open meeting. Until approved by such a vote,
no agreement reached during a closed meeting would be binding,
and individual members of the public body would be free to
change their decisions.4 In this instance, the Council voted
to terminate the Town Treasurer on May 18, 2004 at the open
meeting of the Committee of the Whole. Therefore, the agreement
reached at the closed meeting on May 11, 2004 to terminate
the Town Treasurer was without effect until the Council voted
on May 18, 2004.
Thank you for contacting this office. I hope that I have been
of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Apparently
the "Committee of the Whole" consisted of the entirety
of the Town Council, and thus a meeting of the Committee of
the Whole was effectively a meeting of the Town Council.
2Virginia Freedom of Information Advisory Opinion
8 (2002). See also Virginia Freedom of Information Advisory
Opinions 45 (2001), 14 (2001), and 38 (2001).
3Freedom of Information Advisory Opinion 8 (2002).
4Freedom of Information Advisory Opinion 1 (2003).
See also Freedom of Information Advisory Opinion 15 (2002).
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