 |
VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
|
AO-11-05
August
5, 2005
Brenda
L. Stewart
Chesterfield, 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 letter
of July 25, 2005.
Dear
Ms. Stewart:
You
have asked whether certain gatherings between members of the
Chesterfield School Board and the Chesterfield Board of Supervisors
regarding a bond referendum held in November, 2004 were subject
to the Virginia Freedom of Information Act (FOIA). You indicate
that while this same matter was the subject of a prior advisory
opinion from this office,1 certain facts have come to light
that were not presented or considered in that prior opinion,
and therefore you ask for a new opinion from this office.
In examining
any gathering to determine whether it is subject to FOIA,
it must be determined whether those gathered form a public
body and whether the gathering itself comprises a meeting
as those terms are used in FOIA. The definition of public
body in § 2.2-3701 includes not only traditional
public bodies such as a school board and a board of supervisors,
but also any committee, subcommittee, or other entity however
designated, of the public body created to perform delegated
functions of the public body or to advise the public body.
The same section defines the term meeting to include
work sessions, when sitting physically, or through telephonic
or video equipment pursuant to § 2.2-3708, 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. Section 2.2-3707 sets forth the various requirements
for holding meetings, including that all meetings be open
and noticed to the public and that minutes be taken. However,
subsection G of § 2.2-3707 excludes from these requirements
certain gatherings of two or more members that do not involve
the transaction or discussion of public business. Therefore,
any time three members of a public body, or a quorum if less
than three members, gather to transact or discuss the public
business of that body, such a gathering is a meeting subject
to FOIA.
As factual
background, you indicate that a Liaison Committee was created
to facilitate communication between the Board of Supervisors
and the School Board regarding financial and policy matters.
According to the minutes of the School Board from January
13, 2004, the chair and vice chair of the School Board were
appointed to serve as representatives to the Liaison Committee
from January through December, 2004. According to the minutes
of the Board of Supervisors meeting dated January 14, 2004,
two members of the Board of Supervisors, including its vice
chair and another member, were appointed to serve on the Liaison
Committee.
It appears
that during the months of February and March, 2004, two members
of the School Board met privately with two members of the
Board of Supervisors to discuss a school bond referendum to
be held in November, 2004. No notice was given of these private
gatherings nor were they open to the public. The School Board
members were its chair and vice chair, who together comprised
the School Board's designees to the Liaison Committee. One
of the Board of Supervisors members to attend these private
gatherings was its vice chair, who also was designated to
serve on the Liaison Committee; the other Board of Supervisors
member who participated in these private gatherings did not
serve on the Liaison Committee.
Regarding
the Liaison Committee, you did not state how it was created,
when it was created, or who created it. It is not clear whether
the School Board and the Board of Supervisors each created
their own separate Liaison Committee, or whether each Board
acted to create a single joint Liaison Committee serving both
Boards. In the quoted minutes of the Board of Supervisors,
the Liaison Committee is described as the School Board
Liaison Committee. The quoted minutes of the School Board
simply refer to it as the Liaison Committee. Applying
the law to these facts, it is not clear whether the Liaison
Committee is in itself one public body, i.e. a joint committee
of both the School Board and the Board of Supervisors, or
two separate public bodies that meet together for a shared
purpose, i.e. the Liaison Committee of the School Board
that meets jointly with the School Board Liaison Committee
of the Board of Supervisors. The legal analysis of the facts
presented differs somewhat depending on the exact status of
the Liaison Committee as a single public body serving both
Boards or as two distinct public bodies representing each
Board separately, as explained below. However, in either event,
the Liaison Committees under consideration would be public
bodies subject to FOIA. A single joint Liaison Committee would
be a committee of both Boards performing delegated functions
for and advising both Boards. If each Board has its own Liaison
Committee, then each is a committee of its respective Board
performing those same functions on behalf of the Board that
created it.
First
to be considered is if the Liaison Committee is a single public
body that is a joint committee created by both the School
Board and the Board of Supervisors. If so, then it is a public
body comprised of two members of each Board. Three out of
the four members of the Liaison Committee were present at
the private gatherings, and the subject under discussion was
the upcoming bond referendum, which clearly falls under the
public business of the Liaison Committee to discuss financial
and policy matters. Therefore these private gatherings would
have been meetings of the Liaison Committee subject to FOIA,
as they involved three or more members of the public body
discussing the public business of that body. If this is the
case, then these private gatherings should have been open
and noticed to the public, and met the other requirements
for meetings under FOIA. The responsibility for satisfying
these requirements would fall upon the Liaison Committee itself,
and thus ultimately be a joint responsibility of both the
School Board and the Board of Supervisors.
Alternatively,
consider if the Liaison Committee was not a single joint committee
of both Boards, but instead each committee was a separate
entity, a public body representing its respective Board. In
this case, meetings of the two Liaison Committees together
would be a joint meeting of separate public bodies, each of
which would be responsible for satisfying the notice and other
requirements of FOIA. Under the facts as presented regarding
the private gatherings, a separate analysis is therefore required
for each committee. Both members of the School Board's Liaison
Committee attended the private gatherings. Therefore this
gathering would meet the definitional requirements of a meeting
as a quorum of that committee, and therefore be a meeting
of the School Board's Liaison Committee subject to
FOIA. However, in regard to the Board of Supervisors, only
one member of its School Board Liaison Committee was
present at the private gatherings. The other member of the
Board of Supervisors who attended the private gatherings was
not a member of the School Board Liaison Committee.
None of the facts presented indicate that the two Board of
Supervisors members together formed a committee or other entity
of that Board. Therefore, the private gatherings would not
have been a meeting of the Board of Supervisors' School
Board Liaison Committee (or other committee of the Board
of Supervisors) subject to FOIA. In this scenario, the end
result is still that the private gatherings should have been
open and noticed to the public, but rather than as meetings
of a joint Liaison Committee, they would solely be considered
meetings of the School Board's Liaison Committee. In
this case, the School Board's Liaison Committee (and
ultimately the School Board) would have had sole responsibility
for satisfying the meeting requirements of FOIA.
Thank you for contacting this office. I hope that I have been
of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Freedom
of Information Advisory Opinion 12 (2004).
|