VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-06

March 15, 2006

Charles Landis
Onancock, 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 of January 26, 2006.

Dear Mr. Landis:

You have asked whether a meeting of a town planning commission held November 15, 2005, which was publicly noticed as such, was actually a joint meeting of the Planning Commission and the Town Council. You indicated that the meeting in question was not noticed as a meeting of the Council, but that five of the seven council members were in attendance. One of the council members in attendance is also a member of the Planning Commission, and thus required to attend as a commissioner. You further indicated that one of the other council members was later named a member of a Planning Commission subcommittee, but at the time of the meeting in question, that subcommittee had yet to be formed. You stated that during the November 15 Planning Commission meeting, all of the council members in attendance were engaged in discussions with the commissioners and each other, including the council member who is also a commissioner. Those discussions concerned promulgating a restrictive ordinance in a historic area, a topic that had been previously considered by the Council and was likely to come before the Council again. You stated that you believe that the participation of the council members in this Planning Commission meeting made it in actuality a joint meeting of the Planning Commission and the Town Council, and that it should have been noticed as such. You further stated that you brought this concern to the Town Manager, who indicated that because government officials are not to be discouraged from free discussion with citizens under the Virginia Freedom of Information Act (FOIA), and following FOIA Advisory Opinion 5 (2001) and the Virginia Supreme Court's decision in Beck v. Shelton,¹ the Planning Commission meeting in question was a meeting of the Planning Commission only, not a joint meeting with the Town Council.

In analyzing this situation, we first look to the meaning of the term meeting in FOIA. A meeting is defined in § 2.2-3701 to include the meetings including 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. Additionally, subsection G of § 2.2-3707 states that [n]othing in this chapter shall be construed to prohibit the gathering or attendance of two or more members of a public body (i) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body or (ii) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting. From these two sections of FOIA we derive that for a gathering to be a meeting subject to FOIA it must meet two threshold requirements: (1) the presence of three or more members, or a quorum, of a public body sitting as a body or assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members. If the minimum number of members is not assembled, or there is no discussion or transaction of public business, then the gathering is not a meeting subject to the requirements of FOIA.

Next we turn to the policy of FOIA, which states in § 2.2-3700 that FOIA is intended to ensure free entry to meetings of public bodies wherein the business of the people is being conducted. That section further states that [FOIA] shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth. The Virginia Supreme Court stated in Beck that the balance between these values must be considered on a case-by-case basis according to the facts presented.² In that case, the Supreme Court upheld the trial court's holding that a gathering called by citizens and attended by three city council members was not a meeting subject to FOIA. The trial court found that the gathering was an informational forum and that no part of its purpose was the discussion or transaction of any public business. In Beck, the city council members in attendance did not discuss anything with each other as a group of three or otherwise. The topic concerned traffic safety issues on a specific street, something that was not pending before the City Council or likely to come before it in the future.³ The Supreme Court held that the trial court was not plainly wrong or without evidence to support its judgment on this issue.⁴

The facts you have presented are clearly different from those in Beck. You present a situation where members of one public body attended a public meeting held by another public body. In Beck the members of the public body attended a gathering called by citizens. You have stated that the topic of the Planning Commission meeting was to consider the establishment of restrictive ordinances in a historic area, a topic that had been before the Town Council in the past and was likely to come before it again. In Beck the topic was one that was not before the City Council or likely to ever come before it, specifically, traffic safety issues and the citizens' concern about the lack of a stop sign at a particular intersection. Furthermore, you indicated that the Town Council members at the Planning Commission meeting participated in the discussions, interacted with each other, and volunteered to work with the Planning Commission regarding public business, whereas the evidence in Beck demonstrated that the City Council members did not discuss anything with each other as a group or otherwise. The factors in Beck that led the Supreme Court to affirm the trial court's decision that the Beck gathering was not a meeting subject to FOIA are simply not present in the facts as you have described them.

The situation you have described is also different from that in Advisory Opinion 5 (2001). The facts under consideration in that advisory opinion were that a school board member attended a meeting of a committee formed by a board of supervisors and sat in the audience. Two other school board members were in attendance as members of that committee. This office concluded that that situation did not constitute a meeting of the school board subject to FOIA because there was no discussion or transaction of school board business. In other words, while three school board members were at the committee meeting, the second threshold requirement for a meeting - the discussion or transaction of public business - was not met. In contrast, the facts you have presented specifically indicate not only that there were more than three Town Council members present at the Planning Commission meeting, but that all of the Town Council members actively participated in the discussion of public business, public business apparently of concern to both the Planning Commission and the Town Council.

Returning to policy considerations, construing the November 15 meeting as described to have been a joint meeting of both the Planning Commission and the Town Council does not discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth. You have indicated that the November 15 meeting was already noticed as a Planning Commission meeting, was open to the public, and that members of the public did, in fact, attend and participate in the meeting. Noticing the meeting as a joint meeting of two public bodies would not have restricted the public's ability to witness the operations of government or the government's ability to discuss public matters with the citizens. The facts you have presented indicate that the Council members who attended interacted with each other and the Planning Commission in their roles as Council members - i.e., one public body discussing public business with another public body. The considerations would be different if, for example, the Council members had attended solely as interested citizens, had not interacted with each other as a group or assemblage, and had not discussed public business of concern to the Council. As the Supreme Court stated, each situation must be examined on a case-by-case basis according to the facts presented. Based upon the facts as you have presented them, it appears that the November 15 meeting in question was in fact a joint meeting of the Planning Commission and the Town Council that should have been noticed as such.

Additionally, you asked about a subsequent meeting that occurred on December 12, 2005. You stated that this meeting was announced as a meeting of a Historic District Subcommittee of the Planning Commission. You indicated that six of the seven Planning Commission members attended this meeting, including the commissioner who is also a member of the Town Council. Two other members of the Town Council also attended. You indicated that all of the members of the Commission and the Council who attended participated in the discussion of public business of concern to both the Commission and the Council, the establishment of restrictive ordinances in the historic district. Furthermore, you stated that at that time members had not been appointed to the Subcommittee, that it had been announced that the membership of the Subcommittee was comprised of whoever showed up at the meeting, but that Subcommittee members were subsequently appointed at a meeting on January 17, 2006. You opined that this December 12 meeting was noticed as a Subcommittee meeting, but should have been noticed as a joint meeting of the Planning Commission and Town Council. You indicated uncertainty regarding whether this December 12 meeting was actually a Subcommittee meeting, as it is unclear what the membership of the Subcommittee was at this time.

Following the same analysis as was used in regard to the November 15 meeting, based upon the facts you have presented, it appears that there were three or more members of both the Planning Commission and the Town Council assembled at the December 12 meeting. It further appears that members of both of these public bodies were involved in discussions of public business of concern to both public bodies. Therefore the December 12 meeting was a meeting of the Planning Commission and the Town Council and should have been noticed as such. You pointed out that the membership of the Subcommittee was not established as of December 12, 2005, or in the alternative, the membership was whoever showed up. Because of this murky factual background, it is unclear how many members of the Subcommittee actually participated in the December 12 meeting. As previously stated, FOIA requires the assemblage of three or more members, or a quorum, of a public body for a gathering to be considered a meeting. Without knowing how many members of the Subcommittee were assembled, it is not possible to offer an opinion regarding whether the December 12 meeting was also meeting of the Subcommittee under FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004).
²Beck, 267 Va. at 493, 593 S.E.2d at 201.
³Id., 267 Va. at 494, 593 S.E.2d at 201.
⁴Id., 267 Va. at 493, 593 S.E.2d at 201.