VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-01-07

January 8, 2007

Joe Farrugia
Kevin Seabrooke
The Warren Sentinel
Front Royal, 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 facsimile of November 17, 2006 and our telephone conversation of December 29, 2006.

Dear Mr. Farrugia and Mr. Seabrooke:

You have asked whether the Town Council of Front Royal (the Council) could properly convene a closed meeting to discuss the formation of a policy concerning the distribution of water and sewer services to future developments outside of the town limits. You indicated that at a meeting of the Town/County Liaison Committee¹ (the Liaison Committee) in April, Warren County (the County) asked if the Town of Front Royal (the Town) would be willing to provide water and sewer services to any developments outside of the Town. At a meeting of the Liaison Committee in May, the Town asked for the County's questions to be put in writing; the written questions were received in June. You provided a revised agenda for the September 11, 2006 meeting of the Council that lists three items for discussion in closed meeting: (1) unannounced business, (2) consultation with counsel on a contractual matter relating to a public utility, and (3) briefing on actual litigation. At a subsequent meeting of the Liaison Committee on September 14, 2006, the Mayor announced that the Council had a new water and sewer policy that would be voted on at the next meeting of the Council on September 25, 2006. You noted that the Mayor's announcement was made at the point on the agenda for that Liaison Committee meeting listed as Report - Water Availability Outside Town Limits - Jim Eastham.² You stated that the announcement of the new policy by the Mayor at this meeting, and other statements by Council members, have led you to believe that the water and sewer policy was a topic discussed during the Council's closed meeting on September 11, 2006, and that the policy was discussed during the portion of the meeting closed for consultation with legal counsel on contractual matters relating to a public utility. You indicated that the Council unanimously adopted the proposed water and sewer policy at its meeting on September 25, 2006, with little discussion of the matter during the open meeting. The copy of the proposed water and sewer policy which you included with your correspondence addresses points such as how a request for water and sewer services is to be made, to whom such a request is to be directed, that the Town shall consider each request for such services and the corresponding need for rezoning on a case-by-case basis, how any rezoning and boundary adjustments will be handled, that the Town presently has no desire to sell water for resale, and other similar points. Furthermore, you state that there is no proposed water contract, neither the county nor any developer has made an official request for water from the town, and the developments in the county are still in the planning stages. You indicated that you feel that such a general discussion of water and sewer policy is not properly exempt under the FOIA exemptions for discussion of contracts or pending litigation.

The policy of the Virginia Freedom of Information Act (FOIA), § 2.2-3700, states as follows:

all public records and meetings shall be presumed open, unless an exemption is properly invoked....Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

In order to convene a closed meeting, subsection A of § 2.2-3712 requires a public body to approve 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. Prior opinions of this office have stated that a motion that lacks any of these three elements would be insufficient under the law.³

In the motion to go into closed session, it appears that the Council cited subdivision A7 of § 2.2-3711 for both the second and third agenda items listed.⁴ The cited exemption specifically permits a closed meeting to be held for the purpose of

[c]onsultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

Note that the language used contemplates two different situations: (1) consultation pertaining to actual or probable litigation, and (2) consultation regarding specific legal matters. In this instance, it appears that the Council used both aspects of this exemption, but for different agenda items. The first clause of this exemption regarding actual litigation appears to correspond to the third item listed on the agenda as actual litigation and described in the motion as F & R Limited Partnership and Centex v. Adams, et al. It appears that the public body intended the discussion of the second item, listed as consultation with counsel on a contractual matter and described as contractual matters relating to a public utility, to be covered by the second clause of the exemption concerning consultation with legal counsel regarding specific legal matters.⁵

Several court opinions and opinions of the Attorney General that have examined the scope of the legal matters exemption are instructive. In 1982, the Supreme Court of Virginia upheld a finding that a City Council went beyond the scope of the exemption in discussing matters the Court described as no more than a threat to litigate unless potential adversaries were willing to negotiate.⁶ The trial court had ruled that the legal matters exemption covered only those matters as to which the public disclosure of facts or opinions would likely damage the City's interests and as to which confidentiality is reasonably essential to protect those interests.⁷ In 1992, the Attorney General opined that it was proper for a City Council to hold a closed meeting to discuss two contracts under negotiation for the purchase of water from another city.⁸ Following earlier opinions, the Attorney General therein opined that the "legal matters" exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences. Under the facts involving the two contracts under negotiation, the Attorney General concluded that the substantive terms of the contracts and the negotiating strategies of the contracting jurisdictions manifestly are "legal matters" and the use of the exemption to discuss them was proper.⁹ In a 1986 opinion the Attorney General stated that the legal matters exemption requires more than a desire to discuss general legal matters and may not, therefore, be used as a catch-all exception to the FOI Act's open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.¹⁰ An opinion of the Attorney General earlier that same year observed that the legal matters exemption would not allow a local governing body to go into an executive session to discuss such general legal matters as those relating to the purpose of zoning and steps in the rezoning process."¹¹

According to the facts you have described, the Town Council discussed general policy matters and general legal questions in formulating the proposed water and sewer policy during its closed meeting on September 11, 2006. You stated that there is no specific contract being negotiated or other legal transaction or dispute at issue. Following prior opinions of the Supreme Court and the Attorney General, the legal matters exemption could not be properly invoked absent such contractual negotiation or other specific legal transaction or dispute. The proposed policy you included specifically addressed procedural matters, including matters of rezoning and boundary adjustment as well as the procedure for requesting water and sewer services from the Town, matters which prior opinions specifically indicate are not covered by the legal matters exemption.¹² None of the matters addressed in the proposed water and sewer policy appear to be directed toward any specific legal transaction or dispute, and none appear to be of such a nature that public disclosure would damage the Town's interests. Given these facts, the discussion of general water and sewer policy issues was not properly exempted as a legal matter. Additionally, if there was no contract being discussed or negotiated, and if the topic of the discussion was the water and sewer policy, then the descriptions of the discussion as consultation with counsel on a contractual matter and contractual matters relating to a public utility did not properly identify the subject of the closed meeting in the motion to convene the closed meeting.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹It appears that the Liaison Committee is comprised of members appointed by the Warren County Board of Supervisors and the Front Royal Town Council, and that some Liaison Committee members are also members of those two governing bodies.
²Mr. Eastham is listed as a member of the Liaison Committee.
³See, e.g., Freedom of Information Advisory Opinions AO-24-04;AO-08-02.
⁴A different Code section was cited for discussion of the first agenda item concerning unannounced business.
⁵You indicated you do not feel that the exemptions for discussion of contracts or pending litigation would apply to a general policy discussion. While this assertion is generally correct, note that the Council in this case did not cite the exemption for contract negotiations and did not rely on the aspect of the legal matters exemption pertaining to actual or probable litigation for discussion of the topic at issue. As the Council cited the aspect of the exemption concerning specific legal matters requiring the provision of legal advice, it is that aspect of the exemption that will be considered in this opinion.
⁶Marsh v. Richmond Newspapers, Inc., 223 Va. 245, 256, 288 S.E.2d 415, 421 (1982).
⁷Id., 223 Va. at 252, 288 S.E.2d at 418-19.
⁸1992 Op. Att'y Gen. Va. 1.
⁹Id.
¹⁰1986-1987 Op. Att'y Gen. Va. 31.
¹¹1985-1986 Op. Att'y Gen. Va. 103, citing 1980-1981 Op. Att'y Gen. Va. 389.
¹²Note, however, that pursuant to subsection D of § 15.2-2907, FOIA is not applicable to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to review by the Commission on Local Government, which may include some boundary adjustment or annexation matters.