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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-13
May
8, 2013
Debbie
Bender
Community Relations Spokesperson
Old School Cape Charles
Cape Charles, Virginia
The staff of the Freedom of Information Advisory
Council is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based upon the
information presented in your electronic mail messages
date March 27, 2013 and March 31, 2013.
Dear
Ms. Bender:
You have asked whether a closed meeting held by a
Town Council to discuss the sale of a town owned historical
property was conducted in accordance with the requirements
of the Virginia Freedom of Information Act (FOIA).
You further asked that if the meeting was improper,
what effect would that have on the actions of the
Town Council, and what remedies could be sought by
a local citizens group. As further background, you
indicated that the property at issue was a historic
school, an adjacent lot used for parking, and a park
area with a basketball court (collectively, the school
property). You stated that the sale has been a controversial
matter for over a year, and that the Town Council
eventually sold the land and buildings, which were
assessed at a value over $800,000, for $10. You indicated
you feel the Town Council violated FOIA by failing
to properly specify the subject matter of closed meetings
held to discuss the sale of the property, and by improperly
using the relevant exemption which allows closed meetings
to be held for the purpose of discussing the acquisition
or disposition of real property. Each of those points
will be addressed below, along with additional facts
as necessary.
First, we must consider the policy and legal requirements
of FOIA that apply to a closed meeting held to discuss
the disposition of real property. The policy of FOIA,
set forth in subsection B of § 2.2-3700, states
that [u]nless a public body or its officers or
employees specifically elect to exercise an exemption
provided by this chapter or any other statute, every
meeting shall be open to the public....All public
records and meetings shall be presumed open, unless
an exemption is properly invoked. The same subsection
goes on to provide the rule of interpretation for
exemptions: 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.
Pursuant to subsection A of § 2.2-3712, in order
to convene a closed meeting, a public body is required
to take an affirmative recorded vote in an open
meeting approving 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.
The same subsection clarifies 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. In this instance, the exemption
cited was subdivision A 3 of § 2.2-3711, which
provides that a public body may convene a closed meeting
for the purpose of [d]iscussion or consideration
of the acquisition of real property for a public purpose,
or of the disposition of publicly held real property,
where discussion in an open meeting would adversely
affect the bargaining position or negotiating strategy
of the public body.
This office has previously opined that following these
provisions, a motion to convene a closed meeting must
contain three essential elements: (1) the subject
of the meeting, (2) the purpose of the meeting, and
(3) a citation to an applicable exemption. A motion
that lacks any of these three elements would be insufficient
under the law.1 We opined further that
quoting or paraphrasing statutory exemptions does
not properly identify the subject of the meeting.
Quoting or paraphrasing from a statutory exemption,
by itself, identifies the purpose of the meeting but
is no more than a general reference to an authorized
exemption from open meeting requirements. Therefore,
following subsection A of § 2.2-3712, it is clear
that merely quoting or paraphrasing a statutory exemption
and providing a citation to that exemption, without
more, is not sufficient to satisfy the requirements
for holding a closed meeting. However, note that by
quoting or paraphrasing a statutory exemption, and
by providing the proper statutory citation, two of
the three elements for a closed meeting motion are
satisfied, leaving identification of the subject as
the only remaining element.2 In identifying
the subject matter to be discussed, this office has
further opined that the 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.3
You contend that the Town Council failed to sufficiently
identify the subject matter of its closed meetings
when discussing the sale of the school property at
issue. Specifically, you mentioned the Town Council
meeting minutes of January 12, 2012. The relevant
portion of the meeting minutes, as posted on the Town
Council website,4 read in full as follows:
Motion
made by Councilman Veber, seconded by Councilwoman
Natali and unanimously approved to go into Closed
Session in accordance with Section 2.2-3711-A
of the Code of Virginia of 1950, as amended for
the purpose of:
Paragraph
3: Discussion or consideration of the acquisition
of real property for a public purpose, or of the
disposition of publicly held real property, where
discussion in an open meeting would adversely
affect the bargain position or negotiating strategy
of the public body.
Specifically:
Unsolicited Confidential Proposal
[Bold
emphasis in original; italics added.] It appears on
its face that this motion has identified the subject
of the closed meeting as Unsolicited Confidential
Proposal, has identified the purpose by quoting
the real property exemption in full, and has cited
that same exemption.5 Based on your inquiry,
it seems you feel that the identification of the subject
as Unsolicited Confidential Proposal is insufficient
under the law. However, as stated above, the identification
of the subject need not be so specific as to defeat
the reason for going into closed session, but should
at least provide the public with additional information
as to the nature of the discussion to be held in closed
meeting. In this instance, it is not clear what was
the unsolicited proposal - i.e., whether it was about
the sale of the school property, or some other real
property matter. Given the subject described, it could
have been an offer to purchase or lease property from
the Town, or an offer to sell or lease property to
the Town. In hindsight, the motion could have specified
the type of transaction involved, or been more specific
in other ways,6 without defeating the reason
for holding the closed meeting. However, while this
identification as Unsolicited Confidential Proposal
could have been more specific, it does identify
a subject. Again, it appears that all three elements
of a closed meeting motion - subject, purpose, and
cite - are present, as required by subsection A of
§ 2.2-3712. Therefore we cannot say that it is
in violation of FOIA. However, as a matter of best
practices, greater specificity in identifying the
subject of a closed meeting is recommended whenever
possible.
Additionally, note that later minutes of Town Council
meetings did contain more specific identifications
of the matter in question. For example, the February
22, 2012 meeting minutes identified the subject as
Sale of Former School and Real Estate Parcels
in Town and the March 22, 2012 Executive Session
meeting minutes identified the subject as Former
Cape Charles School Property, South Port Lease &
Palace Theatre. Also note that it appears that
at least some aspects of this matter were discussed
publicly on several occasions after the January 12,
2012 meeting, judging by other meeting minutes from
February and March, 2012, including a public hearing
on February 9, 2012, and public information meeting
on March 10, 2012. After the public hearing and public
information session, the identification of the closed
meeting subjects became more specific in referring
to the sale of the school property. It appears from
viewing all of these meeting minutes together, little
or no information about the proposal was publicly
known until sometime after the January 12, 2012 closed
meeting, and during that time period identification
of the subject in the closed meeting motions was less
specific.7 As negotiations progressed and
information about the proposal became public, the
Town Council was more specific in identifying the
subject of its closed meetings. It appears that the
specificity of the motions roughly corresponded to
the amount of information about the proposal that
had been made public. I further note that you indicated
that your citizens group and local media also insisted
on greater specificity in the closed meeting motions.
To that end, it appears you were successful and the
Town Council has become more specific in identifying
its closed meeting subjects, in this matter and others.
Both you and the Town Council should be commended
for improving government transparency in this regard.
You also asserted that you felt the Town Council had
misused the real property exemption in this instance,
because it was only negotiating with one developer,
and the deal was to the developer's benefit, not the
Town's. In a different opinion looking at the real
property exemption, we opined that construing the
real property exemption narrowly, the language used
establishes two requirements that must be met in order
for the exemption to be invoked properly. First, the
purpose of the closed meeting must be the discussion
or consideration of either the acquisition of
real property for a public purpose, or of the disposition
of publicly held real property. Second, the matter(s)
discussed must be such that discussion in an open
meeting would adversely affect the bargaining position
or negotiating strategy of the public body. Both
requirements must be met in order to convene a closed
meeting pursuant to this exemption.8 In
the instant matter, it is clear that the discussion
concerned the disposition of publicly held real
property, as it was about the sale of property
owned by the Town, so the first element is satisfied.
In regard to the bargaining position or negotiating
strategy of the public body, you object to the
use of the exemption because there was only one other
party involved in the proposal, the developer, and
because you felt that the final deal was to the advantage
of the developer, not the Town.
However, in analyzing the use of this exemption we
must keep in mind that there is no requirement for
there to be multiple offers in play. The language
of the exemption does not require multiple parties
sitting down to the negotiating table. Even when negotiating
with only a single developer, the public body would
still have a bargaining position or negotiating strategy
in regard to getting the best deal possible from that
developer. Therefore, the exemption may be used no
matter how many parties or proposals may be involved.
As further factual background, I note that the materials
you provided and the Town Council meeting minutes
indicate that there had been other proposals concerning
the school property that were discussed at various
times, including proposals to use the school property
for a library or a community center or to lease the
building to a private school, but none of them were
carried through to fruition. It appears therefore
that while the Town may have only been negotiating
with a single developer, there may have in fact been
other offers or proposals involved in this situation.
Next, as you have described it, the Town Council sold
the property in question for $10 when it was valued
at over $800,000. It appears that you believe this
was a bad deal for the Town, and therefore the exemption
was not used to protect the Town's bargaining position
or negotiating strategy. However, whether the final
deal was a good one or a bad one is not for this office
to judge,9 nor is it the relevant inquiry when determining
whether the exemption was used properly. The proper
inquiry is whether or not the Town's bargaining position
or negotiating strategy - at the time the meeting
was held - would have been adversely affected had
its discussions been held in an open meeting. While
we do not know what was actually discussed in those
closed meetings, it appears self-evident that any
discussion of an unsolicited proposal made in public
would necessarily inform anyone who attended of the
Town Council's concerns, including matters relevant
to the Town Council's negotiating position and bargaining
strategy in reacting to the proposal. The developer
and others could have attended such a public meeting,
and therefore could use the information to their own
advantage and to the detriment of the Town in further
negotiations. In a prior opinion we considered a situation
where it was alleged that a contract had been agreed
to, including a final price, and yet the public body
continued to use the exemption to hold closed meetings.
In that situation we said such a use of the exemption
would be improper, because having reached a final
agreement, there would no longer be a bargaining position
or negotiating strategy to protect.10 However, that
is not the case here, given the facts provided. In
this context, it appears that the Town Council was
discussing the unsolicited proposal to purchase the
school property, and that it was trying to protect
its bargaining position and negotiating strategy by
holding those discussions in closed meeting. That
you disagree with the Town Council's ultimate decision
does not invalidate the use of the exemption. Therefore,
after considering all of the facts presented, we cannot
conclude that the Town Council violated FOIA in this
matter.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See, e.g., Freedom of Information
Advisory Opinion 13 (2009)(footnote citing additional
advisory opinions omitted).
2Id.
3See, e.g., Freedom of Information
Advisory Opinion 04 (2009) (footnote citing additional
advisory opinions omitted).
4Available at http://www.capecharles.org/minutes.htm
(last visited May 8, 2013).
5While the citation format is different,
it clearly references subdivision A 3 of § 2.2-3711.
6See
Freedom of Information Advisory Opinion 13 (2009)(providing
examples of using the real property and legal advice
exemptions).
7From reviewing earlier minutes, it appears
that identical motions to consider an Unsolicited
Confidential Proposal were made in September
and December of 2011. The article you included with
your inquiry appears to indicate that confidential
negotiations began in 2011, but the proposal concerning
the school property did not become public knowledge
until early in 2012, which appears to coincide with
the specificity of the closed meeting motions under
consideration. ANALYSIS: Judge Dismisses Old School
Lawsuits, Cape Charles Wave, Mar. 4, 2013, available
at http://capecharleswave.com/2013/03/analysis-judge-dismisses-old-school-lawsuits/.
8Freedom of Information Advisory Opinion
13 (2007).
9I note that a thorough review of the Town
Council meeting minutes on the topic reveals several
countervailing considerations, such as the cost to
renovate the property, to what other purposes it could
be used, tax and utilities issues, etc. Again, it
is not the place of this office to second-guess the
decision of a local governing body regarding how it
may best use its resources, including its real property
assets.
10Freedom
of Information Advisory Opinion 13 (2007). |