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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-14
December
19, 2014
Roger
C. Wiley, Esq.
Hefty & Wiley, P.C.
Richmond, 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 messages dated September
17, 2014, and December 2, 2014.
Dear
Mr. Wiley:
You have asked whether a county administrator who
is appointed to serve as a local board of social services
(local board)1 is subject to the open meeting
requirements of the Virginia Freedom of Information
Act (FOIA). As background you indicated that your
client, the Board of Supervisors of Amelia County,
recently changed its local board consisting of county
residents from an administrative board to an advisory
board, and designated the county administrator to
carry out the administrative functions of the local
board, as allowed under §§ 63.2-302 and
63.2-305. In this context, section 63.2-302 provides
in relevant part as follows:
The
local board serving a single county shall be, at
the discretion of the governing body of the county,
either a local government official or a local board
consisting of residents of the county who are...appointed
by the governing body of the county. If residents
of the county constitute the local board, such board
shall consist of three or more members....
If
a local government official constitutes the local
board, he may designate a senior staff person in
the local department to act in his behalf, in his
absence, to approve, cancel or change grants made
under the provisions of this title.
Subsection
A of § 63.2-305 addresses advisory boards by
providing in relevant part as follows:
If
the governing body of a city or county... designate[s]...a
local government official as constituting the local
board, such governing body or bodies shall appoint
a board to serve in an advisory capacity to such
local government official with respect to the duties
and functions imposed upon him by this title.
Each
such advisory board shall consist of no fewer than
five and no more than thirteen members....The local
government official shall be an ex officio member,
without vote, of the advisory board.
Reading
these provisions together, it is clear that a county
board of supervisors has two choices in establishing
a local board: (1) it can establish an administrative
board consisting of at least three members, or (2)
it can designate a local official as the local board,
vesting in said official the administrative powers
and duties of the board, while appointing a separate
advisory board of five to thirteen members to advise
the local official. In the instance you described,
the county had created a local board with administrative
power under the first option but recently decided
to utilize the second option instead to designate
the county administrator as the local board, and converting
the prior board into an advisory board.
In the context of FOIA, this office has previously
opined that a single individual member of a board
designated as a liaison to staff cannot be considered
a public body and required to comply with
FOIA's meetings provisions, although any records such
an individual prepares, owns, or possesses in the
transaction of public business would be public records
subject to FOIA.2 The same considerations
that led to that conclusion in the prior opinion also
apply in this instance, and so the same course of
analysis will be used.
First, consider whether an individual local official
designated as a local board under § 63.2-302
is a public body. The definition of public
body in § 2.2-3701 includes any legislative
body, authority, board, bureau, commission,
district or agency of the Commonwealth or of
any political subdivision of the Commonwealth,
including cities, towns and counties, municipal councils,
governing bodies of counties, school boards and planning
commissions. [Emphasis added.] This would appear
to include a local board as a matter of black-letter
law, but just as in the prior opinion, we must consider
the policy of FOIA set forth in § 2.2-3701: to
ensure the people of the Commonwealth ready access
to public records in the custody of a public body
or its officers and employees, and free entry to meetings
of public bodies wherein the business of the people
is being conducted. The policy statement illustrates
that FOIA was created with two closely related but
separate aspects, one addressing access to public
records, and the other addressing access to public
meetings. In considering whether or not a single local
government official designated as a local board under
§ 63.2-302 can be considered a public body for
FOIA purposes, we must examine whether and how that
designation will affect access both to public records
and to public meetings.3
The definition of public records set forth
in § 2.2-3701 includes all writings and recordings...however
stored, and regardless of physical form or characteristics,
prepared or owned by, or in the possession of a public
body or its officers, employees or agents in the transaction
of public business. Following that definition,
any records of the county administrator concerning
the transaction of public business would be public
records subject to FOIA. Whether the county administrator
may also be considered a public body when
acting as the local board will not change that result.
Therefore FOIA's policy of public access to public
records is achieved regardless of whether the county
administrator is considered a public body by designation
as the local board, and need not be considered further
for purposes of this opinion.
By contrast, if the county administrator is to be
treated as a public body subject to FOIA's
open meetings requirements, it would have profound
and absurd effects in practice. FOIA defines meeting
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 or 2.2-3708.1, 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. The gathering of employees
of a public body shall not be deemed a "meeting"
subject to the provisions of this chapter.
In
addition, subsection G of § 2.2-3707 describes
situations that will not be considered meetings under
FOIA:
Nothing
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.
Reading
these provisions together, we have derived 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 informal assemblage, and
(2) the purpose of discussing or transacting the public
business of that public body by those members.4
In the prior opinion, we concluded that an individual
member of a board of supervisors who was designated
as a liaison to staff did not fit within the definition
of public body given in § 2.2-3701.
There we found that a single member designated as
a liaison simply did not fit within any part of the
definition of public body, but we went on
to consider hypothetically what would happen if FOIA's
meetings provisions were applied to a single individual.
The initial consideration is different here in that
§ 63.2-302 explicitly provides that the local
board may be constituted by a single local government
official. FOIA itself does not provide a statutory
definition of the term board, but a relevant
dictionary definition in this context is an "organized
body of administrators or investigators." 5
Looking at the various entities listed in the
definition of public body quoted above, it
is clear that they are deliberative bodies or entire
agencies, not single persons acting individually.
In the meetings context, the definition of public
body refers to deliberative bodies comprised
of multiple members, not single individuals. Note
that the definition also includes individual constitutional
officers, but does so only [f]or the purposes
of the provisions of this chapter applicable to access
to public records. That the meetings provisions
do not apply to constitutional officers is further
evidence that the meetings provisions of FOIA were
not meant to apply to individuals.
For hypothetical purposes, as we did in the prior
opinion, let us consider what would happen if a single
local government official was required to comply with
the meetings requirements of FOIA. The definition
of meeting as described above includes any
gathering of three or more members of a public body
- or a quorum - gathered to discuss or transact the
public business of that body. FOIA does not define
the term quorum; in common usage, it is defined
as the minimum number of officers and members
of a committee or organization, usually a majority,
who must be present for the valid transaction of business.6
If an individual constitutes a public body,
then as the sole member, he must also constitute a
quorum of that body sufficient for the valid transaction
of business. Therefore, following the definition of
meeting as presented above, any time that
individual discusses or transacts the public business
as a liaison, it is a meeting. The individual
would then be required to give public notice before
discussing or transacting any business as the public
body, would have to discuss or transact that business
in a location open to the public, and would have to
take appropriate meeting minutes, all as required
under § 2.2-3707. On a practical level, how does
a single individual hold such a discussion with himself
or herself? Or transact business as a body comprised
of a single member? Typically deliberative bodies
hold discussions among the individuals comprising
the membership, and conduct business by motion and
vote. Are we to require an individual acting as a
public body to give public notice, then to think out
loud and in public about a topic (i.e., the discussion
of public business), then make a formal motion and
vote (i.e., the transaction of public business by
the public body - which would obviously be a unanimous
vote, every time), and record it for posterity, whenever
he or she wishes to make a decision? The answer to
these questions is no.
As further illustration, you asked hypothetically
whether a meeting of the county administrator with
the social services director would be considered a
meeting, noting that the definition of meeting
excludes the gathering of public employees. Reading
that definition in conjunction with the prior holding
of the Supreme Court of Virginia that only members
of the public body count for meetings purposes,7
it is clear that the presence of the social services
director or any other employee, or even a member of
a different public body, would be irrelevant to the
determination of whether a meeting of the local board
occurred. To the contrary, the mere presence of the
county administrator would automatically constitute
a meeting of the local board, and would trigger
all of the attendant meeting requirements, unless
one of the exceptions from subsection G of §
2.2-3707 applied. Such a result is clearly absurd
and utterly impractical, as were the examples given
in the prior opinion. As stated in that opinion, the
meetings provisions of FOIA were not designed to apply
to individuals. Such an interpretation of the definition
of public body, as including individuals
for purposes of meetings, leads to absurd
results, contrary to well-established rules of statutory
interpretation.8
Turning to the facts presented here, when a group
of county residents is appointed to be the local board
under § 63.2-302, that group would clearly be
a public body under the definition in §
2.2-3701 as a board of a political subdivision of
the Commonwealth. By the black-letter definition,
the county administrator also appears initially to
be a public body because § 63.2-302
specifically provides for a local official to constitute
the local board. However, from a practical perspective,
although the county administrator may be designated
to serve as the local board, this is really an assignment
of duties using the same nomenclature as would be
applied to a group serving the same purpose. While
the county administrator may be called the "local
board" and may carry out the same administrative
function, assigning duties and calling someone a "board"
still cannot transform a single individual into a
deliberative body. Further, the provisions of §
63.2-305 would appear to compensate for the lack of
an administrative deliberative body by requiring that
if a single local official acts as the local board
in an administrative capacity, there must also be
an advisory board comprised of multiple members to
advise that local official. It is this advisory board
that is the deliberative body under FOIA's meetings
rules in instances where a local official carries
out the administrative duties of the local board.
The advisory board comprised of multiple individuals
clearly fits within the definitions of board
and public body as quoted above. Thus reading
§§ 63.2-302 and 63.2-305 in conjunction
with FOIA's meetings requirements, it appears that
the practical application is to consider the deliberative
board comprised of multiple members - whether administrative
or advisory - to be the public body subject
to FOIA for meetings purposes, while an individual
local government official designated to carry out
the administrative duties of a local board under §
63.2-302 is not subject to FOIA's meeting requirements.
Both the deliberative board and the individual official
would remain subject to FOIA for public records purposes.
This interpretation allows public access to the meetings
of the deliberative body and all of the relevant public
records, thus furthering FOIA's policy goals, without
imposing FOIA's meetings requirements on an individual
in an impractical and absurd fashion.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Va.
Code § 63.2-100 provides the following definition:
"Local board" means the local board of social
services representing one or more counties or cities.
2Freedom
of Information Advisory Opinion 12 (2008).
3Id.
4Id.
(citing Freedom of Information Advisory Opinion 02
(2006)).
5The
American Heritage Dictionary 192 (2d College ed. 1982).
6American
Heritage Dictionary 1018 (2d College ed. 1982).
7See Beck v. Shelton, 267 Va. 482,
593 S.E.2d 195 (Va. 2004).
8Freedom
of Information Advisory Opinion 12 (2008), supra
n. 2 (citing Porter v. Commonwealth,
276 Va. 203, 230, 661 S.E.2d 415, 427 (2008)("The
rules of statutory interpretation argue against reading
any legislative enactment in a manner that will make
a portion of it useless, repetitious, or absurd. On
the contrary, it is well established that every act
of the legislature should be read so as to give reasonable
effect to every word.").
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