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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-15
August
5, 2015
Bruce
Potter
Northern Virginia Media Services
Leesburg, 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 message dated July
7, 2015 and two news articles linked therein.1
Dear
Mr. Potter:
You have asked whether a local governing body may
convene a closed meeting in order to discuss the salaries
of the members pursuant to the personnel closed meeting
exemption. As background, you related that the Prince
William County Board of Supervisors (the Board) held
a closed meeting under this exemption and discussed
giving supervisors salary increases. You indicated
that two supervisors left the meeting and protested
that it was not a proper topic for discussion in closed
meeting. It appears that other supervisors disagreed,
stating that the discussion in closed meeting was
proper because the exemption allows for the discussion
of salaries. The news articles you linked stated that
by law, the supervisors can only give themselves raises
during election years, and that any raise would not
go into effect until the next Board is sworn in after
the election.2 The news articles also stated
that the proposal was to raise all supervisors' salaries,
including the chairman's, in order to bring them closer
to the market average for similarly-situated localities.
The facts presented do not describe any discussion
of particular individuals, instead indicating that
the discussions concerned across-the-board salary
changes for the positions of supervisor and chairman
in comparison to the pay rates in other localities.
The relevant policy of the Virginia Freedom of Information
Act (FOIA) stated in subsection B of § 2.2-3700
is 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
continues by stating that "[a]ll public records
and meetings shall be presumed open, unless an exemption
is properly invoked." The policy also provides
direction in interpreting 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." The relevant part of the personnel
exemption at issue, subdivision A 1 of § 2.2-3711,
provides that public bodies may hold closed meetings
for the purpose of "[d]iscussion, consideration,
or interviews of prospective candidates for employment;
assignment, appointment, promotion, performance, demotion,
salaries, disciplining, or resignation of specific
public officers, appointees, or employees of any public
body."
While there are several published advisory opinions
from this office and the Office of the Attorney General
(OAG) that address the use of this exemption in different
situations, it does not appear that any prior published
opinions have addressed the specific issue you present.
While not directly on point, a 1982 OAG opinion concerning
the use of the personnel exemption to discuss an administrative
reorganization is informative by analogy. The Attorney
General opined that the personnel exemption
allows
private discussion of personnel matters involving
individual employees. If the executive session discussion
dealt with the assignment, appointment, promotion,
performance, demotion, salaries, disciplining or
resignation of public officers or employees, then
such discussion was the proper subject of an executive
meeting. This is proper even when the personnel
decision is implemented through action which results
in a reorganization. If, however, the discussion
was devoid of personnel considerations and dealt
with the general policy of reorganization of the
administrative structure of the school system, such
discussion does not fall within the exemption.3
As
the quoted OAG opinion and the language of the statute
itself make clear, the exemption applies to discussions
of "specific public officers,
appointees, or employees of any public body."
[Emphasis added.] In this instance as you have described
it, the Board met to discuss salary increases generally
that would not take effect until after the next election,
not to discuss individual members of the Board. As
such, the discussion appears to be "devoid of
personnel considerations" and therefore not a
proper topic for a closed meeting under the personnel
exemption.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Jill
Palermo, Prince William Board won't vote on raises;
divided on legality of closed session, Prince William
Today, July 7, 2015, available at http://www.insidenova.com/headlines/prince-william-board-won-t-vote-on-raises-divided-on/article_d5a3ff50-24a8-11e5-9087-7be973153f5c.html;
Jill Palermo, Supervisors' closed meeting possibly
illegal, Prince William Today, June 18, 2015, available
at http://www.insidenova.com/headlines/prince-william-today-exclusive-supervisors-closed-meeting-possibly-illegal/article_116ebc44-15c4-11e5-971e-27354ae5eec4.html.
2While the articles do not provide specific
Code cites, it appears to refer to Code § 15.2-1414.2.
31982-1983 Op. Atty. Gen. Va. 713 (internal
endnote omitted). |