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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-20
May
29, 2020
Thomas
Finderson
Carrollton, 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 letter received March 30, 2020.
Dear
Mr. Finderson:
You
have asked for an advisory opinion regarding whether
the School Board for Isle of Wight County (the Board)
has acted in violation of the Virginia Freedom of
Information Act (FOIA) at various meetings held on
different occasions from 2015 through 2020. You presented
21 enumerated questions in a 17-page letter, along
with additional background materials, including various
Board minutes, Board policies, a Superintendent's
memo, and other documents. Some of your inquiries
are based on specific facts you presented, while others
are more general in nature. As general background,
you indicated that the Board holds regular meetings
once per month with agendas posted the week before
and that video recordings are usually made of each
meeting. Additionally, it appears that, since September
2018, the Board has used BoardDocs software to display
the agenda and other information on a large screen
during each meeting and to provide access to meeting
information and materials on the Board's website.
Because of the varying nature of the questions and
extensive background materials, each of your questions
is presented separately below with additional background
facts, the question itself, and an answer using the
same enumeration as presented in your letter. The
questions and background have been edited for brevity
and clarity.
Question #1
Background: This question refers to the meetings from
the February 13, 2020, Board meeting. You indicated
that "the minutes do not reflect any approved
exemptions from 2.2-3711 or reason to go into closed
session." The minutes of that statement include
an item, "Motion to go into Closed Session,"
which then identifies which Board member made the
motion and which member seconded the motion, "Final
Resolution: Motion Carries," and indicates that
all members present voted "Yea." However,
the minutes do not quote or paraphrase the motion
itself. The minutes include signature lines for the
Board Chair and the Board Clerk, which appear to have
been filled in with their typed names followed by
"(signature on file)." A separate closed
meeting certification is included at the end of the
minutes, which includes a lines for a signature by
"Isle of Wight County School Board" and
a date, but these lines appear to be blank in the
copy of the minutes you provided.
Question #1: Do the Board "approved minutes have
to document why the [Board] went into closed session
and what exemption(s) found in 2.2-3711 they used
to go into closed session?"
Answer #1: Subsection A of § 2.2-3712 requires
that, in order to convene a closed meeting, a public
body must vote to approve a motion that "(i)
identifies the subject matter, (ii) states the purpose
of the meeting as authorized in subsection A of §
2.2-3711 or other provision of law and (iii) cites
the applicable exemption from open meeting requirements
provided in subsection A of § 2.2-3711 or other
provision of law." The same subsection also requires
that "[t]he matters contained in such motion
shall be set forth in detail in the minutes of the
open meeting." Following these provisions, therefore,
the Board must include in its minutes the stated purpose
of the closed meeting, the subject of the closed meeting,
and the appropriate citation(s) to the applicable
exemption(s)1. None of these three items
appears in the February 13, 2020, minutes that you
included with your inquiry and, therefore, these minutes
do not appear to satisfy the requirements of subsection
A of § 2.2-3712.
Question
#2
Background: This question also refers to the February
13, 2020, Board meeting, as described in Question
#1.
Question
#2: Do the Board's "approved minutes have to
have the actual signatures of the Board Chairman and
the Board clerk instead of what [the Board] has been
doing which is stating signature on file?"
Answer #2: FOIA sets out requirements for the contents
of meeting minutes generally in subsection H of §
2.2-3707 and additional requirements regarding closed
meetings in § 2.2-3712, but FOIA does not require
that minutes be signed, so it does not address this
issue. However, I would note that § 22.1-74,
which is in the Education title of the Code (outside
of FOIA), does set forth that "[t]he minutes
of all school board meetings shall be signed by the
chairman and clerk." Research did not reveal
any court decisions or opinions of the Attorney General
that address the issue presented. Unfortunately, as
this provision falls outside of FOIA, it would be
beyond the authority of this office2 to offer an opinion
on whether it requires actual signatures or whether
signatures on file are sufficient to satisfy §
22.1-74.
Question
#3
Background: This question refers to the February 13,
2020, Board meeting, as do Questions #1 and #2, but
this question also refers to the July 9, 2015, Board
meeting minutes. The July 9, 2015, minutes appear
to have been signed by the Board Chairman and the
Board Clerk. Those minutes also include a separate
closed meeting certification, which appears to have
been signed by the Board Clerk.
Question #3: Does the Board "clerk and/or the
Board chairman also have to provide their actual signature
to provide proof of the certification of closed meetings
to be in compliance of 2.2-3712 instead of signature
on file like they did on the July 9, 2015 approved
minutes?"
Answer #3: Subsection D of § 2.2-3712 sets forth
the requirements to certify a closed meeting, but
as with meeting minutes, it does not require signatures.
Research in Title 22.1 did not reveal any provisions
requiring that certifications of closed meetings be
signed, unlike meeting minutes. Therefore, it appears
that there is no requirement for the Board to sign
the certification of a closed meeting.
Question
#4
Background: This question also refers to the February
13, 2020, Board meeting. You stated that neither the
video nor the minutes of that meeting identify the
exemption used to go into closed session, and you
noted that the agenda lists the following item, among
others:
"17. Action on Closed Session Items
17.1 February Personnel Report
17.2
Teacher Salary Step Adjustments"
The corresponding entry in the minutes reads in full
as follows:
"Action on Closed Session Items
February Personnel Report
Motion by Victoria Hulick, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins,
Alvin W Wilson, Denise N Tynes
Teacher Salary Step Adjustments
Motion by Victoria Hulick, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins,
Alvin W Wilson, Denise N Tynes"
The audio portion of the video recording reflects
that a member made motions to approve the February
Personnel Report and the Teacher Salary Step Adjustments;
both motions were seconded, and it appears that votes
were taken using the BoardDocs software.3
Question
#4: Can the Board go into closed session for discussion
or deliberations on Teacher Salary Step Adjustments
and be in compliance of the exemptions found in §
2.2-3711 and then later vote in open session on teacher
salary step adjustments to be in compliance with §
2.2-3712?
Answer #4: Subdivision A 1 of § 2.2-3711, the
personnel meetings exemption, permits a public body
to convene a closed meeting for the following purposes:
Discussion, 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; and evaluation
of performance of departments or schools of public
institutions of higher education where such evaluation
will necessarily involve discussion of the performance
of specific individuals.
Therefore, the Board may convene a closed meeting
in order to discuss the "salaries . . . of specific
public officers, appointees, or employees of"
the Board. This exemption by its own terms is limited
to discussions about specific individuals and may
not be used to convene a closed meeting to discuss
salary increases when the discussion does not concern
specific individual public officers, appointees, or
employees.4 My general understanding is
that "salary step adjustments" typically
refer to salary increases in incremental amounts (usually
a set percentage per step) based on experience and
are often tied to certain minimum performance levels.
A discussion of salary step adjustments could take
a number of forms that may or may not involve discussions
about specific individuals. For example, a public
body might discuss the increase to be given per step
for all employees, which would not be a proper topic
under the personnel meetings exemption because it
does not concern specific individuals. On the other
hand, a public body might discuss whether a specific
employee has met the required performance levels to
receive a salary adjustment based on experience, which
would necessarily involve a discussion of that employee's
performance and salary and would be a proper topic
for a closed meeting discussion under the personnel
meetings exemption. In this instance, there is not
enough information to state whether the Board's discussion
during its closed meeting on February 13, 2020, fell
within the terms of the personnel meeting exemption.
Regarding voting, in general subsection A of §
2.2-3710 requires that, unless otherwise provided
by law, all votes must be "taken at a meeting
conducted in accordance with the provisions of [FOIA]"
and that "[n]o public body shall vote by secret
or written ballot, and unless expressly provided by
this chapter, no public body shall vote by telephone
or other electronic communication means." Regarding
voting using BoardDocs or similar software that displays
members' votes on a screen during a meeting, this
office previously opined that "so long as it
displays the individual votes of each member it would
appear to facilitate public awareness of government
activities and thus comport well with the purposes
of FOIA. As a general matter, the use of such technology
to facilitate public awareness should be encouraged.
On the other hand, if it only displays the vote total
and not members' individual votes, this would be detrimental
to FOIA's purposes, in which case it should not be
used."5 Subsection B of § 2.2-3711
sets forth the following requirements for votes taken
after a closed meeting discussion:
No resolution, ordinance, rule, contract, regulation
or motion adopted, passed or agreed to in a closed
meeting shall become effective unless the public
body, following the meeting, reconvenes in open
meeting and takes a vote of the membership on such
resolution, ordinance, rule, contract, regulation,
or motion that shall have its substance reasonably
identified in the open meeting.
This office has previously interpreted this language
to mean that a public body must "reasonably identify
the essential import of the action taken" when
it votes on a closed meeting matter.6 Subsection
H of § 2.2-3707 requires that meeting minutes
include, among other items, "a summary of the
discussion on matters proposed, deliberated or decided,
and a record of any votes taken." In this instance,
the recording of the meeting does not have an audible
vote, but it appears the vote may have been displayed
on the projection screen at the meeting. Note that,
as viewed on the video, the lettering on the screen
is somewhat blurry and difficult to read. Unfortunately,
the lack of an audible vote and the blur of the screen
make it difficult to tell whether the vote was apparent
to those present at the meeting when it was taken.
However, the minutes of the meeting stated that all
members (identified by name) voted "Yea."
That fact, along with what is apparent on the video
recording, makes it seem likely that the vote was
apparent to those present at the meeting and, therefore,
that it likely was taken in accordance with FOIA.
However, while the audio portion of the recording
of the meeting makes clear that the motion was to
approve the Teacher Salary Step Adjustments, the minutes
only state that a motion was made and carried, but
they do not state the substance of that motion (to
approve, disapprove, or take some other action). Therefore,
it appears that the audible motion as recorded on
the video was sufficient in that it identified the
substance—i.e., the essential import of the action
taken by the Board—as being approval of the Teacher
Salary Step Adjustments, but the minutes were insufficient
in that they failed to state the substance of the
action taken by the Board.
Question
#5
Background: This question refers to the January 15,
2020, meeting of the Board. The minutes have the following
entry regarding closed session:
"Motion
to go into Closed Session
Motion by Julia Perkins, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins,
Alvin W Wilson, Denise N Tynes"
While the minutes do not contain any additional detail
about the motion, you pointed out that on the video
of that meeting a member read a motion to convene
the closed meeting "to discuss or consider prospective
candidates for employment; assignment, appointment,
promotion, salaries, disciplining, or resignation
of employees and evaluation of performance of departments
or schools where such evaluation will involve specific
individuals." Note also that this meeting was
held in a different facility than the February 13,
2020, meeting described above. It is clear from the
recording of the January 15, 2020, meeting that the
members used BoardDocs to vote on the motion and their
individual votes were displayed next to their names
on screen at the meeting.
Question #5: Can the Board or other public body that
is a public school system (K-12) but is not a public
institution of higher education (college, university,
etc.) use the personnel meetings exemption, subdivision
A 1 of § 2.2-3711, to discuss the "evaluation
of performance of departments or schools of public
institutions of higher education where such evaluation
will necessarily involve discussion of the performance
of specific individuals" by omitting the language
concerning "public institutions of higher education?"
Answer
#5: The policy of FOIA stated in subsection B of §
2.2-3700 provides instruction on how to interpret
FOIA 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."
When analyzing a statutory exemption, we also apply
rules of statutory construction as needed.7
As stated by the Supreme Court of Virginia:
Under
fundamental rules of statutory construction, each
statute must be examined in its entirety, rather
than by isolating particular words or phrases. The
legislature's intent must be determined from the
words used, unless a literal construction would
yield an absurd result. Thus, when the language
employed in a statute is clear and unambiguous,
the courts are bound by the plain meaning of that
language.8
The
Court has also stated that "[e]very part of a
statute is presumed to have some effect and no part
will be considered meaningless unless absolutely necessary."9
In this instance, it appears that the Board's motion
to convene the closed meeting largely quoted from
the exemption itself but omitted the language concerning
public institutions of higher education. The plain
language of the exemption allows a closed meeting
for the purpose of "evaluation of performance
of departments or schools of public institutions of
higher education where such evaluation will necessarily
involve discussion of the performance of specific
individuals." Applying the rules of statutory
construction as quoted above and the narrow construction
rule of FOIA, the phrase "of public institutions
of higher education" must be read as words of
limitation. To omit that language renders the limitation
meaningless and broadens the scope of the exemption
beyond its plain language, and therefore is disallowed.
If the General Assembly wished for that portion to
apply to K-12 schools, as well as public institutions
of higher education, it could have phrased it differently,
such as by saying "departments or schools of
educational institutions." However, the General
Assembly did not do so and therefore we cannot read
the exemption more broadly by omitting the words that
limit its application to public institutions of higher
education. At the same time, the prior sections of
the same exemption, which were also quoted (in part)
in the motion at issue, may be used by "any public
body." Therefore, the Board may use the personnel
meetings exemption, but as it is not a public institution
of higher education, it may not use the portion of
the exemption that is limited to such institutions.
Question
#6
Background: This question also refers to the January
15, 2020, meeting of the Board. Relevant to this question,
you stated that the Board has adopted policy BDC regarding
closed meetings. You included a copy of that policy
with your inquiry to this office and pointed out that
the policy quotes from the personnel meetings exemption
as an allowed purpose for a closed meeting, but does
not include the portion of the statutory exemption
that is applicable only to public institutions of
higher education (discussed in Question #5).
Question
#6: Can the Board "violate their own IOW [(Isle
of Wight)] policy BDC and 2.2-3711 to go into close[d]
session as a public institution when they are a public
school division for K-12 and not a public institution
for higher education?"
Answer
#6: As stated above, a public body that is not a public
institution of higher education may not use the portion
of the personnel meetings exemption that is limited
to such institutions. However, FOIA does not address
the adoption of school board policies, their violation,
or their enforcement. Therefore, as this office is
limited to providing advice and guidance on FOIA itself,
I cannot answer your question concerning a possible
violation of Board policy.
Question #7
Background: This question also concerns the January
15, 2020, meeting of the Board. Relevant to this question,
you stated that Ms. Tynes was a member of the Board
until December 31, 2015, was reelected to the Board
in November 2019, and was welcomed to the Board at
its meeting on January 15, 2020. You also referred
to the provisions of subsection D of § 22.1-60,
which states: "Whenever a superintendent's contract
is being renegotiated, all members of the school board
shall be notified at least 30 days in advance of any
meeting at which a vote is planned on the renegotiated
contract unless the members agree unanimously to take
the vote without the 30 days' notice."
Question
#7: If a new Board member "is just being welcomed
by the Board on January 15, 2020 how could she be
informed 30 days earlier of a pending vote since all
public business must take place at a [Board] meeting
and January 15, 2020 was her first one since she was
not on the Board and the agenda did not state on January
15, 2020 that the Board was voting on the Superintendent
Contract it stated Superintendent Resolution?"
Answer
#7: The Supreme Court of Virginia has held that members-elect
of public bodies are not considered members and are
not subject to FOIA's restrictions until they take
office.10 Therefore, a staff person or
another Board member could have contacted Ms. Tynes
to inform her of upcoming Board business before she
took office without violating FOIA. However, whether
such information was provided in advance, whether
the Board agreed unanimously to vote without the 30
days' notice, or whether the Board may have violated
this provision is all conjecture that again is beyond
the authority of this office, as these requirements
for renegotiating a superintendent's contract fall
outside of FOIA.
Question
# 8
Background:
This question also refers to the January 15, 2020,
meeting of the Board. Relevant to this question, you
observed that the agenda for this meeting lists "Superintendent
Resolution" as a closed meeting item but that
"Superintendent Resolution" was not mentioned
in the motion to convene the closed meeting as shown
on the video recording (which uses language relevant
to the personnel meetings exemption, as quoted in
the background to Question #5), nor is it reflected
in the description of the motion in the minutes (also
quoted above as background to Question #5). The minutes
do have the following entry under the heading "Action
on Closed Session Items":
"Superintendent
Resolution
Approve as presented.
Motion by Victoria Hulick, second by Julia Perkins.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins,
Alvin W Wilson, Denise N Tynes"
You also stated that a former Board member addressed
the Board with various concerns, including posing
questions regarding the Superintendent's salary and
contract, that the Board chair later read a resolution
of the Board to extend the Superintendent's contract,
and that the "January 15, 2020 [Board] approved
minutes document of 5-0 vote for the Superintendent
Resolution with no mention of a Superintendent Renegotiated
Contract or Superintendent Contract." Additionally,
you referred to § 22.1-60 (Appointment and term
of superintendent; certain contractual matters) of
the Code of Virginia and Virginia Superintendent of
Public Instruction's Memo #203-18 dated July 27, 2018,
which provides additional information concerning the
appointment of a division superintendent.
Q
uestion #8: You asked whether the vote on the Superintendent
Resolution was legal.
Answer
#8: First, please note that FOIA does not set out
requirements for agenda items, so whether the Board
listed "Superintendent Resolution" in the
agenda does not affect the analysis under FOIA.11
FOIA has requirements for closed meeting motions,
certifications, and votes that follow closed meetings
in §§ 2.2-3711 and 2.2-3712. Therefore,
we look to those items, rather than the agenda, to
determine whether the closed meeting was conducted
properly under FOIA. As described above, the video
recording of the meeting makes clear that the motion
to convene the closed meeting was for the stated purpose
"to discuss or consider prospective candidates
for employment; assignment, appointment, promotion,
salaries, disciplining, or resignation of employees
and evaluation of performance of departments or schools
where such evaluation will involve specific individuals."
Discussion of a superintendent's contract would be
a proper purpose under that motion, with the superintendent
being the subject of the motion. However, please keep
in mind that subsection A of § 2.2-3712 makes
clear 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."
It appears that the verbal motion shown on the video
only states the purpose of the closed meeting (as
quoted above) but does not actually mention the superintendent
or any other subject. By contrast, the entry in the
minutes appears to say "Motion to go into Closed
Session" without identifying the purpose or the
subject of the closed meeting. The verbal motion shown
on the recording refers to § 2.2-3711 but does
not refer to a specific exemption; the minutes do
not cite the Code at all. Therefore, the motion to
convene the closed meeting was deficient in that it
did not contain the three elements required by subsection
A of § 2.2-3712: subject, purpose, and citation.
Regarding
the vote held after the closed meeting, the minutes
only state as follows:
"Superintendent Resolution
Approve as presented.
Motion by Victoria Hulick, second by Julia Perkins.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins,
Alvin W Wilson, Denise N Tynes"
However, in the video the Board chair reads the full
"Superintendent Resolution" and clarifies,
with additional comments from another Board member,
that it was a resolution of the Board to enter into
a new contract with the current Superintendent. As
stated above, subsection B of § 2.2-3711 provides
that "No resolution . . . contract . . . or motion
adopted, passed or agreed to in a closed meeting shall
become effective unless the public body, following
the meeting, reconvenes in open meeting and takes
a vote of the membership on such resolution, ordinance,
rule, contract, regulation, or motion that shall have
its substance reasonably identified in the open meeting."
Based on the video recording, the Board did in fact
identify the substance of the Superintendent Resolution
as being about entering into a new contract with the
current Superintendent and described various terms
of that contract. Therefore, the actual motion and
vote on the Superintendent Resolution at the meeting
appear to have been conducted in accordance with FOIA.
However, subsection H of § 2.2-3707 requires
that meeting minutes include "a summary of the
discussion on matters proposed, deliberated or decided,
and a record of any votes taken." In this instance,
even though the minutes do record the members' "Yea"
votes, the minutes have so little information that
someone who only read the minutes would not be able
to tell what action the Board took in regard to the
Superintendent (i.e., the minutes show that the Board
approved the Superintendent Resolution but do not
say whether that resolution was to enter a new contract,
extend an existing contract, terminate the superintendent,
commend the superintendent, or take any other particular
action). Therefore, the minutes appear to be insufficient
as they contain no summary regarding the substance
of what the vote on the Superintendent Resolution
actually did. Therefore, while it appears that the
motion to convene the closed meeting did not fully
follow the procedural requirements of FOIA, the actual
vote itself did follow the procedural requirements
of FOIA, though the minutes do not contain all of
the information required under FOIA.
As stated previously, subsection A of § 2.2-3710
mandates as follows: "Unless otherwise specifically
provided by law, no vote of any kind of the membership,
or any part thereof, of any public body shall be taken
to authorize the transaction of any public business,
other than a vote taken at a meeting conducted in
accordance with the provisions of this chapter."
The Attorney General has previously opined that "[i]n
order for a public vote to be valid, the subject of
the vote must be publicly disclosed" and, in
applying subsection A of § 2.2-3710, that a vote
that did not have its substance reasonably identified
would be "legally defective, and therefore null
and void."12 In an earlier opinion,
the Attorney General interpreted the same provision
of FOIA and opined that a vote taken at a meeting
that lacked the proper notice required by FOIA was
also "null and void" because the vote was
not "taken at a meeting conducted in accordance
with the provisions of [FOIA]."13
This instance appears to be factually distinct from
the Attorney General opinions quoted as it appears
that the vote itself did have its substance reasonably
identified during the meeting and in the recording,
but not in the minutes, and you raised no issues concerning
the notice of the meeting. There do not appear to
be any controlling Virginia court decisions directly
addressing the issue of whether a vote is legally
defective under these facts. Therefore, while it appears
there may have been procedural deficiencies in the
motion to convene the closed meeting and in the minutes
of the meeting, the vote itself appears to have complied
with the requirements of FOIA, and so it is unclear
whether a court would find the vote to be effective
or legally defective under FOIA.
Finally,
you also mentioned § 22.1-60 and the Virginia
Superintendent of Public Instruction's Memo #203-18
dated July 27, 2018, as background regarding the legality
of the vote in question. As stated above, this office
cannot answer this aspect of your question because
it falls outside of our statutory authority to provide
advisory opinions on FOIA.
Question
#9
Background: This question refers to the January 15,
2020, Board meeting as previously described.
Question
#9: Is "Superintendent Resolution an item that
can be discussed by the IOW School Board in closed
session? If so, what exemption does that meet?"
Answer
#9: Yes, such a resolution may be discussed in closed
meeting pursuant to the personnel meetings exemption,
subdivision A 1 of § 2.2-3711, as described above,
with the superintendent being the subject of the discussion.
That exemption allows a public body to hold a closed
meeting for the purpose of "assignment, appointment,
promotion, performance, demotion, salaries, disciplining,
or resignation of specific public officers, appointees,
or employees of any public body," among other
things. The Superintendent Resolution as read by the
Board chair at the January 15, 2020, Board meeting
(as shown in the recording of that meeting) would
fall within these terms.
Question
#10
Background:
This question refers to the May 9, 2019, Board meeting.
You indicated that this was the first meeting where
the Board "refused to document in the minutes
the exemptions used to go into closed session"
and stated that "[f]rom this meeting until now,
the [Board] has refused to document in each and every
meeting the exemptions used to go into closed session."
Question
#10: "Can a public body such as the [Board] not
document in the minutes why the public body went into
closed session and be in compliance with [§§
2.2-3707, 2.2-3711, and 2.2-3712]?"
Answer
#10: As described previously, subsection A of §
2.2-3712 requires that a public body must vote on
a motion to convene a closed session that identifies
the subject of the meeting, states the purpose of
the meeting, and cites the applicable exemption. That
motion "shall be set forth in detail in the minutes
of the open meeting." Subsection B of §
2.2-3711 requires that for decisions made in closed
meeting to become effective, the public body must
reconvene in open meeting and take "a vote of
the membership on such resolution, ordinance, rule,
contract, regulation, or motion that shall have its
substance reasonably identified in the open meeting."
Subsection H of § 2.2-3707 sets forth various
requirements for meeting minutes, including that minutes
must include "a summary of the discussion on
matters proposed, deliberated or decided, and a record
of any votes taken," which would include recording
the vote on the motion to convene a closed meeting
and any votes that followed a closed meeting. Failure
to include any of these items in the meeting minutes
would be a procedural violation of FOIA.
Question
#11
Background:
This question refers to the April 11, 2019, Board
meeting. You stated that the "minutes reflect
for the last time where the [Board] listed in the
minutes the exemptions that they used to go into closed
session." You pointed out that the minutes include
a motion to go into closed session "[t]o discuss
or consider prospective candidates for employment;
assignment, appointment, promotion, salaries, disciplining
or resignation of employees; and evaluation of performance
of departments or schools where such evaluations will
involve specific individuals" but that the minutes
do not cite a specific Code section.
Question
#11: "Can the [Board] use [the personnel meetings
exemption] and evaluation etc. when they are not a
public institution of higher education?"
Answer
#11: For the reasons stated in response to Question
#5, the Board may use the personnel meetings exemption,
but as it is not a public institution of higher education,
it may not use the portion of the exemption that is
limited to such institutions.
Question
#12
Background:
This question also refers to the April 11, 2019, Board
meeting.
Question
#12: "Doesn't the [Board] also have to document
in [its] minutes the actual Code of § 2.2-3711
and then list the number used for the exemptions,
for example, should the minutes be represented in
this matter 2.2-3711 - (1) instead of what they did
and only place (1)?"
Answer
#12: As stated above, subsection A of § 2.2-3712
requires that any motion to convene a closed meeting
must cite "the applicable exemption from open
meeting requirements provided in subsection A of §
2.2-3711 or other provision of law." Subsection
A of § 2.2-3711 is currently divided into 51
numbered subdivisions, each of which is a separate
exemption allowing for closed meetings. Regarding
citation format, the proper formal citation to any
of the exemptions in subsection A of § 2.2-3711
would be to cite "subdivision A [subdivision
number] of § 2.2-3711 of the Code of Virginia"
as each exemption is a separate subdivision within
subsection A of § 2.2-3711. For example, "subdivision
A 1 of § 2.2-3711 of the Code of Virginia"
is the proper formal citation to the personnel meetings
exemption. There are also other citation formats in
common usage that are still clear regarding which
exemption they cite. For example, a public body might
cite the personnel meetings exemption as "Code
§ 2.2-3711 (A)(1)," "subdivision A
1 of Va. Code § 2.2-3711," or even "2.2-3711
(A)(1)" without saying "Code" or "Code
of Virginia" at all. In the context of a closed
meeting held by a public body subject to Virginia
FOIA, any of these is clear regarding which exemption
is meant, as they all contain references to the Code
section, subsection, and subdivision. However, a reference
to "2.2-3711 - (1)" or just to "(1)"
would be technically improper as neither refers to
the subsection (A).
Regarding
improper citations, note that in the case Lawrence
v. Jenkins,14 the Supreme Court of
Virginia held that a citizen who requested public
records was not denied clearly established rights
and privileges under FOIA when the public body withheld
portions of the record and claimed those portions
were exempt but failed to cite the specific Code section
within the required response time of five working
days. While the failure to cite the specific Code
section was a technical or procedural violation, the
Court held that it "did not bring about a denial
of any rights or privileges afforded to [the requester]
under the provisions of FOIA and did not operate as
a waiver of [the public body's] otherwise valid exercise
of an applicable exemption."15 In
essence, the Court held that the withheld portions
of the records were in fact exempt and therefore the
requester had no right to them under FOIA, even though
the public body failed to follow the proper procedure
in denying the request. Applying the same reasoning
to the meetings exemptions, if a public body held
a closed meeting to which an exemption properly applied
but failed to properly cite the appropriate exemption,
it would be a technical or procedural violation, but
there would still be no requirement to open the meeting
or produce minutes for the closed meeting.16
However, subsection A of § 2.2-3712 also states
explicitly 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."
The records response procedure set out in subsection
B of § 2.2-3704 has no equivalent language. Thus,
where a general reference to the applicable records
exemption may have been enough to avoid a substantive
violation in Lawrence, a general reference
to the meetings exemptions is specifically disallowed
under subsection A of § 2.2-3712.
The
minutes of the April 11, 2019, Board meeting include
a motion "[t]o discuss or consider prospective
candidates for employment; assignment, appointment,
promotion, salaries, disciplining or resignation of
employees; and evaluation of performance of departments
or schools where such evaluations will involve specific
individuals" as described in the background to
Question #11. That fact pattern appears similar to
Lawrence in that the language clearly paraphrases
from the personnel exemption at subdivision A 1 of
§ 2.2-3711, but it fails to properly cite the
exemption. Therefore, it appears that this motion
fails to satisfy the requirements of subsection A
of § 2.2-3712 to identify the subject, state
the purpose, and cite the appropriate exemption for
the closed meeting.
Question #13
Background: The question refers to the January 11,
2018, Board meeting. The minutes of that meeting include
the following:
motion
to go into closed session pursuant to the Code of
Virginia section 2.2-3711, (1)
for the discussion or consideration of prospective
candidates for employment; assignment, appointment,
promotion, salaries, disciplining or resignation
of employees; and evaluation of performance of departments
or schools where such evaluations will involve specific
individuals. (7) To receive briefing
by staff member on (1) item 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.
[Emphasis
in original.] You stated that you believe the use
of both exemptions was improper because the Board
"changed the exemptions by crossing out essential
legal verbiage in each of the exemptions that also
changed their legal standard." Regarding subdivision
A 1 of § 2.2-3711, you again referenced the language
in the motion that refers to "evaluation of performance
of departments or schools where such evaluations will
involve specific individuals" but omits the statutory
language "of public institutions of higher education"
as described above. Regarding subdivision A 7 of §
2.2-3711, the exemption for the discussion of actual
or probable litigation, you stated that you believe
it was used improperly because the Board did not have
its lawyer present.
Question
#13: Did the Board "meet the FOIA standards for
2.2-3711 exemptions (1) and (7) for the January 11,
2018 [Board] meeting"?
Answer
#13: Regarding the use of the personnel exemption,
as previously stated in response to Questions #5 and
#11, the Board may use the personnel meetings exemption,
but as it is not a public institution of higher education,
it may not use the portion of the exemption that is
limited to such institutions. Regarding the exemption
for the discussion of actual or probable litigation,
this office has previously opined that "where
the discussion is related to actual or probable litigation,
legal counsel need not be present. This exemption
may be properly invoked where there are briefings
by staff members or consultants and such briefings
pertain to actual or probable litigation."17
Therefore, it was not improper for the Board to use
this exemption even though legal counsel was not present.
Question
#14
Background:
This question refers to the June 8, 2017, Board meeting.
The agenda for that meeting included "Resolution
for Superintendent's Contract" as an agenda item.
The minutes included a relevant "motion to go
into closed session pursuant to the Code of Virginia
section 2.2-3711, (1) for discussion
or consideration of prospective candidates for employment;
assignment, appointment, promotion, salaries, disciplining
or resignation of employees"; an item with the
heading "Resolution for Superintendent's Contract"
that states that a motion was made and seconded "to
approve the resolution for superintendent's contract
as presented" and that the vote was 3-1 in favor;
and an agenda item sheet that states the subject as
"Resolution for Superintendent's Contract,"
and includes a 3-1 vote in favor of a motion "to
approve the Original motion 'To approve
as presented.'" [Emphasis in originals.]
Question #14: Did the Board "make their decision
about the contract for the Superintendent in compliance
with the standards found in the FOIA statutes"?
Answer
#14: While the preferred citation would be to "subdivision
A 1 of § 2.2-3711" as described above, the
motion in the minutes appears to identify the subject
of the closed meeting (the superintendent), the purpose
("discussion or consideration of prospective
candidates for employment; assignment, appointment,
promotion, salaries, disciplining or resignation of
employees"), and the exemption (the personnel
meetings exemption, which is clear in context despite
the improper citation format). Thus, the motion to
convene the closed meeting appears to satisfy the
requirements of FOIA in this instance. However, while
it is clear that the Board voted 3-1 to approve the
resolution on the Superintendent's Contract, it is
not clear from the minutes what that resolution actually
was, i.e., what was the substance of the Board's action
regarding the Superintendent's Contract. It may have
been clear at the meeting if the resolution was read
in public or if copies of the resolution were distributed,
and while it is clear from later minutes that the
superintendent continued in that position, the Board's
action is not clear from these minutes alone.
Question
#15
Background:
This question also refers to the June 8, 2017, Board
meeting. The motion to convene the closed meeting
referenced two purposes, one as described in Question
#14, the other as follows: "(2) Discuss[ion]
or consideration of admission on (1)
student matter that would involve the disclosure of
information contained in a scholastic record concerning
any student." [Emphasis in original.]
Question
#15: Can the Board use the exemption at subdivision
A 2 of § 2.2-3711 to discuss the Superintendent's
Contract, or does that exemption apply to student
matters only?
Answer
#15: Read in full, subdivision A 2 of § 2.2-3711
allows closed meetings to be convened for the following
purpose:
Discussion
or consideration of admission or disciplinary matters
or any other matters that would involve the disclosure
of information contained in a scholastic record
concerning any student of any public institution
of higher education in the Commonwealth or any state
school system. However, any such student, legal
counsel and, if the student is a minor, the student's
parents or legal guardians shall be permitted to
be present during the taking of testimony or presentation
of evidence at a closed meeting, if such student,
parents, or guardians so request in writing and
such request is submitted to the presiding officer
of the appropriate board.
By
its own terms, that exemption applies to discussions
involving scholastic records of any student. There
might be some specific factual situations where the
superintendent was directly involved in the student
matter and mentioned in the scholastic records and
therefore might be discussed as part of the student
matter, such as if a student was being disciplined
for an incident involving the superintendent, but
this exemption would not apply to discussions where
the central subject was the superintendent rather
than the student. In this specific instance, note
that the motion also cited the personnel meetings
exemption, which does state proper purposes for discussing
the superintendent as an employee of the Board.
Question
#16
Background:
This question refers to Board meetings held on May
16, 2017, May 26, 2017, and January 15, 2020. Both
of the May 2017 meetings included identically worded
motions "to go into closed session, pursuant
to the Code of Virginia section 2.2-3711, (1) for
discussion or consideration of prospective candidates
for employment; assignment, appointment, promotion,
salaries, disciplining or resignation of employees;
(2) Discussion of Superintendent's Contract."
As noted under Question #5, supra, the January
15, 2020, Board meeting minutes demonstrate that there
was a motion to convene a closed meeting that was
approved by unanimous vote, but the minutes do not
identify the subject, state the purpose, or cite the
appropriate exemption for the closed meeting. As shown
on the video recording, the motion that was actually
made at the meeting on January 15, 2020, cited §
2.2-3711 and paraphrased the personnel meetings exemption
but still did not identify a subject.
Question
#16: Since the Board met in closed session to discuss
the Superintendent's contract on the two prior occasions
described, did the Board "also have to list this
discussion of the Superintendent's contract in the
January 15, 2020, meeting, since they renegotiated
his contract on that date as well [as] when they extended
his contract for two additional years, but listed
under action of close[d] session - Superintendent
Resolution which does not mention contract nor was
it mentioned in a motion in open session to go into
closed session that the Superintendent Resolution
would be discussed on January 15, 2020?"
Answer
#16: First, please observe again that while FOIA sets
out requirements for the contents of a motion to convene
a closed meeting as previously described (subject,
purpose, citation), and requires the motion to be
set forth in detail in the minutes, FOIA does not
require that closed meeting topics or motions be described
in the agenda. Therefore, when you wrote "list
this discussion of the Superintendent's contract"
we must necessarily restrict our consideration to
the relevant motions, votes, and minutes, not agenda
items. Next, as previously described, subsection A
of § 2.2-3712 requires that any motion to convene
a closed meeting must identify the subject. We have
previously opined that "[w]hile a public body
need not identify the subject with such specificity
as to defeat the reason for going into a closed session,
it should at least provide the public with general
information as to the object of discussion."18
The Supreme Court of Virginia recently held as follows:
Moreover,
if a motion for a closed meeting could satisfy Code
§ 2.2-3712(A) by merely citing the exemption
and paraphrasing the statutory language of the exemption,
despite the statutory language which prohibits a
party from doing so, it would render the subject
matter requirement in Code § 2.2-3712(A) meaningless...By
including a subject matter requirement for a motion
for a closed meeting—in addition to the purpose
and applicable exemption requirements—the plain
language of the statutes indicates that the General
Assembly intended that such motions contain more
than a citation to an exemption and a reference
to the language of that exemption. A public body
must identify the subject matter more specifically
in a motion for a closed meeting.19
In
both May 2017 meeting minutes, the motion to convene
included "Discussion of Superintendent's Contract."
That phrasing identifies the superintendent as the
subject of a closed meeting and is more than a "general
reference to . . . the subject matter of the closed
meeting," as required by subsection A of §
2.2-3712. Please note that there are multiple ways
that a proper subject could be identified, including
"Discussion of the Superintendent's Contract"
as one example, but it is not the only one. If the
Board had identified the subject as "Superintendent
Resolution," I believe that still would have
been sufficient, as the personnel meetings exemption
concerns specific individuals, and in this instance,
the individual was the superintendent. However, the
January 15, 2020, motion to convene the closed meeting,
as described in the minutes and demonstrated on the
recording of the meeting, did not identify a subject
at all and therefore was insufficient.
Question
#17
Background:
This question refers to the May 16, 2017, and May
26, 2017, meetings of the Board.
Question
#17: Did the Board comply with FOIA when they used
the exemption at subdivision A 2 of § 2.2-3711
to discuss the Superintendent's Contract?
Answer
#17: As described in the response to Question #15,
subdivision A 2 of § 2.2-3711 may be used to
discuss matters concerning students and scholastic
records, but that would not be appropriate for a separate
discussion concerning the superintendent outside of
that context. However, I would note that the phrasing
of the motion to convene the closed meetings in question
does not contain a proper citation to an exemption,
but instead references the entire Code section (§
2.2-3711), which at that time contained 48 different
closed meeting exemptions, each of which was separately
numbered as a subdivision within subsection A of §
2.2-3711. It happens that § 2.2-3711 has four
other subsections (B through E) but no other subdivisions
within those subsections. Therefore, we can presume
that references to numerical subdivisions in the context
of closed meeting exemptions usually refer to the
subdivision within subsection A. However, the correct
practice is to cite both the letter of the subsection
and the number of the subdivision so that there is
no confusion, as stated previously. In this instance,
the motion also had two numbered parts, the first
of which paraphrased the personnel meetings exemption
(subdivision A 1 of § 2.2-3711), the second of
which identified the subject of the closed meeting
as "Discussion of Superintendent's Contract."
It is possible that the Board here was trying to satisfy
the three required elements of subsection A of §
2.2-3712, but the way the motion was structured makes
it look like they were attempting to cite both subdivision
A 1 of § 2.2-3711, the personnel meetings exemption,
which would be appropriate for a discussion regarding
the superintendent, and subdivision A 2 of §
2.2-3711, which would not be appropriate for a discussion
regarding the superintendent. Keeping in mind that
the Code currently lists closed meetings exemptions
as subdivisions by number within subsection A of §
2.2-3711, public bodies would be well-advised to avoid
using other enumerations within closed meeting motions
that could be so easily misinterpreted.
Question
#18
Background:
You included minutes of the March 9, 2017, Board meeting.
You stated that you believe they reflect that the
Board complied with the closed meeting requirements
at this meeting, demonstrating that the Board and
the superintendent "know how to comply to the
FOIA statutes if they chose to do so." The minutes
set out a
motion
to go into closed session at 5:08 p.m., pursuant
to the Code of Virginia sections 2.2-3711, (1)
for discussion or consideration of prospective
candidates for employment; assignment, promotion,
salaries, disciplining or resignation of employees;
Upon a roll call vote being taken, the vote was:
Aye: 4 Nay: 0. The motion CARRIED. 4-0
[Emphasis
in original.] The minutes also contain an entry stating
that the meeting was certified and there is a certification
page attached. The minutes later contain the following
entry:
ACTION
ON CLOSED SESSION ITEMS:
Personnel
Report
Member Kirstin Cook moved Member
Victoria Hulick seconded the motion to approve the
Personnel Report as presented. Upon a roll call vote
being taken, the vote was: Aye: 5 Nay: 0. The motion
CARRIED. 5-0
[Emphasis in original.]
Question
#18: Did the Board "adhere to the FOIA statutes
for the March 9, 2017 [Board] meeting?"
Answer
#18: The motion and vote as described appear to be
insufficient, but the certification attached to the
meeting minutes appears to comply with FOIA.20
The motion to convene the closed meeting as written
in the minutes has a technical error in the citation,
in that what was actually recorded, "2.2-3711,
(1)" does not identify the subsection,
A. However, because the following language in the
motion21 paraphrases the statutory language
of subdivision A 1 of § 2.2-3711,22
it is clear in context that the Board meant to refer
to the personnel meetings exemption at subdivision
A 1 of § 2.2-3711. Unfortunately, there is also
a substantive deficiency in the motion as written
in that while it contains a (technically improper)
citation and a purpose (paraphrasing the statute),
it does not identify the subject of the closed meeting,
as it contains no further information besides this
general reference to the statutory exemption. Therefore,
this motion fails to satisfy the requirements of subsection
A of § 2.2-3712.
The
vote "to approve the Personnel Report as presented"
following the closed meeting as described in the minutes
appears to fail to meet the requirements of subsection
B of § 2.2-3711 to "have its substance reasonably
identified in the open meeting," as it is impossible
to tell from this cursory entry what actions were
included in the "Personnel Report as presented."
However, if the Personnel Report was actually read
aloud or if copies were distributed at the meeting,
then it is possible that the vote actually was proper.
In that case, it may be that the vote was proper but
the minutes are deficient in summarizing what happened.
Considering all the possibilities, the Personnel Report
or a summary thereof could have been attached to the
minutes, which would make the minutes sufficient in
this regard, but it does not appear to be the case
based on the minutes you provided. Unfortunately,
checking the Board's website for this meeting and
other meetings before the Board adopted BoardDocs
only returned errors.23 Our advisory opinions
are based on the facts presented by the person requesting
the opinion; this office has no investigatory authority
and is not a trier of fact. Therefore, based on the
facts as you presented them, it appears that the vote
and the minutes in this instance are deficient.
Question
#19
Background:
This question refers to the agenda and minutes of
the July 14, 2016, meeting of the Board. The minutes
document the following motion:
to
go into closed session at 5:08 p.m., pursuant to
the Code of Virginia sections 2.2-3711, (1)
for discussion or consideration of prospective candidates
for employment; assignment, appointment, promotion,
salaries, disciplining or resignation of employees;
(2) Discuss[ion] or consideration of admission on
(6) student matters that would
involve the disclosure of information contained
in a scholastic record concerning any student; (7)
to receive briefing by staff members regarding (2)
specific legal matter requiring the provision of
legal advice 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.
[Emphasis
in original.] Later in the minutes, there is a heading
for "ACTION ON CLOSED SESSION ITEMS" that
includes subheadings for "Personnel Report and
Addendum" and "Religious Exemption."
The votes are included under each subheading, with
motions "to approve the Personnel Report and
Addendum as presented" and "to approve the
Student matters JULO1-06 as presented," respectively.
There is no further information provided regarding
the contents of the "Personnel Report and Addendum"
or "Student matters JULO1-06" in the minutes
you provided.
Question
#19: You asked whether you are correct that the Board
correctly used subdivisions A 1 and A 2 at its July
14, 2016, meeting.
Answer
#19: As previously stated, subsection A of §
2.2-3712 requires that a motion to convene a closed
meeting contain three elements: subject, purpose,
and citation. As stated in response to Questions #17
and #18, the motion here also lacks a proper citation
to the exemption as it appears to cite the Code section
(§ 2.2-3711) and subdivisions (apparently 1,
2, and 7, although the multiple numbers within parentheses
and mixed use of bold and regular typeface in the
motion are somewhat confusing) without citing the
subsection, A. Proper citation would have been to
subdivisions A 1, A 2, and A 7 of § 2.2-3711.
Additionally, this motion also lacks anything more
than "[a] general reference to the provisions
of this chapter, the authorized exemptions from open
meeting requirements, or the subject matter of the
closed meeting," which would "not be sufficient
to satisfy the requirements for holding a closed meeting"
under the Code, as it merely paraphrases the exemptions
without providing any further identification of the
subject matter. The votes and minutes appear to be
similarly insufficient for the same reasons stated
in the answer above, as a reader cannot tell from
these minutes what action the Board actually took
with each vote. Note again that if the Personnel Report
or a summary of it was attached, that would be satisfactory
for the first vote. Similarly, if the Board had merely
stated "to approve a religious exemption for
a student" (or to reject it, as it is unclear
what they did by approving "Student matters JULO1-06"),
that would have been enough to reasonably identify
the substance of that vote in compliance with subsection
B of § 2.2-3711.
Question #20
Background: This question refers to the same July
14, 2016, meeting of the Board.
Question #20: You asked whether the Board violated
FOIA by citing subdivision A 7 of § 2.2-3711
for a closed meeting when "there was no legal
counsel in the closed session or cited in the minutes
or in attendance according to the minutes and how
can briefing by a staff member provide for the provision
of legal advice pertaining to actual or probable litigation
to the [Board] in closed session when the staff member
is not legal counsel?"
Answer
#20: As stated in response to Question #13, it was
not improper for the Board to use this exemption even
though legal counsel was not present. There are numerous
reasons other staff members might brief a public body
regarding actual or probable litigation. For example,
if another staff member was a witness or party to
an incident that led to litigation and needed to provide
the Board with background information, that would
be allowed in closed session regardless of whether
legal counsel was present.
Question
#21
Background: This question refers to the July 9, 2015,
Board meeting. You stated that you believe the minutes
reflect that the Board properly used the exemptions
at subdivisions A 1, A 2, A 7, and A 19 to go into
closed session, particularly because the Board's attorney
was present at the meeting. The motion to convene
the closed meeting as written in the minutes was moved
and seconded:
to go into closed session at 5:08 p.m., pursuant
to the Code of Virginia sections 2.2-3711, (1)
for discussion or consideration of prospective candidates
for employment; assignment, appointment, promotion,
salaries, disciplining or resignation of employees;
(2) Discuss[ion] or consideration
of admission on (19) student matters that would
involve the disclosure of information contained
in a scholastic record concerning any student; (7)
to consult with legal counsel regarding (1) specific
legal matter requiring the provision of legal advice
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. Upon a roll call vote being
taken, the vote was: Aye: 4 Nay: 0. The motion CARRIED.
4-0
[Emphasis
in original.] The minutes also include a heading for
"ACTION ON CLOSED SESSION ITEMS" that describes
a 5-0 vote on a motion "to approve the personnel
report and addendum as presented." No such personnel
report or addendum was included with the minutes you
provided.
Q
uestion #21: Did the Board "adhere to the FOIA
statutes for the July 9, 2015, [Board] meeting?"
Answer
#21: For the same reasons stated above, it appears
that the motion, vote, and/or minutes were insufficient
in that the motion had improper Code citations, lacked
the necessary identification of the subject matter
of the closed meeting, and the votes and/or minutes
were not clear as to the actions taken by the Board.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1See,
e.g., Freedom of Information Advisory Opinions
05 (2018), 02 (2016), and 24 (2004) (discussing the
requirements for a closed meeting motion).
2Section 30-179 sets forth the powers and
duties of the FOIA Council, including the power under
subdivision 1 to "[f]urnish, upon request, advisory
opinions or guidelines, and other appropriate information
regarding the Freedom of Information Act (§ 2.2-3700
et seq.) to any person or public body, in an expeditious
manner."
3Note that there was no audible vote on
the recording, and the screen that appears to have
been used at the meeting was not fully legible on
the recording, but based on other meeting recordings
and information on the Board's website (https://www.iwcs.k12.va.us/apps/pages/schoolboard)
it appears that the Board votes using BoardDocs as
a regular practice, so it is presumed the Board did
so at this meeting, as well, and that the vote was
visible to those present, as it appears to have been
at other meetings since the Board began using BoardDocs
software.
4See Freedom of Information Advisory
Opinion 06 (2015).
5Freedom of Information Advisory Opinion
02 (2017).
6Freedom of Information Advisory Opinion
01 (2005).
7Freedom of Information Advisory Opinion
09 (2019).
8Ragan v. Woodcroft Village Apartments,
255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal
citations and quotations omitted).
9Davis v. MKR Development, LLC, 295 Va.
488, 494, 814 S.E.2d 179, 182 (2018) (quoting City
of Richmond v. Virginia Elec. & Power Co., 292
Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
10See Beck v. Shelton, 267 Va.
482, 593 S.E.2d 195 (2004); Freedom of Information
Advisory Opinion 27 (2004).
11FOIA has provisions concerning providing
copies of agendas and agenda materials for public
inspection but does not address agenda contents. See
subsection F of § 2.2-3712 and subdivisions D
3 and 5 of § 2.2-3708.2.
12Op. Atty. Gen. Va. No. 14-049 (issued
July 22, 2014).
13Op. Atty. Gen. Va. No. 08-112 (issued
January 6, 2009).
14258 Va. 598; 521 S.E.2d 523 (1999).
15See id., 258 Va. at 603, 521
S.E.2d at 525.
16Keep in mind that subsection I of §
2.2-3712 provides that "[m]inutes may be taken
during closed meetings of a public body, but shall
not be required. Such minutes shall not be subject
to mandatory public disclosure."
17Freedom of Information Advisory Opinion
07 (2000).
18Freedom of Information Advisory Opinion
05 (2018).
19Cole v. Smyth County Board of Supervisors,
No. 171205 (Va. May 28, 2020), available at http://courts.state.va.us/opinions/opnscvwp/1171205.pdf.
20Because the certification appears to
comply with the requirements of subsection D of §
2.2-3712, there is no need to discuss it further for
purposes of this opinion.
21"discussion or consideration of
prospective candidates for employment; assignment,
promotion, salaries, disciplining or resignation of
employees"
22"Discussion, 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"
23The Board's main website lists the following
web address for Board meetings before September 2018:
http://esb.iwcs.k12.va.us/. Each time I attempted
to look at older meeting materials there, the page
failed to load and the connection timed out (last
checked May 22, 2020). |