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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-24
May
29, 2024
Mark
Egger
Front Royal, Virginia
Request received via email
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 email of July 15, 2023.
Dear
Mr. Egger:
You have requested an advisory opinion on whether
the Board of Trustees of Samuels Public Library (Board)
properly held a closed meeting on February 6, 2023,
pursuant to the Virginia Freedom of Information Act
(§ 2.2-3700 et seq. of the Code of Virginia)
(FOIA).
Factual
Background
As background information, on February 1, 2023, the
Board called for a Special Meeting. The information
provided to our office states that the notice for
the February 6, 2023, Special Meeting "was posted
on the Library online calendar on February 1, 2023"
and "was also posted inside the library on the
day of the meeting."
You provided a copy of the minutes from the Board's
Special Meeting held on February 6, 2023. The minutes
state, in relevant part regarding a closed meeting,
as follows:
In attendance: [sixteen persons listed by name].
[Board President] called the meeting to order at
5:30 pm. He then thanked everyone for attending,
introduced [two members of the] Warren County [Board
of] Supervisors that were present and indicated
that there were two agenda items: first a closed
session meeting, then a regular session meeting
to discuss a staff proposal.
[Board Member] made the following motion:
I move the Board of Trustees go into executive session
in accordance with the Code of Virginia, Section
2.2-3711A.7, for the purpose of discussing matters
of possible litigation stemming from materials challenges.
[Another Board member] seconded the motion, which
passed unanimously. The Board of Trustees then entered
a closed executive session.
[Board Member] moved that the Executive Session
be adjourned; [Board President] then called the
meeting back to order.
[Board Member] then offered the following two motions:
I move that the Board certifies to the best of each
member's knowledge that only public business matters
lawfully exempted from open meeting requirements
under Sect 2.2-3711A.7 of the Code of Virginia and
only such public business matters were identified
in the motion by which the closed meeting was convened
were heard, discussed, or considered in the meeting
by the public body.
Second, I move that the Board approve an Ad Hoc
Committee, to consider appeals to the Samuels Public
Library collections, and that the committee consist
of the following Board members: [listed 3 three
Board members by name] and [Board President].
The motion was seconded by [Board Member], discussion
followed. [Two Board members] both volunteered to
serve on this committee. [Board Member] questioned
whether of [sic] not any Board member could attend
meetings held by this Ad Hoc committee – it was
agreed that all Board members are welcome, and should
the need arise to hold a meeting [Board Member]
will notify the full Board of the date and time.
The
motion on the table was then amended to remove [Board
President] as a sitting member and add [two Board
members]. The amended motion passed unanimously.
You provided copies of letters and emails dated from
May 15, 2023, through June 2, 2023, exchanged between
you and the Board President. Initially, you inquired
about the purpose of the Special Meeting to discuss
"possible litigation" regarding "lawsuits
arising from materials challenges" and whether
the process utilized by the Board complied with FOIA
for closed meetings. In subsequent correspondence,
you stated that "[t]he closed meeting held by
the [Board] on February 6, 2023 was illegal"
and that "[i]t did not comply with the Virginia
State Code 2.2-3711." You asserted that FOIA
"does not allow [public bodies] to have a closed
meeting to discuss 'possible litigation'" but
requires that "[i]t must be 'actual or probable
litigation[.]'" In another email, you restated
your argument that the Board's action to enter a closed
meeting was improper under FOIA and that subdivision
A 7 of § 2.2-3711 requires "actual or probable
litigation" not "possible litigation"
as a basis for holding a closed meeting.
In
your email to our office requesting an advisory opinion,
you stated that you met in-person with the Board President
on June 30, 2023, at which time the Board President
informed you that "their legal counsel assured
them the meeting was legal" but did not direct
them "to implement a litigation hold." You
also expressed in this email that "their legal
counsel was not even present at the closed meeting"
and that "I believe that this meeting was not
a legal closed meeting under the Virginia FOIA."
Lastly, you stated that since a litigation hold was
not implemented as required by the Code of Virginia
(which you cited as § 8.01-379.2:1A), that "[t]his
fact strongly suggests that the Board is using the
spectre of unspecified 'probable litigation' as a
convenient excuse to have an illegal closed meeting."
In
general, the exchange of correspondence between you
and the Board President can be characterized as a
continuous disagreement on the requirements of subdivision
A 7 of § 2.2-3711 and dispute over interpretation
of "actual or probable litigation" versus
"possible litigation." Out of this argument
over future litigation, the main concern appeared
to be the anticipated submissions of Request for Reconsideration
forms regarding the Library's collection and the manner
in which the Board would respond to each request.
On multiple occasions, you also requested that you
"would like to have public acknowledgement by
the Library Board that the closed meeting of February
6, 2023 was illegal" and that you "would
like to know what was discussed during the illegal
closed meeting, either through recollections of attendees
or written notes that were made."
In
his responses, the Board President repeatedly defended
the Board's decision to conduct a closed meeting (which
he and the Board referred to as "executive session"
in the meeting minutes and in subsequent correspondence
until you pointed out in your May 24, 2023, email
that the appropriate term was "closed meeting").
He also maintained that the Board "complied with
the requirements of FOIA" and operated "[a]s
required under § 2.2-3712, the motion to go into
executive session identified (i) the subject matter
of the closed meeting ('litigation stemming from materials
challenges'), (ii) the purpose of the closed meeting
('discussing matters of possible litigation'), (iii)
and the applicable statutory exemption (§ 2.2-3711(A)(7))."
In
his May 23, 2023, letter to you, in relevant part,
the Board President stated:
The
purpose of the exemption to Virginia's open meetings
rule embodied in § 2.2- 3711(A)(7) is to allow
public bodies like Samuels Library to discuss contentious
issues without compromising the public body's posture
in the event of litigation. The term "subject
matter," as used in § 2.2-3712, is defined
as an "issue presented for consideration"
or a "thing in dispute." Cole v. Smyth
County Bd. of Supervisors, 298 Va. 625, 639
(2020) (citing Black's Law Dictionary 1723 (11th
Ed. 2019)). With respect to the statutory exemption
for "probable litigation", the subject
matter to be identified in a motion for closed session
need not identify a specific piece of litigation.
Instead, it may identify any "particular case,
controversy or issue." Id. at 640
(emphasis added). Therefore, the motion for closed
session properly and adequately identified an issue
and/or dispute ("materials challenges")
that poses a significant threat of litigation for
Samuels Library.
He also stated in relevant part that:
Your email contends that there is a distinction
between "possible litigation" and "probable
litigation." Like the definition of "subject
matter," the definition of "probable litigation"
in § 2.2.-3711(A)(7) does not require a public
body to identify active litigation or a specific
threat of litigation. Instead, that statute authorizes
a public body to enter a closed session when "the
public body or its legal counsel has a reasonable
basis to believe [that litigation] will be commenced
by or against a known party." At the time of
the special meeting, there were - and still are
numerous bases for the Board to believe that litigation
may be commenced against the Library, members of
its staff and/or the Board itself.
These
bases include your involvement in helping orchestrate
and organize an effort to present the Library with
a large number of materials challenges objecting
to various items with LGBTQ themes or content. Such
challenges are often a precursor to litigation against
public libraries, bookstores, and/or other similar
organizations.
Moreover, contrary to the assertion in your email,
the Board's decision to go into closed session was
not based on "hearsay about mythical lawsuits."
In fact, a recent newspaper article highlights recent
litigation in 2022 seeking to ban the book "Gender
Queer" from bookstores in Virginia Beach. (See:
https://www.dnronline.com/news/group-wants-smut-books-removed-from-
samuels-library/article 90a85c46-c6de-5923-9b68-26dbf8cdb5fb.html).
Notably, that article also cites the executive director
for the Virginia Library Association, for the proposition
that removing books under a materials challenge
may lead to First Amendment litigation. A simple
Google search reveals various other lawsuits involving
challenges to LGBTQ content in public libraries,
both by those seeking removal of such materials
and by those upset by their removal. This publicly
available information demonstrates that, however
a library responds to materials challenges such
as those you have orchestrated, there is a reasonable
basis to believe that such action may lead to litigation
against the library.
The
Board President concluded this letter by stating:
"[t]herefore, the Board's vote to go into executive
session at the special meeting was proper, and the
substance of the Board's discussion in executive session
is exempt from the disclosure requirements of FOIA
pursuant to Virginia Code § 2.2-3711(A)(7)."
In his letter to you dated June 2, 2023, the Board
President stated in relevant part that:
However, I will address your question regarding
timing, in case it helps you understand why the
Board entered into a Closed Meeting in February
2023 even though your first materials challenge
did not appear until May 2023. Recall, if you will,
that your May 2023 materials challenges were [sic]
not your first contact with your local government
on this issue. Rather, you contacted the Warren
County Board of Supervisors regarding certain books
in the Library's collection in late January and
asked for the removal of these books from the Library
at this time. The Board was aware of this contact
and expected that materials challenges would follow
(and, of course, they did). Hence the Library Board
of Director's [sic] decision to discuss potential
litigation involved these challenges in early February.
Analysis
The question to consider is whether the Board properly
held a closed meeting on February 6, 2023, pursuant
to the requirements of FOIA.
The
policy of FOIA expressed in subsection B of §
2.2-3700 of the Code of Virginia is to ensure "free
entry to meetings of public bodies wherein the business
of the people is being conducted." FOIA policy
as expressed in subsection B of § 2.2-3700 also
states that:
The
affairs of government are not intended to be conducted
in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken
at any level of government. Unless 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 and all public records shall be available
for inspection and copying upon request. All public
records and meetings shall be presumed open, unless
an exemption is properly invoked.
FOIA policy as expressed in subsection B of §
2.2-3700 further directs that the provisions of FOIA
shall
be liberally construed to promote an increased awareness
by all persons of governmental activities and afford
every opportunity to citizens to witness the operations
of government. 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.
Subsection
A of § 2.2-3707 specifically provides that "[a]ll
meetings of public bodies shall be open, except as
provided in §§ 2.2-3707.01 and 2.2-3711."
In addition, public bodies are required to give notice
of public meetings in accordance with subsection D
of § 2.2-3707. Subsection I of § 2.2-3707
provides that "[m]inutes shall be taken at all
open meetings." Moreover, subsection I of §
2.2-3707 requires that "[m]inutes shall be in
writing and shall include (a) the date, time, and
location of the meeting; (b) the members of the public
body recorded as present and absent; and (c) a summary
of the discussion on matters proposed, deliberated,
or decided, and a record of any votes taken."
The
requirements for conducting a closed meeting pursuant
to subsection A of § 2.2-3712 are as follows:
No
closed meeting shall be held unless the public body
proposing to convene such meeting has taken an affirmative
recorded vote in an open meeting approving 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 matters
contained in such motion shall be set forth in detail
in the minutes of the open meeting. 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.
Three
elements (subject, purpose, and citation), pursuant
to subsection A of § 2.2-3712, are required in
a motion to convene a closed meeting for it to comply
with FOIA.1 If a motion does not include all three
elements, then "[n]o closed meeting shall be
held."2 First, a public body proposing to convene
a closed meeting is required to take an affirmative
recorded vote in an open meeting approving a motion
that "identifies the subject matter" of
the closed meeting. Second, the public body's motion
is required "[to state] the purpose of the meeting
as authorized in subsection A of § 2.2-3711 or
other provision of law." Third and lastly, a
motion to convene a closed meeting pursuant to subsection
A of § 2.2-3712, is required to "[cite]
the applicable exemption from open meeting requirements
provided in subsection A of § 2.2-3711 or other
provision of law." Furthermore, as required by
subsection A of § 2.2-3712, "[t]he matters
contained in such motion shall be set forth in detail
in the minutes of the open meeting."
In
a prior opinion, our office has acknowledged that
"there is often confusion in differentiating
between the subject and the purpose of a closed meeting."3
Our office provided guidance that the subject is "what
the meeting is about" and "the purpose is
why the meeting is to be held."4 Additionally,
"when identifying the subject of a closed meeting,
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 [the] object of the discussion."5 However,
"we also opined that quoting or paraphrasing
from one of the exemptions in [subsection A of §
2.2-3711] satisfies the requirement to state the purpose
of the meeting, but it does not suffice to identify
the subject matter."6 Thus, "by quoting or
paraphrasing from one of the statutory exemptions,
and providing a proper citation to the exemption,
only two of the three required elements of the motion
to convene a closed meeting are satisfied."7 "The
public body must still identify the subject in order
to make a proper motion to convene a closed meeting."8
In
correspondence submitted to our office, the Board
President stated that notice for the Special Meeting
on February 6, 2023, "was posted on the Library
online calendar, [February] 1, 2023" and "was
also posted inside the library on the day of the meeting."
In the minutes of the Special Meeting provided to
our office, attendance was recorded at 5:30 p.m. of
those persons present in the room (sixteen names in
total were listed) including two members from the
Warren County Board of Supervisors. The minutes "indicated
that there were two agenda items: first a closed session
meeting, then a regular session meeting to discuss
a staff proposal." A motion was made by a Board
member and seconded by another Board member, "to
go into executive session in accordance with the Code
of Virginia, Section 2.2-3711A.7, for the purpose
of discussing matters of possible litigation stemming
from materials challenges." The minutes note
that the motion "passed unanimously" and
that the Board "then entered a closed executive
session."
For
purposes of clarity, "executive meeting"
was removed in 1999 from FOIA's definition of "closed
meeting."9 "Closed meeting" as defined
in § 2.2-3701, means "a meeting from which
the public is excluded." Closed meetings may
only be held for those certain limited purposes listed
specifically in subsection A of § 2.2-3711. One
purpose for holding a closed meeting is listed in
subdivision A 7 of § 2.2-3711, which states:
Consultation
with legal counsel and briefings by staff members
or consultants pertaining to actual or probable
litigation, where such consultation or briefing
in open meeting would adversely affect the negotiating
or litigating posture of the public body. For the
purposes of this subdivision, "probable litigation"
means litigation that has been specifically threatened
or on which the public body or its legal counsel
has a reasonable basis to believe will be commenced
by or against a known party. Nothing in this subdivision
shall be construed to permit the closure of a meeting
merely because an attorney representing the public
body is in attendance or is consulted on a matter.
"Determining
whether any particular motion meets the statutory
requirements [for a closed meeting] depends on the
facts of each situation and requires a case-by-case
analysis."10 The Board's motion to convene a closed
meeting reads as follows: "to go into executive
session in accordance with the Code of Virginia, Section
2.2-3711A.7, for the purpose of discussing matters
of possible litigation stemming from materials challenges."
The motion states that the subject and purpose of
the closed meeting is "for the purpose of discussing
matters of possible litigation stemming from materials
challenges." This motion is not especially clear
in that it appears to conjoin the first two elements
of subsection A of § 2.2-3712, the subject and
purpose of the closed meeting without separately and
clearly stating the subject for the closed meeting,
which appears to be "materials challenges."
A better phrasing might have been something like "for
the purpose of discussing litigation matters, specifically
materials challenges" as such phrasing draws
more of a distinction between the purpose and the
subject. However, while it may have been better phrased,
the actual motion made does appear to set out both
subject and purpose as required. The Board's motion
addresses the third element by specifically citing
subdivision A 7 of § 2.2-3711 as authorization
for convening the closed meeting as the applicable
exemption from open meeting requisites. Thus, the
Board's motion to enter closed session likely complies
with the requirements of subsection A of § 2.2-3712.
It is generally recommended that when identifying
the subject of a closed meeting, it should be "with
greater specificity" but "without jeopardizing
the reason for holding the closed meeting." 11Another
best practice recommendation would be to differentiate
more clearly between the "subject" and "purpose"
of the closed meeting in the proposed motion. These
two elements are separate requirements, both of which
need to be unambiguously communicated to an attending
audience and recorded plainly in the open meeting
minutes. As required by subsection A of § 2.2-3712,
"[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."
Another
matter to consider is whether the members of the Board
of Supervisors were present during the closed meeting.
From the copy of the official minutes of the Special
Meeting on February 6, 2023, which was provided to
our office, it is unclear if the two members of the
County Board of Supervisors attended the closed meeting
conducted by the Library Board members. Subsection
F of § 2.2-3712 provides that "[a] public
body may permit nonmembers to attend a closed meeting
if such persons are deemed necessary or if their presence
will reasonably aid the public body in its consideration
of a topic that is a subject of the meeting."
The attendance of two members of the County Board
of Supervisors in a closed meeting would likely not
be considered an issue, in particular, "if such
persons are deemed necessary or if their presence
will reasonably aid the public body in its consideration
of a topic that is a subject of the meeting."
Subsection I of § 2.2-3712 also 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."
It is unclear whether minutes were taken during the
closed meeting, but even so, they would be excluded
from mandatory public disclosure as quoted. Additionally,
"[r]ecords recorded in or compiled exclusively
for use in closed meetings" are also exempt pursuant
to subdivision 5 of § 2.2-3705.1.
You
alleged that legal counsel did not attend the closed
meeting, which presents the issue of whether or not
that fact would invalidate the exemption provided
by subdivision A 7 of § 2.2-3711. This detail
was also not clearly recorded in the minutes of the
open meeting. As previously stated, minutes are not
required to be taken during a closed meeting pursuant
to subsection I of § 2.2-3712. Nevertheless,
the question remains as to whether legal counsel,
staff members, or consultants were present in the
closed meeting. Subdivision A 7 of § 2.2-3711,
in relevant part, provides that "[c]onsultation
with legal counsel and briefings by staff members
or consultants pertaining to actual or probable litigation,
where such consultation or briefing in open meeting
would adversely affect the negotiating or litigating
posture of the public body." Our office has previously
opined "where the discussion [in a closed meeting]
is related to actual or probable litigation, legal
counsel need not be present."12 Therefore, "[t]his
exemption may be properly invoked where there are
briefings by staff members or consultants and such
briefings pertain to actual or probable litigation."13
As
this office is limited to only the information provided,
we are unable to make a definite determination on
this particular issue as it is outside the scope of
this office's authority.14 Our authority does not include
being a trier of fact.15 As stated in prior opinions,
determinations of fact are reserved to courts of law
since they possess the authority to review evidence
and hear testimony.16 A court could hear testimony from
witnesses on the presence of legal counsel, staff
members, or consultants in the closed meeting and
determine whether this factor impacted the legality
of the closed meeting held pursuant to subdivision
A 7 of § 2.2-3711. Similarly, regarding your
claim that the Board had not implemented a litigation
hold or received advice from their legal counsel to
implement a litigation hold pursuant to subsection
A of § 8.01-379.2:1 (Spoliation of evidence),
our office will not address this issue as it is outside
the scope of FOIA and beyond our authority.
Another
issue to consider, which was repeatedly discussed
in the provided correspondence exchanged between you
and the Board President, is whether FOIA authorizes
a closed meeting for the discussion of "possible
litigation" or "probable litigation."
As you stated in your communications with the Board
President, "probable litigation" as provided
in subdivision A 7 of § 2.2-3711 means "litigation
that has been specifically threatened or on which
the public body or its legal counsel has a reasonable
basis to believe will be commenced by or against a
known party." In response, the Board President
contended that "possible litigation" means
"litigation . . . on which the public body or
its legal counsel has a reasonable basis to believe
will be commenced by or against a known party."
In his letter to you dated June 2, 2023, the Board
President stated in relevant part that:
Our disagreement seems to turn on whether the Board
had a "reasonable basis" to expect litigation
resulting from challenges to volumes in the Library's
collection. See § 2.2.-3711(A)(7). The Board
maintains that it did, for the reasons I stated
in my May 23, 2023 letter. I will spare you a restatement
of those reasons here. Instead, I think we may have
to just agree to respectfully disagree on this point.
The
provided minutes of the meeting record that the Board's
motion to authorize a closed meeting is "for
the purpose of discussing matters of possible litigation
stemming from materials challenges." A public
body may hold a closed meeting to consult with legal
counsel, staff members, or consultants "pertaining
to actual or probable litigation" as stated in
subdivision A 7 of § 2.2-3711.
In prior opinions, this office has "previously
interpreted this [former version] exemption [subdivision
A 7 of § 2.2-3711] to apply to two different
situations: (1) consultation pertaining to actual
or probable litigation, and (2) consultation regarding
specific legal matters."17 These opinions note
that "[t]he meaning of 'actual litigation' is
self-evident, and 'probable litigation' is defined
as quoted above."18 While acknowledging that "specific
legal matters" is undefined, "in reviewing
court decisions and prior opinions of the Attorney
General, we observed that the legal matters exemption
would not allow a closed meeting to be held to discuss
general policy or other matters that may eventually
have legal consequences."19 Of note, in 2017, the
General Assembly amended § 2.2-3711 to establish
subdivision A 8 that "consultation with legal
counsel employed or retained by a public body regarding
specific legal matters" as a separate purpose
for holding a closed meeting.20 Accordingly, legal counsel
would have to be present in a closed meeting under
this exemption (subdivision A 8) "because, on
its face, this part of the exemption applies only
to 'consultations with legal counsel.'"21 By contrast,
the exemption cited by the Board (subdivision A 7),
does not require the presence of legal counsel if
instead staff members or consultants are present and
discussing the litigation matters with the Board.
Similar
to the use of "executive session" when referring
to a "closed meeting" previously, the Board
President and Board members seem to have utilized
incorrect terminology when referring to "possible
litigation" instead of "probable litigation."
In defense of the Board's actions, the Board President
referred to the language appearing in subdivision
A 7 of § 2.2-3711 to define "possible litigation"
in place of "probable litigation." If, initially
at the outset of the process, the Board President
and Board members had been aware of the correct terminology,
then it may have been a straightforward matter of
simply correcting the misspoken use of "possible
litigation." However, as that was not the case,
misuse of terminology led to miscommunication and
conflict. In another best practice suggestion, public
bodies and their officials and employees would be
better served by using the statutory language defined
and utilized in FOIA when conducting public meetings.
Failure to use terminology currently consistent with
the law may result in misunderstanding and confusion
by an audience and when recorded in the official minutes
may invite challenges of legality. Such disputes can
occur when two parties disagree concerning two ways
of saying the same thing. Whereas, if the correct
terminology was used in the beginning, it may prevent
this type of disagreement from developing.
Whether
the Board properly utilized the exemption of subdivision
A 7 of § 2.2-3711 to convene the closed session
is a disputed fact best examined by a court.22 The Board
President and Board members appear to have been aware
of various lawsuits involving challenges to LGBTQ
content in other public libraries' collections. They
anticipated and expected that Samuels Public Library's
collection was subsequently going to be challenged
by those seeking removal of such materials and by
those upset by their removal. Once again, a court
could receive evidence and testimony from witnesses
to determine whether there was "litigation that
[had] been specifically threatened or on which [the
Board] or its legal counsel [had] a reasonable basis
to believe will be commenced by or against a known
party."
A
nother issue to consider is whether the Board properly
certified the closed meeting as required under FOIA.
The minutes state that "[Board Member] moved
that the Executive Session be adjourned" and
that the Board President "then called the meeting
back to order." As a point of emphasis, FOIA
does not require a motion or vote to end or exit a
closed meeting since, pursuant to subsection A of
§ 2.2-3710, "no vote . . . shall be taken
to authorize the transaction of public business, other
than a vote taken at [an open] meeting." Furthermore,
subsection D of § 2.2-3712 provides as follows:
At
the conclusion of any closed meeting, the public
body holding such meeting shall immediately reconvene
in an open meeting and shall take a roll call or
other recorded vote to be included in the minutes
of that body, certifying that to the best of each
member's knowledge (i) only public business matters
lawfully exempted from open meeting requirements
under this chapter and (ii) only such public business
matters as were identified in the motion by which
the closed meeting was convened were heard, discussed
or considered in the meeting by the public body.
Any member of the public body who believes that
there was a departure from the requirements of clauses
(i) and (ii), shall so state prior to the vote,
indicating the substance of the departure that,
in his judgment, has taken place. The statement
shall be recorded in the minutes of the public body.
The minutes provide that after the Board President
"called the [open] meeting back to order"
a Board member then offered the following two motions:
I
move that the Board certifies to the best of each
member's knowledge that only public business matters
lawfully exempted from open meeting requirements
under [§] 2.2-3711A.7 of the Code of Virginia
and only such public business matters were identified
in the motion by which the closed meeting was convened
were heard, discussed, or considered in the meeting
by the public body.
Second,
I move that the Board approve an Ad Hoc Committee,
to consider appeals to the Samuels Public Library
collections, and that the committee consist of the
following Board members: [Board Member], Chair [of
Ad Hoc committee]; [Board Member;] [Board Member;]
and [Board President].
The minutes record that "[t]he motion was seconded
by [another Board member], discussion followed."
Then, the minutes state that two Board members "both
volunteered to serve on this committee" and "[Board
Member] questioned whether of [sic] not any Board
member could attend meetings held by this Ad Hoc committee[.]"
Next, the minutes note that "it was agreed that
all Board members are welcome, and should the need
arise to hold a meeting [Board Member/Chair of Ad
Hoc committee] will notify the full Board of the date
and time." The minutes state that "[t]he
motion on the table was then amended to remove [Board
President] as a sitting member [from Ad Hoc committee]
and add [two other Board members]. Finally, the minutes
recorded that "[t]he amended motion passed unanimously."
Subsection
C of § 2.2-3712 provides that "[t]he public
body holding a closed meeting shall restrict its discussion
during the closed meeting only to those matters specifically
exempted from the provisions of this chapter and identified
in the motion required by subsection A." Our
office previously opined that "[i]f the substance
of the discussion strayed from what was purported
to be discussed and identified in the motion to convene
the closed meeting, then the certification would be
improper even though the motion to certify used language
that comported with the statutory requirements."23
As a matter of best practices, upon first reconvening
the open meeting, a public body should only consider
the subject matter discussed during the closed meeting,
in order to comply with the statutory directive in
subsection D of § 2.2-3712 to
immediately
reconvene in an open meeting and . . . take a roll
call or other recorded vote to be included in the
minutes of that body, certifying that to the best
of each member's knowledge (i) only public business
matters lawfully exempted from open meeting requirements
under this chapter and (ii) only such public business
matters as were identified in the motion by which
the closed meeting was convened were heard, discussed
or considered in the meeting by the public body.
It
is highly recommended that a single, unambiguous motion
to certify the closed meeting pursuant to subsection
D of § 2.2-3712 be performed prior to considering
any other action or other topics for discussion. The
Board's intermingling of the certification motion
along with a second motion to create an Ad Hoc committee
to consider appeals of the Library's materials collection
creates unnecessary confusion. While the first motion
described in the minutes appears to contain the necessary
elements for certification of the closed meeting,
the actual action taken by the Board in this instance
was muddled.
If
the Board had conducted a roll call vote or other
recorded vote limited to a lone motion, it would have
helped to alleviate any confusion. The provided minutes
record a unanimous vote by the Board to adopt a solitary
"amended motion" when there were two motions
presented to the Board members for consideration.
In a prior opinion, our office declared that "[i]f
the vote was in fact unanimous agreement by all members
present, and the minutes reflected this fact as well
as the members present, then the vote described would
be sufficient."24 Hence, it appears that the Board
certified the closed meeting in accordance with the
requirements of subsection D of § 2.2-3712. However,
the motion to certify the closed meeting could have
been more clearly phrased by utilization of the language
matching that provided by the statute.
Lastly, there may be an issue of whether the "special
meeting" was properly noticed pursuant to FOIA.
The information provided to our office states that
"on February 1, 2023, the Board called for a
Special Meeting." The information provided also
states that the notice for the February 6, 2023, Special
Meeting "was posted on the Library online calendar
on February 1, 2023" and "was also posted
inside the library on the day of the meeting."
Subsection D of § 2.2-3707 provides that
Every public body shall give notice of the date,
time, location, and remote location, if required,
of its meetings by:
1. Posting such notice on its official public government
website, if any;
2. Placing such notice in a prominent public location
at which notices are regularly posted; and
3. Placing such notice at the office of the clerk
of the public body or, in the case of a public body
that has no clerk, at the office of the chief administrator.
Additionally, subsection E of § 2.2-3707 provides
that "[n]otice, reasonable under the circumstance,
of special, emergency, or continued meetings shall
be given contemporaneously with the notice provided
to the members of the public body conducting the meeting."
The notice for the special meeting was posted inside
the library on the day of the meeting, February 6,
instead of February 1, and the notice does not appear
to have been posted at the office of the clerk of
the public body or the office of the chief administrator
as required. Therefore, it appears from the facts
provided that the notice may not have been sufficient.
However, a final determination on this issue would
also fall under the jurisdiction of a court.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Joseph
Underwood
Senior
Attorney
Alan
Gernhardt
Executive Director
1See
Freedom of Information Advisory Opinion 02 (2016).
2Subsection A of § 2.2-3712 of the Code of Virginia.
3Freedom of Information Advisory Opinion 02 (2016).
4Id.
5Freedom of Information Advisory Opinions 02 (2016)
and 13 (2009).
6Id.
7Id.
8Id.
9Acts of Virginia, Chapters 703, 726 (1999).
10Freedom of Information Advisory Opinion 02 (2016).
11Id.
12Freedom of Information Advisory Opinion 07 (2000).
13Id.
14See Freedom of Information Advisory
Opinions 01 (2023), 01 (2022), 03 (2016), and 09 (2005).
15See id.
16See id.
17Freedom of Information Advisory Opinions 02 (2016)
and 01 (2007).
18Id.
19Id.
20Acts of Virginia, Chapter 616 (2017).
21Freedom of Information Advisory Opinion 07 (2000).
22See Freedom of Information Advisory
Opinions 01 (2023), 01 (2022), 03 (2016), and 09 (2005).
23Freedom of Information Advisory Opinion 02 (2016).
24Id.
|