FOI Advisory Council Opinion AO-07-09
June 9, 2009
Russell Vern Presley, II
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 telephone call of May 1, 2009 and facsimile of May 6, 2009.
Dear Mr. Presley:
You have asked two questions concerning the rescheduling of a meeting of the Administrative Board (the Board) of the Buchanan County Department of Social Services (the Department). First, you asked whether rescheduling the Board's regular meeting from April 14, 2009, to April 21, 2009, violated the Virginia Freedom of Information Act (FOIA). Second, you asked whether the Director of the Department may contact individual Board members by telephone to discuss rescheduling or other administrative matters.
As background, you stated that the Board was originally scheduled to hold a regular meeting on April 14, 2009. You indicated that because the Chairman would be unavailable on that date, he asked the Director to contact the other Board members regarding rescheduling the meeting until April 21, 2009. During the first week of April, the Director spoke to each Board member, except one, by telephone. The Director left a voice mail message for the one member she did not speak with directly. Having received consent from all members except the one for whom she left a message, you stated that the Director issued an agenda packet with the new date, posted notice of the meeting, advised the news media, and again contacted each member by telephone. The Director was again unable to contact the same member she was unable to reach before, and again left a voice mail message for that member. You indicated that in the second voice mail message, the Director stated that the other Board members had "voted" to change the meeting date, although no vote was actually taken. Further, you indicated that the Director never spoke with more than a single Board member at a time during this process.
You also related that after the rescheduling, the Board held a special called meeting on April 9, 2009. You stated that information at this meeting made clear that the regular meeting had been rescheduled from April 14 to April 21. Furthermore, the Board member who had received the voice mail messages was at this special meeting on April 9 and therefore was aware of the rescheduling of the regular meeting. At the rescheduled meeting on April 21, however, this Board member protested that the meeting was being held in violation of FOIA. You stated that the same member subsequently said the same to the press and on a local radio show, that the Board had violated subsection B of § 2.2-3707 by rescheduling the meeting by telephone.
The policy of FOIA stated in subsection B of § 2.2-3700 is to ensure free entry to meetings of public bodies wherein the business of the people is being conducted. 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. Subsection B of § 2.2-3707 provides that [n]o meeting shall be conducted through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2-3708, 2.2-3709 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses. Additionally, subsection A of § 2.2-3708 bars local public bodies from holding meetings by telephone or other electronic means (except in specific limited circumstances that would not apply under the facts presented). Regarding voting, § 2.2-3710 states in relevant part as follows:
A. 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. No 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.
B. Notwithstanding the foregoing, nothing contained herein shall be construed to prohibit (i) separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business, whether such contact is done in person, by telephone or by electronic communication, provided the contact is done on a basis that does not constitute a meeting as defined in this chapter.
Reading these provisions together, it is clear that any votes taken must be taken at public meetings held in accordance with FOIA, and the Board cannot hold a meeting or vote by telephone. Therefore, if the members purported to vote by individual telephone calls with the Director, such a vote would be improper. As quoted above, subsection A of § 2.2-3710 requires votes to be taken at public meetings and forbids voting by telephone unless expressly provided by [FOIA]. There is no specific provision of FOIA that would allow such a telephonic meeting and vote for the purpose of rescheduling a Board meeting.
However, you indicated that the word "vote" was merely a misnomer as used by the Director in a voice mail message. You stated that no vote actually took place, and confusion may have arisen because of the Director's choice of words. Note that FOIA itself does not set forth requirements or procedures for rescheduling meetings. It appears that local social services boards are addressed in Chapter 3 (§ 63.2-300 et seq.) of Title 63.2 of the Code of Virginia, but none of the provisions therein appear to address rescheduling meetings either. The lack of legal guidance in this area makes it unclear whether a vote must be taken by the Board in order to reschedule a meeting, or whether such rescheduling may occur without a vote (for example, by action of the Chair or the Director). The answer may depend on any parliamentary rules of procedure adopted by the Board, or the scope of authority of the Director. Typically, such contacts between an administrator and individual members of a public body are for the purpose of polling to find out whether members are available to meet on a certain date, and do not constitute a vote. In any event, the question of whether a vote was needed appears to be outside the scope of FOIA. Therefore, this office can only opine that if a vote was required, and a vote was taken by telephone, then such a vote would be in violation of subsection A of § 2.2-3710. However, if no vote was required, and none was in fact taken, then there was no violation. Thus to answer your first question, rescheduling a meeting in and of itself does not violate FOIA so long as proper notice of the meeting (or the rescheduling thereof) is given.1 If a vote of the Board had been taken by telephone regarding rescheduling, such a vote would be in violation of FOIA as stated above. However, the facts you presented indicate that no vote was taken; assuming this to be true, then there was no violation.
Next we consider your second question, whether the Director of the Department may contact individual Board members by telephone to discuss rescheduling or other administrative matters. Turning to the definition of meeting in § 2.2-3701, note that a meeting requires the presence of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership. The facts you described indicated that the telephone calls in question involved the Director communicating with a single Board member at a time. You indicated that there were no conference calls or other instances where more than one Board member participated. It is my understanding that the Director is not a member of the Board, and that four members of the seven total members (i.e., a majority) would constitute a quorum of the Board. Therefore none of these calls could have constituted a Board meeting as defined in § 2.2-3701, as there was only a single member involved in any given conversation (i.e., there were never three members or...a quorum communicating by telephone at the same time). To the extent that individual members had conversations with the Director by telephone about rescheduling a Board meeting, these calls were not meetings subject to FOIA and did not violate FOIA. The answer to your question is yes, the Director may contact individual Board members to discuss rescheduling or other administrative matters without violating FOIA.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. In this instance, the facts you presented indicated that sufficient notice was provided, and the allegation at issue was that the Board held an electronic meeting in violation of subsection B of § 2.2-3707. Therefore the issue of notice will not be further addressed herein.
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