CIRCUIT COURT OF WARREN COUNTY
Shenandoah Publishing House Inc., Complainant
Warren County School Board, et al., Defendants
Chancery No. 96-155
October 30, 1996
By Judge John E. Wetsel, Jr.
OPINION AND FINAL DECREE
This case came before the Court on October 28, 1996, for trial on
a newspaper's petition for an injunction against the Warren County
School Board for violating the Virginia Freedom of Information Act in
hiring a new Assistant Superintendent of Schools. The parties
appeared with their counsel, J. David Griffin, Esquire, for the
complainant; and Douglas W. Napier, Esquire, for the defendants.
Thereupon, the Complainant withdrew its claim for assessment of civil
penalties against the School Board collectively or its individual
Thereupon, various exhibits were admitted into evidence, the
material facts were reviewed with the parties, and the Court found
that there was no genuine dispute about any material fact. Whereupon,
the evidence was argued by counsel, and the Court announced that it
would take the matter under consideration.
Upon further consideration, the Court has made the following
decision to grant, in part, the petition for an injunction.
I. Statement of Facts.
The following facts are not in dispute:
1. The complainant Shenandoah Publishing House is a Virginia
corporation which publishes the Northern Virginia Daily, a daily
newspaper of general circulation in Warren County, Virginia,
hereinafter called the Daily.
2. The Warren School Board is a political subdivision of the
Commonwealth of Virginia, hereinafter called the School Board.
3. By resolution adopted June 20, 1996, in open session, the
School Board authorized the Chairman of the School Board "to sign
contracts for new employees pending approval by the full Board at the
next regular meeting."
4. At an August 26, 1996, meeting of the School Board, the School
Board adjourned into executive session pursuant to Virginia Code
section 2.1-344(a) (1), to discuss "Assistant Superintendent
selection and other personnel issues."
5. During this executive session the School Board considered
applicants for the position of assistant superintendent and reached a
consensus that Roy F. Monk was the person whom they wished to
6. Pursuant to the consensus reached in the executive session, the
School Board Chairman then contacted Mr. Monk and advised him of the
School Board's preference, and on August 28, 1996, the Chairman of
the School Board signed an employment contract with Mr. Monk to
employ him as Assistant Superintendent of the Warren County Schools.
While this contract specifically provided that it was subject to the
authority of the school board, it also provided that Mr. Monk's
services would begin on September 3, 1996, which was nine days before
the contract was formally approved by the School Board.
7. The next regularly scheduled meeting of the School Board was on
September 12, 1996, and at that meeting in open session the School
voted unanimously to approve the August 28, 1996, contract between
the School Board and Mr. Monk.
8. Mr. Monk has been continuously employed by the School Board
since September 3, 1996, as provided in the August 28, 1996, and the
Daily asks this Court to declare that his employment in the period
from September 3 through September 12, 1996, contract was unlawful,
and that his employment during that period was "null and void."
II. Conclusions of Law.
1. The facts in this case are not in dispute, rather a question
exists as to whether the School Board's policy of giving the School
Board Chairman the plenary authority to conditionally employ the new
Assistant Superintendent of Schools, subject to, but before, the
Board takes formal action in open session to approve the contract,
violates Virginia Code section 2.1-344.B, which provides that:
No ... contract ... agreed to in an executive or closed session
shall become effective unless the public body, following the meeting,
reconvenes in open meeting and takes a vote of the membership on such
.... contract ... which shall have its substance reasonably
identified in the open meeting.
The Daily argues that this statute prohibits the School Board
Chairman from signing employment contracts, which are discussed in a
closed executive session and which have an effective date before
formal approval by the School Board, even though the contract is
conditioned upon the School Board's later formal approval in open
session of the contract as was done in this case.
2. The Virginia of Information Act "shall be liberally construed
to enable citizens to observe the operations of government and ...
the exemptions shall be narrowly construed 'in order that no thing
which should be public may be hidden from any person.'" City of
Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 429 (1982). See
also Virginia Code section 2.1-340.1; and Taylor v. Worrell
Enterprises, 242 Va. 219, 224 (1991). Virginia section
2.1-344.A.1 provides that "discussion, consideration or interviews of
prospective candidates for employment ... of specific public
officers, appointees or employees of any public body ..." may be
discussed in a closed executive session. The application of this
exception to this case is conceded by the Daily.
3. The School Board is a "public quasi corporation ... that
exercise[s] limited powers and functions of a public nature
granted to them expressly or by necessary implication [of
law], and none other." Kellam v. School Board, 202 Va.
252, 254, 117 S.E.2d 96 (1960). Because of its public character the
School Board's ability to enter contracts is more circumscribed than
that of a private corporation. When the School enters into a closed
executive session, the jurisdiction of the Freedom of Information Act
is triggered, and the permissible range of the School Board's action
on the matter discussed in the executive session is limited by the
Freedom of Information Act.
4. Virginia Code section 2.1-344.B is clear and unambiguous. If a
statute is clear and unambiguous, a court will give the statute its
plain meaning. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d
84, 87 (1985). "Remedial statutes are to be construed liberally to
remedy the mischief to which they are directed in accordance with the
legislature's intended purpose." Carmel v. City of Hampton,
241 Va. 457, 460, 403 S.E.2d 335 (1991). "For this Court to place any
limitation on the clear and comprehensive language of the statute, or
to create an exception where none exists under the guise of statutory
construction, would be to defeat the purpose of the enactment and to
engage in judicial legislation." Town of Crewe v. Marker, 228
Va. 109, 114, 319 S.E.2d 748 (1984).
Effective means "actually in operation or in force." Random House
Unabridged Dictionary (2nd Ed. 1993). Therefore, the School Board's
contract with Mr. Monk could not become effective, nor could he begin
work, until the School Board reconvened in open session and voted on
the contract, because the School Board had discussed his contract in
a closed executive session.
5. A public body like the School Board may adjourn into executive
session to discuss applicants for employment and in those discussions
reach a consensus as to action to be later formally taken, and the
School Board may ratify in open session actions impermissibly taken
in a closed executive session. See Nageotte v. King George
County, 233 Va. 259, 268, 288 S.E.2d 423 (1982); and Virginia
Code section 2.1-344.C. While these principles will validate both the
Board's hiring of Mr. Monk and Mr. Monk's employment and actions
during the period from September 3 to September 12, 1996, these
principles do not justify the School Board's general practice of this
procedure as was argued by the School Board, or Mr. Monk's
conditional hiring in this case. There are many ways to comply with
the Freedom of Information Act, as the School Board apparently did in
the recent hiring of a new high school principal. Moreover, Mr.
Monk's contract could have provided that it would become effective
immediately upon formal approval by the School Board instead of on
September 3, 1996. The School Board must comply with the Freedom of
Information Act even thought this may cause some inconvenience and
6. Virginia Code section 2.1-346 provides that violations of the
Virginia Freedom of Information Act may be enforced by injunction and
that "a single instance of denial of the rights and privileges
conferred by the chapter shall be sufficient to invoke the remedies
herein granted." "Although Code section 2.1-346 permits injunctive
relief upon proof of a single violation of the Act, based upon the
inference that future violations will occur, such relief remains
discretionary with the court. It is an 'extraordinary and drastic
remedy [and] is not to be casually or perfunctorily
ordered.'" Hale v. Washington County School Board, 241 Va. 76,
81, 400 S.E.2d 175 (1991).
The procedural violation in this case was both minor and
unintended. Its effect was ephemeral in that there was only a nine
day hiatus between the effective date of the contract and the date
that it was formally approved by the School Board. The spirit of the
Act was complied with, because the School Board issued a press
release the day that the contract was signed. Nonetheless, the
procedure employed was apparently pursuant to a general policy of the
School Board, and that general policy, as it applies to contracts
discussed in closed executive sessions, violates the Freedom of
Information Act, so the future application of that policy is the
proper grounds for an injunction on the very narrow issue presented
by the facts of this case.
For the foregoing reasons, it is ADJUDGED AND DECREED that:
1. The Complainant's motion for an injunction enjoining the School
Board from hiring employees by a contract, which was discussed in a
closed executive session and whose effective date is a date before
the contract is approved by the School Board in open session is
GRANTED, and the School Board is ENJOINED from entering into any
contract, which was discussed during a closed executive session
conducted pursuant to the Virginia Freedom of Information Act and
whose effective date is before the date on which the School Board
reconvenes in open session and formally approves the contract.
2. The Complainant's prayer that Mr. Monk's employment during the
period from September 3 - 12, 1996, be declared null and void is
The Clerk is directed to send a copy of this order to counsel of
record, who shall file such objections hereto as deemed advisable
within ten days of their receipt of a copy of this order. Endorsement
of counsel is dispensed with pursuant to Supreme Court Rule 1:13.
This is a final decree, and the Clerk is directed to place this among
the ended causes.
Entered October 30, 1996.