ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
Authority of city council to meet in executive session to
discuss personnel mconsiderations is restricted to individuals
appointed or employed and supervised by council. Hopewell City
Council may not meet in executive session to discuss personnel
matters of other city employees with whom it does not have
The Honorable Riley E. Ingram
Member, House of Delegates
December 16, 1998
You ask whether § 2.1-344(A)(1) of the Code of Virginia, a
portion of The Virginia Freedom of Information Act, §§
2.1-340 through 2.1-346.1 (the "Act"), permits a city council to meet
in executive session to discuss specific city employees other than
the three officers appointed by council.
You relate that the charter for the City of Hopewell vests the
city council with the authority to appoint three executive
officers&emdash;the city manager, city clerk, and city attorney. You
note that the council is also responsible for the city budget, which
includes city personnel positions, classifications and salaries. You
state that the city manager has appointive, removal and supervisory
authority over city employees.
Specifically, you inquire whether the Hopewell City Council may
meet in executive session to discuss specific city employees other
than the three officers appointed by council.
The General Assembly has determined that the Act is to be
liberally construed so that citizens are afforded the opportunity to
witness the operations of government. 1
The Act requires that all meetings of public bodies be public
meetings, "[e]xcept as otherwise specifically provided by
City councils are "public bodies" under the Act. 3
Section 2.1-344(A)(1) allows public bodies to discuss certain
personnel matters in executive or closed meetings, including
discussion or consideration of "employment; assignment, appointment,
promotion, performance, demotion, salaries, disciplining or
resignation of specific public officers, appointees or employees of
any public body[.]" Section 2.1-340.1 of the Act, however,
requires that "[a]ny exception or exemption from
applicability shall be narrowly construed." (Emphasis added.)
The use of the word "shall" in a statute ordinarily implies that
its provisions are mandatory. 4
The primary goal of statutory interpretation is to ascertain and give
effect to the intent of the legislature. 5Analysis
of legislative intent includes appraisal of the subject matter and
purpose of the statute, in addition to its express terms.6a
The purpose underlying a statute's enactment is particularly
significant in construing it. 7
Moreover, statutes should not be interpreted in ways that produce
absurd or irrational consequences.8
The exception to the open meeting requirement provided by §
2.1-344(A)(1) "allows private discussion of personnel matters
involving individual employees." 9Thus,
discussions relating to the hiring, firing, performance,
disciplining, or salary of "identifiable individual employees
may be the subject of a properly called executive meeting. 10
Prior opinions of the Attorney General conclude that a city council
may discuss, in executive session, the selection of one of its
members to serve as mayor 11 or
employment matters related to a city attorney.12Similarly,
a 1975 opinion concludes that a town council may meet in executive
session for the purpose of discussing employment of a person for the
position of town manager."13
Accordingly, it is clear that a city council may discuss, in
executive session, personnel considerations regarding the individuals
it appoints or employs, and over whom it has full supervisory
authority. The term "employee" has not been defined by the General
Assembly in the context of the Act. Further, the General Assembly has
not defined the use of the phrase "individual employees of public
bodies" in the Act. Prior opinions of the Attorney General, however,
conclude that, where no applicable statutory definition of the term
"employee" exists, it must be given its ordinary meaning, considering
the context in which it is used. 14
A 1991 opinion notes that, at common law, the following four
elements determine whether an employer/employee relationship exists:
"(1) the employer's selection and engagement of the employee; (2) the
payment of wages to the employee; (3) the employer's retention of the
power of dismissal; and (4) the employer's retention of the power of
control.15 "In determining
whether an employer/employee relationship exists, the crucial
question of control is whether the employer has the right to control
not merely the results but the progress, details, means and methods
of the work."16
A 1976 opinion also notes that the exception in §
2.1-344(A)(1) is "designed to protect the privacy of individual
employees of public bodies in matters relating to their employment."
You advise that the only employees of the city council are the
city manager, city attorney and city< clerk. Unlike the positions
of city manager, city attorney, and city clerk, over whom the city
council has full supervisory authority, 18
the council does not have such authority with respect to other city
Consequently, the council does not control such city employees,
and does not directly participate in personnel decisions relating to
such other city employees. Giving the required narrow construction to
the § 2.1-344(A)(1) exception, it is not available to the
Hopewell City Council for personnel matters pertaining to these other
Consequently, it is my opinion that a city council may not meet in
executive session to discuss personnel matters solely related to
employees appointed, removed or supervised by the city manager.
1. See § 2.1-340.1; see also Op. Va. Att'y
Gen.: 1984-1985 at
427, 428; 1979-1980
at 236, 237.
2. Section 2.1-343.
3. Section 2.1-341 (including "municipal councils"
in definition of "public body").
4. See Andrews v. Shepherd, 201 Va. 412, 414,
111 S.E.2d 279, 281 (1959) ("shall" is word of command, used in
connection with mandate); see also Schmidt v. City of
Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965) ("shall"
generally is used in imperative or mandatory sense); Op. Va. Att'y
Gen.: 1997 at 16, 17; 1996 at 20, 21; 1991 at 126, 126, and opinions
5. See Turner v. Commonwealth, 226 Va. 456,
459, 309 S.E.2d 337, 338 (1983).
6. Vollin v. Arlington Co. Electoral Bd.,
216 Va. 674, 222 S.E.2d 793 (1976).
7. VEPCO v. Prince William Co., 226 Va. 382,
388, 309 S.E.2d 308, 311 (1983).
8. McFadden v. McNorton, 193 Va. 455, 461, 69
S.E.2d 445, 449 (1952); see Op. Va. Att'y Gen.: 1993 at 192, 196;
1991 at 5, 7 ;
1986-1987 at 307, 308.
Op. Va. Att'y Gen. 713, 714.
10. 1979-1980 Op. Va. Att'y Gen. 378, 379.
11. See 1980-1981
Op. Va. Att'y Gen. 386.
12. See 1982-1983
Op. Va. Att'y Gen. 714.
13. See 1974-1975
Op. Va. Att'y Gen. 570.
14. See Op. Va. Att'y Gen.: 1991 at 140, 142;
1987-1988 at 413, 414.
15. 1991 Op. Va. Att'y Gen., supra, at 143.
Op. Va. Att'y Gen. 316, 316 (emphasis added).
18. Compare 1974-1975 Op. Va. Att'y Gen. 253, 254
(chief judge of circuit has full supervisory authority over
magistrates appointed by him).
19. See Op. Va. Att'y Gen.: 1987-1988
at 30, 31; 1982-1983
at 717, 718.