ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
EDUCATION: SCHOOL BOARDS; SELECTION, ETC. &emdash; POWERS AND
DUTIES OF SCHOOL BOARDS.
Annual meeting at which each school board is required to
elect chairman from its membership falls within purview of Act's
definition of 'meeting' which must be open to public. List of
personnel-related actions which school board may discuss in executive
session does not include election. Local school board may not meet in
executive session to discuss selection of its chairman and
The Honorable Patricia S. Ticer
Member, Senate of Virginia
April 5, 1999
You ask whether § 2.1-344(A)(1) of the Code of Virginia, a
portion of The Virginia Freedom of Information Act1
(the "Act"), permits a local school board to meet in executive
session to discuss the selection of its chairman and
Section 22.1-76 provides that "at its annual meeting each
school board shall elect one of its members as chairman [and]
may also elect one of its members as vice-chairman.2
Clearly, the annual meeting is a meeting falling within the purview
of the Act.3 Furthermore, a prior
opinion of the Attorney General concludes that the election of a
chairman must be conducted by an openly recorded vote taken in an
open public session.4
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.5
The Act requires that all meetings of public bodies be public
meetings, "[e]xcept as otherwise specifically provided by
Local school boards are "public bodies" under the
Act.7 Section 2.1-344(A)(1) of the
Act allows public bodies to discuss certain matters in executive or
closed meetings, including discussion or consideration of
"assignment, appointment, promotion, performance, demotion, salaries,
disciplining or resignation of specific public officers, appointees
or employees of any public body." "Any exception or exemption from
[the Act's] applicability shall be narrowly
The use of the word "shall" in a statute ordinarily implies that
its provisions are mandatory.9
"[T]he primary objective of statutory construction is to
ascertain and give effect to legislative intent.10
Analysis of legislative intent includes appraisal of the subject
matter and purpose of the statute, in addition to its express
terms.11 The purpose underlying a
statute's enactment is particularly significant in construing
it.12 Moreover, statutes should
not be interpreted in ways that produce absurd or irrational
"Section 2.1-344(A)(1) allows public bodies to discuss
certain personnel matters in executive or closed meetings."14
"This exception to the open meeting requirement allows private
discussion of personnel matters involving individual employees" and
is "designed to protect the privacy of individual employees of public
bodies in matters relating to their employment."16
Giving the required narrow construction to this exception, it is not
available for a decision regarding which members of a school board
shall serve as the board's chairman and vice-chairman; rather, it is
available only to discuss "personnel considerations regarding the
individuals [a public body] appoints or employs."17
Section 22.1-76 specifically requires a school board to elect a
chairman and permits the election of a vice-chairman. The list of
personnel-related actions which, pursuant to § 2.1-344(A)(1),
may be discussed in closed or executive session does not include an
A 1980 opinion summarily concludes that the exception
provided in § 2.1-344(A)(1) permits a city council to meet in
executive session to select one of its members to serve as
mayor.18 It is my opinion that
such discussion, like the one in issue, does not concern a personnel
matter as contemplated by the exception. Accordingly, to the extent
the 1980 opinion is inconsistent with this opinion, it is
Based on the above, therefore, it is my opinion that a local
school board may not meet in executive session to discuss the
selection of its chairman and vice-chairman.
1. Sections 2.1-340 to 2.1-346.1.
2. Compare § 22.1-57.3:3(B) (providing that, in
certain counties, school board member elected at large "shall be the
chairman of the school board").
3. School board meetings are expressly covered in
the Act's definition of "meetings." See § 2.1-341; 1987-1988
Op. Va. Att'y Gen. 34.
Op. Va. Att'y Gen., supra, at 35 (concluding that election of
chairman of county school board by secret ballot, even though secret
ballot voting was conducted in open public session, is violative of
5. See § 2.1-340.1; see also Op. Va. Att'y
at 427; 428;
at 236, 237.
6. Section 2.1-343.
7. Section 2.1-341 (including "school boards" in
Act's definition of "public body").
8. Section 2.1-340.1 (emphasis added).
9. 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 indicates procedures are intended to be mandatory,
imperative or limited); Op. Va. Att'y Gen.: 1997 at 16, 17; 1996 at
20, 21; 1991 at 126, and opinions cited therein; id. at 127, 129, and
opinions cited therein.
10. See Turner v. Commonwealth, 226 Va. 456,
459, 309 S.E.2d 337, 338 (1983).
11. See Vollin v. Arlington Co. Electoral
Bd., 216 Va. 674, 222 S.E.2d 793 (1976).
12. See VEPCO v. Prince William Co. , 226
Va. 382, 388, 309 S.E.2d 308, 311 (1983).
13. See McFadden v. McNorton, 193 Va. 455,
461, 69 S.E.2d 445, 449 (1952); see 1993 Op. Va. Att'y Gen. 192, 196,
and opinions cited therein.
14. 1998 Op. Va. Att'y Gen. 9, 10. This prior
opinion concludes that a city council may not meet in executive
session to discuss personnel matters related to city employees not
under its authority. Id. at 11.
Op. Va. Att'y Gen. 713, 714.
Op. Va. Att'y Gen. 316, 316.
17. 1998 Op. Va. Att'y Gen., supra note 14, at 10.
See, e.g., Op. Va. Att'y Gen.: 1982-1983
at 714 (city council may meet in executive session to discuss
employment matters related to city attorney); 1979-1980
at 378 (discussions related to hiring, firing, performance,
disciplining, or salary of identifiable individual employees may be
subject of properly called executive meeting); 1974-1975 at 570 (town
council may meet in executive session for purpose of discussing
employment of town manger).
Op. Va. Att'y Gen. 386.
19. To the extent the 1980 opinion agrees that a
public body may meet in executive session to discuss personnel
matters related to individuals over whom it exercises authority, it
is still valid. See Op. Va. Att'y Gen.: 1998, supra note 14, at 9;