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August 13, 2001
Mr. George T. Keller
Clifton Forge, Virginia
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 correspondence of May 30 and July
5, 2001.
Dear Mr. Keller:
You have asked a series of questions concerning the conduct of
your local Board of Supervisors ("the Board) under the Virginia
Freedom of Information Act (FOIA). Your first question concerns the
selection of a new county administrator in closed session. Your
second question asks about the sufficiency of a motion by the Board
to convene in closed session. Your final question is a more general
question as to what constitutes the discussion of public business
for the purposes of FOIA.
You indicate that the Board convened in closed session to
discuss the selection of a new county administrator. Upon
reconvening in open meeting, the Board certified the closed session
as required by subsection D of § 2.1-344.1 of the Code of
Virginia, and voted that they had reached an informal agreement as
to whom they would offer the job, but did not indicate the name of
the selected individual. The Board announced that a press
conference would be held immediately prior to the next Board
meeting, at which the selected candidate would be introduced. At
the press conference, the Board announced the name of the new
county administrator. At the open meeting held immediately after
the press conference, the Board formally voted to hire the named
individual as the new county administrator. You ask whether the
procedures used by the Board in selecting and announcing the new
hire were proper under FOIA. Specifically, you ask if whether an
improper vote took place during a closed session to select the new
county administrator.
Generally, § 2.1-343.2 requires that all votes must be
taken in an open session. The provision states that [u]nless
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. However, subsection B of § 2.1-344 states
that [n]o resolution, ordinance, rule, contract, regulation or
motion adopted, passed or agreed to in a closed meeting shall
become effective unless the public body, following the meeting,
reconvenes in open meeting and takes a vote of the membership on
such resolution, ordinance, rule, contract, regulation or motion
which shall have its substance reasonably identified in the open
meeting. It is apparent from this provision that the law
recognizes that in the discussion of a topic appropriate for a
closed meeting, it may be necessary for the members of the public
body to reach an informal consensus or agreement while still in
closed session. However, such agreement will not become an official
action of the public body until a vote is taken in open meeting,
following the voting procedures set forth in FOIA. Thus, the law
does not prohibit a public body from reaching a consensus on an
issue while still in closed session; instead, it requires that if a
consensus is reached during a closed meeting, the public body still
must vote on the issue in public to make it official.
In applying these procedures to the facts that you have
presented, it would appear that the Board did not violate FOIA by
agreeing in closed session as to whom to offer the job of county
administrator. When the Board announced the new county
administrator at the press conference, the selection had not yet
been made official because they had not yet held a public vote.
However, the Board cured this problem when it voted to hire the new
administrator at the meeting immediately following the press
conference. While the timing in this fact scenario was not ideal,
there was no violation of FOIA based simply upon the fact that the
Board reached an agreement in closed session. Again, however, all
agreements reached in a closed session must be voted on in an open
meeting in order to become official.
Your second question relates to the sufficiency of a motion of
the Board to go into closed session. The motion in the minutes of
the meeting, which you provided, reads, "Closed meeting pursuant to
Section 2.1-344(1) and (3) of the Code of Virginia for the
purpose of discussing personnel matters and property acquisition."
Subsection A of § 2.1-344.1 states that:
No closed meeting shall be held unless the public body
proposing to convene such meeting has taken an affirmative recorded
vote in open meeting approving the motion which (i) identifies the
subject matter, (ii) states the purpose of the meeting and (iii)
makes specific reference to the applicable exemption from open
meeting requirements provided in § 2.1-343 or subsection A of
§ 2.1-344 ... 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.
As can be seen from this provision, a motion to go into closed
session must contain three elements: the subject, the purpose, and
the specific statutory citation allowing the exemption. The motion
that you question has provided two of these three elements. It has
stated the purpose -- personnel matters and property acquisition --
and the specific Code provisions that exempt these subjects from
the open meeting requirements. However, the motion has failed to
state the subject matter of the closed session. The motion includes
only a general reference stating that the closed session will be
used to discuss personnel matters and property acquisition, which
by statute is insufficient for a motion. As the Freedom of
Information Advisory Council has previously opined, how specific
the statement must be depends upon the situation.1 The personnel exemption, for example,
encompasses a number of different types of discussions such as
employment, promotion, or discipline. Thus, the subject matter of
the meeting could be described, by way of example, as a discussion
of the hiring of a new county administrator or the discipline of an
employee of the Board. Neither of these subject matter statements
give away so much information as to defeat the purpose of holding
the closed session, yet the statements provide the public with some
guidance as to the business being conducted behind closed doors. In
order to meet the requirements of subsection A of § 2.1-344.1,
the Board would need to provide a more detailed motion to go into
closed session that includes all three of the elements required by
law.
Your final question is a more general question as to what
constitutes the discussion of public business for the purposes of
FOIA. You ask whether it is proper for the county administrator or
Board chairman to discuss issues of public business with other
members of the Board over the telephone or in small groups. You
indicate that you think that members of the Board use these means
to reach a consensus on issues even before they are placed on the
agenda for an open meeting, and that public input is thus being
eliminated from the decision-making process.
Section 2.1-341 defines a meeting as a gathering of (i) as
many as three members or (ii) a quorum, if less than three, of the
constituent membership of a public body. Thus, a gathering of
two members of the Board with the county administrator, for
example, would not be considered a meeting under FOIA even if
public business were discussed. Please note, however, that FOIA
defines a public body to include a committee or subcommittee of
the public body created to perform delegated functions of the
public body or to advise the public body. Thus, a committee
comprised of three members of the Board would be considered a
public body separate from the Board itself. According to the
definition of a meeting, a gathering of two of the three members of
the committee would constitute a quorum and would be considered a
meeting if public business of the committee were discussed. In such
a circumstance, a gathering of the two members with the county
administrator might constitute a meeting under FOIA that would be
subject to the open meeting requirements.
In your question, you also draw attention to § 2.1-343.2,
which allows members of a public body to separately contact each
other to ascertain a member's position with respect to the
transaction of public business, so long as the contact does not
constitute a meeting. Thus, one member could contact another member
to ascertain how the other will vote on an issue of public business
to be discussed at an upcoming meeting without violating the
provisions of FOIA. This provision alludes to the balance that FOIA
seeks to achieve between allowing the public to witness the
workings of government while at the same time allowing government
to operate efficiently and effectively. So long as none of the
contact that you have described in your question falls under the
definition of a meeting, it is not prohibited by FOIA.
As an aside to this question, you indicate that you think that
the practices discussed above limit public input to public
business, because issues appear to have already been decided by the
time they are brought up at public meetings. This aspect of your
question is not related to FOIA. The policy of FOIA, set forth at
§ 2.1-340.1, states that FOIA ensures the people of the
Commonwealth ... free entry to meetings of public bodies wherein
the business of the people is being conducted. Thus, FOIA is
concerned more with allowing the public to witness the workings of
government than with allowing participation in government. In fact,
FOIA does not speak at all to public participation in meetings of
public bodies. There are several provisions within Title 15.2 of
the Code, relating to the administration of local government, that
require governing bodies to conduct public hearings on certain
issues. In addition, if you do not agree with how your
representative on the Board is conducting public business, your
remedy would be to vote for another candidate at election time, or
possibly even run for local office yourself. This, however, is
beyond the scope of FOIA.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 Freedom of
Information Advisory Opinion 14 (2001).
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