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March 20, 2003
Mr. John F. Newhard, Jr.
Deputy City Attorney
Virginia Beach, 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 letter of December 10, 2002.
Dear Mr. Newhard:
You have asked whether the Virginia Freedom of Information Act
(FOIA) would allow a school board to discuss whether a teacher's
grievance is grievable in closed session, when the subject of the
grievance does not involve issues such as employee performance,
discipline, or resignation.
In answering your question, it is first necessary to summarize
the grievance procedure to provide proper context for the FOIA
question. Article 3 (§ 22.1-306 et seq.) of Chapter 15 of
Title 22.1 of the Code of Virginia sets forth the procedures for
grievances initiated by teachers. After an informal attempt to
resolve the grievance with the teacher's most immediate,
appropriate supervisor, the teacher must put the grievance in
writing and specify the relief sought through the use of the
grievance procedure. Section 22.1-306 defines a "grievance" as a
complaint or dispute by a teacher relating to his or her
employment. The definition of a grievance also states that the
school board has the exclusive right to manage the affairs and
operations of the school division. As such, complaints about the
methods, means and personnel by which the school division's
operations are carried out do not fall under the definition of a
grievance.
Section 22.1-314 allows either the school division administrator
or grievant to ask the school board to determine whether a
particular matter is grievable (i.e., falls under the definition of
a grievance). Such a request would occur after the teacher has
filed a written grievance, but prior to a hearing on the merits of
the written grievance. The school board must receive arguments on
the issue of grievability from the teacher and the administration,
but has the discretion to choose whether these arguments will be
written or oral. The statute is silent as to whether oral arguments
before the school board must be open or closed to the public.
Decisions of the school board on the issue of grievability may be
appealed to the appropriate circuit court. Upon receipt of the
record of the school board's decision, the court, sitting without a
jury, must hear the appeal on the record transmitted by the school
board and in its discretion may receive additional evidence.
Once an issue has been declared grievable, or if no question of
grievability has been raised, the grievant may elect to have the
grievance heard before a fact-finding panel or the school board.
Section 22.1-312 sets forth the procedures for a hearing before a
fact-finding panel, and subsection C of § 22.1-312 states that
at the request of the teacher, the hearing shall be private.
Section 22.1-311 states that a hearing before the school board
shall be private unless the teacher requests a public one.
Turning to the relevant provisions of FOIA, the policy provision
at subsection B of § 2.2-3700 states that [u]nless a public
body or its officers or employees specifically elect to exercise an
exemption provided by this chapter or any other statute, every
meeting shall be open to the public and all public records shall be
available for inspection and copying upon request. Furthermore,
this subsection states that the provisions of FOIA must be
liberally construed and any exemptions must be narrowly construed.
The personnel records exemption at subdivision A 4 of §
2.2-3705 exempts [p]ersonnel records containing information
concerning identifiable individuals. The relevant portion of
the corresponding meetings exemption found at subdivision A 1 of
§ 2.2-3711 exempts the discussion of assignment,
appointment, promotion, performance, demotion, salaries,
disciplining or resignation of specific public officers, appointees
or employees of any public body.
Addressing your question specifically, you ask whether FOIA
would allow a school board to convene in closed session to discuss
whether an issue is grievable in accordance with § 22.1-314,
even though the subject of the grievance does not involve issues
such as employee performance, discipline, or resignation. You
present an example of a teacher seeking to grieve class scheduling
and bus routes. You indicate that the teacher complained that
students were arriving late to his class due to city construction
on the bus route. He asserted that the city should reschedule the
construction, buses should be rescheduled, or class schedules
should be changed so that students would no longer arrive late to
his class. The school administration said that this issue was not
the proper subject for a grievance because it deals with management
and operation of the school, which by definition is not grievable.
Because this matter does not specifically involve "performance,"
"demotion," or "discipline" issues, you ask whether arguments of
grievability and ensuing discussions by the school board pursuant
to § 22.1-314 could be closed.
The Office of the Attorney General of Virginia had the
opportunity to address a related issue of access to a copy of a
fact-finding panel's written award in a grievance hearing.1 The Attorney General stated that if a
document were introduced at a grievance hearing, it would not
automatically become a personnel record for purposes of FOIA. The
content of the document would still need to be examined to
determine if it were, indeed, a personnel record. If a record did
fall under the personnel exemption, it would be exempt from
mandatory public disclosure but nothing in FOIA would prohibit the
dissemination of the record.
The Attorney General went on to address whether disclosure of
the fact-finding panel's written award would be prohibited by
either the provision requiring a grievance hearing before the
school board to be private unless the teacher requests a public
hearing, or by the provision requiring a hearing before a
fact-finding panel to be private if requested by the teacher.
Although the Attorney General opined that records did not
automatically become personnel records by virtue of being
introduced at a grievance hearing, he found that the written award,
as well as the other documents and exhibits that made up the record
of the hearing, should not be disclosed to the public unless those
records had some existence independent of the grievance hearing. In
reaching this conclusion the Attorney General followed a principle
of statutory construction that statutes be read in pari materia in
order to give full force and effect to each provision, and to
promote the legislative purpose.2 In
pari materia literally means "on the same subject; relating to the
same matter."3 As such, statutes
relating to the same matter must be construed together so that an
inconsistency in one statute may be resolved by looking at another
statute on the same subject. The Attorney General found that the
General Assembly had manifestly established a teacher's right to a
private hearing in a grievance situation, and that FOIA did not
override this express right. Therefore, absent clear legislation to
the contrary, a school board could not publicly disclose its
findings of fact in a privately held grievance.
The rule of statutory construction that statutes be read in pari
materia is also relevant in answering the question that you
present. In order to file a grievance, the teacher would have to
reduce the grievance to writing. This office has previously held
that the personnel exemption for records at subdivision A 4 of
§ 2.2-3705 applies to any record held by a public body that
relates to an identifiable employee concerning the nature of
employment, job capacity or performance, or is otherwise related to
the scope of employment.4 A written
grievance would clearly be related to the scope of the teacher's
employment, and could be withheld from public disclosure. Likewise,
the sections relating to the grievance hearing before the school
board or fact-finding panel allow the hearing to be private, at the
discretion of the teacher. The Code of Virginia section setting
forth the procedure for questions of grievability is silent on
whether oral arguments should be open or closed. However, looking
at the relevant statutes in pari materia, it is apparent that the
intent of the General Assembly was that a grievance could be kept
private and out of the public eye. To opine that a discussion about
whether an issue is grievable must take place in public could
result in inconsistencies in the law and negate a teacher's right
to keep a grievance private.
To illustrate the potential inconsistencies, I will use the fact
scenario that you presented. As noted above, once this grievance is
reduced to writing, that writing may be withheld as a personnel
record. The school administration did not feel the issue that was
the basis for filing the grievance was, by definition, a grievable
issue. Regardless of whether the school board chose to receive oral
or written arguments from the administration and the teacher on the
issue of grievability, it is hard to imagine that these arguments
would not be intertwined with the facts and background of the
grievance itself. Furthermore, the arguments would likely spring
from the written grievance, which we have already established to be
a personnel record. Any written arguments received could likewise
be considered personnel records, because they would deal with an
issue in the scope of an identifiable employee's employment.
However, if the school board elected to receive oral arguments, it
is less clear that such hearing could be closed to the public. One
could argue that any grievance relates to the performance of the
teacher, which is allowed to be discussed in closed session under
subdivision A 1 of § 2.2-3711. However, FOIA also requires any
exemption to be construed narrowly, and interpreting "performance"
to include an issue such as students being late to class because of
the bus route may be an improperly broad interpretation of that
language.
Proceeding on the assumption, without deciding definitively,
that oral arguments on this issue could not be closed under
subdivision A 1 of § 2.2-3711, continue the hypothetical to
the next step. Assume that the hearing on the issue of grievability
and any ensuing discussion by the school board was held in an open
meeting. If the school board found that the issue was indeed
grievable, the grievant would have the right to have the issue
heard by either a fact-finding panel or the school board. In either
scenario, the grievant has a right for the hearing to be private.
Any records relating to the grievance, such as the statement of
grievance or written arguments on grievability, could be withheld
from public disclosure. But if the hearing on grievability was
required to be open to the public, and the arguments were
intertwined with the facts of the grievance itself, the ability of
the grievant to keep the grievance process private has,
essentially, been negated.
In many, if not the majority of cases, it seems that a grievance
would clearly fall under subdivision A 1 of § 2.2-3711, which
would allow a school board to go into closed session to discuss the
assignment, appointment, promotion, performance, demotion,
salaries, disciplining or resignation of teachers. A grievance
would likely fall under one of these categories. In addition to the
right of a teacher to keep a grievance hearing private pursuant to
§ 22.1-311 or 22.1-312, the FOIA exemption would also protect
these hearings, as well as any discussion on the issue of
grievability.
The situation becomes more complex when a grievance does not
clearly fall within the confines of the FOIA exemption, which must
be construed narrowly. The Attorney General has opined that the
express right of a private hearing in a grievance situation cannot
be overridden by FOIA. In this instance, requiring a discussion of
grievability to be open to the public in essence nullifies the
grievant's right to keep the issue private at future stages of the
process. Reading all the relevant statutes in pari materia, it is
apparent that the General Assembly's intent was to allow a teacher
to keep the process private, at his discretion. The written
grievance can be protected as a personnel record, a hearing before
a fact-finding panel or the school board can be kept private, and
the Attorney General opined that the findings of fact by a
fact-finding panel can also be kept private. Therefore, even though
§ 22.1-314 is silent as to whether it may be private, to
require it to be open would result in potential inconsistencies in
the application of the law.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
Footnotes
1 See 1983-84
Op. Atty. Gen. Va. 314.
2 See 1983-84 Op. Atty. Gen. Va. 314,
citing 1980-81 Op. Atty. Gen. Va. at 265, Dowdy v. Franklin, 203
Va. 7, 121 S.E. 2d 817 (1961).
3 See Black's Law Dictionary (7th
Edition).
4 See Freedom of
Information Advisory Opinion 04 (2003).
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