August 30, 2002

Lou Hansen
The Virginian-Pilot
Norfolk, 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 e-mails of July 31 and August 19, 2002 and your fax of July 31, 2002.

Dear Mr. Hansen:

You have asked a question concerning the handling of a series of events by the Portsmouth City Council ("the council") and the Portsmouth City Manager ("the manager") under the Virginia Freedom of Information Act (FOIA). You ask if the discussions leading to a decision to make a $155,000 grant to a local music festival violated the open meeting provisions of FOIA.

The following paragraphs set forth the facts as you provided to the Freedom of Information Advisory Council. You indicate that the organizers of the Todi Music Festival ("the festival"), a privately operated local festival, approached the manager to help the financially struggling event. After polling each council member individually, the manager announced that he would make a $65,000 loan and a $10,000 grant to the festival, using the money from the manager's contingency fund. However, festival organizers told the city that $75,000 would not be enough, and a closed meeting of the council was scheduled.

At the start of that meeting, the council immediately convened in closed session. The motion to go into closed session cited the personnel exemption, the real property exemption and the consultation with legal counsel exemption. You were not present during the closed meeting, but received varying accounts of what was discussed. You indicate that the next day, without any sort of public discussion or vote, the manager announced that a $155,000 grant would be made to the festival. The money would come from a surplus fund of Willett Hall, a public concert hall in Portsmouth. By way of background, you noted that the manager and staff spoke with Willett Hall employees before and after the closed meeting. You ask if any of the discussions leading to the decision to give the festival financial aid violated FOIA.

Subsection A of § 2.2-3707 of the Code of Virginia states that [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. Section 2.2-3701 defines a meeting as the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The policy provision of FOIA at subsection B of § 2.2-3700 requires that the provisions of FOIA be construed liberally to afford every opportunity to citizens to witness the operations of government and that any exemptions be construed narrowly.

Turning to the facts you presented, the analysis will first focus on the manager's polling of the council members, and his subsequent decision to provide $75,000 in grants and loans to the festival. Generally, § 2.2-3710 requires any vote of a public body to be taken at an open meeting. However, subsection B of § 2.2-3710 states that nothing contained herein shall be construed to prohibit (i) separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business, whether such contact is done in person, by telephone or by electronic communication. Thus, the law is clear that the manager may contact each council member to determine the member's individual opinion on loaning or giving money to the festival. The question then turns to whether the council conducted an inappropriate vote to provide the money to the festival through the telephone poll. Subsection A of § 2.2-3710 provides that no vote of any kind...of any public body shall be taken to authorize the transaction of public business, other than a vote taken at a meeting conducted in accordance with the provisions of [FOIA]. Based upon the facts and documentation you provided, the $75,000 was to come from the manager's discretionary fund. The documentation indicated that the manager need not seek the council's approval as to how to spend the money in that fund. Since no vote was required, neither the manager nor the council violated FOIA in either the polling of the members or decision to give the festival money out of the manager's discretionary fund.

The analysis next turns to the closed meeting held by the council. The motion to enter into closed session read that the council would convene in closed session "pursuant to Virginia Code section 2.2-3711(A) to discuss: personnel matters, as per subsection 1; the acquisition or sale of real property for a public purpose, as per subsection 3; and legal matters requiring the advice of legal counsel, as per subsection 7." In order to enter into closed session, subsection A of § 2.2-3712 requires that a motion (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 § 2.2-3707 or subsection A of § 2.2-3711. The Freedom of Information Advisory Council has previously opined that a motion that lacks any of these three elements would be insufficient under the law.¹ Thus, in addition to a statutory citation and tracking the general language of the exemption, the motion must also identify the subject matter. The subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to why the closed session will be held. For example, a public body might state that the subject of a closed session would be to discuss disciplinary action against an employee of the public body. This statement goes a step beyond just stating that the purpose of the meeting is to consider a personnel matter, but does not go so far as to disclose the identity of the individual being discussed and defeat the reason for the closed session. Upon examination of the motions in the instant case, the council does not appear to have satisfied all three requirements. The motions each identify the purpose of the meetings and make specific reference to the applicable exemption, but do not identify the subject of the discussion. Thus, the motions are insufficient under FOIA.

You note that you spoke with various participants of the closed session after the meeting, and they told you that they discussed the festival and its financial and public relations problems. You were informed that the council debated the city's roll in providing funding, and how it should be done. You also received contradictory reports as to whether the council discussed how the manager handled the situation or the legality of making a loan. It is also unclear whether the council discussed specific dollar amounts to loan or grant to the festival.

Because no minutes are required to be taken at closed meetings, it is difficult to offer an opinion as to whether the conversations that took place were proper discussions for a closed meeting. Based on the information you provided, it appears that it would be proper to discuss the manager's handling of the situation under the personnel exemption at subdivision A. 1. of § 2.2-3711, since that exemption allows a public body to discuss the performance of specific employees of a public body. It also appears that it would be proper to discuss the legality of the city loaning or granting money to the festival under the legal exemption at subdivision A. 7. of § 2.2-3711 , if they consulted with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. It is unclear from the facts how any of the discussion relating to the music festival might be proper under subdivision A.3. of § 2.2-3711 relating to the acquisition or sale of real property.

It is important to keep in mind, however, that pursuant to subsection B of § 2.2-3700, [a]ny exemption from public access to records or meetings shall be narrowly construed. Any discussion in closed session must be directly related to the exemptions cited in the motion, and the public body must reconvene in open session for any additional conversation. Thus, if the discussion strayed to matters not directly related to the manager's handling of the situation or the legality of making a loan, it would not be a proper discussion for a closed meeting. For example, while it may be proper to discuss whether the council could legally make a grant or loan to the festival, it would not be proper to discuss exactly how much money the music festival requires or how much money the city is willing to give. Furthermore, it would not appear to be a proper discussion under any closed meeting exemption to discuss generally the festival's financial or public relations issues.

The final analysis arising from the situation relates to whether or not the city could make a grant from Willett Hall's surplus funds without making a decision in open session. As discussed in the analysis relating to the polling, all votes must be made during a meeting held properly under FOIA. Furthermore, subsection B of § 2.2-3711 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. However, it is unclear from the facts you present whether or not the council was required to make a decision on this issue. You indicate that the manager and staff spoke with Willett Hall employees. It is conceivable that the council was not required to make a decision on the grant if the administrators of Willett Hall agreed to use money already allocated to it in the city's budget. If no vote of the council was required to make the allocation, then it does not appear that the voting provisions of FOIA were violated. However, as noted above, a discussion of whom to ask to make a grant might stray beyond the boundaries of a narrow construction of the personnel or legal exemptions.

In conclusion, the only clear violation of FOIA in this transaction is procedural, and relates to the sufficiency of the motion to convene in closed session. If votes were required by the council either to make a loan out of the manager's reserve fund or to provide a grant from Willett Hall surplus funds, then such votes would be required to be made in an open meeting properly noticed to the public. However, the facts do not clearly indicate that this was the case. Furthermore, it appears that at least some of the discussions during the closed session might have been properly subject to exemption, so long as they related to the manager's performance or legal advice. However, any conversation that strayed beyond the narrow construction of these exemptions would be improper in closed session and must be conducted in an open meeting.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. Virginia Freedom of Information Advisory Opinion 45 (2001). See also Virginia Freedom of Information Advisory Opinions 14 (2001) and 38 (2001).