December 12, 2000

Ms. Nancy Lamb
Damascus, VA

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-mail of November 9, 2000.

Dear Ms. Lamb:

Thank you for contacting the Virginia Freedom of Information Advisory Council. I apologize for not being able to respond in time for the meeting in question. This small office receives a volume of complaints via phone, letter and computer, and conducted numerous educational sessions out of the office in the beginning of November. Nonetheless, I hope that this response will provide guidance and assistance if similar questions and circumstances arise at future meetings.

As a member of a town council, you have inquired about the notice requirements of the Virginia Freedom of Information Act (FOIA). Specifically, you indicate that a meeting was called with only one working day's notice to discuss a decision to cash a certificate of deposit made at a recent regularly scheduled town council meeting, and to consider taking out a bank loan instead.

Ordinarily, FOIA requires notice of at least three working days for a meeting of a public body. However, subsection D of § 2.1-343 provides different notice provisions for special or emergency meetings. This meeting does not appear to be an emergency, which FOIA defines as an unforeseen circumstance rendering the notice required by this chapter impossible or impracticable and which circumstances require immediate action. Nothing in the facts indicates that the decision to take out a loan required immediate action. No definition is offered for a special meeting. Logically, a special meeting would be a gathering other than a regular meeting or an emergency meeting. Because you indicate that the meeting in question was called only to reconsider an item from a recent regular meeting, it appears to be a special meeting.

Subsection D of § 2.1-343 requires that notice for special meetings only be reasonable under the circumstances, and be given contemporaneously with the notice provided to the members of the public body. The question of whether or not it was reasonable to call this special meeting with only one working day's notice is a question for the courts, and not for this office. Assuming that the notice was reasonable under the circumstances, the facts indicate that the public was notified contemporaneously by posting a notice at the town hall, also assuming that this is the location where notices for town council meetings are normally posted.

Should a similar situation arise again in the future, this office would not necessarily recommend refusing to attend. A better solution might be to attend, but let your concerns be heard on the record in the minutes of the meeting.

Again, thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director