March 17, 1975

THE HONORABLE FRANK D. HARRIS,
Commonwealth's Attorney for Mecklenburg County

74-75 570

This is in response to your recent letter wherein you inquire as follows:

"I have an issue before me concerning the Town Council for the Town of Clarksville, Virginia wherein the Mayor and Council called a closed session for the reported purpose of discussing employment of a person for the position of Town Manager. Apparently at this closed session, the Mayor and Council also took under consideration and voted upon the issue of whether or not to continue the Town Manager system of government.

* * *

"Kindly let me have an opinion as to whether or not the Mayor and Council were correct in calling the closed session for the purpose of discussing the employment of a Town Manager, and if they violated the Code Law by considering and voting upon the structure of the Town's government at the same time."

Pursuant to the requirements of § 2.1-343, Code of Virginia (1950), as amended, all meetings of public bodies must be open or public meetings, except for purposes of discussing those subjects specifically authorized, in § 2.1-344 or other provisions of law, as appropriate for executive or closed meetings.

Executive or closed meetings for the discussion of "employment, assignment, appointment, promotion, demotion, salaries, disciplining or resignation of public officers, appointees or employees of any public body" is specifically authorized by § 2.1-344(a)(1). Section 2.1-344(b) provides, however, that no meeting shall become an executive or closed meeting unless there has been recorded in open session an affirmative vote to that effect, thereby stating the specific purpose of such closed session. Accordingly, discussion of employment of a Town Manager in executive session is statutorily authorized, but only after compliance with the procedural safeguards outlined in § 2.1-344(b). In view of the facts set forth in your letter, which indicate that no public meeting preceded the closed session, I must conclude that the executive meeting for discussion of employment of a Town Manager was in violation of § 2.1-344(b).

The second portion of your inquiry has been the subject of a prior opinion of this Office, to the Honorable Peter K. Babalas, Member, Senate of Virginia, dated January 3, 1973, and found in 72-73 Va. AG 488. In that opinion, I advised that discussion of statutorily authorized matters in executive session may not be enlarged or expanded so as to involve discussion of matters not specifically authorized by statute as appropriate for such sessions. Discussion in a closed meeting regarding the structure or form of local government and the possible alteration thereof is not specifically authorized by the provisions of § 2.1-344. Further, I know of no other provision of law which would authorize executive or closed discussion of such matters by public bodies. I must, therefore, advise that any discussion or action taken by a public body, in executive or closed session, relative to the alteration of the form or structure of local government would be in violation of the provisions of § 2.1-343.