April 15, 1975

C. Hardaway Marks
Member, House of Delegates

74-75 574

This is in reply to your recent letter wherein you inquire:

1. "Whether or not members of the City Council and the City Manager were in violation of the Freedom of Information Act as set forth in Title 2.1 in the Code of Virginia. On Sunday, March 9, 1975, the City Manager contacted the members of City Council by telephone and asked them to meet with him at the office of the Housing Authority within the City of Hopewell. All five (5) attended. The press was not notified neither was the City Attorney. Various items of the proposed budget [INCOMPLETE] the members no official action on behalf of any of the members or the City Manager was taken. This was merely an information meeting wherein the City Manager was seeking the advice of members of his resolution, motion or any votes at all were taken by the body.

2. "Does the Charter of the City of Hopewell wherein it speaks take precedence over the Freedom of Information Act?

3. "Can the City Manager seek advice of his governing board at a gathering of the Council without being in violation of the Freedom of Information Act?

4. "Does the Freedom of Information Act completely override § 15.1-840 of the Code?"

I shall respond to your inquiries seriatim: Section 2.1-344, Code of Virginia (1960), as amended, provides:

"Except as otherwise specifically provided by law and except as provided in §§2.1-344 and 2.1-345, all meetings shall be public meetings. minutes shall be recorded at all public meetings. Information as to the time and place of each meeting shall be furnished to any citizen of this State who requests such information."

"Meeting" is defined in §2.1-341(a) as:

... the meetings, when sitting as a body or entity, or as an informal assemblage of the constituent membership, with or without minutes being taken whether or not votes are cast, of any authority, board, bureau, commission, district or agency of the State or of any political subdivision of the State, including cities, towns and counties; municipal, governing bodies of counties, school boards and planning commissions; and other organizations, corporations or agencies in the State, supported wholly or principally by public funds. Nothing in this chapter shall be construed as to define a meeting as a chance meeting of two or more members of a public body, or as an informal assemblage of the constituent membership at which matters relating to the exercise of official functions are not discussed." Emphasis added.)

In view of the specific provisions of §2.1-341(a), I would advise that the above-described assemblage did constitute a "meeting" notwithstanding its informal nature and the fact that no votes were taken. I find no provision of §§2.1-344, 2.1-345 or any other law which authorizes executive meetings for discussion of budgetary matters. Accordingly, the meeting in question was required to be public in compliance with the requirements of §2.1-343. Upon consideration of the facts as set forth in your inquiry, I am of the opinion that the meeting in question was not in violation of the requirements of §2.1-343 provided that: (1) minutes were recorded; (2) all pending requests for notice of time and location of Council meetings were honored; and (3) public access was not refused.

With respect to your second inquiry, I would first note that §2.1-343, requiring all meetings of governmental bodies to be open to the public, is prefaced by the language "[except as otherwise specifically provided by law." If, therefore, the Charter of the City of Hopewell contained provisions which exempted City Council discussions of specified matters from the requirement of openness, such Charter provisions would control and thereby authorize closed meetings for the purposes so stated. I find no provision in the Charter for the City of Hopewell, however, authorizing executive meetings of City Council for the purpose of discussion of budgetary matters. To the contrary, Chapter IV, § 6, paragraph 3, of the Charter requires that all official actions of Council be taken in public meetings. Chapter V, § 4, of the Charter, requiring the City Manager to advise Council members of financial conditions and future needs of the City, does not provide authority for executive meetings of Council for discussion and advice regarding budgetary matters.

In response to your third inquiry, I would advise that any discussion by members of the City Council of matters relating to official business, among themselves or with the City Manager or other City official, must be undertaken in public meetings as required by §2.1-343, except to the extent that such discussions are authorized for executive sessions by §§2.1-344 or 2.1-345 or other specific provisions of law.

Your fourth inquiry deals with §15.1-840 which reads as follows:

"A municipal corporation, in addition to the powers granted by §15.1-839, shall have all the powers granted to it in its charter; and nothing contained in this chapter shall be construed to in anywise repeal, amend, impair or affect any provision of any existing charter or of any charter hereafter granted to a municipal corporation or any provision of any other applicable law, unless such amendment or appeal so provides. Whenever there appears to be a conflict between any provision of this chapter, or any amendment hereof, and that of any charter of a municipal corporation, the provisions of the charter shall be construed and held to take precedence over such conflicting or apparently conflicting provisions of this chapter or of any amendment hereof."

The foregoing statute establishes the basic principle that, to the extent that the provisions of Chapter 18 of Title 15.1, dealing with the general powers of municipalities, conflict with specific powers of a municipality its charter, the specific charter provisions shall control contained in § 15.1-840 has no application to conflicts between specific charter provisions and the provisions of the Freedom of Information Act, found in Chapter 21 of Title 2.1 of the Code. As noted above however to the extent that a municipal charter authorizes executive meetings for a specific purpose it would take precedence over the general public meeting requirement of the FOIA.