The Virginia Coalition for Open Government - Attorney General's Opinion 1974-75 #078

This is in reply to your recent inquiry whether the School Board of the City of Hampton may enter into a certain proposed agreement with the Hampton Education Association which would embody the following points:

1. The recognition of the Association as the "representative for professional, certified personnel for negotiations concerning salaries, hours, fringe benefits, terms and conditions of employment and other matters of concern." Article 3.1 of the agreement;
2. A provision that the agreement shall not be construed "to limit, impair or affect the right of any employee to the expression or communication of a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of his or her employment." Article 3.3 of the agreement;

3. An agreement on the part of both parties "to enter into negotiations in a good faith effort to reach agreement." Article 4.1 of the agreement;

4. A provision for mediation and arbitration in the event agreement cannot be reched. Articles 4.4, 4.6, 5.1, and 5.2 of the agreement;

5. A provision that "negotiations" shall be conducted in closed sessions unless both parties agree to the contrary." Article 4.10 of the agreement;

6. A provision that any agreement reached as a result of negotiations shall be submitted to the School Board and the Association for approval. Article 4.7 of the agreement; and

7. A provision that, except as they may be amended, modified or deleted by future agreements, all terms and conditions of employment presently established shall remain in effect during the term of the proposed agreement. Article 4.11 of the agreement.

The proposed agreement is substantially similar to the agreement I reviewed in my opinion to the Honorable Hunter B. Andrews, Member, Virginia State Senate, dated February 18, 1970, and found in Report of the Attorney General (1969-1970) at 231. My opinion regarding the authority of school boards to enter into such agreements remains the same as that expressed in the opinion to Senator Andrews. It is appropriate, therefore, to summarize that opinion and apply it to the proposed agreement in question here.

In my opinion to Senator Andrews, I stated that "it would be necessary for the board to retain the right to make the final decision in such matters, and membership in the association could not be required as a condition of employment." I further held that the board "could not deny the right of others to be heard on matters which relate to decisions within the purview of the board's authority." Moreover, under the Virginia Freedom of Information Act, Chapter 21 of Title 2.1 of the Code of Virginia (1950), as amended, discussions held with the School Board must be open to the public. Finally, while the School Board may enter into mediation or arbitration, the board must retain the right to make the final decision in such matters.

Article 3.3 of the proposed agreement appears to reserve the right of individual teachers to be heard and, therefore, comports with my earlier opinion to Senator Andrews. To the extent that the proposed agreement may be intended or construed to confer exclusive recognition on the association, however, it would be unlawful since the General Assembly has not authorized school boards to grant exclusive recognition to any group or association.

While Articles 4.4, 4.6, 5.1 and 5.2 provide for mediation and arbitration, such mediation and arbitration is not binding on the School Board. Because the agreement leaves the final decision with the School Board, it is, in my opinion, in compliance with Article VIII, § 7, of the Constitution of Virginia which requires that school boards retain the final decision in matters concerning the supervision of their schools.

Article 4.10, which provides for closed sessions, as it may apply to discussions with the School Board, would be in violation of the Virginia Freedom of Information Act. I have held, however, that, because employees of a governing body are not considered "public bodies" under the Act, meetings conducted by such employees are not required by the Act to be open to the public. See Opinion of the Attorney General to the Honorable Frederic Lee Ruck, County Attorney for the County of Fairfax, dated November 19, 1974, a copy of which is enclosed. Accordingly, discussions conducted by employees of a school board need not be open to the public.

Article 4.11, which provides that all terms and conditions of employment presently in existence shall remain in existence throughout the term of the proposed agreement unless they are changed by future agreement is, in my opinion, in violation of Article VIII, § 7, of the Constitution. This is so because the proposal agreement has no stated term, nor does it have a provision for termination. The proposal would have the effect of binding the School Board to past decisions in perpetuity. Since Article 4.11 destroys the right of the School Board to alter present policies, it cannot withstand constitutional scrutiny.

For the foregoing reasons, I am of the opinion that the School Board of the City of Hampton may not enter into the proposed agreement as presently drafted.

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