February 26, 1976

THE HONORABLE GERALD G. POINDEXTER
Attorney for Surry County

75-76 417

This is in reply to your letter from which I quote as follows:

"Recently, after proper advertisement in a newspaper of general circulation as is required by Code § 22-62, as amended, the Surry County School Trustee Electoral Board met at the date and time stated in the notice to fill a vacancy existing on the Surry County School Board. In response to the notice, a number of citizens appeared, one of whom presented the School Trustee Electoral Board chairman with a petition requesting the appointment to the school board of a named individual; the petition contained more than one hundred names of voters from the election district in which the vacancy existed. The chairman accepted the petition without comment and, without motion, he and the other four members of the Board left their respective seats and retired to a back room of the building where the meeting proceeded, out of the presence of the citizens. After some thirty minutes, the Board members reappeared and the chairman announcing that the vacancy had been filled with the appointment of someone other than that person for whom the petition had been presented. There was no motion to return to open session and no further votes were taken.

* * * "Query? (1) Does the conduct of the School Trustee Board, assuming the circumstances described above, violate the Virginia Freedom of Information Act, particularly §2.1-344, subsections b. and c.?; (2) if violations of the Act have occurred, would the appointment of the new school board member be subject to being set aside by a court action initiated under§ 2.1-346 of the Act? (3) are the subsequent actions of the School Board of Surry County subject to contest as a result of the improper procedure employed in appointing its newest member?; and (4), if so, under what circumstances?"

The Virginia Freedom of Iniformation Act, in § 2.1-344(b) and (c), Code of Virginia (1950), as amended, requires that public bodies adhere to certain prescribed procedures when meeting in closed or executive session. Section 2.1-344(b) requires that, prior to any close[d] meeting, the public body vote affirmatively, in open session, upon a motion to meet in executive session, which motion shall state specifically the purpose or purposes for which the closed meeting is to be held. Section 2.1-344(c) provides:

"(c) No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in an executive or closed meeting shall become effective unless such public body, following such meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion."

Since, according to the facts presented, the School Trustee Electoral Board did not vote affirmatively to enter executive session and, further, did not following such executive meeting vote to affirm its action in executive session, I am of the opinion that the Board violated the provisions of §2.1-344(b) and (c). I would, therefore, answer your first inquiry in the affirmative.

In response to your second inquiry, §2.1-346 provides that any person alleging denial of the rights and privileges conferred by the Act may enforce such rights and privileges by petition for mandamus or injunction in the appropriate court of record. I am, therefore, of the opinion that the action of the School Trustee Electoral Board, in selecting the newest member of the School Board, if found by the court to be in violation of the requirements of the Act, would be subject to being set aside by court injunction entered pursuant to §2.1-346.

In response to your third and fourth inquiries, I call to your attention my Opinions to the Honorable Joseph E. Spruill, Jr., Commonwealth's Attorney for Essex County, dated June 22, 1973, and to the Honorable F. Caldwell Bagley, County Attorney for Prince William County, dated March 6, 1975, and found in Reports of the Attorney General (1972-73) at 515 and (1974-75) at 419, respectively, copies of which are enclosed. It was held in these Opinions that public officers improperly selected are de facto officers and as such their official actions are valid until such time as they have notice of the legal defect in their election. 15 M.J. Public Officers 58 (1951). Accordingly, the improper election of its newest member would not invalidate subsequent School Board actions nor would it invalidate official actions of the improperly elected Board member until such time as he is notified of the illegality of his election.