VIRGINIA FREEDOM OF INFORMATION ACT. EXECUTIVE MEETINGS. HIRING, FIRING, RESIGNATION, RETENTION, SALARY AND MATTERS RELATING TO MONIES PAID TO STAUNTON CITY ATTORNEY MAY BE DISCUSSED IN EXECUTIVE SESSION.

April 19, 1983

The Honorable Raymond C. Robertson
Commonwealth's Attorney for the City of Staunton

82-83 714

This is in reply to your letter of April 7, 1983, regarding the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"). You have asked whether the subject of the hiring, firing, resignation, retention, salary and any matters relating to monies paid to the city attorney of Staunton may be discussed in executive or closed session under the Act.

Section 2.1-343 requires that all meetings of public bodies shall be public meetings except as provided in §§2.1-344 and 2.1-345. Section 2.1-344(a)(1) provides in part:

"(a) Executive or closed meetings may be held only for the following purposes:

(1) Discussion or consideration of employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of public officers, appointees or employees of any public body.

The Charter of the City of Staunton authorizes the council to elect a city attorney who shall serve for such term as may provided by the council and who shall perform such duties and receive such compensation as shall be prescribed by the council.¹ You state that the city attorney is appointed by the city council, and serves at its pleasure. He is paid a retainer and an hourly rate for services performed. Even though the practice appears to be more akin to a retention of a lawyer as an independent contractor than it does the appointment or election of a city official, I do not think it is the determinative fact in this instance. Whether he be considered to be a public officer, appointee or employee of the city council, I am of the opinion that discussion of matters regarding his employment, appointment, salary, etc., would be an appropriate subject for an executive session of the council, as authorized in §2.1-344(a)(1). This Office has held that a city council may discuss the selection of a mayor in executive meeting² and that a town council may meet in executive session for the purpose of discussing employment of a person for the position of town manager.³

I am of the opinion that in the situation you have described the election of a city attorney as provided by the city charter is equivalent to the appointment or employment of a city attorney; therefore, the hiring, firing, resignation, retention, salary and any matters relating to monies paid him by the city are appropriate topics for discussion in executive session of the city council. It will, of Course, be necessary to follow the procedure outlined in §2.1-344(b) in order to consider the matter. Further, the action taken in the executive meeting does not become effective until the council reconvenes in open session and takes affirmative action as required by §2.1-344(c).

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Footnotes:

1 Section 10 of the City Charter of Staunton provides in part: "The council shall elect.. a city attorney...[who] shall serve for such term as may be provided by the council, and until his successor has been elected and qualified. [He] shall perform such duties and receive such Compensation as shall be prescribed by the council" Ch. 239, Acts of Assembly of 1934 at 344, 348.

2 See 1980-1981 Report of the Attorney General at 386.

3 See 1974-1975 Report of the Attorney General at 570.