[INCOMPLETE OPINION]

VIRGINIA FREEDOM OF INFORMATION ACT. EXECUTIVE SESSIONS. DESIRABILITY OF DEFERRED PAYMENT PLAN FOR SEWER SERVICE IS NOT PROPER TOPIC FOR EXECUTIVE SESSION.

July 19, 1982

The Honorable J. Samuel Glasscock
Member, House of Delegates

82-83 717

This is in response to your letter with enclosures inquiring whether a city council violated the Virginia Freedom of Information Act(the "Act"), §§2.1-340 through 2.1-346.1 of the Code of Virginia in holding executive or closed meetings to discuss whether and upon what terms the city would permit its residents to defer payment of the costs of connecting with the public sewer system. First, you ask whether such a deferred payment plan is a proper topic for an executive or closed meeting under §2.1-344(a). Second, you ask whether a councilman's reading of a prepared statement that council was going into closed session to consider "personnel, legal matters, land acquisitions and other matters covered by the Freedom of Information Act" complies with the requirements for holding an executive or closed meeting under §2.1-344(b).

With respect to your first question, the letter you enclosed indicated that council was justifying closing the meetings at which the deferred payment plan was discussed by, stating that the discussion concerned a "legal contract." Section 2.1-344 (a) (6) permits closing a meeting for the purpose of discussing "actual or potential litigation, or other legal matters within the jurisdiction of the public body...." Whether a city's plan for deferred payment of sewer connection costs constitutes a "legal matter" within the meaning of this exemption must be determined in light of the policy of the Act and the specific issues relating to the plan which the council wished to discuss. Section 2.1-340.1 expressly declares the policy that the Act's requirements are to be liberally construed to enable citizens to observe the operation of government and that the exemptions from the Act's requirements are to be narrowly construed "in order that nothing which should be public may be hidden from any person." The exemption for legal matters may not be relied upon as a catch-all exemption from the open [MISSING TEXT] §344(a)(6) requires the existence of a specific legal question which will be discussed in the executive or closed meeting.² This Office has also opined that neither discussions of solutions to a city's drainage problems, nor possible reductions of city garbage collections are exempt from the Act.³

On the facts presented with your inquiry, discussion of the city's proposed plan for deferred payment for sewer connection costs apparently focused on the desirability of the proposed policy rather than any actual or potential legal question concerning the policy. Based solely upon this understanding and in view of the requirement of a narrow construction of the Act's exemptions, I am of the opinion that discussion of the policy of the city's proposed plan for deferred payment of sewer connection costs at closed meetings does not fall within the exemption for "legal matters" and is not, therefore, a proper topic for an executive meeting under §2.1-344(a)(6). See Marsh v. Richmond Newspapers, Inc., 223 Va. ____, 228 S.E2d 415 (1982).

Turning to your second question, §2.l-344(b) provides that:

"No meeting shall become an executive or closed meeting unless there shall have been recorded in open meeting an affirmative vote to that effect by the public body holding such meeting, which motion shall state specifically the purpose or purposes hereinabove set forth in this section which are to be the subject of such meeting and a statement included in the minutes of such meeting which shall make specific reference to the applicable exemption or exemptions as provided in subsection (a) or §2.1-345

[MISSING TEXT] motion during the open portion of a meeting that makes specific reference to the applicable s exemption(s) relied upon to go into executive session.⁴ The practice of merely reading a prepared statement prior to closing a meeting is not the same as the council's adopting such a motion. Accordingly, I am of the opinion that the practice you describe does not satisfy the requirement that a motion be adopted prior to closing a meeting.

As for the requisite specificity of a motion to close a meeting pursuant to §2.1-344(a)(6), the Virginia Supreme Court has found motions defective where there was no "identifiable connnection between the motions to go into executive session and the business then under consideration...." by the public body.⁵ Additionally, this Office has opined that the motion must use the language of the specific statutory exemption.⁶

In summary, I am of the opinion that discussion by the city council of a plan for deferred payment of sewer connection costs at closed meetings as described in the material submitted with your letter did not fall within §2.1-344(a)(6) and that the mere reading of a statement did not comply with the Act's requirements for a motion stating a proper purpose with sufficient specificity.

_____________________________

Footnotes:

11980-1981 Report of the Attorney General at 389.

2 Opinion to the Honorable Glenn B. McClanan, Member, House of Delegates, dated July 7, 1982.

3 1980-1981 Report of the Attorney General at 387 and 389.

4 See Nageotte, et al. v. Board of Supervisors of King George County, et al., 223 Va. ____, 228 S.E.2d ____ (1982).

5 Nageotte, supra. The motion need not, however, disclose the legal matters to be considered, Marsh, supra.

6 [FOOTNOTE #6 MISSING]