VIRGINIA FREEDOM OF INFORMATION ACT. COMMITTEE APPOINTED PURSUANT TO 15.1-1132 TO PERFECT CONSOLIDATION AGREEMENT BETWEEN CITY AND COUNTY SUBJECT TO ACT; COMMITTEE MEETINGS MUST BE OPEN.

January 10, 1985

850110

The Honorable William T. Wilson
Member, House of Delegates

84-85 418

This is in reply to your request for my opinion whether the Virginia Freedom of Information Act, 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), applies to a committee of citizens appointed by the circuit court pursuant to 15.1-1132 to perfect a consolidation agreement between the City of Covington and Alleghany County, and if it does, whether the committee is permitted to discuss matters within its cognizance in executive or closed meetings.¹

Chapter 26 of Title 15.1 sets forth provisions for the consolidation of local governmental units. Article 4 thereof, of which 15.1-1132 is a part, contains provisions applicable to consolidation of certain counties, cities and towns. The governing bodies of eligible localities may voluntarily enter into a joint agreement for consolidation under Art. 4, which is submitted to the electorate for approval. See 15.1-1131 et seq. If the governing bodies decline to enter into such an agreement for submission to the voters, those bodies may be required to do so on petition of five percent of the voters in their respective jurisdictions, pursuant to 15.1-1132. If a governing body fails to perfect a consolidation agreement within one year from the time of filing of any.such petition, "then the judge of the circuit court having jurisdiction in the county or town or the judge of the circuit court (snip/ shall appoint) a committee of five representative citizens of the county, city or town to act for and in lieu of the governing body in perfecting the consolidation agreement and in petitioning for a referendum." (Emphasis added.) Section 15.1-1132.

By an order entered November 7, 1984, the Circuit Court of Alleghany County appointed five citizens as a committee "to act for and in lieu of the governing body for the City of Covington in perfecting a consolidation agreement and in petitioning for a referendum." The court order denies a motion seeking compensation for the appointed committee. The order goes on to state, however, that "the duties, powers and authority of the committee shall be as provided by law and set forth in the attachment hereto titled `Charge to the Citizens Committee on Consolidation,"' and by reference makes that document a part of the court's order. The "Charge," among other things, authorizes the committee to expend reasonable sums of money for clerical assistance and supplies, the costs of which are to be assessed against the City of Covington, and further contemplates the incurring of additional costs for expert, consultant, legal and other services as may be necessary, with the court's approval.

The Act applies to any public body as defined in the Act, unless the Act itself or some other provision of law exempts the body. Pursuant to 2. 1-341(a) and (c), the term "public body," for purposes of the Act, includes the following:

"[A]ny legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of state institutions of higher education; and other organizations, corporations or agencies in the Commonwealth, supported wholly or principally by public funds." (Emphasis added.)

Prior Opinions of this Office hold a variety of organizations which are not governmental agencies in the traditional sense, but which receive primary support for their activities from public funds, to fall within the definition of "public body," quoted above. See, e.g., Opinion to the Honorable Joseph H. Campbell, Commonwealth's Attorney for the City of Norfolk, dated November 5, 1984 (Old Dominion University Student Senate); Reports of the Attorney General: 1983-1984 at 447 (Governor's Advisory Board of Economists and Governor's Advisory Board on Revenue Estimates), 1982-1983 at 719 (hospital association), 726 (volunteer fire department); 1977-1978 at 482 (university honor committee); 1975-1976 at 406 and 1974-1975 at 584 (General Professional Advisory Committee, composed of university presidents, estisbIished by State Council of Higher Education to serve Council in an advisory capacity).

The committee under consideration here is appointed by circuit court pursuant to a statutory mandate for the purpose of acting "for and in lieu of" a local governing body in perfecting a consolidation agreement as contemplated in Ch. 26 of Title 15.1. Its necessary expenses incurred in performing its statutory function are to be paid out of public funds, pursuant to the court's order. In my opinion, the committee falls within the definition of "public body" contained in 2.l-34j, and it therefore is subject to the Act.

With regard to the second part of your inquiry, 2.1-343 states that, except as otherwise specifically provided by law and except as provided in 2.1-344 and 2.1-345, all meetings of public bodies shall be public. There is no provision of law of which I am aware which specifically exempts a committee appointed under 15.1-1132 from the public meeting requirement, nor does any exemption in 2.1-345 apply. ² I have examined the list of allowed purposes for executive or closed meetings specified in 2.1-344, and in my opinion none is sufficiently broad to encompass the committee's discussions as a whole, although individual matters with which it must deal procedurally may well be a proper purpose for a closed meeting. This conclusion is consistent with the rule that exceptions to the open meeting requirement are to be narrowly construed. See 2.1340.1; 1982-1983 Report of the Attorney General at 717.

Footnotes:

1. A court has the implied power under the statute to authorize the incurrence and order the payment of such costs. City Council v. Newsome, 226 Va. 518, 311 S.E.2d 761 (1974). See 2.1-345 (the Act's provisions are not applicable to parole boards, petit juries, grand juries or the Virginia State Crime Commission). See, e.g., 15.1-945.7(D) (except for any hearing or meeting specifically required by law, the Act does not apply to the Commission on Local Government).

2. These advisory boards are no longer subject to the open meeting requirement by virtue of 2.1-344(a)(12), which was added to the statute by Ch. 473, Acts of Assembly off 984. Note, by way of contrast, Reports of the Attorney General: 1978-1979 at 316 (city mayor's advisory committee not subject to the Act; it "is not created by a public body, does not perform delegated functions of a public body, does not advise a public body, and does not receive public funding"); 1974-1975, (voluntary association of college presidents, with no official status as creature of State Council of Higher Education and receving no public funds, is excluded from the Act). compare 15.1-945.7(D), recited in supra note 3. See supra note 2. Thus, for example, consideration of terms of proposed contractual arrangements with court-authorized consultants, attorneys or other experts, may be a proper purpose for an executive session, under the exemption for "legal matters" provided in 2.1-344(a)(6). See, e.g., 1982-1983 Report of the Attorney Gene nment