COUNTIES, CITIES AND TOWNS. ZONING. BOARDS OF ZONING APPEALS. PUBLIC BODY SUBJECT TO VIRGINIA FREEDOM OF INFORMATION ACT. MAY NOT GO INTO EXECUTIVE SESSION TO DISCUSS GENERAL LEGAL MATTERS.

February 8, 1986

The Honorable Robert W. Ackerman
Member, House of Delegates

85-86 103

This is in reply to your request for my opinion concerning the applicability of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), to a board of zoning appeals created pursuant to §15.1-494. You wish to know whether a board of zoning appeals is subject to the Act's requirements pertaining to meeting in executive session.

A prior Opinion of this Office specifically held that boards of zoning appeals, as boards of political subdivisions of the Commonwealth, are public bodies as defined in §2.1-341, and must comply with §2.1- 344 when meeting in executive session. See 1973-1974 Report of the Attorney General at 451. I concur in the analysis and holding of that Opinion. Accordingly, I answer your question in the affirmative.

You ask also whether a board of zoning appeals may meet in executive session to consult with its attorneys on such matters as the function of a board of zoning appeals, the powers and duties of a board of zoning appeals, and the meaning of certain legal terms. I first note the requirement that the Act is to be liberally construed "to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." See §2.1-340.1. Section 2.1-344(a) provides that executive sessions may be held for the purpose of:

"(6) Consultation with legal counsel and briefings by staff members, consultants or attorneys, pertaining to actual or potential litigation, or other legal matters within the jurisdiction of the public body, and discussions or consideration of such matters without the presence of counsel, staff, consultants, or attorneys."

Prior Opinions of this Office have held that the foregoing language requires more than just making a determination that legal matters are involved in the topic. Rather, there must be a specific potential legal dispute or specific legal inquiry. See Reports of the Attorney General: 1982-1983 at 716; 1981-1982 at 432. The Supreme Court of Virginia also has noted this requirement of specificity. See Marsh v. Rich. Newspapers, Inc., 223 Va. 245, 288 S.E.2d 415 (1982); City of Danville v. Laird, 223 Va. 271, 288 S.E.2d 429 (1982). This Office has held that §2.1-344(a)(6) would not allow a local governing body to go into an executive session to discuss such general legal matters as those relating to the purpose of zoning and steps in the rezoning process. See 1980-1981 Report of the Attorney General at 389. Furthermore, a prior Opinion of this Office specifically held that an educational "workshop" was a "meeting" and subject to the Act's requirements. See 1981-1982 Report of the Attorney General at 442. Compare Reports of the Attorney General: 1979-1980 at 380; 1977-1978 at 485. In accord with all of the above, it is my opinion that a board of zoning appeals may not meet in executive session to discuss general legal matters relating to a board of zoning appeals' function, powers and duties, or the meaning of legal terms, in the absence of a specific legal problem requiring the consideration of such matters.