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July 7, 2003
Mr. David L. Wilkinson
Hamilton, Virginia
The staff of the Freedom of
Information Advisory Council is authorized to issue advisory
opinions. The ensuing staff advisory opinion is based solely upon
the information presented in your letter of March 20, 2003.
Dear Mr. Wilkinson:
You have asked whether the Virginia Freedom of Information Act
(FOIA) would allow an elected school board to meet in closed
session pursuant to subdivision A 1 of § 2.2-3711 of the Code
of Virginia to discuss whether and how to formally censure,
reprimand, or otherwise discipline one of its members where the
board has no lawful power to formally censure, reprimand, or
otherwise discipline its constituent members.
Subsection A of § 2.2-3707 requires that [a]ll meetings
of public bodies shall be open, except as provided in §
2.2-3711. Subdivision A 1 of § 2.2-3711 allows a public
body to convene in closed session for the discussion,
consideration or interviews of prospective candidates for
employment; assignment, appointment, promotion, performance,
demotion, salaries, disciplining or resignation of specific public
officers, appointees or employees of any public body; and
evaluation of performance of departments or schools of public
institutions of higher education where such evaluation will
necessarily involve discussion of the performance of specific
individuals. Subsection B of § 2.2-3700 provides that the
provisions of FOIA shall 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. Any exemption from public access to records or meetings
shall be narrowly construed. At issue is whether the exemption
at subdivision A 1 of § 2.2-3711 should be interpreted as to
allow an elected school board to discuss the disciplining of one of
its members when that board does not have any formal powers of
discipline.
In narrowly construing this exemption, the Office of the
Attorney General of Virginia has opined that a city council may not
use the exemption to discuss specific city council employees other
than those directly appointed by the council.1 In that fact scenario, the city council's
charter allowed for it to appoint a city manager, city clerk and
city attorney. The city manager was given the authority to appoint,
supervise and remove all other city employees. The Attorney General
found that while the term "employee" was not defined by FOIA, four
elements at common law determine the existence of an
employer/employee relationship: (i) the employer's selection and
engagement of the employee; (ii) the payment of wages to the
employee; (iii) the employer's retention of the power of dismissal;
and (iv) the employer's retention of the power of control of the
employee. The Attorney General found that the crucial question of
control was whether the employer had the right to control not
merely the results but also the progress, details, means and
methods of the work. This element of control did not exist between
the city council and the employees hired by the city manager;
therefore, the city council could not go into closed session to
discuss individuals with whom it did not have an employer/employee
relationship. This opinion was reiterated two years later, when the
Attorney General opined that the phrase "employees of any public
body" could not be narrowly construed to be synonymous with the
phrase "employees of any locality."2
These two opinions dealt with the interpretation of the phrase
"employee of any public body" in subdivision A 1 of §
2.2-3711. However, the exemption also applies to discussions of
specific public officers and appointees of any public body. To
answer the instant question, one must determine which public
officers are subject to the exemption, since a public officer or
appointee is not necessarily an employee. Like the term "employee,"
the term "public officer" is not defined by FOIA. Where no
applicable statutory definition of a term exists, it must be given
its ordinary meaning, considering the context in which it is
used.3 Black's Law Dictionary refers to
an officer, as used in a public affairs context, to mean "a person
holding public office under a national, state, or local government,
and authorized by that government to exercise some specific
function."4 The Attorney General has
listed criteria to be considered in determining whether a position
constitutes a public office by noting, "One important consideration
is that, to constitute a public office, the position must be
created by the Constitution or statutes. It is a position filled by
election or appointment, with a designation or title, and duties
concerning the public, assigned by law. A frequent characteristic
of such a post is a fixed term of office."5
Based on this definition, an elected member of a school board is
a public officer. The exemption at subdivision A 1 of §
2.2-3711 clearly applies to certain discussions about public
officers. However, to say that the exemption applies to discussions
about all public officers across the board would result in a broad,
and often times illogical, application. Such interpretation would
potentially allow, for example, members of a city council to
convene in closed session to discuss a member of a county
board of supervisors, a public officer of a different public body.
Such an interpretation and result does not seem to be the intent of
the law, and belies the policy of openness guaranteed by FOIA. The
exemption must be narrowly construed to mean that a public body
utilizing the exemption can only discuss its own public officers,
appointees, or employees, and not those of another public body.
In determining to which public officers the exemption applies,
the opinion of the Attorney General discussed above relating to
employees of a public body provides an important analogy. In that
opinion, the Attorney General emphasized the importance of control
in establishing an employer/employee relationship. There, a public
body could not go into closed session to discuss an employee over
whom it did have direct control to hire, fire, or supervise the
day-to-day activities. In the public officer context, the element
of control also seems relevant. Charters and statutes creating
public bodies delineate certain powers and responsibilities to
those public bodies. If a public body is given the power to assign
or appoint certain of its members to perform delegated
responsibilities, then it follows that the plain language of §
2.2-3711 would allow discussions of the appointment of a particular
member to take place in a closed meeting.6 Likewise, if the public body has the formal
power to discipline a fellow public officer, then a discussion of
the performance of that officer and what disciplinary action to
take could likewise take place in closed session. However, if a
public body, such as a school as referenced in your question, does
not have the authority or power to formally censure or otherwise
discipline one of its members, then it follows that the public body
cannot exercise the exemption at subdivision A 1 of § 2.2-3711
to discuss something over which it has no control, and upon which
it can take no action, in a closed meeting.
In further examining this interpretation of the law, it is
important to consider the public policy behind the creation of
exemptions for certain public records and meetings generally. In no
instance are the exemptions created purely for the convenience of
the public body, or to allow a public body to keep somewhat
embarrassing or sensitive issues out of the public light. Instead,
each of the records and meetings exemptions was enacted to benefit
the public in some way. For example, several exemptions are
privacy-based, created not to protect the privacy of the public
body, but to protect the privacy of the citizens whom the public
body serves. For example, the scholastic and medical records
exemptions, and their corollary meeting exemptions, protect private
information. Other exemptions protect the public safety, such as
exemptions protecting the tactical plans of law-enforcement
agencies or plans to prevent and respond to terrorist activities.
Some exemptions are designed to protect the financial interests of
public bodies, and hence taxpayer dollars, such as the exemption
for the discussion of the acquisition of real property when such a
discussion in open session would adversely affect the bargaining
position of the public body. These are but a few examples of the
public policy underlying several commonly-used exemptions.
Turning this discussion to subdivision A 1 of § 2.2-3711,
the exemption appears to be designed to protect the privacy of a
public officer, appointee or employee when discussing particular
issues over which a public body has direct control and supervision.
Public policy seems to dictate that discussions of an elected
public officer's handling of business and decisions related to the
public business should be held in open session. An officer is
elected by the citizens he represents, and often times the only
recourse for unpopular actions or positions is at the polls, where
citizens vote to retain an incumbent or to elect a new
representative. In most instances, public officers of an elected
board have little or no authority to manage the day-to-day
performance of fellow officers on the same board. A public officer
chooses to place himself in the public light by running for office,
and public scrutiny of his performance is an important part of the
democratic process. If such discussion by fellow members of the
elected body is held out of the public view, then the only people
who have the actual power to remove a public officer -- the voters
-- would be kept in the dark and not be able to make an informed
decision at the next election. Furthermore, if the exemption at
subdivision A 1 of § 2.2-3711 were used in such a situation,
the public body would essentially be going into closed session to
vent frustrations and discuss a situation over which it has no
authority to act. It is the role of a public officer to make
decisions and form opinions about issues of public policy that will
best benefit his constituents. While other public officers of the
same public body may disagree with and perhaps even criticize those
decisions or positions, it is not generally their role as elected
officials to punish or censure the public officer with whose
opinions any or all of the other elected officials disagree. In
fact, discussion or criticism about the prudence of a particular
public officer's opinions or actions as they relate to the public
business may be the essence of the discussions that FOIA was
designed to keep in the public light. Exemptions are generally
created so that a public body may hold certain discussions that are
necessary for its transaction of the public business, but
that public policy allows to be held out of the public view. If a
public body has no authority to discipline or censure one of its
public officers, then such a discussion by the public body is not
necessary and public policy dictates that such a discussion take
place at an open meeting.
In conclusion, the relevant piece of the analysis for any closed
session to be held under subdivision A 1 of § 2.2-3711 is
whether the public body retains some level of control over the
individual whom it wishes to discuss. This was clearly articulated
by the Attorney General in the employer/employee context. However,
the same analysis for determining the issue of control holds true
when examining whether the exemption applies to a discussion of a
public officer or appointee of a public body.7 If a public body has the authority to
censure, reprimand or otherwise discipline a fellow member of the
elected body, then it may exercise this exemption to discuss the
performance and subsequent discipline of the member. If no such
authority exists, then the exemption is not applicable. It is
important to note, however, that even if the public body does have
the authority to discipline a fellow member and properly convenes
in closed session for such a discussion, no disciplinary action of
the public body will become effective or official until its
substance is substantially identified and voted on in an open
meeting pursuant to subdivision B of § 2.2-3711.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 1998 Op. Atty.
Gen. Va. 9.
2 2000 Op. Atty.
Gen. Va. 19.
3 Commonwealth Department of
Taxation v. Orange-Madison Coop. Farm Service, 220 Va. 655, 261
S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty.
Gen. Va. 174; see generally Norman J. Singer, Statutes and
Statutory Construction, 6th ed., § 46:01.
4 Black's Law Dictionary, 7th Ed.
(1999).
5 2000 Op. Atty. Gen. Va. 24.
6 This example is distinguishable
from the conclusion reached by the Attorney General that a school
board could not convene in closed session under this exemption to
elect a chairman. See 1999 Op. Atty. Gen. Va. 15. In that instance,
statute dictated that the school board elect a member. The opinion
turned on the fact that the exemption did not specifically allow
for an election. The exemption does, however, specifically allow
for the appointment…of specific public officers, appointees
or employees. It follows then that an appointment would be allowed
under this exemption, and that such conclusion would not be
contrary to the Attorney General's published opinion.
7 This opinion is in conformity with
the earlier opinion of the Attorney General in 2000 Op. Atty. Gen.
Va. 24 in that it concludes that the exemption at subdivision A 1
of § 2.2-3711 would not allow members of a public body to
convene in closed session to generally discuss the performance of a
fellow member. However, to the extent that the opinion of the
Attorney General may be read to hold that the exemption only
applies to discussions about employees and appointees of a public
body, and not public officers, this opinion does not follow the
reasoning or holding of the Attorney General. Instead, this opinion
concludes that in the limited circumstances where a public body has
the authority to censure, discipline, or otherwise take action
relating to the performance of a public officer, the exemption
would allow discussions relating to such actions to take place in a
closed meeting.
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