|
ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
INFORMATION ACT.
Reconsideration and affirmance of 1998 opinion concluding that Act
does not permit Hopewell City Council to hold closed meeting to
discuss personnel matters related solely to employees of city
manager. Examination of elements that determine existence of
employer/employee relationship. Hopewell City Council does not
possess required element of control over city employees. Comparison
of 1998 opinion with 1979 opinion dealing with employment
relationships of local school boards. Employer/employee relationship
that exists between local school boards and public school system
employees is distinguishable from relationship between Hopewell City
Council and city employees. Exemption from Act's open meeting
requirement is reserved to city manager, and not council, for
discussion of personnel matters related solely to city employees.
Mr. Steven L. Micas
County Attorney for Chesterfield County
May 18, 2000
You request that I reconsider an opinion to the Honorable
Riley E. Ingram, Member, House of Delegates, dated December 16,
19981
("1998 opinion"), concluding that The Virginia Freedom of
Information Act, §§ 2.1-340 through 2.1-346.1 of the Code
of Virginia (the "Act"), does not permit the Hopewell City Council to
hold a closed meeting to discuss personnel matters related solely to
employees appointed, removed, or supervised by the city manager. The
1998 opinion notes that the exception to the open meeting requirement
in § 2.1-344(A)(1), which allows public bodies to discuss
certain personnel matters in closed meetings, clearly permits a city
council to discuss in a closed meeting personnel considerations
regarding individuals appointed or employed by council and over whom
the council has supervisory authority.2
The 1998 opinion also notes, however, that the statutory exception is
not available to a city council for personnel matters pertaining to
city employees it does not appoint or employ, and over whom it does
not have supervisory authority, such as employees supervised by the
city manager.3
In the 1998 opinion, the charter for the City of Hopewell
authorized the city council to appoint only the city manager, city
clerk, and city attorney.4
The city manager, however, had appointive, removal and supervisory
authority over other city employees.5
The specific inquiry in the 1998 opinion was whether the Hopewell
City Council may meet in executive session to discuss specific city
employees other than the three officers appointed by
council.6
In this factual context, it was noted that §
2.1-344(A)(1) allows public bodies to hold closed meetings only for
the purposes of "[d]iscussion, … assignment, …
promotion, performance, demotion, salaries, disciplining or
resignation of specific public … employees of any public
body."7
The 1998 opinion cites two prior opinions, which conclude that a
city council may discuss in a closed meeting personnel matters
related to the council's selection of one of its members as
mayor8
or related to the city attorney whom it appoints.9
With regard to other employees of the city, however, the term
"employee" is not defined in the Act. It is, therefore, necessary to
rely on a 1991 opinion which considers the following four elements to
determine whether an employer/employee relationship exists: (1) the
employer's selection and engagement of the employee; (2) the payment
of wages to the employee; (3) the employer's retention of the power
of dismissal; and (4) the employer's retention of the power of
control.10
The 1991 opinion concludes that the crucial question in determining
the existence of such a relationship is whether the employer has the
right to control not merely results but the progress, details, means
and methods of the work.11
"The legislature is presumed to have had knowledge of the Attorney
General's interpretation of the statutes, and its failure to make
corrective amendments evinces legislative acquiescence in the
Attorney General's view."12
Based on an assessment of these four elements, the 1998 opinion
concludes that the Hopewell City Council does not have the required
element of control over the city employees in question and thus may
not discuss personnel matters relating to them in a closed
meeting.13
In your analysis,14
you argue that the phrase "employees of any public body" is
synonymous with the phrase "employees of any locality." Thus, you
conclude that employees of the City of Hopewell are also employees of
the city council. You argue that the interpretation of the term
"employees" in the 1998 opinion is too restrictive. Additionally, you
argue that a 1979 opinion conflicts with the 1998 opinion because it
concludes that a school board may not meet in a closed meeting to
discuss the general priority of administrative positions in the
school system's central administrative office, but such board could
meet in a closed meeting to discuss personnel matters relating to
specific employees of the central office.15
Finally, you contend that the 1998 opinion is inconsistent with the
intent of § 2.1-344(A)(1) in that the conclusion fosters open,
rather than closed, discussion of city employee personnel issues.
It is clear that the General Assembly has defined neither the term
"employee" nor the phrase "individual employees of public bodies" in
the context of the Act.16
When the General Assembly intends words in a statute to have a
specific meaning, it clearly and unambiguously expresses its
intention.17
Therefore, the determination of whether the employees of the City of
Hopewell are employees of the city council is subject to the
particular facts and circumstances of the individual case. The
analysis of the 1998 opinion focuses on the common and ordinary
meaning associated with the term "employee." Use of such term by the
General Assembly envisions a relationship between an employer and
employee in which the employer exercises a degree of control over the
employee.
Based on the facts presented in the 1998 opinion, I remain of the
view that the Hopewell City Council does not possess the requisite
control over the city employees. I also am unable to agree with your
argument that the 1979 opinion, dealing with employment relationships
of local school boards, conflicts with the 1998 opinion. A 1985
opinion notes that "[t]he powers to hire, dismiss and set the
terms of employment of employees in the public school system are
vested in the [local] school board."18
Specifically, § 22.1-293(A) provides that local school boards
"may employ principals and assistant principals"; § 22.1-295(A)
provides that public school teachers "shall be employed … by the
school board"; and § 22.1-296 provides that "[e]ach
school board shall provide for the payment of teachers, principals,
assistant principals and other employees." I am not aware of any
similar statutory provision that vests the Hopewell City Council with
similar management responsibility and control over city
employees.19
Furthermore, § 2.1-340.1 of the Act mandates that
"[a]ny exception or exemption from [the Act's]
applicability shall be narrowly construed." Thus, taking into
consideration that the exemption provided pursuant to §
2.1-344(A)(1) for the discussion of personnel matters related to
"employees of any public body" must be narrowly construed, I am
constrained to interpret such exemption in a restrictive manner. To
define the term "employees" as you suggest such that all employees of
a city are automatically regarded as employees of the city council
contravenes the expressed mandate of the General Assembly.
Accordingly, I am required to construe the term "employees" in a
restricted manner when such term is used in the Act. Consequently, it
is my opinion that the phrase "employees of any public body" is not
synonymous with the phrase "employees of any locality."
The 1979 opinion, which you suggest contradicts the 1998 opinion,
addresses the issue of whether a local school board may meet in a
closed meeting to discuss a report prepared by the superintendent
regarding the order of priority among administrative positions in the
school board's central administrative office.20
The 1979 opinion notes that the report did not involve the
performance of school board employees, but rather, evaluated the
importance of the employees' positions.21
Thus, the 1979 opinion concludes that such report was not within the
scope of the Act's exception for discussion of personnel matters in a
closed meeting.22
You also conclude that the 1979 opinion indicates that it would be
permissible to discuss in a closed meeting personnel matters related
to specific employees of the central office who are not school board
appointees. You rely on the 1979 opinion as analagous to the
situation presented in the 1998 opinion, and maintain that the 1979
opinion stands for the proposition that a city council may discuss in
a closed meeting the personnel matters of specific city employees as
well as appointees of the council. I concur with your conclusion that
the 1979 opinion furthers the result of permitting a school board to
discuss in a closed meeting the personnel matters of specific school
board employees as well as appointees of the school board. As
discussed above, however, local school boards are statutorily vested
with the requisite management and control powers over public school
system employees that evidence an employer/employee
relationship.23
Conversely, the Hopewell City Council considered in the 1998 opinion
was not so vested; thus, the facts and corresponding conclusion of
the 1979 opinion are clearly distinguishable from the 1998
opinion.
Finally, you argue that the conclusion of the 1998 opinion is
inconsistent with the confidentiality purpose of the §
2.1-344(A) exception in that it leads to the discussion of personnel
matters of city employees in open session of a city council
meeting.
Your proposition assumes that, because the 1998 opinion concludes
that discussion of personnel matters related to city employees who
are appointed, removed, or supervised by the city manager does not
fall within the Act's exception to open meetings, such discussion
must necessarily take place in an open meeting of city council. As
noted in the 1998 opinion, the § 2.1-344(A)(1) exception is
"'designed to protect the privacy of individual employees of public
bodies in matters relating to their employment.'"24
Accordingly, discussions related to the employee's personnel matters
are reserved to the employer and employee. Because it is my opinion
that the employees of the City of Hopewell in the 1998 opinion are
employees, as that term is commonly defined, of the city manager and
not the city council, discussion of personnel matters solely related
to them are reserved unto such employees and the city manager.
For these reasons, the conclusion of the 1998 opinion is
affirmed.
Footnotes:
1. 1998 Op. Va. Att'y Gen.
9.
2. Id. at 10.
3. Id. at 11.
4. Id. at 10.
5. Id.
6. Id. at 9-10.
7. See id. at 10.
8. See 1980-1981 Op. Va. Att'y
Gen. 386.
9. See 1982-1983 Op. Va. Att'y
Gen. 714.
10. 1991 Op. Va. Att'y Gen. 140, 143 (citing A.
C. L. R. Co. v. Tredway's Admx., 120 Va. 735, 744-45, 93 S.E.
560, 562 (1917)).
11. Id. (citing N & W Railway v.
Johnson, 207 Va. 980, 983, 154 S.E.2d 134, 136 (1967)); see also
9B M.J. Independent Contractors §§ 5, 6 (1995).
12. Deal v. Commonwealth, 224 Va. 618, 622,
299 S.E.2d 346, 348 (1983); see also Op. Va. Att'y Gen.: 1995 at 225,
227; 1985-1986 at 21, 22.
13. 1998 Op. Va. Att'y Gen., supra note 1, at
11.
14. Any request by a county attorney for an opinion
from the Attorney General "shall itself be in the form of an opinion
embodying a precise statement of all facts together with such
attorney's legal conclusions." Section 2.1-118.
15. 1979-1980 Op. Va. Att'y
Gen. 378.
16. 1998 Op. Va. Att'y Gen., supra note 1, at
10.
17. See Brown v. Lukhard, 229 Va. 316, 321,
330 S.E.2d 84, 87 (1985); Adkins v. Com., 27 Va. App. 166,
169, 497 S.E.2d 896, 897 (1998); Birdsong Peanut Co. v.
Cowling, 8 Va. App. 274, 277, 381 S.E.2d 24, 26 (1989).
18. 1985-1986 Op. Va. Att'y Gen. 159, 159 (citing,
e.g., § 22.1-293).
19. Compare § 15.2-1131 (providing that city
council may establish personnel system for city administrative
officials and employees in city with population exceeding 200,000
upon receipt of recommendation submitted by city manager); 1989 Op.
Va. Att'y Gen. 43, 44, 45 (noting as valid, procedure to resolve
employee complaints through which employees of local department of
social services must address such complaints first to their immediate
supervisor; if unsatisfied, then to department's director, and
lastly, to local board of supervisors at meeting of full board).
20. See 1979-1980 Op. Va. Att'y Gen., supra note
15, at 378.
21. Id.
22. Id. at 378-79.
23. See 1985-1986 Op. Va. Att'y Gen., supra note
18, at 159.
24. 1998 Op. Va. Att'y Gen., supra note 1, at 11
(quoting 1976-1977 Op Va. Att'y Gen. 316, 316).
|
