Attorney General's Opinion 1976-77 #316

November 15, 1976

THE HONORABLE ALAN A. DIAMONSTEIN \
Member, House of Delegates

76-77 316

This is in reply to your recent letter wherein you ask whether the following actions of the Oyster Point Development Corporation of Newport News (OPDC) were in violation of the Virginia Freedom of Information Act:

(1) Executive session discussion concerning (a) the amounts of bids submitted by two advertising agencies seeking an advertising contract with OPDC, and (b) which of the bidding advertising agencies should be awarded the contract.

(2) Executive session discussion of OPDC negotiations with the Regional Redevelopment and Housing Authority of Hampton and Newport News (RRHA) regarding monies owed by OPDC for land previously conveyed by RRHA to OPDC.

The Oyster Point Development Corporation is an independent political subdivision of the Commonwealth and is, therefore, subject to the requirements of the Virginia Freedom of Information Act. See §2.1-341(a) and (e), Code of Virginia (1950), as amended. Section 2.1-343 of the Code provides that all meetings of public bodies shall be open or public meetings, except as provided in §§2.1-344 and 2.1-345.

With respect to your first inquiry, I am of the opinion that executive discussion of the amounts of bids submitted by advertising agencies and discussion as to which of the bidding agencies should be awarded a contract does constitute a violation of the open meeting provisions of §2.1-343. None of the exceptions authorizing executive meetings provided in §§2.1-344 or 2.1-345 are applicable. Section 2.1-344(a)(1), which authorizes executive sessions for discussion of "employment, assignment, appointment . . . salaries . . . of public officers, appointees or employees of any public body," would not, in my view, apply. That exception is designed to protect the privacy of individual employees of public bodies in matters relating to their employment and cannot be reasonably interpreted to apply to a single contractual relationship between a public body and a private corporation. Section 2.1-344(a)(5) authorizes executive sessions for discussion of the investment of public monies where bidding is involved, where if made public initially the financial interest of the governmental unit would be adversely affected. In this instance, bids had already been submitted in response to prior solicitation by OPDC. Thus, discussion of the amounts of bids and which to accept would in no way provide the bidders with a means of adversely affecting the financial interest of OPDC. Finally, the provisions of §2.1-344(a)(6), authorizing executive discussion of "legal matters" is not applicable since there is no indication from the facts presented that OPDC discussed the legal effect of the contract or any provision thereof, rather, the discussion related only to which of the two bidding agencies should be retained by contract.

Regarding the executive discussion of OPDC's arrangements for payment of its debt to RRHA for previously conveyed real property, I am of the opinion that such executive discussion also constituted a violation of §2.1-343. Section 2.1-344(a)(2), authorizing closed discussion of the "acquisition . . . of real property for public use" would not authorize the discussion you describe. The purpose of the aforementioned exception is to avoid premature exposure of a public body's interest in acquiring land which might prejudice the position of the public body in obtaining the same. Since the discussion in question related to a debt owed for property previously acquired, the provisions of §2.1-344(a)(2) do not apply. Nor are the provisions of §2.1-344(a)(6) applicable since the discussion of the debt did not relate to any pending litigation or other legal matters.