Attorney General's Opinion 1977-78 #492

VIRGINIA FREEDOM OF INFORMATION ACT Voting Procedures Of Alexandria Traffic And Parking Board Suspensions of taxicab drivers' certificates for violation of City taxi regulations.

VIRGINIA FREEDOM OF INFORMATION ACT Traffic And Parking Board Is A Public Body Governed By Provisions Of Act Secret written ballots in public meeting prohibited.

VIRGINIA FREEDOM OF INFORMATION ACT Taxicab Drivers' Certificate Revocations Not Effective Until Parking And Traffic Board Reaffirms Its Secret Ballot Vote By Individual Voice Or Hand Vote In Open Meeting.

August 9, 1977

THE HONORABLE RICHARD R. G. HOBSON
Member, House of Delegates

77-78 492

This is in reply to your recent letter wherein you inquire as follows:

"I have received an inquiry regarding the application of the Virginia Freedom of Information Act as it affects certain voting procedures utilized by the Alexandria Traffic and Parking Board.

"This Board in the past has utilized the following voting procedures in acting on suspensions of taxicab drivers' certificates for violation of City taxi regulations.

"The practice of the Board is to conduct the hearing in open public session with the vote on the motion suspending a certificate being taken by having the members write their decisions on pieces of paper which are then handed to the Chairman; the Chairman announces the final talley [sic], but does not announce who voted on which side of the issue. Although the papers are retained and are available to the public for inspection, they do not contain identification of how each member voted.

"Will you please send me your opinion on the following:

"1. Is the foregoing procedure permitted under the Virginia Freedom of Information Act (Va. Code §§ 2.1-340 to 2.1-346.1)?

"2. Is the foregoing procedure otherwise legal?

"3. If the foregoing procedure is not legal, what is the status of past decisions made by the Board under these procedures and may a certificate holder whose certificate was suspended under this procedure obtain reinstatement?"

Your first inquiry must be answered in the negative. Clearly, the Board is a public body governed by the provisions of the Freedom of Information Act. In an opinion to the Honorable Charles A. Christophersen, Director of the Division of State Planning, dated September 18, 1974, and found in the Report of the Attorney General (1974-1975) at 578, it was held that secret ballot voting by members of a public body constituted a violation of the open meeting requirements of the Freedom of Information Act. Accordingly, I am of the opinion that the Alexandria Traffic and Parking Board practice of secret ballot voting is similarly in violation of the open meeting requirements of the Act. In view of my response to your first inquiry, there's no need to respond to your second question.

With respect to your final question, the Christophersen opinion holds that secret ballot voting by public bodies in an otherwise open meeting is tantamount to voting in executive session. See Christophersen opinion, supra at 579. Section 2.1-344(c) provides:

"No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in an executive or closed meeting shall become effective unless such public body, following such meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion."

Accordingly, I am of the opinion that, in accordance with §2.l- 344(c), certificate revocations effected through secret ballot voting shall not become effective until such time as the Parking and Traffic Board reaffirms its secret ballot vote by individual voice or hand vote in an open meeting.