ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
EDUCATION: SCHOOL BOARDS; SELECTION, ETC.
Exemption from Act's open meeting requirement is not available to
elected school board to discuss performance and other related matters
of individual board members.
The Honorable R. Lee Ware Jr.
Member, House of Delegates
July 21, 2000
You ask whether § 2.1-344(A)(1), a portion of The Virginia
Freedom of Information Act1 (the
"Act"), permits an elected school board to meet in closed meeting to
discuss the performance and other related matters of individual
members of the board.
The General Assembly has determined that the Act "shall be
liberally construed to afford every opportunity to citizens to
witness the operations of government."2
The Act requires that "[a]ll meetings of public bodies shall
be open, except as provided in § 2.1-344."3
Local school boards are "public bodies" under the Act.4
Section 2.1-344(A)(1) allows public bodies to discuss certain matters
in closed meetings, including discussion or consideration of
"assignment, appointment, promotion, performance, demotion, salaries,
disciplining or resignation of specific public officers, appointees
or employees of any public body."5
"Any exemption from public access to meetings shall be
narrowly construed and no meeting [shall be] closed to
the public unless specifically made exempt pursuant to [the
Act] or other specific provision of law."6
The use of the word "shall" in a statute ordinarily implies that
its provisions are mandatory.7
"[T]he primary objective of statutory construction is to
ascertain and give effect to legislative intent."8
Analysis of legislative intent includes appraisal of the subject
matter and purpose of the statute, in addition to its express
terms.9 The purpose underlying a
statute's enactment is particularly significant in construing
it.10 Moreover, statutes should
not be interpreted in ways that produce absurd or irrational
Section 2.1-344(A)(1) allows public bodies to discuss certain
personnel matters in closed meetings.12
This exception to the open meeting requirement allows private
discussion of personnel matters involving individual
employees13 and is designed to
protect the privacy of individual employees of public bodies
in matters relating to their employment.14
Giving § 2.1-344 its required narrow construction the closed
meeting exception is not available to an elected school board for a
discussion concerning which members shall serve as the board's
chairman and vice-chairman; rather, it is available only to discuss
personnel considerations regarding the individuals a public body
appoints or employs.15
The Act does not define the term "employee" or the phrase
"individual employees of public bodies." Prior opinions of the
Attorney General conclude that, where no applicable statutory
definition of the term "employee" exists, it must be given its
ordinary meaning, considering the context in which it is
used.16 A 1991 opinion notes
that, at common law, the following four elements 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.17
In determining whether an employer/employee relationship exists, the
crucial question of control is whether the employer has the right to
control not merely the results but the progress, details, means and
methods of the work.18
It is clear that members of an elected school board are not
employees of the board or the locality. Section 22.1-57.3(A) provides
that, upon voter approval at a referendum, "the members of the school
board shall be elected by popular vote." Furthermore, "[t]he
terms of office for the school board members shall commence on
January 1 following their election in the case of a county and on
July 1 following their election in the case of a city or
Each member of an elected school board is a public officer. A 1978
opinion of the Attorney General lists criteria to be considered in
determining whether a position constitutes a "public office":
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
Clearly, the position on an elected school board is a public
office under the above criteria: the position is created by
statute&emdash;§ 22.1-57.3; it is filled by election by the
qualified voters of a city, county or town; and the duties of the
position concerning the public are assigned by law.21
"[A] public office is a public agency or trust created in the
interest and for the benefit of the people."22
Because the powers exercised by public officers are held in trust for
the people, such officers are considered servants of the
I am of the opinion that members of an elected school board are
public officers. Based on the above, therefore, it is my opinion that
an elected school board may not meet in closed meeting to discuss the
performance and other related matters of individual members of the
1. Sections 2.1-340 to 2.1-346.1.
2. Section 2.1-340.1; see also Op. Va. Att'y Gen.:
1984-1985 at 427, 428; 1979-1980
at 236, 237.
3. Section 2.1-343.
4. See § 2.1-341 (defining "public body" to
include "school boards").
5. Section 2.1-344(A)(1). Section 2.1-344 provides,
"A. Public bodies may hold closed meetings only for the
"1. 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. Any
teacher shall be permitted to be present during a closed
meeting in which there is a discussion or consideration of a
disciplinary matter which involves the teacher and some student
and the student involved in the matter is present, provided the
teacher makes a written request to be present to the presiding
officer of the appropriate board."
6. Section 2.1-340.1 (emphasis added).
7. See Andrews v. Shepherd, 201 Va. 412, 414,
111 S.E.2d 279, 281 (1959) ("shall" is word of command, used in
connection with mandate); see also Schmidt v. City of
Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965) ("shall"
generally indicates procedures are intended to be mandatory,
imperative or limited); 1999 Op. Va. Att'y Gen. 15, 15, and opinions
cited at 16 n.9.
8. Turner v. Commonwealth, 226 Va. 456, 459,
309 S.E.2d 337, 338 (1983).
9. See Vollin v. Arlington Co. Electoral Bd.,
216 Va. 674, 222 S.E.2d 793 (1976).
10. See VEPCO v. Prince William Co., 226 Va.
382, 388, 309 S.E.2d 308, 311 (1983).
11. McFadden v. McNorton, 193 Va. 455, 461,
69 S.E.2d 445, 449 (1952); see 1993 Op. Va. Att'y Gen. 192, 196, and
opinions cited therein.
12. 1998 Op. Va. Att'y Gen.
9, 10. This prior opinion concludes that a city council may not
meet in executive session to discuss personnel matters related to
city employees not under its authority. Id. at 9.
13. 1982-1983 Op. Va. Att'y
Gen. 713, 714.
14. 1976-1977 Op. Va. Att'y
Gen. 316, 316.
15. 1998 Op. Va. Att'y
Gen., supra note 12, at 10. See, e.g., Op. Va. Att'y Gen.:
1982-1983 at 714 (city council may meet in
executive session to discuss employment matters related to city
attorney); 1979-1980 at 378, 379
(discussions related to performance of identifiable individual
employees may be subject of properly called executive meeting);
1974-1975 at 570 (town council may meet in
executive session to discuss employment of town manager).
16.See 1987-1988 Op. Va. Att'y Gen. 413, 414; see
also 1991 Op. Va. Att'y Gen. 140, 142.
17. Hadeed v. Medic-24, Ltd., 237 Va. 277,
288, 377 S.E.2d 589, 594 (1989); 1991 Op. Va. Att'y Gen., supra, at
18. N & W Railway v. Johnson, 207 Va.
980, 983, 154 S.E.2d 134, 136 (1967); 9B M.J. Independent Contractors
§§ 5, 6 (1995); 1991 Op. Va. Att'y Gen., supra note 16, at
19. Section 22.1-57.3(C).
20. 1977-1978 Op. Va. Att'y Gen. 322, 323.
21. See, e.g., §§ 22.1-71 to 22.1-87
(codifying general powers and duties of school boards).
22. 63C Am. Jur. 2d Public Officers and Employees
§ 2, at 458 (1997).
23. See 1996 Op. Va. Att'y Gen. 149, 150.