Roanoke City School Board v. Times-World Corp.
SUPREME COURT OF VIRGINIA
307 S.E.2d 256, 226 Va. 185
September 9, 1983
ROANOKE CITY SCHOOL BOARD, A BODY CORPORATE v. TIMES-WORLD
CORPORATION, A VIRGINIA CORPORATION AND JOHN J. CHAMBERLAIN
SYLLABUS BY THE COURT
Appeal from a judgement of the Circuit Court of the City of
Roanoke. Hon. Ernest W. Ballou, judge presiding.
William X. Parsons, Assistant City Attorney (Wilburn C. Dibling,
Jr., City Attorney, on brief), for appellant.
Daniel S. Brown (Dianne E. H. Wilcox; Hazlegrove, Dickinson,
Rea, Smeltzer & Brown, on brief), for appellees.
Carrico, C.J., Cochran, Poff, Compton, Stephenson, and Thomas,
JJ., and Harrison, Retired Justice. Harrison, R.j., delivered the
opinion of the Court. Poff, J., dissenting. Stephenson and Thomas,
JJ., join in dissent.
The opinion of the court was delivered by: Harrison
A telephone conference call among all members of a local school
board, during which matters are discussed which are proper for an
executive or closed session, is not a "meeting" under the Virginia
Freedom of Information Act, Code sec. 2.1-341(a) and does not
violate the statutory requirement of prior notice to the public,
etc.; other issues.
The issue in this case is whether a prearranged telephone
conference call in which all members of a school board participated
and discussed matters proper for an executive or closed session
constituted a "meeting" within the purview of "The Virginia Freedom
of Information Act," Code secs. 2.1-340 to -346.1. In a proceeding
brought by Times-World Corporation and John J. Chamberlain against
the Roanoke City School Board pursuant to Code sec. 2.1-346, which
provides for the enforcement of rights and privileges conferred
upon the public by the Act, the trial court held that the
conference call constituted a "meeting" and was in violation of the
Act. This appeal by the School Board ensued.
Times-World Corporation is publisher of The Roanoke Times &
World-News, and John J. Chamberlain is education writer for those
newspapers. Roanoke City School Board, a public body corporate, is
subject to the provisions of The Virginia Freedom of Information
Act, and all meetings of the Board must comply with requirements of
the Act. During the month of February 1981, the Board was in the
final stages of selecting a new Superintendent of Schools. On
February 9, 1981, the Chairman of the Board made a telephonic
inquiry of the State Board of Education as to the eligibility of an
applicant for the position to be placed on the Virginia Eligibility
List for Superintendents. Upon being advised as to the status of
the applicant, the Chairman wanted to relay this information to the
other Board members. He thereupon inquired of an Assistant City
Attorney as to whether a telephone conference call would constitute
a violation of The Virginia Freedom of Information Act, and was
advised that, in the attorney's opinion, such a conference call
would not constitute a "meeting" within the meaning of the Act.
The call was arranged. No notice of it was given to the public
or members of the media. No public or open meeting was held prior
to the call, no vote of the School Board to hold an executive or
closed session was taken or recorded, and no minutes were taken.
All seven members of the School Board participated from his or her
own place of residence or business. During the telephone
conversation, which lasted approximately thirty minutes, the
Chairman gave the Board members the information he had received
from the State Board relative to the eligibility of the applicant
to be placed on the Virginia Eligibility List. Other matters proper
for an executive or closed session, all related to the selection of
a new superintendent, were discussed. No action or votes were taken
during the call.
The parties agree that had the Chairman of the School Board been
called as a witness, he would have testified that it was not his
intent in arranging the telephone conference call to avoid the
provisions of The Freedom of Information Act, but that he simply
desired to expedite what otherwise would have been a time-consuming
Appellees contend that the conference call constituted a
"meeting" under the provisions of the The Virginia Freedom of
Information Act. While admitting the subject of the call was proper
for an executive or closed session, they argue the call constituted
a violation of the Act because no vote to conduct an executive or
closed session was taken in open meeting, stating specifically the
purpose or purposes of the session or making specific reference to
the applicable provision of the Act allowing such a session, as
required by Code sec. 2.1-344(b). The School Board responds that
the provisions of the Act providing for executive or closed
meetings do not apply to a telephone conference call.
This appeal requires a construction of the term "meeting" as the
word is used in the Act. To do so "we first turn our attention to
the purpose to be served by the statute in question, the evil
sought to be corrected by the legislature." Southern
Railway v. Commonwealth, 205 Va. 114, 117, 135 S.E.2d
160, 164 (1964).
Code sec. 2.1-340.1 states the policy of the Act and the rule of
construction to be applied. The section reads as follows:
It is the purpose of the General Assembly by providing this
chapter to ensure to the people of this Commonwealth ready access
to records in the custody of public officials and free entry to
meetings of public bodies wherein the business of the people is
being conducted. This chapter recognizes that the affairs of
government are not intended to be conducted in an atmosphere of
secrecy since at all times the public is to be the beneficiary of
any action taken at any level of government. To the end that the
purposes of this chapter may be realized, it 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 exception or exemption
from applicability shall be narrowly construed in order that no
thing which should be public may be hidden from any person.
Code sec. 2.1-341(a) defines the word "meeting" or "meetings"
for the purpose of the Act. It provides as follows:
" Meeting" or "meetings" mean the meetings, when sitting as a
body or entity, or as an informal assemblage of (i) as many as
three members, or (ii) a quorum, if less than three, of the
constituent membership, wherever held, with or without minutes
being taken, whether or not votes are cast, of any legislative
body, authority, board, bureau, commission, district or agency of
the Commonwealth or of any political subdivision of the
Commonwealth, including cities, towns and counties; municipal
councils, governing bodies of counties, school boards and planning
commissions; boards of visitors of State institutions of higher
education; and other organizations, corporations or agencies in the
Commonwealth, supported wholly or principally by public funds. The
notice provisions of this chapter shall not apply to the said
informal meetings or gatherings of the members of the General
Assembly. Nothing in this chapter shall be construed to make
unlawful the gathering or attendance of two or more members of a
body or entity at any place or function where no part of the
purpose of such gathering or attendance is the discussion or
transaction of any public business, and such gathering or
attendance was not called or prearranged with any purpose of
discussing or transacting any business of the body or entity.
Executive or closed meetings for certain purposes, including a
discussion of the employment involved in this case, are permitted.
Code sec. 2.1-344. However, Code sec. 2.1-344(b) provides that
there be no executive or closed meeting unless there shall have
been recorded in open meeting an affirmative vote to that effect by
the public body holding such meeting, which motion shall state
specifically the purpose or purposes... which are to be the subject
of such meeting and a statement included in the minutes of such
meeting which shall make specific reference to the applicable
exemption or exemptions....
Appellees argue that the statutory scheme of the Act is clear,
that activities of public bodies are public business, and such
bodies must meet publicly except under certain restricted
conditions and, even in the case of exceptions, the public is
entitled to know that the body is meeting in private and the
specific subject matter of the private session. They further
contend that in construing the Act, the guiding principle to be
followed by this Court must be "to maximize the information made
available to the public." They say that a telephone conference call
is in fact a "meeting" and that here the procedural requirements
for an executive session were not met and, as a result, the news
media and the public did not know of the Board's discussion or its
subject matter. Appellees cite decisions from other states wherein
the word "meeting," as used in various freedom of information laws,
is given a broad interpretation. Their citations include
Sacramento Newspaper Guild v. Sacramento County Board of
Supervisors, 263 Cal. App.2d 41, 48, 51, 69 Cal. Rptr.
480, 485, 487 (3d Dist. 1968), where it was held that "meeting"
includes deliberative gatherings however confined to investigation
and discussion; State ex rel. Lynch v. Conta, 71
Wis.2d 662, 682, 239 N.W.2d 313, 329 (1976), where it was held that
sessions where members compose a legally competent governmental
body are "meetings"; and Coggins v. Public Employee
Relations Board, 2 Kan. App.2d 416, 581 P.2d 817 (1978),
where it was held that "meeting" includes all gatherings at all
stages of the decision-making process.
We are well aware of the salutary purposes of freedom of
information laws, of the statutory requirement that such laws be
liberally construed to promote their purposes, and that any
exceptions from applicability be narrowly construed. However, there
is no common-law right of the public or press to attend the
meetings of governmental bodies. Therefore, in the absence of a
statutory prohibition, there can be no legal or constitutional
objection to a governmental body transacting certain business by
means of a telephone conference call. If such a call is prohibited,
the prohibition must be found in legislative enactment. It cannot
be done by judicial fiat.
The Virginia Freedom of Information Act contains a very specific
definition of the words "meeting" or "meetings" which the Act was
designed to cover. A "meeting" under the statute is deemed to occur
when a governmental body is " sitting as a body or entity, or as an
informal assemblage." Code sec. 2.1-341(a) (emphasis added).
Nowhere in the Act is any reference made to a telephone call or
conversation. The commonly accepted meaning of the word "meeting"
is that found in Black's Law Dictionary 886 (5th ed. 1979). There,
"meeting" is defined as " coming together of persons; an assembly.
Particularly, in law, an assembling of a number of persons for the
purpose of discussing and acting upon some matter or matters in
which they have a common interest." Webster's Third New
International Dictionary 1404 (1971) defines "meet" as follows: "o
come together usually from different directions: come face to
face... to hold a session: convene for worship, business, or other
purpose." "Meeting" is defined there as "an act or process of
coming together... a gathering for business, social, or other
Irrespective of one's preferred definition, whether it be coming
together, assembling, gathering, or meeting, the physical presence
of the participants is essential. A telephone conference call does
not qualify. A participant in a telephone call can communicate with
others, listen to them, speak and be heard, but none of this is
done in the physical presence of individuals who have come
together, met, assembled, and are "sitting" as a body or
The appellees argue that if a telephone conference call is not
prohibited by the Act, then the Act contains a "glaring loophole."
This may be, but, if true, it is a loophole that must be closed and
corrected by the General Assembly, not by the courts. We are not
dealing here with the denial of a constitutional right but with a
statute whose subject matter is one within the discretion of the
Further, we are not persuaded that the omission in the Act of
any reference to a telephone conference call was inadvertent. Such
calls have been in common use for many years. The General Assembly
has expressly approved meetings of corporate boards of directors by
conference calls. Code sec. 13.1-41. Appellees call attention to
the practice of this Court which now, at the request of counsel for
a petitioner, will hear his or her petition for appeal by telephone
conference call. However, such a hearing is not regarded by the
Court as a meeting. We do not see or meet with the lawyer
presenting the petition. We hear argument over the telephone and
grant or reject the petition based upon the record, the briefs, and
the telephonic presentation. This procedure is in effect a
substitute for a personal presentation at which time members of the
Court, the attorneys, and other interested parties are present and
assembled in "meeting."
The School Board's argument that affirmation here could possibly
frustrate the routine, day-to-day operation of some public bodies
has merit. The Act pertains to meetings of as many as three
members, or a quorum if less than three, of the constituent
membership of a public body. Code sec. 2.1-341(a). It is a matter
of common knowledge that throughout the Commonwealth there are
numerous public councils, boards, committees, commissions, and
agencies which are composed of two or three members. Two of the
members of such an entity constitute a quorum, and therefore any
telephonic communication between the two pertaining to the business
of the body or entity would be impermissible under the trial
These and other possible complications may have prompted the
General Assembly to omit any reference in the Act to telephone
conference calls. The requirement for the taking of minutes, and of
advance notice to the public of the proposed telephone call, the
difficulty of determining for the purpose of notice where the
meeting is to occur, i.e., which member's address is to be deemed
the meeting place, and other involvements, could well frustrate or
prevent the making of telephone conference calls. If a public body
be required to assemble and meet in person prior to making a
telephone conference call, the necessity for the call would be
It is conceded that the subject which was discussed by the
members of the Roanoke City School Board at the prearranged
telephone conference call was a proper one for an executive or
closed session of the Board. Had there been full compliance with
the provisions of the Act, neither the news media nor any member of
the public would have been privy to the information which the
Chairman desired to disseminate to the members.
We conclude that in its enactment of the Freedom of Information
Act, it was not the intent of the General Assembly of Virginia that
a telephone conference call between members of a public body be
construed as a "meeting" of the members. If the legislature decides
that such calls should be within the ambit of the Act, it will be a
simple matter for the statute to be amended.
The decree of the court below will be reversed, and appellees'
petition for relief dismissed.
Reversed and final judgment.
POFF, J., dissenting.
I cannot join in a decision which I find wholly inconsistent
with public policy declared by the General Assembly.
Virginia's Freedom of Information Act is best described as a
"right-to-know law". The evil it seeks to cure is secrecy in
government. In its statement of policy, the Act "recognizes that
the affairs of government are not intended to be conducted in an
atmosphere of secrecy since at all times the public is to be the
beneficiary of any action taken at any level of government." Code
sec. 2.1-340.1. All public business not expressly exempt by the Act
must be conducted in public. Although "iscussion or consideration"
of certain types of business may be conducted in "xecutive or
closed meetings", Code sec. 2.1-344(a), no such meeting can be held
without prior notice to the people, publicized in open meeting by
adoption of a motion stating the specific subject or subjects
authorized by the Act to be considered in secret, Code sec.
2.1-344(b). No action taken in a private meeting can become
effective unless later ratified in a meeting open to the public.
Code sec. 2.1-344(c).
Manifestly, the legislative purpose of the Act was to promote
the right of the people to know what government officials, elected
and appointed, plan to discuss and consider in private as well as
what they do in public in the discharge of the fiduciary duties
entrusted to them. The right to know, of course, is essential to
the right of the people to call their servants to account at the
polls or in the courts.
Courts should construe statutes enacted to promote the rights of
the people in the light most favorable to the people. The Virginia
Act codifies that rule of construction. "To the end that the
purposes of this chapter may be realized, it shall be liberally
construed to promote an increased awareness of all persons of
governmental activities... any exception or exemption from
applicability shall be narrowly construed...." Code sec.
The majority stands this rule on its head. Construing the word
"meeting" to mean a physical "sitting" at a common situs, the
majority broadens rather than narrows the statutory exceptions and
exemptions and impedes rather than promotes public "awareness... of
governmental activities". Hereafter, under the majority's decision,
any public body so inclined can discuss and consider all its public
business, whether covered or exempt by the Act, by teleconference
and without prior notice to the public.1
Such practice is patently inconsistent with the stated purpose
of the Act.
It is true, as the majority says, that "nowhere in the Act is
any reference made to a telephone call or conversation." But that
does not prove that the legislature intended to exempt meetings
held in such manner from the provisions of the Act. Indeed, a
published report of a study authorized by the House of Delegates
indicates otherwise. A subcommittee, appointed in 1982 pursuant to
House Resolution 11, reported that "all participants agreed that
the Act should not be weakened by exempting conference calls from
the provisions of the Act." It was the view of the members that
"any meeting held through teleconferencing by a public body in
which the business of the citizens of the Commonwealth is discussed
or conducted is subject to the Virginia Freedom of Information Act
and should be conducted in a manner which would not violate that
Act or any other provision of law.2
I subscribe to that view, and I reject the contrary view adopted
by the majority. Guided by the public policy the Act seeks to
promote, I would define "meeting" as any gathering, whether in
person or by telecommunications, of the members of any public body
covered by the Act when that gathering is convened to discuss or
transact public business. Under that definition, any meeting
conducted by telecommunications, although called to consider
subjects exempt under Code sec. 2.1-344(a), would be unlawful
unless convened in compliance with the provisions of Code sec.
This definition comports with the construction applied by the
chancellor, and I would affirm his decree.
Seeking to reinforce its rationale, the majority embraces the
School Board's argument that the trial court's construction would
lead to absurd results in other cases. Since two members of a
three-member public body constitute a quorum, the majority fears
that "any telephonic communication between the two pertaining to
the business of the body or entity would be impermissible under the
trial court's ruling." Would not the same be true if the two held a
pre-arranged conversation while "sitting" at a lunch counter?
The subcommittee, noting the pendency of the appeal in this
case, recommended "that no amendments be made at this time."
Arguably, the subcommittee concluded that no legislation would be
necessary unless this Court disagreed with the views expressed in