September 18, 1974

THE HONORABLE CHARLES A. CHRISTOPHERSEN,
Director, Division of State Planning

74-75 578

This is in reply to your recent letter in which you inquire whether or not the election of officers by a planning district commission, by means of secret written ballots, in a meeting attended by the public, is in violation of the requirements of the Virginia Freedom of Information Act.

Section 2.1-343, Code of Virginia (1950), as amended, requires that all public bodies hold public or open meetings as follows:

"Except as otherwise specifically provided by law and except as provided in §§ 2.1-344 and 2.1-345, all meetings shall be public meetings. . . ."

I find none of the specifically enumerated exceptions to the open or public meeting requirement contained in §§ 2.1-344 or 2.1-345 of the Code applicable to the election of officers by a planning district commission. Accordingly, the election of officers by a planning district commission must be accomplished in an open or public meeting in compliance with the requirements of § 2.1-343 noted above.

Section 2.1-341(d) of the Code defines "open meeting" or "public meeting" as follows:

"'Open meeting ' or 'public meeting' means a meeting at which the public may be present."

The essential issue raised by your inquiry is, therefore, whether written secret ballot votes by a public body in the presence of the public constitutes compliance with the open meeting requirement of the Act.

The Virginia Freedom of Information Act, in requiring that all public bodies meet in open or public session, seeks to ensure to the general public a right to witness and participate in the transaction of public business. Central to such a requirement is the notion of accountability by members of the public body, both individually and as a group. The use of secret ballot voting procedures clearly deprives the public of any meaningful right to hold members of a public body accountable individually for their performance in the transaction of the public business. Accordingly, I am of the view that the open meeting provision of the Act requires not only the actual or potential physical presence of the public but requires, as well, the transaction of public business in such a manner as will allow the public to hold its representatives who are members of the public body conducting such business accountable. In short, voting by secret ballot is tantamount to voting in closed or executive session which, under the circumstances of this case, is clearly prohibited by the Act.

I am, therefore, of the opinion that the actions of the planning district commission in the election of officers by secret ballot written votes was not in compliance with the open meeting requirements of § 2.1-343 of the Act and is, therefore, of no legal effect until such time as the planning district commission shall meet in open or public session and reaffirm by voice or hand vote their written votes.