VIRGINIA FREEDOM OF INFORMATION ACT. EXECUTIVE MEETINGS. NOTICE.
ELECTION OF OFFICERS.
March 25, 1980
The Honorable A. Joe Canada, Jr.
Member, Senate of Virginia
You have asked two questions relating to the Virginia Freedom of
Information Act (the "Act"):
1. Whether the Virginia Beach Planning Commission
violated the Act by holding a private briefing meeting without
publicly announcing the time and place of the meeting; and
2. whether the election of planning commission officers at a
closed meeting, after which the results were announced in the
public meeting, violates the Act and, thereby, voids the
Planning commissions are public bodies subject to the requirements
of the Act. See §2.1-341 (a) of the Code of Virginia (1950), as
amended. Accordingly, all meetings of the planning commission are
required to be public and comply with the other requirements of
§2.1-343, except as specifically authorized in §2.1-344.
See §2.1-343. The fact that no public announcement of the time
and location of the meeting was provided does not constitute a
violation of the Act. The Act requires notice only to those
individuals who request notice in writing. See §2.1-343; Opinion
to the Honorable Robert R. Gwathmey, III Member House of Delegates,
dated November 18, 1974, and found in Report
of the Attorney General (1974-1975) at 212. The private briefing
meeting was, nevertheless, illegal unless the subject matter was
among those specifically authorized for executive meetings in
2.1-344(a)(1) through 2.1-344(a)(9). Further, any legally authorized
executive meeting must be preceded by a public meeting at which a
motion is adopted calling the executive meeting and stating its
purpose. See §2.1-344(b). I conclude from the information
provided that the private briefing meeting was in violation of the
requirements of the Act.
The election of officers of a public body in an executive meeting
clearly violates the Act, notwithstanding subsequent public
announcement of the result. See Opinion to the Honorable Charles A.
Christophersen, Director, Division of State Planning, dated September
18, 1974, and found in Report
of the Attorney General (1974-1975) at 578. Even in the case of
legally authorized executive meetings, no vote taken in executive
session is effective until voted upon in a public meeting. See
§2.1-344(c). The same rule must apply where votes are cast in an
executive meeting not authorized by the Act. I conclude that the
election of planning commission officers as described is ineffective
until voted upon in a public meeting.
Your second question necessarily raises a third problem, that is
the validity of any actions taken by the planning commission officers
pending their proper election as required by the Act. The illegality
of the planning commission's election of officers would not of
course, affect the validity of the members individual or collective
actions as planning commissioners since their status as planning
commissioners was not established by the improper election. Thus, the
improperly conducted election would potentially invalidate only those
acts of a commissioner taken as an officer, for example, as chairman
or secretary of the commission. As a general rule, however, public
officers whose election is legally defective are considered de facto
officers and their official actions are deemed valid at least until
such time as they are apprised of the defect in their election. See
15 M.J. Public Officers 56-58.