FOI Advisory Council Opinion AO-04-24
AO-04-24
May 29, 2024
Mark Egger
Front Royal, Virginia
Request received via email
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your email of July 15, 2023.
Dear Mr. Egger:
You have requested an advisory opinion on whether the Board of Trustees of Samuels Public Library (Board) properly held a closed meeting on February 6, 2023, pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA).
Factual Background
As background information, on February 1, 2023, the Board called for a Special Meeting. The information provided to our office states that the notice for the February 6, 2023, Special Meeting "was posted on the Library online calendar on February 1, 2023" and "was also posted inside the library on the day of the meeting."
You provided a copy of the minutes from the Board's Special Meeting held on February 6, 2023. The minutes state, in relevant part regarding a closed meeting, as follows:
In attendance: [sixteen persons listed by name].
[Board President] called the meeting to order at 5:30 pm. He then thanked everyone for attending, introduced [two members of the] Warren County [Board of] Supervisors that were present and indicated that there were two agenda items: first a closed session meeting, then a regular session meeting to discuss a staff proposal.
[Board Member] made the following motion:
I move the Board of Trustees go into executive session in accordance with the Code of Virginia, Section 2.2-3711A.7, for the purpose of discussing matters of possible litigation stemming from materials challenges. [Another Board member] seconded the motion, which passed unanimously. The Board of Trustees then entered a closed executive session.
[Board Member] moved that the Executive Session be adjourned; [Board President] then called the meeting back to order.
[Board Member] then offered the following two motions:
I move that the Board certifies to the best of each member's knowledge that only public business matters lawfully exempted from open meeting requirements under Sect 2.2-3711A.7 of the Code of Virginia and only such public business matters were identified in the motion by which the closed meeting was convened were heard, discussed, or considered in the meeting by the public body.
Second, I move that the Board approve an Ad Hoc Committee, to consider appeals to the Samuels Public Library collections, and that the committee consist of the following Board members: [listed 3 three Board members by name] and [Board President].
The motion was seconded by [Board Member], discussion followed. [Two Board members] both volunteered to serve on this committee. [Board Member] questioned whether of [sic] not any Board member could attend meetings held by this Ad Hoc committee – it was agreed that all Board members are welcome, and should the need arise to hold a meeting [Board Member] will notify the full Board of the date and time.
The motion on the table was then amended to remove [Board President] as a sitting member and add [two Board members]. The amended motion passed unanimously.
You provided copies of letters and emails dated from May 15, 2023, through June 2, 2023, exchanged between you and the Board President. Initially, you inquired about the purpose of the Special Meeting to discuss "possible litigation" regarding "lawsuits arising from materials challenges" and whether the process utilized by the Board complied with FOIA for closed meetings. In subsequent correspondence, you stated that "[t]he closed meeting held by the [Board] on February 6, 2023 was illegal" and that "[i]t did not comply with the Virginia State Code 2.2-3711." You asserted that FOIA "does not allow [public bodies] to have a closed meeting to discuss 'possible litigation'" but requires that "[i]t must be 'actual or probable litigation[.]'" In another email, you restated your argument that the Board's action to enter a closed meeting was improper under FOIA and that subdivision A 7 of § 2.2-3711 requires "actual or probable litigation" not "possible litigation" as a basis for holding a closed meeting.
In your email to our office requesting an advisory opinion, you stated that you met in-person with the Board President on June 30, 2023, at which time the Board President informed you that "their legal counsel assured them the meeting was legal" but did not direct them "to implement a litigation hold." You also expressed in this email that "their legal counsel was not even present at the closed meeting" and that "I believe that this meeting was not a legal closed meeting under the Virginia FOIA." Lastly, you stated that since a litigation hold was not implemented as required by the Code of Virginia (which you cited as § 8.01-379.2:1A), that "[t]his fact strongly suggests that the Board is using the spectre of unspecified 'probable litigation' as a convenient excuse to have an illegal closed meeting."
In general, the exchange of correspondence between you and the Board President can be characterized as a continuous disagreement on the requirements of subdivision A 7 of § 2.2-3711 and dispute over interpretation of "actual or probable litigation" versus "possible litigation." Out of this argument over future litigation, the main concern appeared to be the anticipated submissions of Request for Reconsideration forms regarding the Library's collection and the manner in which the Board would respond to each request. On multiple occasions, you also requested that you "would like to have public acknowledgement by the Library Board that the closed meeting of February 6, 2023 was illegal" and that you "would like to know what was discussed during the illegal closed meeting, either through recollections of attendees or written notes that were made."
In his responses, the Board President repeatedly defended the Board's decision to conduct a closed meeting (which he and the Board referred to as "executive session" in the meeting minutes and in subsequent correspondence until you pointed out in your May 24, 2023, email that the appropriate term was "closed meeting"). He also maintained that the Board "complied with the requirements of FOIA" and operated "[a]s required under § 2.2-3712, the motion to go into executive session identified (i) the subject matter of the closed meeting ('litigation stemming from materials challenges'), (ii) the purpose of the closed meeting ('discussing matters of possible litigation'), (iii) and the applicable statutory exemption (§ 2.2-3711(A)(7))."
In his May 23, 2023, letter to you, in relevant part, the Board President stated:
The purpose of the exemption to Virginia's open meetings rule embodied in § 2.2- 3711(A)(7) is to allow public bodies like Samuels Library to discuss contentious issues without compromising the public body's posture in the event of litigation. The term "subject matter," as used in § 2.2-3712, is defined as an "issue presented for consideration" or a "thing in dispute." Cole v. Smyth County Bd. of Supervisors, 298 Va. 625, 639 (2020) (citing Black's Law Dictionary 1723 (11th Ed. 2019)). With respect to the statutory exemption for "probable litigation", the subject matter to be identified in a motion for closed session need not identify a specific piece of litigation. Instead, it may identify any "particular case, controversy or issue." Id. at 640 (emphasis added). Therefore, the motion for closed session properly and adequately identified an issue and/or dispute ("materials challenges") that poses a significant threat of litigation for Samuels Library.
He also stated in relevant part that:
Your email contends that there is a distinction between "possible litigation" and "probable litigation." Like the definition of "subject matter," the definition of "probable litigation" in § 2.2.-3711(A)(7) does not require a public body to identify active litigation or a specific threat of litigation. Instead, that statute authorizes a public body to enter a closed session when "the public body or its legal counsel has a reasonable basis to believe [that litigation] will be commenced by or against a known party." At the time of the special meeting, there were - and still are numerous bases for the Board to believe that litigation may be commenced against the Library, members of its staff and/or the Board itself.
These bases include your involvement in helping orchestrate and organize an effort to present the Library with a large number of materials challenges objecting to various items with LGBTQ themes or content. Such challenges are often a precursor to litigation against public libraries, bookstores, and/or other similar organizations.
Moreover, contrary to the assertion in your email, the Board's decision to go into closed session was not based on "hearsay about mythical lawsuits." In fact, a recent newspaper article highlights recent litigation in 2022 seeking to ban the book "Gender Queer" from bookstores in Virginia Beach. (See: https://www.dnronline.com/news/group-wants-smut-books-removed-from- samuels-library/article 90a85c46-c6de-5923-9b68-26dbf8cdb5fb.html). Notably, that article also cites the executive director for the Virginia Library Association, for the proposition that removing books under a materials challenge may lead to First Amendment litigation. A simple Google search reveals various other lawsuits involving challenges to LGBTQ content in public libraries, both by those seeking removal of such materials and by those upset by their removal. This publicly available information demonstrates that, however a library responds to materials challenges such as those you have orchestrated, there is a reasonable basis to believe that such action may lead to litigation against the library.
The Board President concluded this letter by stating: "[t]herefore, the Board's vote to go into executive session at the special meeting was proper, and the substance of the Board's discussion in executive session is exempt from the disclosure requirements of FOIA pursuant to Virginia Code § 2.2-3711(A)(7)."
In his letter to you dated June 2, 2023, the Board President stated in relevant part that:
However, I will address your question regarding timing, in case it helps you understand why the Board entered into a Closed Meeting in February 2023 even though your first materials challenge did not appear until May 2023. Recall, if you will, that your May 2023 materials challenges were [sic] not your first contact with your local government on this issue. Rather, you contacted the Warren County Board of Supervisors regarding certain books in the Library's collection in late January and asked for the removal of these books from the Library at this time. The Board was aware of this contact and expected that materials challenges would follow (and, of course, they did). Hence the Library Board of Director's [sic] decision to discuss potential litigation involved these challenges in early February.
Analysis
The question to consider is whether the Board properly held a closed meeting on February 6, 2023, pursuant to the requirements of FOIA.
The policy of FOIA expressed in subsection B of § 2.2-3700 of the Code of Virginia is to ensure "free entry to meetings of public bodies wherein the business of the people is being conducted." FOIA policy as expressed in subsection B of § 2.2-3700 also states 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. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
FOIA policy as expressed in subsection B of § 2.2-3700 further directs that the provisions of FOIA
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 exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.
Subsection A of § 2.2-3707 specifically provides that "[a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711." In addition, public bodies are required to give notice of public meetings in accordance with subsection D of § 2.2-3707. Subsection I of § 2.2-3707 provides that "[m]inutes shall be taken at all open meetings." Moreover, subsection I of § 2.2-3707 requires that "[m]inutes shall be in writing and shall include (a) the date, time, and location of the meeting; (b) the members of the public body recorded as present and absent; and (c) a summary of the discussion on matters proposed, deliberated, or decided, and a record of any votes taken."
The requirements for conducting a closed meeting pursuant to subsection A of § 2.2-3712 are as follows:
No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting as authorized in subsection A of § 2.2-3711 or other provision of law and (iii) cites the applicable exemption from open meeting requirements provided in subsection A of § 2.2-3711 or other provision of law. The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.
Three elements (subject, purpose, and citation), pursuant to subsection A of § 2.2-3712, are required in a motion to convene a closed meeting for it to comply with FOIA.1 If a motion does not include all three elements, then "[n]o closed meeting shall be held."2 First, a public body proposing to convene a closed meeting is required to take an affirmative recorded vote in an open meeting approving a motion that "identifies the subject matter" of the closed meeting. Second, the public body's motion is required "[to state] the purpose of the meeting as authorized in subsection A of § 2.2-3711 or other provision of law." Third and lastly, a motion to convene a closed meeting pursuant to subsection A of § 2.2-3712, is required to "[cite] the applicable exemption from open meeting requirements provided in subsection A of § 2.2-3711 or other provision of law." Furthermore, as required by subsection A of § 2.2-3712, "[t]he matters contained in such motion shall be set forth in detail in the minutes of the open meeting."
In a prior opinion, our office has acknowledged that "there is often confusion in differentiating between the subject and the purpose of a closed meeting."3 Our office provided guidance that the subject is "what the meeting is about" and "the purpose is why the meeting is to be held."4Additionally, "when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to [the] object of the discussion."5 However, "we also opined that quoting or paraphrasing from one of the exemptions in [subsection A of § 2.2-3711] satisfies the requirement to state the purpose of the meeting, but it does not suffice to identify the subject matter."6 Thus, "by quoting or paraphrasing from one of the statutory exemptions, and providing a proper citation to the exemption, only two of the three required elements of the motion to convene a closed meeting are satisfied."7 "The public body must still identify the subject in order to make a proper motion to convene a closed meeting."8
In correspondence submitted to our office, the Board President stated that notice for the Special Meeting on February 6, 2023, "was posted on the Library online calendar, [February] 1, 2023" and "was also posted inside the library on the day of the meeting." In the minutes of the Special Meeting provided to our office, attendance was recorded at 5:30 p.m. of those persons present in the room (sixteen names in total were listed) including two members from the Warren County Board of Supervisors. The minutes "indicated that there were two agenda items: first a closed session meeting, then a regular session meeting to discuss a staff proposal." A motion was made by a Board member and seconded by another Board member, "to go into executive session in accordance with the Code of Virginia, Section 2.2-3711A.7, for the purpose of discussing matters of possible litigation stemming from materials challenges." The minutes note that the motion "passed unanimously" and that the Board "then entered a closed executive session."
For purposes of clarity, "executive meeting" was removed in 1999 from FOIA's definition of "closed meeting."9 "Closed meeting" as defined in § 2.2-3701, means "a meeting from which the public is excluded." Closed meetings may only be held for those certain limited purposes listed specifically in subsection A of § 2.2-3711. One purpose for holding a closed meeting is listed in subdivision A 7 of § 2.2-3711, which states:
Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body. For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.
"Determining whether any particular motion meets the statutory requirements [for a closed meeting] depends on the facts of each situation and requires a case-by-case analysis."10 The Board's motion to convene a closed meeting reads as follows: "to go into executive session in accordance with the Code of Virginia, Section 2.2-3711A.7, for the purpose of discussing matters of possible litigation stemming from materials challenges." The motion states that the subject and purpose of the closed meeting is "for the purpose of discussing matters of possible litigation stemming from materials challenges." This motion is not especially clear in that it appears to conjoin the first two elements of subsection A of § 2.2-3712, the subject and purpose of the closed meeting without separately and clearly stating the subject for the closed meeting, which appears to be "materials challenges." A better phrasing might have been something like "for the purpose of discussing litigation matters, specifically materials challenges" as such phrasing draws more of a distinction between the purpose and the subject. However, while it may have been better phrased, the actual motion made does appear to set out both subject and purpose as required. The Board's motion addresses the third element by specifically citing subdivision A 7 of § 2.2-3711 as authorization for convening the closed meeting as the applicable exemption from open meeting requisites. Thus, the Board's motion to enter closed session likely complies with the requirements of subsection A of § 2.2-3712.
It is generally recommended that when identifying the subject of a closed meeting, it should be "with greater specificity" but "without jeopardizing the reason for holding the closed meeting." 11Another best practice recommendation would be to differentiate more clearly between the "subject" and "purpose" of the closed meeting in the proposed motion. These two elements are separate requirements, both of which need to be unambiguously communicated to an attending audience and recorded plainly in the open meeting minutes. As required by subsection A of § 2.2-3712, "[a] general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting."
Another matter to consider is whether the members of the Board of Supervisors were present during the closed meeting. From the copy of the official minutes of the Special Meeting on February 6, 2023, which was provided to our office, it is unclear if the two members of the County Board of Supervisors attended the closed meeting conducted by the Library Board members. Subsection F of § 2.2-3712 provides that "[a] public body may permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting." The attendance of two members of the County Board of Supervisors in a closed meeting would likely not be considered an issue, in particular, "if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting." Subsection I of § 2.2-3712 also provides that "[m]inutes may be taken during closed meetings of a public body, but shall not be required. Such minutes shall not be subject to mandatory public disclosure." It is unclear whether minutes were taken during the closed meeting, but even so, they would be excluded from mandatory public disclosure as quoted. Additionally, "[r]ecords recorded in or compiled exclusively for use in closed meetings" are also exempt pursuant to subdivision 5 of § 2.2-3705.1.
You alleged that legal counsel did not attend the closed meeting, which presents the issue of whether or not that fact would invalidate the exemption provided by subdivision A 7 of § 2.2-3711. This detail was also not clearly recorded in the minutes of the open meeting. As previously stated, minutes are not required to be taken during a closed meeting pursuant to subsection I of § 2.2-3712. Nevertheless, the question remains as to whether legal counsel, staff members, or consultants were present in the closed meeting. Subdivision A 7 of § 2.2-3711, in relevant part, provides that "[c]onsultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body." Our office has previously opined "where the discussion [in a closed meeting] is related to actual or probable litigation, legal counsel need not be present."12 Therefore, "[t]his exemption may be properly invoked where there are briefings by staff members or consultants and such briefings pertain to actual or probable litigation."13
As this office is limited to only the information provided, we are unable to make a definite determination on this particular issue as it is outside the scope of this office's authority.14 Our authority does not include being a trier of fact.15 As stated in prior opinions, determinations of fact are reserved to courts of law since they possess the authority to review evidence and hear testimony.16 A court could hear testimony from witnesses on the presence of legal counsel, staff members, or consultants in the closed meeting and determine whether this factor impacted the legality of the closed meeting held pursuant to subdivision A 7 of § 2.2-3711. Similarly, regarding your claim that the Board had not implemented a litigation hold or received advice from their legal counsel to implement a litigation hold pursuant to subsection A of § 8.01-379.2:1 (Spoliation of evidence), our office will not address this issue as it is outside the scope of FOIA and beyond our authority.
Another issue to consider, which was repeatedly discussed in the provided correspondence exchanged between you and the Board President, is whether FOIA authorizes a closed meeting for the discussion of "possible litigation" or "probable litigation." As you stated in your communications with the Board President, "probable litigation" as provided in subdivision A 7 of § 2.2-3711 means "litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party." In response, the Board President contended that "possible litigation" means "litigation . . . on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party." In his letter to you dated June 2, 2023, the Board President stated in relevant part that:
Our disagreement seems to turn on whether the Board had a "reasonable basis" to expect litigation resulting from challenges to volumes in the Library's collection. See § 2.2.-3711(A)(7). The Board maintains that it did, for the reasons I stated in my May 23, 2023 letter. I will spare you a restatement of those reasons here. Instead, I think we may have to just agree to respectfully disagree on this point.
The provided minutes of the meeting record that the Board's motion to authorize a closed meeting is "for the purpose of discussing matters of possible litigation stemming from materials challenges." A public body may hold a closed meeting to consult with legal counsel, staff members, or consultants "pertaining to actual or probable litigation" as stated in subdivision A 7 of § 2.2-3711.
In prior opinions, this office has "previously interpreted this [former version] exemption [subdivision A 7 of § 2.2-3711] to apply to two different situations: (1) consultation pertaining to actual or probable litigation, and (2) consultation regarding specific legal matters."17 These opinions note that "[t]he meaning of 'actual litigation' is self-evident, and 'probable litigation' is defined as quoted above."18 While acknowledging that "specific legal matters" is undefined, "in reviewing court decisions and prior opinions of the Attorney General, we observed that the legal matters exemption would not allow a closed meeting to be held to discuss general policy or other matters that may eventually have legal consequences."19 Of note, in 2017, the General Assembly amended § 2.2-3711 to establish subdivision A 8 that "consultation with legal counsel employed or retained by a public body regarding specific legal matters" as a separate purpose for holding a closed meeting.20 Accordingly, legal counsel would have to be present in a closed meeting under this exemption (subdivision A 8) "because, on its face, this part of the exemption applies only to 'consultations with legal counsel.'"21 By contrast, the exemption cited by the Board (subdivision A 7), does not require the presence of legal counsel if instead staff members or consultants are present and discussing the litigation matters with the Board.
Similar to the use of "executive session" when referring to a "closed meeting" previously, the Board President and Board members seem to have utilized incorrect terminology when referring to "possible litigation" instead of "probable litigation." In defense of the Board's actions, the Board President referred to the language appearing in subdivision A 7 of § 2.2-3711 to define "possible litigation" in place of "probable litigation." If, initially at the outset of the process, the Board President and Board members had been aware of the correct terminology, then it may have been a straightforward matter of simply correcting the misspoken use of "possible litigation." However, as that was not the case, misuse of terminology led to miscommunication and conflict. In another best practice suggestion, public bodies and their officials and employees would be better served by using the statutory language defined and utilized in FOIA when conducting public meetings. Failure to use terminology currently consistent with the law may result in misunderstanding and confusion by an audience and when recorded in the official minutes may invite challenges of legality. Such disputes can occur when two parties disagree concerning two ways of saying the same thing. Whereas, if the correct terminology was used in the beginning, it may prevent this type of disagreement from developing.
Whether the Board properly utilized the exemption of subdivision A 7 of § 2.2-3711 to convene the closed session is a disputed fact best examined by a court.22 The Board President and Board members appear to have been aware of various lawsuits involving challenges to LGBTQ content in other public libraries' collections. They anticipated and expected that Samuels Public Library's collection was subsequently going to be challenged by those seeking removal of such materials and by those upset by their removal. Once again, a court could receive evidence and testimony from witnesses to determine whether there was "litigation that [had] been specifically threatened or on which [the Board] or its legal counsel [had] a reasonable basis to believe will be commenced by or against a known party."
A nother issue to consider is whether the Board properly certified the closed meeting as required under FOIA. The minutes state that "[Board Member] moved that the Executive Session be adjourned" and that the Board President "then called the meeting back to order." As a point of emphasis, FOIA does not require a motion or vote to end or exit a closed meeting since, pursuant to subsection A of § 2.2-3710, "no vote . . . shall be taken to authorize the transaction of public business, other than a vote taken at [an open] meeting." Furthermore, subsection D of § 2.2-3712 provides as follows:
At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body.
The minutes provide that after the Board President "called the [open] meeting back to order" a Board member then offered the following two motions:
I move that the Board certifies to the best of each member's knowledge that only public business matters lawfully exempted from open meeting requirements under [§] 2.2-3711A.7 of the Code of Virginia and only such public business matters were identified in the motion by which the closed meeting was convened were heard, discussed, or considered in the meeting by the public body.
Second, I move that the Board approve an Ad Hoc Committee, to consider appeals to the Samuels Public Library collections, and that the committee consist of the following Board members: [Board Member], Chair [of Ad Hoc committee]; [Board Member;] [Board Member;] and [Board President].
The minutes record that "[t]he motion was seconded by [another Board member], discussion followed." Then, the minutes state that two Board members "both volunteered to serve on this committee" and "[Board Member] questioned whether of [sic] not any Board member could attend meetings held by this Ad Hoc committee[.]" Next, the minutes note that "it was agreed that all Board members are welcome, and should the need arise to hold a meeting [Board Member/Chair of Ad Hoc committee] will notify the full Board of the date and time." The minutes state that "[t]he motion on the table was then amended to remove [Board President] as a sitting member [from Ad Hoc committee] and add [two other Board members]. Finally, the minutes recorded that "[t]he amended motion passed unanimously."
Subsection C of § 2.2-3712 provides that "[t]he public body holding a closed meeting shall restrict its discussion during the closed meeting only to those matters specifically exempted from the provisions of this chapter and identified in the motion required by subsection A." Our office previously opined that "[i]f the substance of the discussion strayed from what was purported to be discussed and identified in the motion to convene the closed meeting, then the certification would be improper even though the motion to certify used language that comported with the statutory requirements."23 As a matter of best practices, upon first reconvening the open meeting, a public body should only consider the subject matter discussed during the closed meeting, in order to comply with the statutory directive in subsection D of § 2.2-3712 to
immediately reconvene in an open meeting and . . . take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.
It is highly recommended that a single, unambiguous motion to certify the closed meeting pursuant to subsection D of § 2.2-3712 be performed prior to considering any other action or other topics for discussion. The Board's intermingling of the certification motion along with a second motion to create an Ad Hoc committee to consider appeals of the Library's materials collection creates unnecessary confusion. While the first motion described in the minutes appears to contain the necessary elements for certification of the closed meeting, the actual action taken by the Board in this instance was muddled.
If the Board had conducted a roll call vote or other recorded vote limited to a lone motion, it would have helped to alleviate any confusion. The provided minutes record a unanimous vote by the Board to adopt a solitary "amended motion" when there were two motions presented to the Board members for consideration. In a prior opinion, our office declared that "[i]f the vote was in fact unanimous agreement by all members present, and the minutes reflected this fact as well as the members present, then the vote described would be sufficient."24 Hence, it appears that the Board certified the closed meeting in accordance with the requirements of subsection D of § 2.2-3712. However, the motion to certify the closed meeting could have been more clearly phrased by utilization of the language matching that provided by the statute.
Lastly, there may be an issue of whether the "special meeting" was properly noticed pursuant to FOIA. The information provided to our office states that "on February 1, 2023, the Board called for a Special Meeting." The information provided also states that the notice for the February 6, 2023, Special Meeting "was posted on the Library online calendar on February 1, 2023" and "was also posted inside the library on the day of the meeting." Subsection D of § 2.2-3707 provides that
Every public body shall give notice of the date, time, location, and remote location, if required, of its meetings by:
1. Posting such notice on its official public government website, if any;
2. Placing such notice in a prominent public location at which notices are regularly posted; and
3. Placing such notice at the office of the clerk of the public body or, in the case of a public body that has no clerk, at the office of the chief administrator.
Additionally, subsection E of § 2.2-3707 provides that "[n]otice, reasonable under the circumstance, of special, emergency, or continued meetings shall be given contemporaneously with the notice provided to the members of the public body conducting the meeting." The notice for the special meeting was posted inside the library on the day of the meeting, February 6, instead of February 1, and the notice does not appear to have been posted at the office of the clerk of the public body or the office of the chief administrator as required. Therefore, it appears from the facts provided that the notice may not have been sufficient. However, a final determination on this issue would also fall under the jurisdiction of a court.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Joseph Underwood
Senior Attorney
Alan Gernhardt
Executive Director
1See Freedom of Information Advisory Opinion 02 (2016).
2Subsection A of § 2.2-3712 of the Code of Virginia.
3Freedom of Information Advisory Opinion 02 (2016).
4Id.
5Freedom of Information Advisory Opinions 02 (2016) and 13 (2009).
6Id.
7Id.
8Id.
9Acts of Virginia, Chapters 703, 726 (1999).
10Freedom of Information Advisory Opinion 02 (2016).
11Id.
12Freedom of Information Advisory Opinion 07 (2000).
13Id.
14See Freedom of Information Advisory Opinions 01 (2023), 01 (2022), 03 (2016), and 09 (2005).
15See id.
16See id.
17Freedom of Information Advisory Opinions 02 (2016) and 01 (2007).
18Id.
19Id.
20Acts of Virginia, Chapter 616 (2017).
21Freedom of Information Advisory Opinion 07 (2000).
22See Freedom of Information Advisory Opinions 01 (2023), 01 (2022), 03 (2016), and 09 (2005).
23Freedom of Information Advisory Opinion 02 (2016).
24Id.