Attorney General's Opinion 1979-80 #380



March 25, 1980

The Honorable A. Joe Canada, Jr.
Member, Senate of Virginia

79-80 380

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 election.

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.