Attorney General's Opinion 1980-81 #387



September 22, 1980

The Honorable Hunter B. Andrews
Member, Senate of Virginia

80-81 387

You ask whether the Virginia Freedom of Information Act (the "Act") permits an executive meeting held by a city council for discussion of the following topics (1) resolution of drainage problems in a particular area of the city; (2) use of private auto repair firms for servicing city vehicles; (3) reduction of city garbage collections; (4) prosecution of adult movie theaters under city obscenity ordinances; and (5) relocation of the city's arts center to a building now privately owned. The Act requires that all meetings of public bodies shall be open meetings except as otherwise specifically provided by law. See §2.1-343 of the Code of Virginia (1950), as amended. Section 2.1-340.1 further provides that any statutory exceptions to the Act's public access requirements shall be narrowly construed. The specific purposes for which public bodies may conduct executive meetings are set forth in §§2.1-344(a)(1) through 2.1-344(a)(9),


I find no provision of the Act which would authorize an executive meeting for discussion of solutions to the city's drainage problems, Your inquiry does not indicate that these discussions involved possible acquisition of drainage easements or other real property acquisitions which would be appropriate matters for executive discussion under §2.1-344(a)(2). In any event executive discussion of possible real estate acquisitions would not authorize executive discussion of other aspects of city drainage problems. See §2.1-344(b). The council's discussions concerning drainage, therefore, violated the Act.

Use of Private Firms for City Auto Repairs

No provision of the Act authorizes executive discussion of the city's possible use of private firms for city school bus repairs. You do not indicate that council considered the terms of proposed contractual arrangements with specific auto repair firms, which discussion may be authorized under §2.1-344(a)(6). Council's discussions of the use of private firms for auto repairs was in violation of the Act.

Garbage Collection

Executive discussion of possible reduction of city garbage collections is not authorized by the Act. The fact that a reduction in garbage collections would affect the work schedules of city garbage collection employees does not make applicable §2.1-344(a)(1) authorizing executive discussion of personnel matters. Section 2.1-344(a)(1) has been consistently interpreted to apply only where discussions involve personnel matters of individually identified employees. See Opinion to the Honorable James H. Dillard II, Member, House of Delegates, dated March 20, 1980 (copy enclosed). Thus, council s executive discussion of possible reductions in garbage collections violated the Act.

Obscenity Prosecutions

Council's executive discussion of pending or potential prosecution of theater operators under city obscenity ordinances was permitted by the Act. Section 2.1-344(a)(6) authorizes executive discussion of actual or potential litigation or other legal matters within the jurisdiction of the public body. You indicate that under city obscenity ordinances the city attorney has authority to bring prosecutions for violations. Council's discussion of potential obscenity prosecutions was, therefore, permitted by the Act.

Relocation of Arts Center

Council's executive discussion of possible relocation of its arts center to a specific location now privately owned was permitted. Executive discussion concerning acquisition or use of real property for public purposes is authorized under §2.1-344(a)(2). Since you indicate that council's discussions involved a specifically identified privately owned site for possible relocation, I find §2.1-344(a)(2) applicable. Accordingly, such executive discussions concerning relocation of the city arts center were proper under the Act.

With respect to council's executive discussions which were not permitted by the Act, three points are important, First, the fact that no vote or other formal action was taken in the executive meeting does not cure the illegality of such meetings. The Act requires that all meetings be open and defines "meetings as any assemblage of three or more members of a public body where official business of the public body is discussed or transacted, whether or not votes are cast. See §2.1-341(a). Second, since no votes or other final actions were taken in the illegal, executive discussions, the provisions of §2.1-344(c), requiring a public vote on matters voted on in executive session, is not applicable. Finally, the fact that matters which may not be discussed legally in a closed meeting arise spontaneously in a lawful executive meeting does not make legal the entire executive meeting. The Act specifically anticipated this problem and provides that discussions in lawfully authorized executive meetings must be limited to only those matters specifically permitted by law. See §2.1-344(b).