Attorney General's Opinion 1984-85 #420



March 12, 1985


The Honorable Floyd C. Bagley
Member, House of Delegates

84-85 420

You have asked four questions concerning the applicability of the Virginia Freedom of Information Act, 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), to action taken by the Prince William County School Board (the "School Board"), both before and after entering into a contract of employment with the Division Superintendent of Schools (the "Superintendent"). In your letter, you present the facts as follows: "In multiple executive or closed meetings, the School Board negotiated a written employment contract with the Superintendent employing the latter for a four-year term commencing July 1, 1985. The contract has been signed by the Superintendent, and by the Chairman of the School Board, who purported to be acting on behalf of the School Board. The employment contract provides that the Superintendent be paid a stated annual salary for the contemplated four-year term. There is a separate provision in the contract--a so-called `buy- out' clause whereby the School Board would be obligated to paythe Superintendent a stated sum of money in the event the Superintendent were forced to resign short of serving a full four-year term. The amount stated in the buy-out clause is substantially in excess of one hundred thousand dollars.On January 2, 1985, the School Board duly adopted a resolution to employ, at a stated salary, the Superintendent for a four-year term commencing July 1, 1985. The resolution makes no reference to a written contract between the School Board and the Superintendent; and it does not authorize the School Board Chairman to execute such a contract. No other resolutions of the School Board are relevant to this inquiry. The School Board has denied a request from the press for access to the written employment contract between the School Board and the Superintendent. It has done so on the theory that the contract is a `personnel record' within the meaning of 2.1-342(b)(3) and therefore exempt from disclosure."

I will consider your first two questions together. Those questions are as follows: "(1) Are the provisions of the employment contract between the Superintendent and the School Board enforceable?

(2) Can the School Board Chairman obIigate the School Board by signing a written contract, if the School Board has never adopted a resolution or taken other formal action explicitly authorizing him or her to do so?" My opinion necessarily is limited to the questions asked and the facts represented.

Section 2.1-343 provides, in part: "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. Minutes shall be recorded at all public meetings." Section 2.1-344 provides, in pertinent part:

"(a) Executive or closed meetings may be held only for the following purposes: (1) Discussion or consideration of empIoyment...salaries...of public officers, appointees or employees of any public body...."

Clearly, discussion and consideration of the employment of the Superintendent and the terms of his contract were proper subjects for a closed session under the foregoing provision if the required procedure were followed. See 1982-1983 Report of the Attorney General at 713. This section should not be construed, however, to permit the Board, acting in executive session, to actually employ the Superintendent without further action. See 1980-1981 Report of the Attorney General at 386. Whatever action is decided upon in the closed session, the School Board must reconvene in open session and take the formal action required by 2.1-344(c). That section reads, in part, as follows: "No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in an executive or closed meeting shall become effective unless such public body, following such meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion which shall have its substance reasonably identified in the open meeting."

If the January 2, 1985 action, when the School Board adopted a resolution to employ the Superintendent, was taken in open session, then the action is valid under the Act. If, however, the January 2, 1985 action was taken only in ezecutive session, then it is not effective under the Act. See 1974-1975 Report of the Attorney General at 578.

You state that the January 2, 1985 resolution makes no reference to a written contract between the School Board and the Superintendent, and it does not authorize the School Board Chairman to execute the contract. These facts are the source of your inquiry as to the authority of the School Board Chairman to obiigate he School Board on the contract.

Each school board is a body corporate. See 22.1-71. I presume the School Board has adopted bylaws and regulations for its own government and management of business, as provided in 22.1-78. As with other corporate bodies, a school board can act only through its duly authorized officers and agents. See PIeascnts v. Commonwealth, 214 Va. 646, 203 S.E.2d 114 (1974). In this instance, the Chairman signed the employment contract in his official capacity and was thus the agent through which the School Board acted. It is unnecessary for a corporate board to formally authorize its chairman to sign each individual contract entered into on behalf of the board. General authority is sufficient and is usually found in the bylaws. See Yerby v. Grigsby, 36 Va. (9 Leigh) 387 (1838); Carper v. Cooke, 39 W.Va. 346, 19 S.E. 379 (1894). If the bylaws do contain such general authority, then, in my opinion, the contract executed by the Chairman on behalf of the School Board represents he action of that body, and, if otherwise valid, the School Board is bound by the contract. See Horner v. Halt, 187 Va. 715, 47 S.E.2d 365 (1948).1

In sum, I cannot definitively answer your first two questions based on the limited facts presented. As discussed above, any question of the effectiveness of the appointment of the Superintendent, or of the enforceability of the signed contract, turns upon the type of meeting conducted on January 2, 1985, in which the resolution was adopted and, alternatively, upon the authority gin the Chairman in the bylaws to act as agent for the School Board in entering contracts.

I now consider your third and fourth questions, which read as follows: "(3) Is there anything in the Virginia Freedom of Information Act or other laws of the Commonwealth that prevents the School Board from permitting public access to the employment contract in question? (4) Is the position taken by the School Board consistent with the policy of the Commonwealth 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?' 2.1-340.1 (emphasis added.)"

The Freedom of Information Act establishes a policy of "ready access to records" and "free entry to meetings of public bodies...." In order to achieve the purposes of the Act, the General Assembly has directed that "it shall be liberally construed...." See 2.1-340.1. The Act's exceptions are to be narrowly construed and exist to provide a legal basis for not complying with the otherwise applicable requirements of general public access, in certain limited and specified situations. A public body is not obligated to invoke an exception simply because a document falls within an exception to mandatory disclosure. Whether to exercise an exception normally is a decision which rests in the discretion of the governing body. Thus, there is nothing in the Act which "prevents" the School Board from disclosing the employment contract in question.

Turning to your last inquiry, as you indicate, 2.1-340.1 clearly expresses the legislative policy and purpose of the Act.

In addition to the provision quoted in your letter, the section also provides that the Act is to be liberally construed to achieve the purposes of the Act, and "[alny exception or exemption from applicability shall be narrowly construed in order that no thing which should be public may be hidden from any person." A contract of employment is an official record. The clear implication of that portion of 2. 1-344(c) quoted above, however, is that when the School Board, in open session, votes to ratify or affirm action taken in a lawfully convened executive session, the entire contract need not be made public. But it is equally clear that the substance of the contract must be reasonably identified. While each document must be considered on an individual case-by-case basis, I am also of the opinion that a provision containing a buy-out clause, such as you suggest, must be disclosed under the Act.

In closing, I call your attention to 22.1-87, which provides a statutory procedure for judicial review of action of a school board, and to 2.1-346, which provides the statutory procedure for enforcing provisions of the Freedom of Information Act.

1. Even though all the terms of the contract were not set forth in the resolution, I assume that the School Board approved the terms and has not repudiated the contract executed by the Chairman.

Despite the fact that the action of the School Board may be defective for failure to comply with the Act, and the Chairman may not have had sufficient authority to act on behalf of the School Board, this does not necessarily mean that the official acts of the Superintendent thereafter were void and of no legal effect. It is true that 2.l-344(c) expressly provides that no resolution or contract, passed or agreed to in executive session, shall become effective unless the public body reconvenes in open meeting and takes a vote on the resolution or contract. Nevertheless, the law is equally clear that an official improperly elected or appointed, due to a failure to comply with the Act, continues as a de facto officer, and his official actions are valid until such time as the legal defect in his election or appointment becomes known. See Reports of the Attorney General: 1979-1980 at 380 (member of planning commission); 1975-1976 at 417 (member of school trustee electoral board 2).