Attorney General's Opinion 1984-85 #426



March 8, 1985

The Honorable William T. Wilson
Member, House of Delegates

84-85 426

You ask whether a violation of the Virginia Freedom of Information Act, §§2.1-340.1 through 2.1-346.1 of the Code of Virginia (the "Act"), occurred under the following circumstances: On January 9, 1985, a conference was held in the office of the city manager of the City of Covington, attended by some members of the Covington City Council. The conference had been called by the attorney representing the city in litigation. The attorney's purpose was to prepare two members as witnesses for their testimony and court appearance the next day. A third member learned of the conference and attended. No notice was given, except to those persons invited to attend.

Your question requires the interpretation of §2.1-341(a), which reads, in pertinent part:

"(a) `Meeting' or `meetings' means the meetings, when sitting as a body or entity, or as an informal assemblage of (i) as many as three members...of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any legislative body...including cities, towns and counties; municipal councils....Nothing in this chapter shall be construed to make unlawful the gathering or attendance of two or more members of a body or entity at any place of function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the body or entity." (Emphasis added.)

Prior Opinions of this Office have concluded that informal gatherings for the purpose of discussing public business are within the ambit of §2.1-341(a).1 In each instance, however, there was a physical gathering of the members of the public body, as an entity, for the purpose of deliberating policy or preparing to take action.

It is my opinion that, in the situation which you describe, there was no "meeting" within the ambit of §2.1-341(a). At the conference in question, only three members of the Covington City Council were present. The purpose of the conference was to prepare two of them as individual witnesses for their impending court appearance. The conference had been called by the attorney representing the city, who suggested which city officials should attend the conference. Inasmuch as the city was a party to the litigation, it is obvious that public business was involved. Nevertheless, because the members were not gathered as an entity or even informal assemblage, and because of the absence of the deliberation of policy and the absence of preparation for the taking of action by the city council, I must conclude that there was no meeting under §2.1-341(a).

This interpretation of §2.1-341(a), in the situation posited by you, is supported by the decision of the Supreme Court of Virginia in the case, Nageotte v. King George County, 223 Va. 259, 288 S.E.2d 423 (1982).

I have been unable to find any provision of the Charter of the City of Covington which prohibits the gathering of city council members for this type of conference.

Based on the facts you have provided, it is my opinion that the Act was not violated by the conference of January 9, 1985.



1. cf Report of the Attorney General: 1977-1978 at 485 (city council and planning commission discussions of the city's comprehensive plan and growth); 1975-1976 at 411 (city council meeting to discuss allegations that city police were maintaining files on local businessmen); 1974-1975 at 579 (city council meeting to discuss the election of the mayor and vice-mayor), 574 (city council budget discussions with city manager).