Attorney General's Opinion 1986-87 #031



December 16, 1986

The Honorable Madison E. Marye,
Member, Senate of Virginia

86-87 31

You request my opinion concerning the legality of an executive session called by the School Board of Montgomery County.

I. Facts

You state that the Town of Christiansburg has begun proceedings against Montgomery County to annex a portion of the county. The Board of Supervisors of Montgomery County is opposing the annexation action. In connection with recent public hearings held in the county by the Commission on Local Government (the "Commission"), the Chairman of the Montgomery County School Board wrote a letter to the Commission stating his personal support for the town's annexation effort. In the introduction to his letter, the school board chairman mentioned his background, including his position as school board chairman. Upon learning of the letter, the county board of supervisors met in executive session to discuss the matter. The board of supervisors decided to send its chairman and the county attorney to meet with the school board regarding the letter with which the board of supervisors fundamentally disagreed. The school board voted to convene in executive session to hear from the two representatives of the board of supervisors. The school board cited "legal matters" as its reason for convening in executive session.

The legality of the school board's executive session has been challenged on the grounds that the school board is not a party to the annexation action and that annexation is not within the scope of the school board's authority.

II. Applicable Statutes

The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the "FOI Act"), requires that public bodies conduct open meetings. See §2.1-343. Section 2.1-344 provides for certain exceptions to the Act's open meeting requirement and establishes procedures regarding the conduct of executive sessions. Section 2.1-344 provides, in part:

(a) Executive or closed meetings may be held only for the following purposes:
* * *

(6) Consultation with legal counsel and briefings by staff members, consultants or attorneys, pertaining to actual or potential litigation, or other legal matters within the jurisdiction of the public body, and discussions or consideration of such matters without the presence of counsel, staff, consultants, or attorneys.

Section 2.1-344(b) provides, in part:

A general reference to the provisions of this chapter or to the exemptions of subsection (a) shall not be sufficient to satisfy the requirements for an executive or closed meeting. The public body holding such an executive or closed meeting shall restrict its consideration of matters during the closed portions only to those purposes specifically exempted from the provisions of this chapter.

III. Prior Opinions Establish Scope of "Legal Matters" Exception to FOI Act

Prior Opinions of this Office have considered the scope of the "legal matters" exception to the FOI Act's open meeting requirement. See Reports of the Attorney General: 1985-1986 at 103; 1982-1983 at 716; 1981-1982 at 432; 1980-1981 at 389. These Opinions conclude that §2.1-344(a)(6) requires more than a desire to discuss general legal matters. Rather, §2.1-344(a)(6) requires that there be a specific legal dispute or specific legal inquiry. The Supreme Court of Virginia has also noted this requirement of specificity. See Marsh v. Rich. Newspapers, Inc., 223 Va. 245, 254-55, 288 S.E.2d 415, 420 (1982); City of Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 429, 431 (1982). Section 2.1-344(a)(6) may not, therefore, be used as a catch-all exception to the FOI Act's open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue. See 1982-1983 Report of the Attorney General at 717. On the other hand, the specificity requirement of §2.1-344(a)(6) does not require that the details of the legal problem to be addressed in executive session be disclosed. In considering the sufficiency of a motion to convene in executive session, the Supreme Court of Virginia has stated:

A governing body is entitled to make the initial determination that an executive or closed meeting is necessary under a specified exemption to consider a subject or subjects on the agenda. The decision whether to convene in executive session must be made by members of the responsible entity who often possess information as to the subject matter that is not necessarily possessed by others. It is neither necessary nor in the public interest to require as a prerequisite to closing a meeting pursuant to 2.1-344(a)(6) that the governing body disclose in detail the legal matters or the legal issues to be considered. To do so would tend to defeat the very confidentiality that the exemption safeguards. Marsh, 223 Va. at 255, 288 S.E.2d at 420.

In the absence of specific facts relating to the actual wording of the motion by a member of the school board to meet in executive session, I cannot express an opinion concerning the sufficiency of that motion.

IV. Discussion of Annexation Matters Not a Legal Matter Within School Board's Jurisdiction

The issue presented by your inquiry, therefore, is whether the proposed annexation is a "legal matter" within the school board's jurisdiction.

As noted above, the school board is not a party to the annexation proceedings. Similarly, there is no express school board role in the conduct of such proceedings. Although annexation often has an impact on school divisions' pupil populations, finances and other administrative matters, these factors do not generally relate to legal matters. Accordingly, it is my opinion that annexation matters are not "legal matters" within the school board's jurisdiction.

V. Conclusion: FOI Act Does Not Authorize School Board Executive Session Solely to Discuss Annexation Matters

Section 2.1-344(a)(6) would not, therefore, authorize the school board in this instance to convene in executive session solely to discuss annexation matters.1


1. Section 15.1-945.7(D), authorizing executive sessions of "local governing bodies" to discuss certain annexation matters, does not apply to school boards because school boards are not "local governing bodies" within the meaning of §15.1-945.7.