FOI Advisory Council Opinion AO-04-09


 May 15, 2009

George Keller
Clifton Forge, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your facsimile of April 6, 2009 and letter of April 8, 2009.

Dear Mr. Keller:

You have asked two questions regarding meetings held by the Alleghany County Board of Supervisors (the Board). As background, you indicated that the County of Alleghany and the City of Covington are considering consolidating together pursuant to Va. Code § 15.2-3500 et seq., and are currently in the process of negotiating the issues involved.1 You provided meeting agendas indicating that the Board held a regular meeting on March 17, 2009, one portion of which was closed to the public pursuant to subsection D of § 15.2-2907 of the Code of Virginia, to discuss consolidation. The agendas further indicated that the closed session was continued on March 19, 2009, for the same purpose, and cited the same Code section. It appears that the closed meeting to discuss consolidation was the only item on the agenda for the continued meeting. You also included an email exchange you had with the County Attorney confirming that subsection D of § 15.2-2907 was the section authorizing the Board to hold these closed meetings.

The first issue you raise challenges the application of subsection D of § 15.2-2907. That subsection is part of the laws concerning the Commission on Local Government (the Commission), and reads in full as follows:

Except for any hearing or meeting specifically required by law, Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 shall not be applicable to the Commission nor meetings convened by members of the Commission, its employees, or by its designated mediators with local governing bodies or members thereof, nor shall such chapter be applicable to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to the Commission's review. Offers and statements made in any negotiation or mediation activity conducted under the direction of the Commission shall not be recorded in any report issued by the Commission, nor shall they be introduced in evidence in any subsequent court proceeding by the Commission or any other party.

If this section applies, therefore, FOIA shall not be applicable. By its own terms the section applies to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to the Commission's review. It would be beyond the statutory authority of this office to offer an opinion regarding what matters are subject to the Commission's review.2 However, I note that subsection 4 g of § 15.2-2903 states that, among other powers and duties, the Commission shall have the power and duty to investigate, analyze, and make findings of fact ... as to the probable effect on the people residing in any area of the Commonwealth of any proposed action in that area...To consolidate two or more localities, at least one of which is a county, into a city. It appears then that subsection D of § 15.2-2907 would apply to a meeting addressing such consolidation. Applying these laws in the context of the factual background you have provided, it would seem then that the Board was discussing consolidation, a matter that would be subject to the Commission's review, and therefore that discussion is excepted from FOIA by subsection D of § 15.2-2907.

However, you stated that these meetings are specifically required to be held by the Board pursuant to § 15.2-3531. Because they are meetings specifically required by law, you believe that the Board's reliance upon subsection D of § 15.2-2907 was misplaced in this instance, and that the Board should have held these meetings open to the public. You are correct that the introductory clause of subsection D of § 15.2-2907 excepts any hearing or meeting specifically required by law. However, it does not appear on its face that § 15.2-3531 specifically requires a hearing or meeting to be held by the Board, and in any case, an interpretation of the interaction of two statutes in Title 15.2 would fall well beyond the scope of authority granted to this office, which is limited to FOIA matters.3 Therefore I cannot offer an opinion regarding the requirements of § 15.2-3531, or how those may affect the operation of subsection D of § 15.2-2907. What is clear is that when it applies to a meeting, the provisions of subsection D of § 15.2-2907 act to except the meeting from the requirements of FOIA.

The second issue you raise concerns whether the Board properly moved to convene its closed meeting. Pursuant to subsection A of § 2.2-3712,

No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711.

Prior opinions from this office have advised that a motion to convene a closed meeting must contain all three elements - subject, purpose, and cite - in order to comply with the statutory requirements.4 In identifying the subject matter to be discussed, this office has further opined that the subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to why the closed session will be held.5 The agenda for the meeting of the Board held March 17, 2009, states as follows under item number 12: "A. Closed Meeting pursuant to Section 15.2-2907(D) of the Code of Virginia to discuss: (1) consolidation." You did not include meeting minutes or otherwise indicate that the motion to convene the closed meeting varied from what was listed in the agenda. Presuming that subsection D of § 15.2-2907 applies to the meeting, then the requirements of FOIA do not apply, as previously stated. If that is the case, then the Board was not required to comply with the motion requirements of subsection A of § 2.2-3712, and there was no FOIA violation because FOIA did not apply.

Thank you for contacting this office. I hope that I have been of assistance.


Maria J.K. Everett
Executive Director


1. Based on the background materials provided, it appears that the City and the County have each presented their own consolidation plans. To summarize, it appears that the City's plan would consolidate the County into the City, while the County's plan uses a tier-city model which combines certain aspects of governance while leaving both the County and City with their own identities intact.
2. Va. Code § 30-179 (setting forth the powers and duties of the FOIA Council); see also, e.g. Freedom of Information Advisory Opinions 05 (2008), 04 (2007) and 06 (2006).
3. Id.
4. See, e.g., Freedom of Information Advisory Opinions 04 (2008), 13 (2007) and 06 (2007).
5. Freedom of Information Advisory Opinions 24 (2004) and 8 (2002).