FOI Advisory Council Opinion AO-01-20
AO-01-20
May 29, 2020
Thomas Finderson
Carrollton, 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 letter received March 30, 2020.
Dear Mr. Finderson:
You have asked for an advisory opinion regarding whether the School Board for Isle of Wight County (the Board) has acted in violation of the Virginia Freedom of Information Act (FOIA) at various meetings held on different occasions from 2015 through 2020. You presented 21 enumerated questions in a 17-page letter, along with additional background materials, including various Board minutes, Board policies, a Superintendent's memo, and other documents. Some of your inquiries are based on specific facts you presented, while others are more general in nature. As general background, you indicated that the Board holds regular meetings once per month with agendas posted the week before and that video recordings are usually made of each meeting. Additionally, it appears that, since September 2018, the Board has used BoardDocs software to display the agenda and other information on a large screen during each meeting and to provide access to meeting information and materials on the Board's website. Because of the varying nature of the questions and extensive background materials, each of your questions is presented separately below with additional background facts, the question itself, and an answer using the same enumeration as presented in your letter. The questions and background have been edited for brevity and clarity.
Question #1
Background: This question refers to the meetings from the February 13, 2020, Board meeting. You indicated that "the minutes do not reflect any approved exemptions from 2.2-3711 or reason to go into closed session." The minutes of that statement include an item, "Motion to go into Closed Session," which then identifies which Board member made the motion and which member seconded the motion, "Final Resolution: Motion Carries," and indicates that all members present voted "Yea." However, the minutes do not quote or paraphrase the motion itself. The minutes include signature lines for the Board Chair and the Board Clerk, which appear to have been filled in with their typed names followed by "(signature on file)." A separate closed meeting certification is included at the end of the minutes, which includes a lines for a signature by "Isle of Wight County School Board" and a date, but these lines appear to be blank in the copy of the minutes you provided.
Question #1: Do the Board "approved minutes have to document why the [Board] went into closed session and what exemption(s) found in 2.2-3711 they used to go into closed session?"
Answer #1: Subsection A of § 2.2-3712 requires that, in order to convene a closed meeting, a public body must vote to approve a motion that "(i) identifies the subject matter, (ii) states the purpose of the meeting as authorized in subsection A of § 2.2-3711 or other provision of law and (iii) cites the applicable exemption from open meeting requirements provided in subsection A of § 2.2-3711 or other provision of law." The same subsection also requires that "[t]he matters contained in such motion shall be set forth in detail in the minutes of the open meeting." Following these provisions, therefore, the Board must include in its minutes the stated purpose of the closed meeting, the subject of the closed meeting, and the appropriate citation(s) to the applicable exemption(s)1. None of these three items appears in the February 13, 2020, minutes that you included with your inquiry and, therefore, these minutes do not appear to satisfy the requirements of subsection A of § 2.2-3712.
Question #2
Background: This question also refers to the February 13, 2020, Board meeting, as described in Question #1.
Question #2: Do the Board's "approved minutes have to have the actual signatures of the Board Chairman and the Board clerk instead of what [the Board] has been doing which is stating signature on file?"
Answer #2: FOIA sets out requirements for the contents of meeting minutes generally in subsection H of § 2.2-3707 and additional requirements regarding closed meetings in § 2.2-3712, but FOIA does not require that minutes be signed, so it does not address this issue. However, I would note that § 22.1-74, which is in the Education title of the Code (outside of FOIA), does set forth that "[t]he minutes of all school board meetings shall be signed by the chairman and clerk." Research did not reveal any court decisions or opinions of the Attorney General that address the issue presented. Unfortunately, as this provision falls outside of FOIA, it would be beyond the authority of this office2 to offer an opinion on whether it requires actual signatures or whether signatures on file are sufficient to satisfy § 22.1-74.
Question #3
Background: This question refers to the February 13, 2020, Board meeting, as do Questions #1 and #2, but this question also refers to the July 9, 2015, Board meeting minutes. The July 9, 2015, minutes appear to have been signed by the Board Chairman and the Board Clerk. Those minutes also include a separate closed meeting certification, which appears to have been signed by the Board Clerk.
Question #3: Does the Board "clerk and/or the Board chairman also have to provide their actual signature to provide proof of the certification of closed meetings to be in compliance of 2.2-3712 instead of signature on file like they did on the July 9, 2015 approved minutes?"
Answer #3: Subsection D of § 2.2-3712 sets forth the requirements to certify a closed meeting, but as with meeting minutes, it does not require signatures. Research in Title 22.1 did not reveal any provisions requiring that certifications of closed meetings be signed, unlike meeting minutes. Therefore, it appears that there is no requirement for the Board to sign the certification of a closed meeting.
Question #4
Background: This question also refers to the February 13, 2020, Board meeting. You stated that neither the video nor the minutes of that meeting identify the exemption used to go into closed session, and you noted that the agenda lists the following item, among others:
"17. Action on Closed Session Items
17.1 February Personnel Report
17.2 Teacher Salary Step Adjustments"
The corresponding entry in the minutes reads in full as follows:
"Action on Closed Session Items
February Personnel Report
Motion by Victoria Hulick, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins, Alvin W Wilson, Denise N Tynes
Teacher Salary Step Adjustments
Motion by Victoria Hulick, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins, Alvin W Wilson, Denise N Tynes"
The audio portion of the video recording reflects that a member made motions to approve the February Personnel Report and the Teacher Salary Step Adjustments; both motions were seconded, and it appears that votes were taken using the BoardDocs software.3
Question #4: Can the Board go into closed session for discussion or deliberations on Teacher Salary Step Adjustments and be in compliance of the exemptions found in § 2.2-3711 and then later vote in open session on teacher salary step adjustments to be in compliance with § 2.2-3712?
Answer #4: Subdivision A 1 of § 2.2-3711, the personnel meetings exemption, permits a public body to convene a closed meeting for the following purposes:
Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals.
Therefore, the Board may convene a closed meeting in order to discuss the "salaries . . . of specific public officers, appointees, or employees of" the Board. This exemption by its own terms is limited to discussions about specific individuals and may not be used to convene a closed meeting to discuss salary increases when the discussion does not concern specific individual public officers, appointees, or employees.4 My general understanding is that "salary step adjustments" typically refer to salary increases in incremental amounts (usually a set percentage per step) based on experience and are often tied to certain minimum performance levels. A discussion of salary step adjustments could take a number of forms that may or may not involve discussions about specific individuals. For example, a public body might discuss the increase to be given per step for all employees, which would not be a proper topic under the personnel meetings exemption because it does not concern specific individuals. On the other hand, a public body might discuss whether a specific employee has met the required performance levels to receive a salary adjustment based on experience, which would necessarily involve a discussion of that employee's performance and salary and would be a proper topic for a closed meeting discussion under the personnel meetings exemption. In this instance, there is not enough information to state whether the Board's discussion during its closed meeting on February 13, 2020, fell within the terms of the personnel meeting exemption.
Regarding voting, in general subsection A of § 2.2-3710 requires that, unless otherwise provided by law, all votes must be "taken at a meeting conducted in accordance with the provisions of [FOIA]" and that "[n]o public body shall vote by secret or written ballot, and unless expressly provided by this chapter, no public body shall vote by telephone or other electronic communication means." Regarding voting using BoardDocs or similar software that displays members' votes on a screen during a meeting, this office previously opined that "so long as it displays the individual votes of each member it would appear to facilitate public awareness of government activities and thus comport well with the purposes of FOIA. As a general matter, the use of such technology to facilitate public awareness should be encouraged. On the other hand, if it only displays the vote total and not members' individual votes, this would be detrimental to FOIA's purposes, in which case it should not be used."5 Subsection B of § 2.2-3711 sets forth the following requirements for votes taken after a closed meeting discussion:
No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.
This office has previously interpreted this language to mean that a public body must "reasonably identify the essential import of the action taken" when it votes on a closed meeting matter.6 Subsection H of § 2.2-3707 requires that meeting minutes include, among other items, "a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken." In this instance, the recording of the meeting does not have an audible vote, but it appears the vote may have been displayed on the projection screen at the meeting. Note that, as viewed on the video, the lettering on the screen is somewhat blurry and difficult to read. Unfortunately, the lack of an audible vote and the blur of the screen make it difficult to tell whether the vote was apparent to those present at the meeting when it was taken. However, the minutes of the meeting stated that all members (identified by name) voted "Yea." That fact, along with what is apparent on the video recording, makes it seem likely that the vote was apparent to those present at the meeting and, therefore, that it likely was taken in accordance with FOIA. However, while the audio portion of the recording of the meeting makes clear that the motion was to approve the Teacher Salary Step Adjustments, the minutes only state that a motion was made and carried, but they do not state the substance of that motion (to approve, disapprove, or take some other action). Therefore, it appears that the audible motion as recorded on the video was sufficient in that it identified the substance—i.e., the essential import of the action taken by the Board—as being approval of the Teacher Salary Step Adjustments, but the minutes were insufficient in that they failed to state the substance of the action taken by the Board.
Question #5
Background: This question refers to the January 15, 2020, meeting of the Board. The minutes have the following entry regarding closed session:
"Motion to go into Closed Session
Motion by Julia Perkins, second by Alvin W Wilson.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins, Alvin W Wilson, Denise N Tynes"
While the minutes do not contain any additional detail about the motion, you pointed out that on the video of that meeting a member read a motion to convene the closed meeting "to discuss or consider prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining, or resignation of employees and evaluation of performance of departments or schools where such evaluation will involve specific individuals." Note also that this meeting was held in a different facility than the February 13, 2020, meeting described above. It is clear from the recording of the January 15, 2020, meeting that the members used BoardDocs to vote on the motion and their individual votes were displayed next to their names on screen at the meeting.
Question #5: Can the Board or other public body that is a public school system (K-12) but is not a public institution of higher education (college, university, etc.) use the personnel meetings exemption, subdivision A 1 of § 2.2-3711, to discuss the "evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals" by omitting the language concerning "public institutions of higher education?"
Answer #5: The policy of FOIA stated in subsection B of § 2.2-3700 provides instruction on how to interpret FOIA exemptions: "Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." When analyzing a statutory exemption, we also apply rules of statutory construction as needed.7 As stated by the Supreme Court of Virginia:
Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.8
The Court has also stated that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary."9 In this instance, it appears that the Board's motion to convene the closed meeting largely quoted from the exemption itself but omitted the language concerning public institutions of higher education. The plain language of the exemption allows a closed meeting for the purpose of "evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals." Applying the rules of statutory construction as quoted above and the narrow construction rule of FOIA, the phrase "of public institutions of higher education" must be read as words of limitation. To omit that language renders the limitation meaningless and broadens the scope of the exemption beyond its plain language, and therefore is disallowed. If the General Assembly wished for that portion to apply to K-12 schools, as well as public institutions of higher education, it could have phrased it differently, such as by saying "departments or schools of educational institutions." However, the General Assembly did not do so and therefore we cannot read the exemption more broadly by omitting the words that limit its application to public institutions of higher education. At the same time, the prior sections of the same exemption, which were also quoted (in part) in the motion at issue, may be used by "any public body." Therefore, the Board may use the personnel meetings exemption, but as it is not a public institution of higher education, it may not use the portion of the exemption that is limited to such institutions.
Question #6
Background: This question also refers to the January 15, 2020, meeting of the Board. Relevant to this question, you stated that the Board has adopted policy BDC regarding closed meetings. You included a copy of that policy with your inquiry to this office and pointed out that the policy quotes from the personnel meetings exemption as an allowed purpose for a closed meeting, but does not include the portion of the statutory exemption that is applicable only to public institutions of higher education (discussed in Question #5).
Question #6: Can the Board "violate their own IOW [(Isle of Wight)] policy BDC and 2.2-3711 to go into close[d] session as a public institution when they are a public school division for K-12 and not a public institution for higher education?"
Answer #6: As stated above, a public body that is not a public institution of higher education may not use the portion of the personnel meetings exemption that is limited to such institutions. However, FOIA does not address the adoption of school board policies, their violation, or their enforcement. Therefore, as this office is limited to providing advice and guidance on FOIA itself, I cannot answer your question concerning a possible violation of Board policy.
Question #7
Background: This question also concerns the January 15, 2020, meeting of the Board. Relevant to this question, you stated that Ms. Tynes was a member of the Board until December 31, 2015, was reelected to the Board in November 2019, and was welcomed to the Board at its meeting on January 15, 2020. You also referred to the provisions of subsection D of § 22.1-60, which states: "Whenever a superintendent's contract is being renegotiated, all members of the school board shall be notified at least 30 days in advance of any meeting at which a vote is planned on the renegotiated contract unless the members agree unanimously to take the vote without the 30 days' notice."
Question #7: If a new Board member "is just being welcomed by the Board on January 15, 2020 how could she be informed 30 days earlier of a pending vote since all public business must take place at a [Board] meeting and January 15, 2020 was her first one since she was not on the Board and the agenda did not state on January 15, 2020 that the Board was voting on the Superintendent Contract it stated Superintendent Resolution?"
Answer #7: The Supreme Court of Virginia has held that members-elect of public bodies are not considered members and are not subject to FOIA's restrictions until they take office.10 Therefore, a staff person or another Board member could have contacted Ms. Tynes to inform her of upcoming Board business before she took office without violating FOIA. However, whether such information was provided in advance, whether the Board agreed unanimously to vote without the 30 days' notice, or whether the Board may have violated this provision is all conjecture that again is beyond the authority of this office, as these requirements for renegotiating a superintendent's contract fall outside of FOIA.
Question # 8
Background: This question also refers to the January 15, 2020, meeting of the Board. Relevant to this question, you observed that the agenda for this meeting lists "Superintendent Resolution" as a closed meeting item but that "Superintendent Resolution" was not mentioned in the motion to convene the closed meeting as shown on the video recording (which uses language relevant to the personnel meetings exemption, as quoted in the background to Question #5), nor is it reflected in the description of the motion in the minutes (also quoted above as background to Question #5). The minutes do have the following entry under the heading "Action on Closed Session Items":
"Superintendent Resolution
Approve as presented.
Motion by Victoria Hulick, second by Julia Perkins.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins, Alvin W Wilson, Denise N Tynes"
You also stated that a former Board member addressed the Board with various concerns, including posing questions regarding the Superintendent's salary and contract, that the Board chair later read a resolution of the Board to extend the Superintendent's contract, and that the "January 15, 2020 [Board] approved minutes document of 5-0 vote for the Superintendent Resolution with no mention of a Superintendent Renegotiated Contract or Superintendent Contract." Additionally, you referred to § 22.1-60 (Appointment and term of superintendent; certain contractual matters) of the Code of Virginia and Virginia Superintendent of Public Instruction's Memo #203-18 dated July 27, 2018, which provides additional information concerning the appointment of a division superintendent.
Question #8: You asked whether the vote on the Superintendent Resolution was legal.
Answer #8: First, please note that FOIA does not set out requirements for agenda items, so whether the Board listed "Superintendent Resolution" in the agenda does not affect the analysis under FOIA.11 FOIA has requirements for closed meeting motions, certifications, and votes that follow closed meetings in §§ 2.2-3711 and 2.2-3712. Therefore, we look to those items, rather than the agenda, to determine whether the closed meeting was conducted properly under FOIA. As described above, the video recording of the meeting makes clear that the motion to convene the closed meeting was for the stated purpose "to discuss or consider prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining, or resignation of employees and evaluation of performance of departments or schools where such evaluation will involve specific individuals." Discussion of a superintendent's contract would be a proper purpose under that motion, with the superintendent being the subject of the motion. However, please keep in mind that subsection A of § 2.2-3712 makes clear that "[a] general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting." It appears that the verbal motion shown on the video only states the purpose of the closed meeting (as quoted above) but does not actually mention the superintendent or any other subject. By contrast, the entry in the minutes appears to say "Motion to go into Closed Session" without identifying the purpose or the subject of the closed meeting. The verbal motion shown on the recording refers to § 2.2-3711 but does not refer to a specific exemption; the minutes do not cite the Code at all. Therefore, the motion to convene the closed meeting was deficient in that it did not contain the three elements required by subsection A of § 2.2-3712: subject, purpose, and citation.
Regarding the vote held after the closed meeting, the minutes only state as follows:
"Superintendent Resolution
Approve as presented.
Motion by Victoria Hulick, second by Julia Perkins.
Final Resolution: Motion Carries
Yea: Jacqueline W Carr, Victoria Hulick, Julia Perkins, Alvin W Wilson, Denise N Tynes"
However, in the video the Board chair reads the full "Superintendent Resolution" and clarifies, with additional comments from another Board member, that it was a resolution of the Board to enter into a new contract with the current Superintendent. As stated above, subsection B of § 2.2-3711 provides that "No resolution . . . contract . . . or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting." Based on the video recording, the Board did in fact identify the substance of the Superintendent Resolution as being about entering into a new contract with the current Superintendent and described various terms of that contract. Therefore, the actual motion and vote on the Superintendent Resolution at the meeting appear to have been conducted in accordance with FOIA. However, subsection H of § 2.2-3707 requires that meeting minutes include "a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken." In this instance, even though the minutes do record the members' "Yea" votes, the minutes have so little information that someone who only read the minutes would not be able to tell what action the Board took in regard to the Superintendent (i.e., the minutes show that the Board approved the Superintendent Resolution but do not say whether that resolution was to enter a new contract, extend an existing contract, terminate the superintendent, commend the superintendent, or take any other particular action). Therefore, the minutes appear to be insufficient as they contain no summary regarding the substance of what the vote on the Superintendent Resolution actually did. Therefore, while it appears that the motion to convene the closed meeting did not fully follow the procedural requirements of FOIA, the actual vote itself did follow the procedural requirements of FOIA, though the minutes do not contain all of the information required under FOIA.
As stated previously, subsection A of § 2.2-3710 mandates as follows: "Unless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter." The Attorney General has previously opined that "[i]n order for a public vote to be valid, the subject of the vote must be publicly disclosed" and, in applying subsection A of § 2.2-3710, that a vote that did not have its substance reasonably identified would be "legally defective, and therefore null and void."12 In an earlier opinion, the Attorney General interpreted the same provision of FOIA and opined that a vote taken at a meeting that lacked the proper notice required by FOIA was also "null and void" because the vote was not "taken at a meeting conducted in accordance with the provisions of [FOIA]."13 This instance appears to be factually distinct from the Attorney General opinions quoted as it appears that the vote itself did have its substance reasonably identified during the meeting and in the recording, but not in the minutes, and you raised no issues concerning the notice of the meeting. There do not appear to be any controlling Virginia court decisions directly addressing the issue of whether a vote is legally defective under these facts. Therefore, while it appears there may have been procedural deficiencies in the motion to convene the closed meeting and in the minutes of the meeting, the vote itself appears to have complied with the requirements of FOIA, and so it is unclear whether a court would find the vote to be effective or legally defective under FOIA.
Finally, you also mentioned § 22.1-60 and the Virginia Superintendent of Public Instruction's Memo #203-18 dated July 27, 2018, as background regarding the legality of the vote in question. As stated above, this office cannot answer this aspect of your question because it falls outside of our statutory authority to provide advisory opinions on FOIA.
Question #9
Background: This question refers to the January 15, 2020, Board meeting as previously described.
Question #9: Is "Superintendent Resolution an item that can be discussed by the IOW School Board in closed session? If so, what exemption does that meet?"
Answer #9: Yes, such a resolution may be discussed in closed meeting pursuant to the personnel meetings exemption, subdivision A 1 of § 2.2-3711, as described above, with the superintendent being the subject of the discussion. That exemption allows a public body to hold a closed meeting for the purpose of "assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body," among other things. The Superintendent Resolution as read by the Board chair at the January 15, 2020, Board meeting (as shown in the recording of that meeting) would fall within these terms.
Question #10
Background: This question refers to the May 9, 2019, Board meeting. You indicated that this was the first meeting where the Board "refused to document in the minutes the exemptions used to go into closed session" and stated that "[f]rom this meeting until now, the [Board] has refused to document in each and every meeting the exemptions used to go into closed session."
Question #10: "Can a public body such as the [Board] not document in the minutes why the public body went into closed session and be in compliance with [§§ 2.2-3707, 2.2-3711, and 2.2-3712]?"
Answer #10: As described previously, subsection A of § 2.2-3712 requires that a public body must vote on a motion to convene a closed session that identifies the subject of the meeting, states the purpose of the meeting, and cites the applicable exemption. That motion "shall be set forth in detail in the minutes of the open meeting." Subsection B of § 2.2-3711 requires that for decisions made in closed meeting to become effective, the public body must reconvene in open meeting and take "a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting." Subsection H of § 2.2-3707 sets forth various requirements for meeting minutes, including that minutes must include "a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken," which would include recording the vote on the motion to convene a closed meeting and any votes that followed a closed meeting. Failure to include any of these items in the meeting minutes would be a procedural violation of FOIA.
Question #11
Background: This question refers to the April 11, 2019, Board meeting. You stated that the "minutes reflect for the last time where the [Board] listed in the minutes the exemptions that they used to go into closed session." You pointed out that the minutes include a motion to go into closed session "[t]o discuss or consider prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; and evaluation of performance of departments or schools where such evaluations will involve specific individuals" but that the minutes do not cite a specific Code section.
Question #11: "Can the [Board] use [the personnel meetings exemption] and evaluation etc. when they are not a public institution of higher education?"
Answer #11: For the reasons stated in response to Question #5, the Board may use the personnel meetings exemption, but as it is not a public institution of higher education, it may not use the portion of the exemption that is limited to such institutions.
Question #12
Background: This question also refers to the April 11, 2019, Board meeting.
Question #12: "Doesn't the [Board] also have to document in [its] minutes the actual Code of § 2.2-3711 and then list the number used for the exemptions, for example, should the minutes be represented in this matter 2.2-3711 - (1) instead of what they did and only place (1)?"
Answer #12: As stated above, subsection A of § 2.2-3712 requires that any motion to convene a closed meeting must cite "the applicable exemption from open meeting requirements provided in subsection A of § 2.2-3711 or other provision of law." Subsection A of § 2.2-3711 is currently divided into 51 numbered subdivisions, each of which is a separate exemption allowing for closed meetings. Regarding citation format, the proper formal citation to any of the exemptions in subsection A of § 2.2-3711 would be to cite "subdivision A [subdivision number] of § 2.2-3711 of the Code of Virginia" as each exemption is a separate subdivision within subsection A of § 2.2-3711. For example, "subdivision A 1 of § 2.2-3711 of the Code of Virginia" is the proper formal citation to the personnel meetings exemption. There are also other citation formats in common usage that are still clear regarding which exemption they cite. For example, a public body might cite the personnel meetings exemption as "Code § 2.2-3711 (A)(1)," "subdivision A 1 of Va. Code § 2.2-3711," or even "2.2-3711 (A)(1)" without saying "Code" or "Code of Virginia" at all. In the context of a closed meeting held by a public body subject to Virginia FOIA, any of these is clear regarding which exemption is meant, as they all contain references to the Code section, subsection, and subdivision. However, a reference to "2.2-3711 - (1)" or just to "(1)" would be technically improper as neither refers to the subsection (A).
Regarding improper citations, note that in the case Lawrence v. Jenkins,14 the Supreme Court of Virginia held that a citizen who requested public records was not denied clearly established rights and privileges under FOIA when the public body withheld portions of the record and claimed those portions were exempt but failed to cite the specific Code section within the required response time of five working days. While the failure to cite the specific Code section was a technical or procedural violation, the Court held that it "did not bring about a denial of any rights or privileges afforded to [the requester] under the provisions of FOIA and did not operate as a waiver of [the public body's] otherwise valid exercise of an applicable exemption."15 In essence, the Court held that the withheld portions of the records were in fact exempt and therefore the requester had no right to them under FOIA, even though the public body failed to follow the proper procedure in denying the request. Applying the same reasoning to the meetings exemptions, if a public body held a closed meeting to which an exemption properly applied but failed to properly cite the appropriate exemption, it would be a technical or procedural violation, but there would still be no requirement to open the meeting or produce minutes for the closed meeting.16 However, subsection A of § 2.2-3712 also states explicitly that "[a] general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting." The records response procedure set out in subsection B of § 2.2-3704 has no equivalent language. Thus, where a general reference to the applicable records exemption may have been enough to avoid a substantive violation in Lawrence, a general reference to the meetings exemptions is specifically disallowed under subsection A of § 2.2-3712.
The minutes of the April 11, 2019, Board meeting include a motion "[t]o discuss or consider prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; and evaluation of performance of departments or schools where such evaluations will involve specific individuals" as described in the background to Question #11. That fact pattern appears similar to Lawrence in that the language clearly paraphrases from the personnel exemption at subdivision A 1 of § 2.2-3711, but it fails to properly cite the exemption. Therefore, it appears that this motion fails to satisfy the requirements of subsection A of § 2.2-3712 to identify the subject, state the purpose, and cite the appropriate exemption for the closed meeting.
Question #13
Background: The question refers to the January 11, 2018, Board meeting. The minutes of that meeting include the following:
motion to go into closed session pursuant to the Code of Virginia section 2.2-3711, (1) for the discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; and evaluation of performance of departments or schools where such evaluations will involve specific individuals. (7) To receive briefing by staff member on (1) item pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body.
[Emphasis in original.] You stated that you believe the use of both exemptions was improper because the Board "changed the exemptions by crossing out essential legal verbiage in each of the exemptions that also changed their legal standard." Regarding subdivision A 1 of § 2.2-3711, you again referenced the language in the motion that refers to "evaluation of performance of departments or schools where such evaluations will involve specific individuals" but omits the statutory language "of public institutions of higher education" as described above. Regarding subdivision A 7 of § 2.2-3711, the exemption for the discussion of actual or probable litigation, you stated that you believe it was used improperly because the Board did not have its lawyer present.
Question #13: Did the Board "meet the FOIA standards for 2.2-3711 exemptions (1) and (7) for the January 11, 2018 [Board] meeting"?
Answer #13: Regarding the use of the personnel exemption, as previously stated in response to Questions #5 and #11, the Board may use the personnel meetings exemption, but as it is not a public institution of higher education, it may not use the portion of the exemption that is limited to such institutions. Regarding the exemption for the discussion of actual or probable litigation, this office has previously opined that "where the discussion is related to actual or probable litigation, legal counsel need not be present. This exemption may be properly invoked where there are briefings by staff members or consultants and such briefings pertain to actual or probable litigation."17 Therefore, it was not improper for the Board to use this exemption even though legal counsel was not present.
Question #14
Background: This question refers to the June 8, 2017, Board meeting. The agenda for that meeting included "Resolution for Superintendent's Contract" as an agenda item. The minutes included a relevant "motion to go into closed session pursuant to the Code of Virginia section 2.2-3711, (1) for discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees"; an item with the heading "Resolution for Superintendent's Contract" that states that a motion was made and seconded "to approve the resolution for superintendent's contract as presented" and that the vote was 3-1 in favor; and an agenda item sheet that states the subject as "Resolution for Superintendent's Contract," and includes a 3-1 vote in favor of a motion "to approve the Original motion 'To approve as presented.'" [Emphasis in originals.]
Question #14: Did the Board "make their decision about the contract for the Superintendent in compliance with the standards found in the FOIA statutes"?
Answer #14: While the preferred citation would be to "subdivision A 1 of § 2.2-3711" as described above, the motion in the minutes appears to identify the subject of the closed meeting (the superintendent), the purpose ("discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees"), and the exemption (the personnel meetings exemption, which is clear in context despite the improper citation format). Thus, the motion to convene the closed meeting appears to satisfy the requirements of FOIA in this instance. However, while it is clear that the Board voted 3-1 to approve the resolution on the Superintendent's Contract, it is not clear from the minutes what that resolution actually was, i.e., what was the substance of the Board's action regarding the Superintendent's Contract. It may have been clear at the meeting if the resolution was read in public or if copies of the resolution were distributed, and while it is clear from later minutes that the superintendent continued in that position, the Board's action is not clear from these minutes alone.
Question #15
Background: This question also refers to the June 8, 2017, Board meeting. The motion to convene the closed meeting referenced two purposes, one as described in Question #14, the other as follows: "(2) Discuss[ion] or consideration of admission on (1) student matter that would involve the disclosure of information contained in a scholastic record concerning any student." [Emphasis in original.]
Question #15: Can the Board use the exemption at subdivision A 2 of § 2.2-3711 to discuss the Superintendent's Contract, or does that exemption apply to student matters only?
Answer #15: Read in full, subdivision A 2 of § 2.2-3711 allows closed meetings to be convened for the following purpose:
Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any public institution of higher education in the Commonwealth or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board.
By its own terms, that exemption applies to discussions involving scholastic records of any student. There might be some specific factual situations where the superintendent was directly involved in the student matter and mentioned in the scholastic records and therefore might be discussed as part of the student matter, such as if a student was being disciplined for an incident involving the superintendent, but this exemption would not apply to discussions where the central subject was the superintendent rather than the student. In this specific instance, note that the motion also cited the personnel meetings exemption, which does state proper purposes for discussing the superintendent as an employee of the Board.
Question #16
Background: This question refers to Board meetings held on May 16, 2017, May 26, 2017, and January 15, 2020. Both of the May 2017 meetings included identically worded motions "to go into closed session, pursuant to the Code of Virginia section 2.2-3711, (1) for discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; (2) Discussion of Superintendent's Contract." As noted under Question #5, supra, the January 15, 2020, Board meeting minutes demonstrate that there was a motion to convene a closed meeting that was approved by unanimous vote, but the minutes do not identify the subject, state the purpose, or cite the appropriate exemption for the closed meeting. As shown on the video recording, the motion that was actually made at the meeting on January 15, 2020, cited § 2.2-3711 and paraphrased the personnel meetings exemption but still did not identify a subject.
Question #16: Since the Board met in closed session to discuss the Superintendent's contract on the two prior occasions described, did the Board "also have to list this discussion of the Superintendent's contract in the January 15, 2020, meeting, since they renegotiated his contract on that date as well [as] when they extended his contract for two additional years, but listed under action of close[d] session - Superintendent Resolution which does not mention contract nor was it mentioned in a motion in open session to go into closed session that the Superintendent Resolution would be discussed on January 15, 2020?"
Answer #16: First, please observe again that while FOIA sets out requirements for the contents of a motion to convene a closed meeting as previously described (subject, purpose, citation), and requires the motion to be set forth in detail in the minutes, FOIA does not require that closed meeting topics or motions be described in the agenda. Therefore, when you wrote "list this discussion of the Superintendent's contract" we must necessarily restrict our consideration to the relevant motions, votes, and minutes, not agenda items. Next, as previously described, subsection A of § 2.2-3712 requires that any motion to convene a closed meeting must identify the subject. We have previously opined that "[w]hile a public body need not identify the subject with such specificity as to defeat the reason for going into a closed session, it should at least provide the public with general information as to the object of discussion."18 The Supreme Court of Virginia recently held as follows:
Moreover, if a motion for a closed meeting could satisfy Code § 2.2-3712(A) by merely citing the exemption and paraphrasing the statutory language of the exemption, despite the statutory language which prohibits a party from doing so, it would render the subject matter requirement in Code § 2.2-3712(A) meaningless...By including a subject matter requirement for a motion for a closed meeting—in addition to the purpose and applicable exemption requirements—the plain language of the statutes indicates that the General Assembly intended that such motions contain more than a citation to an exemption and a reference to the language of that exemption. A public body must identify the subject matter more specifically in a motion for a closed meeting.19
In both May 2017 meeting minutes, the motion to convene included "Discussion of Superintendent's Contract." That phrasing identifies the superintendent as the subject of a closed meeting and is more than a "general reference to . . . the subject matter of the closed meeting," as required by subsection A of § 2.2-3712. Please note that there are multiple ways that a proper subject could be identified, including "Discussion of the Superintendent's Contract" as one example, but it is not the only one. If the Board had identified the subject as "Superintendent Resolution," I believe that still would have been sufficient, as the personnel meetings exemption concerns specific individuals, and in this instance, the individual was the superintendent. However, the January 15, 2020, motion to convene the closed meeting, as described in the minutes and demonstrated on the recording of the meeting, did not identify a subject at all and therefore was insufficient.
Question #17
Background: This question refers to the May 16, 2017, and May 26, 2017, meetings of the Board.
Question #17: Did the Board comply with FOIA when they used the exemption at subdivision A 2 of § 2.2-3711 to discuss the Superintendent's Contract?
Answer #17: As described in the response to Question #15, subdivision A 2 of § 2.2-3711 may be used to discuss matters concerning students and scholastic records, but that would not be appropriate for a separate discussion concerning the superintendent outside of that context. However, I would note that the phrasing of the motion to convene the closed meetings in question does not contain a proper citation to an exemption, but instead references the entire Code section (§ 2.2-3711), which at that time contained 48 different closed meeting exemptions, each of which was separately numbered as a subdivision within subsection A of § 2.2-3711. It happens that § 2.2-3711 has four other subsections (B through E) but no other subdivisions within those subsections. Therefore, we can presume that references to numerical subdivisions in the context of closed meeting exemptions usually refer to the subdivision within subsection A. However, the correct practice is to cite both the letter of the subsection and the number of the subdivision so that there is no confusion, as stated previously. In this instance, the motion also had two numbered parts, the first of which paraphrased the personnel meetings exemption (subdivision A 1 of § 2.2-3711), the second of which identified the subject of the closed meeting as "Discussion of Superintendent's Contract." It is possible that the Board here was trying to satisfy the three required elements of subsection A of § 2.2-3712, but the way the motion was structured makes it look like they were attempting to cite both subdivision A 1 of § 2.2-3711, the personnel meetings exemption, which would be appropriate for a discussion regarding the superintendent, and subdivision A 2 of § 2.2-3711, which would not be appropriate for a discussion regarding the superintendent. Keeping in mind that the Code currently lists closed meetings exemptions as subdivisions by number within subsection A of § 2.2-3711, public bodies would be well-advised to avoid using other enumerations within closed meeting motions that could be so easily misinterpreted.
Question #18
Background: You included minutes of the March 9, 2017, Board meeting. You stated that you believe they reflect that the Board complied with the closed meeting requirements at this meeting, demonstrating that the Board and the superintendent "know how to comply to the FOIA statutes if they chose to do so." The minutes set out a
motion to go into closed session at 5:08 p.m., pursuant to the Code of Virginia sections 2.2-3711, (1) for discussion or consideration of prospective candidates for employment; assignment, promotion, salaries, disciplining or resignation of employees; Upon a roll call vote being taken, the vote was: Aye: 4 Nay: 0. The motion CARRIED. 4-0
[Emphasis in original.] The minutes also contain an entry stating that the meeting was certified and there is a certification page attached. The minutes later contain the following entry:
ACTION ON CLOSED SESSION ITEMS:
Personnel Report
Member Kirstin Cook moved Member Victoria Hulick seconded the motion to approve the Personnel Report as presented. Upon a roll call vote being taken, the vote was: Aye: 5 Nay: 0. The motion CARRIED. 5-0
[Emphasis in original.]
Question #18: Did the Board "adhere to the FOIA statutes for the March 9, 2017 [Board] meeting?"
Answer #18: The motion and vote as described appear to be insufficient, but the certification attached to the meeting minutes appears to comply with FOIA.20 The motion to convene the closed meeting as written in the minutes has a technical error in the citation, in that what was actually recorded, "2.2-3711, (1)" does not identify the subsection, A. However, because the following language in the motion21 paraphrases the statutory language of subdivision A 1 of § 2.2-3711,22 it is clear in context that the Board meant to refer to the personnel meetings exemption at subdivision A 1 of § 2.2-3711. Unfortunately, there is also a substantive deficiency in the motion as written in that while it contains a (technically improper) citation and a purpose (paraphrasing the statute), it does not identify the subject of the closed meeting, as it contains no further information besides this general reference to the statutory exemption. Therefore, this motion fails to satisfy the requirements of subsection A of § 2.2-3712.
The vote "to approve the Personnel Report as presented" following the closed meeting as described in the minutes appears to fail to meet the requirements of subsection B of § 2.2-3711 to "have its substance reasonably identified in the open meeting," as it is impossible to tell from this cursory entry what actions were included in the "Personnel Report as presented." However, if the Personnel Report was actually read aloud or if copies were distributed at the meeting, then it is possible that the vote actually was proper. In that case, it may be that the vote was proper but the minutes are deficient in summarizing what happened. Considering all the possibilities, the Personnel Report or a summary thereof could have been attached to the minutes, which would make the minutes sufficient in this regard, but it does not appear to be the case based on the minutes you provided. Unfortunately, checking the Board's website for this meeting and other meetings before the Board adopted BoardDocs only returned errors.23 Our advisory opinions are based on the facts presented by the person requesting the opinion; this office has no investigatory authority and is not a trier of fact. Therefore, based on the facts as you presented them, it appears that the vote and the minutes in this instance are deficient.
Question #19
Background: This question refers to the agenda and minutes of the July 14, 2016, meeting of the Board. The minutes document the following motion:
to go into closed session at 5:08 p.m., pursuant to the Code of Virginia sections 2.2-3711, (1) for discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; (2) Discuss[ion] or consideration of admission on (6) student matters that would involve the disclosure of information contained in a scholastic record concerning any student; (7) to receive briefing by staff members regarding (2) specific legal matter requiring the provision of legal advice pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body.
[Emphasis in original.] Later in the minutes, there is a heading for "ACTION ON CLOSED SESSION ITEMS" that includes subheadings for "Personnel Report and Addendum" and "Religious Exemption." The votes are included under each subheading, with motions "to approve the Personnel Report and Addendum as presented" and "to approve the Student matters JULO1-06 as presented," respectively. There is no further information provided regarding the contents of the "Personnel Report and Addendum" or "Student matters JULO1-06" in the minutes you provided.
Question #19: You asked whether you are correct that the Board correctly used subdivisions A 1 and A 2 at its July 14, 2016, meeting.
Answer #19: As previously stated, subsection A of § 2.2-3712 requires that a motion to convene a closed meeting contain three elements: subject, purpose, and citation. As stated in response to Questions #17 and #18, the motion here also lacks a proper citation to the exemption as it appears to cite the Code section (§ 2.2-3711) and subdivisions (apparently 1, 2, and 7, although the multiple numbers within parentheses and mixed use of bold and regular typeface in the motion are somewhat confusing) without citing the subsection, A. Proper citation would have been to subdivisions A 1, A 2, and A 7 of § 2.2-3711. Additionally, this motion also lacks anything more than "[a] general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting," which would "not be sufficient to satisfy the requirements for holding a closed meeting" under the Code, as it merely paraphrases the exemptions without providing any further identification of the subject matter. The votes and minutes appear to be similarly insufficient for the same reasons stated in the answer above, as a reader cannot tell from these minutes what action the Board actually took with each vote. Note again that if the Personnel Report or a summary of it was attached, that would be satisfactory for the first vote. Similarly, if the Board had merely stated "to approve a religious exemption for a student" (or to reject it, as it is unclear what they did by approving "Student matters JULO1-06"), that would have been enough to reasonably identify the substance of that vote in compliance with subsection B of § 2.2-3711.
Question #20
Background: This question refers to the same July 14, 2016, meeting of the Board.
Question #20: You asked whether the Board violated FOIA by citing subdivision A 7 of § 2.2-3711 for a closed meeting when "there was no legal counsel in the closed session or cited in the minutes or in attendance according to the minutes and how can briefing by a staff member provide for the provision of legal advice pertaining to actual or probable litigation to the [Board] in closed session when the staff member is not legal counsel?"
Answer #20: As stated in response to Question #13, it was not improper for the Board to use this exemption even though legal counsel was not present. There are numerous reasons other staff members might brief a public body regarding actual or probable litigation. For example, if another staff member was a witness or party to an incident that led to litigation and needed to provide the Board with background information, that would be allowed in closed session regardless of whether legal counsel was present.
Question #21
Background: This question refers to the July 9, 2015, Board meeting. You stated that you believe the minutes reflect that the Board properly used the exemptions at subdivisions A 1, A 2, A 7, and A 19 to go into closed session, particularly because the Board's attorney was present at the meeting. The motion to convene the closed meeting as written in the minutes was moved and seconded:
to go into closed session at 5:08 p.m., pursuant to the Code of Virginia sections 2.2-3711, (1) for discussion or consideration of prospective candidates for employment; assignment, appointment, promotion, salaries, disciplining or resignation of employees; (2) Discuss[ion] or consideration of admission on (19) student matters that would involve the disclosure of information contained in a scholastic record concerning any student; (7) to consult with legal counsel regarding (1) specific legal matter requiring the provision of legal advice pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body. Upon a roll call vote being taken, the vote was: Aye: 4 Nay: 0. The motion CARRIED. 4-0
[Emphasis in original.] The minutes also include a heading for "ACTION ON CLOSED SESSION ITEMS" that describes a 5-0 vote on a motion "to approve the personnel report and addendum as presented." No such personnel report or addendum was included with the minutes you provided.
Question #21: Did the Board "adhere to the FOIA statutes for the July 9, 2015, [Board] meeting?"
Answer #21: For the same reasons stated above, it appears that the motion, vote, and/or minutes were insufficient in that the motion had improper Code citations, lacked the necessary identification of the subject matter of the closed meeting, and the votes and/or minutes were not clear as to the actions taken by the Board.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. See, e.g., Freedom of Information Advisory Opinions 05 (2018), 02 (2016), and 24 (2004) (discussing the requirements for a closed meeting motion).
2. Section 30-179 sets forth the powers and duties of the FOIA Council, including the power under subdivision 1 to "[f]urnish, upon request, advisory opinions or guidelines, and other appropriate information regarding the Freedom of Information Act (§ 2.2-3700 et seq.) to any person or public body, in an expeditious manner."
3. Note that there was no audible vote on the recording, and the screen that appears to have been used at the meeting was not fully legible on the recording, but based on other meeting recordings and information on the Board's website (https://www.iwcs.k12.va.us/apps/pages/schoolboard) it appears that the Board votes using BoardDocs as a regular practice, so it is presumed the Board did so at this meeting, as well, and that the vote was visible to those present, as it appears to have been at other meetings since the Board began using BoardDocs software.
4. See Freedom of Information Advisory Opinion 06 (2015).
5. Freedom of Information Advisory Opinion 02 (2017).
6. Freedom of Information Advisory Opinion 01 (2005).
7. Freedom of Information Advisory Opinion 09 (2019).
8. Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted).
9. Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
10. See Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004); Freedom of Information Advisory Opinion 27 (2004).
11. FOIA has provisions concerning providing copies of agendas and agenda materials for public inspection but does not address agenda contents. See subsection F of § 2.2-3712 and subdivisions D 3 and 5 of § 2.2-3708.2.
12. Op. Atty. Gen. Va. No. 14-049 (issued July 22, 2014).
13. Op. Atty. Gen. Va. No. 08-112 (issued January 6, 2009).
14. 258 Va. 598; 521 S.E.2d 523 (1999).
15. See id., 258 Va. at 603, 521 S.E.2d at 525.
16. Keep in mind that subsection I of § 2.2-3712 provides that "[m]inutes may be taken during closed meetings of a public body, but shall not be required. Such minutes shall not be subject to mandatory public disclosure."
17. Freedom of Information Advisory Opinion 07 (2000).
18. Freedom of Information Advisory Opinion 05 (2018).
19. Cole v. Smyth County Board of Supervisors, No. 171205 (Va. May 28, 2020), available at http://courts.state.va.us/opinions/opnscvwp/1171205.pdf.
20. Because the certification appears to comply with the requirements of subsection D of § 2.2-3712, there is no need to discuss it further for purposes of this opinion.
21. "discussion or consideration of prospective candidates for employment; assignment, promotion, salaries, disciplining or resignation of employees"
22. "Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body"
23. The Board's main website lists the following web address for Board meetings before September 2018: http://esb.iwcs.k12.va.us/. Each time I attempted to look at older meeting materials there, the page failed to load and the connection timed out (last checked May 22, 2020).
