Attorney General's Opinion 1976-77 #308

January 13, 1977

THE HONORABLE D. FRENCH SLAUGHTER, JR.
Member, House of Delegates

76-77 308

This is in reply to your letter in which you ask: "Under the Virginia Freedom of Information Act, can a committee of a town council composed of less than the full council (i.e., 3 out of 9) go into a properly called "executive meeting" and (1) exclude from the meeting other council members; or (2) allow other members of council to attend but exclude the public and press."

Section 2.1-341(a), Code of Virginia (1950), as amended, defines the term "meeting" and sets forth the types of public bodies which are to be subject to the open meeting requirements of the Freedom of Information Act as follows:

"'Meeting or meetings' means the meetings, when sitting as a body or entity, or as an informal assemblage of the constituent membership, with or without minutes being taken, whether or not votes are cast, of any authority, board, bureau, commission, district or agency of the State or of any political subdivision of the State, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; and other organizations, corporations or agencies in the State, supported wholly or principally by public funds. Nothing in this chapter shall be construed as to define a meeting as a chance meeting of two or more members of a public body, or as an informal assemblage of the constituent membership at which matters relating to the exercise of official functions are not discussed." (Emphasis added.)

The foregoing provision, in my view, indicates that an assemblage of three members of a nine member town council for purposes of discussing matters relating to the exercise of official council functions constitutes a "meeting" of a public body within the meaning of §2.1-341(a). Accordingly, meetings of the committee of the town council are subject to the same restrictions and requirements under the Act as meetings of the full council.

You have not asked whether the subject matter of discussion in the executive meeting was permitted under the Act; rather, you ask who may be excluded from a properly called executive meeting. Section 2.1-341(c) provides that public bodies may exclude the public and press from properly called executive meetings. Accordingly, a committee of town council may, likewise, exclude the public and press from a properly called executive meeting. No provision of the Freedom of Information Act, however, prohibits a public body meeting in executive session from permitting the presence of any person or persons whom they may deem necessary or helpful in conducting their executive discussions. Accordingly, I am of the opinion that the committee you describe may exclude the public and press from its executive meeting and allow council members not on the committee to be present during such meeting. Your second inquiry, therefore, must be answered in the affirmative.

Your first inquiry cannot be answered by reference to any provision of the Freedom of Information Act. Whether a committee of the town council, meeting in a properly called executive session, may exclude the other members of council is a matter which would be governed by the procedural rules established by the council. Any member excluded would of course later hear and participate in deciding upon any substantive issue that had been referred to the committee for recommendation.