Attorney General's Opinion 1981-82 #434

VIRGINIA FREEDOM OF INFORMATION ACT. MEETINGS. TELEPHONE POLL NOT VIOLATIVE OF ACT.

June 14, 1982

The Honorable Wiley F. Mitchell, Jr.
Member, Senate of Virginia

81-82 434

This is in response to your recent letter requesting an Opinion whether the action herein described is consistent with the requirements of the Virginia Freedom of Information Act (§§.1-340 through 2.1-346.1 of the Code of Virginia (1950), as amended) (hereinafter the "Act")

According to the facts set forth in your letter, a public meeting was held on February 20, 1982, by the Alexandria City Council at which the council adopted a motion stating that "in the present form, we do not support SB 402 and HB 324, but would like to see them amended to change the implementation date to January 1 1984, and further modifications considered to more narrowly target the benefits to the moderate and low income rentals." A city staff member communicated this action to the city's General Assembly delegation Subsequent to the February 20 meeting, S.B. 402 was withdrawn by its chief patron and an amendment to H.B. 324 postponing the bill's effective date to January 1, 1984, was proposed, Prior to final action by the General Assembly on H.B. 324 and the amendment thereto, an Alexandria City Manager staff member separately polled each of the seven members of Alexandria's city council by telephone for the purpose of determining the position of each member of council concerning H.B. 324. Each member was asked, in effect whether he or she would support H.B. 324 should the amendment be approved, As a result of the poll, it was determined that a majority of the members of city council supported the bill with the amendment. The city communicated the poll results to the city's legislative delegation in Richmon. No formal vote at a public meeting concerning the city council's position on the bill has been taken subsequent to the telephone poll.

Section 2.1-343 of the Act requires that, except as otherwise provided, all meetings of public bodies shall be public meetings at which the public may be present. Section 2.1-341 (a) defines "meeting" or "meetings" as:

"the meetings, when sitting as a body or entity, or as an informal assemblage of (i) as many as three members, or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of. municipal councils

Whether the situation you describe is consistent with the requirements of the Act depends upon whether polling all members of city council separately by telephone for the purpose of ascertaining each member's position on a Bill previously considered at a public meeting constitutes a meeting" or "informal assemblage" within §2.1-341 (a).

Section 2.1341(a)(ii) requires that at least three members, or a quorum if less than three, have been assembled in order to constitute a meeting or informal assemblage within the contemplation of the Act. Meeting or assemblage is generally defined to mean a gathering of persons for discussion wherein each person is able to participate in the discussion and to hear the others.1 Because separately telephoning each council member does not permit of such group presence and participation in discussion, I am of the opinion that the telephone poll in question was not a meeting or informal assemblage within the contemplation of the Act.

In light of the foregoing, I am of the opinion that the telephone poll did not violate the provisions of the Act, I note that the results of the poll would not constitute a valid action having any binding effect upon the council,2 The results merely represented the collected opinions of the individual members of council,

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Footnotes:

1 See Black's Law Dictionary (5th ed. 1979); 27 Words and Phrases Meet; Meeting (1961); 13.1-41. 2cf., §2.1-344(c) and 3.08 of the Alexandria City Charter, Ch. 166 [1971] Acts of Assembly; Ch. 808 [1972] Acts of Assembly.