FOI Advisory Council Opinion AO-12-04

June 16, 2004

Mr. Greg Pearson
Publisher, The Observer
Midlothian, 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 e-mails of March 12, 2004, and June 3, 2004.

Dear Mr. Pearson:

You have asked whether certain meetings between the representatives of the Chesterfield Board of Supervisors ("Board of Supervisors") and the Chesterfield School Board ("School Board") are subject to the Virginia Freedom of Information Act (FOIA).

You indicate that a school bond referendum is tentatively scheduled to be held in November 2004. However, because of disagreements between the Board of Supervisors and the School Board, the referendum is at risk of being delayed, which would also likely delay scheduled referenda for parks, libraries, police, fire and rescue services until next year. The chair and vice-chair of both the Board of Supervisors and the School Board held three meetings to discuss and consider the options for the school bond referendum in an attempt to resolve their disagreements. You were advised that the county administrator, the county attorney, and the superintendent of schools also attended some or all of the meetings. You indicate that no notice was provided about these meetings, nor was the public or the media invited to attend. You further indicate that you were told that the meetings were initiated casually by the chairman of the School Board, and that no formal motion was made by either the Board of Supervisors or the School Board to form a committee or to send representatives of one public body to meet with representatives of the other.

When you learned about the first meeting, you indicate that you contacted the County's public affairs director and the school system's community relations director and stated that you thought that FOIA required these meetings be open to the public and that notice must be given for any such future meetings. You indicate that you were told that neither the Board of Supervisors nor the School Board had a majority of its membership present and that the chair and vice-chair from each public body did not represent a standing committee of their respective membership; therefore, the meetings were not subject to the open-meeting requirements of FOIA. However, you believe that the chair and vice-chair of each board were acting as a committee of their respective boards. An official at the meetings advised you that while no decisions or conclusions were reached at the meetings, representatives of both entities were reporting back to their respective boards about the discussions so that the full public body could debate the issues. You ask if these meetings violated the open-meeting provisions of FOIA by failing to provide notice and opportunity for the public and the media to attend the meetings.

The policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia states that the provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Subsection A of § 2.2-3707 requires that [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. Subsection C of § 2.2-3707 states that [e]very public body shall give notice of the date, time, and location of its meetings.

At issue is whether the representatives from the Board of Supervisors and the School Board constituted a public body for purposes of FOIA, thus requiring the meetings to be open to the public and notice to be given. FOIA defines a meeting at § 2.2-3701 as the gathering of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership...of any public body. The definition of a public body at § 2.2-3701 specifically includes not only school boards and governing bodies of counties, but also any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. [Emphasis added.] The meeting requirements of FOIA would apply if three or more members of that committee, or a quorum if less than three, meet to discuss the business that the committee was tasked to address.

In this situation, the issue hinges on whether the chair and vice-chair of each public body were a committee of their respective boards for purposes of discussing the bond referendum. Again, FOIA defines a public body to include a committee created to perform delegated functions of the public body or to advise the public body. In this case, the leadership of each public body met at the suggestion of the chairman of the School Board; the public bodies did not appoint, designate, or otherwise vote to constitute the chair and vice-chair as a committee meeting with representatives of the other public body on their behalf. Furthermore, it does not appear that the chairman of either board had the authority to appoint a committee independently of a motion, resolution, or other action of his respective board.1 The Office of the Attorney General of Virginia had the opportunity to address a situation where two members of a town council and two members of a board of supervisors met to discuss joint service contracts.2 In that instance, the representatives were appointed or designated by their respective boards to attend the meeting and to report back. The Attorney General found that in that situation, each of the two-member delegations were a committee for purposes of FOIA, and thus their meetings must comply with the requirements of FOIA. The opinion hinged on the fact that the members were appointed for a specific purpose, and indicated that if the gathering was "merely an ad hoc, two-member group from each public body," that it would not be a committee under the definition of a public body, and thus would not be subject to FOIA. In the facts you present, the gathering appears to be ad hoc and not an official appointment or delegation, and thus is not subject to the open meeting requirements of FOIA.

Although the law requires the holding that these particular gatherings were not meetings under FOIA, your question and the resulting answer raise policy-related issues. Certainly FOIA is weighted in favor of public access and openness in government. However, through several of its provisions, it is also clear that FOIA considers the need of government to operate efficiently and effectively. One such provision is the definition of a meeting, which generally allows two members of a public body to consult and freely discuss topics of public business without it rising to the level of a meeting under FOIA, unless those two members constitute a committee or a quorum of the public body. In the facts you present, the gathering of two members from both the Board of Supervisors and School Board appears to have some elements of being committees of the boards, in that they are discussing an issue relevant to both public bodies and possibly even finding a solution to end the on-going disagreement over the bond referendum. However, the facts do not indicate that these two-member groups were created by either public body to advise or perform delegated functions, as is required by the plain language of the definition of a public body. Instead, it appears that the leadership of the School Board recognized that working on the issue with the leadership of the Board of Supervisors, outside the confines of a full meeting of each public body, might assist in opening the lines of communication over a contentious issue. While public policy arguments can be formulated to advocate that these discussions should be open to the public, ultimately the public will learn of the content of these discussions at the meetings of the full public bodies or through any public records generated at these gatherings. Even if the leadership of each public body reached what they thought to be a suitable agreement, any action must still be discussed and voted upon by the full public body at an open meeting, and would not become binding until such vote took place.

Furthermore, the plain language of the definitions of FOIA requires this conclusion. The definition of a meeting clearly establishes the threshold for determining if a meeting takes place as the gathering of three members of a public body, or a quorum if less than three. Furthermore, the definition of a public body only includes committees and subcommittees if created to perform delegated functions or advise the public body. Rules of statutory construction dictate that in the absence of a statutory definition, a term is considered to have its ordinary meaning given the context in which it is used.3 Because FOIA does not provide a specific definition for "created," one must look to the dictionary to determine its ordinary meaning and usage. Webster's Dictionary defines the term as "to cause to be" or "to bring into existence."4 In this case, neither the Board of Supervisors nor the School Board caused a committee to be or brought a committee into existence; therefore, the gathering of the chairs and vice-chairs does not fall under the plain language of the definition of a public body in FOIA. FOIA does not contain language specifying that intent plays a role for purposes of defining a meeting. A "meeting" is defined as a gathering of three members, or a quorum if less than three, of a public body; one must conclude that anything less than these threshold numbers does not invoke the open meeting requirements of FOIA, regardless of the purpose or intent of the gathering. Other sections of the Code, not related to FOIA, clearly express an intent that certain provisions are not to be used to circumvent other requirements of the law.5 For example, the law generally requires that an individual or entity be licensed to sell or serve alcoholic beverages. Certain exclusions from licensing are provided, such as allowing an individual to keep alcoholic beverages in his home for his personal use and to serve or give to guests as a gift. However, subsection 7 of § 4.1-200 states that such personal service may not be used as a shift or device to evade the licensing requirements. Absent such language indicating that the definitions of "meeting" and "public body" should not be used as a shift or device to avoid the open meeting requirements of FOIA, one must conclude that a gathering that does not fall under the plain language of these definitions is proper under FOIA.6

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

Sincerely,

Maria J.K. Everett
Executive Director

1See 2004 Procedures of the Chesterfield Board of Supervisors, § 21 ("The Board may create committees and shall appoint members to such committees) and § 20 ("Appointments to committees of the board...shall be made only by resolution adopted by a majority of the full board at a meeting."). See also Chesterfield County School Board Bylaws, § 114 ("There shall be no standing committees of the School Board; however, the School Board may establish special committees for specific purposes.") and § 115(B) ("The Chairman shall preside at all meetings of the Board, appoint committees when authorized by the Board, and perform other such duties...") [Emphasis added]. The facts to do not indicate that the chairman of the School Board was given the authority to appoint such a committee. If facts were presented in which a chairman of a public body had the authority to create and appoint committees absent any action of the public body, then the creation of an entity in such a manner to advise or perform functions of the public body would be considered a committee for purposes of the definition of a public body under FOIA, and its meetings would be subject to the open meeting requirements of FOIA.
2See 1990 Op. Atty. Gen. Va. 8.
3Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., § 46:01.
4Webster's Third New International Dictionary (1986).
5See subsection 7 of § 4.1-200, subdivision A 22 of § 4.1-325, and § 4.1-325.2 of the Code of Virginia.
6Notwithstanding the resolution of this particular situation, the facts you present raise a peripheral issue with regard to the application and interpretation of the definition of a public body. If facts were presented indicating that ad hoc meetings of two members of a public body were becoming a serial practice, then my conclusion that such gatherings were not required to be noticed and open to the public might change. If such ad hoc meetings became the common mode of operation for a public body, a public body may essentially acquiesce to establishing a de facto committee by allowing such discussions and gatherings to continue as a means to conduct business in lieu of formally appointing a committee that would be clearly subject to FOIA. One may be able to determine that the public body has recognized, even absent a formal vote, a de facto committee by allowing the same to members to regularly perform delegated functions or advise the public body on a specific issue. However, such a conclusion would be bolstered by a statement of statutory intent by the General Assembly that the definitions in FOIA should not be used as a shift or device to avoid the open meeting requirements of FOIA.