FOI Advisory Council Opinion AO-15-02

November 12, 2002

Mr. Timothy R. Spencer
City Attorney, Danville
Danville, 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-mail of September 24, 2002.

Dear Mr. Spencer:

You have asked whether the Virginia Freedom of Information Act (FOIA) would allow the Danville City Council ("the Council") to use a "straw poll" in closed meeting to narrow a list of candidates for an appointment, and present only one candidate for a vote at a later open meeting.

You indicate that § 2-4 of the Danville City Charter gives the Council the authority to fill vacancies on the Council for the remainder of the unexpired term. Due to the death of a Council member, a seat was left vacant on the Council. The Council had a list of 12 candidates to consider for the appointment, and convened in closed session to discuss the individuals. After deliberation, but while still in closed session, the members took a "straw poll" in an effort to narrow the list of candidates. As a result of this poll, the Council decided to present only one candidate for a vote of the membership at the next regularly scheduled, open meeting of the Council. At a press conference the day after the closed meeting, you indicate that the Council announced the name of the candidate to be voted on at the next meeting, as well as the names of the 11 other candidates considered during the closed meeting.

Pursuant to subsection A of § 2.2-3707 of the Code of Virginia, [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. Subdivision A1 of § 2.2-3711 provides that a public body may hold a closed meeting to discuss the assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body. In the instant case, the Council convened in closed session under this exemption to discuss specific candidates for appointment to the vacant Council seat.

FOIA also addresses the issue of voting by a public body. Subsection A of § 2.2-3710 states that [u]nless 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 public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter. In addition, subdivision B of § 2.2-3711 states that [n]o 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.

Reading these two provisions together, it is clear that an official vote may only take place at a meeting that is open to the public, has been properly noticed, and at which minutes are taken, all pursuant to the meeting requirements at § 2.2-3707. However, subdivision B of § 2.2-3711 indicates that if a public body has properly convened in closed session, it may, while still in closed session, reach a tentative agreement about the topic of business being discussed. However, the substance of that agreement will not become effective until it is identified at an open meeting, and voted on by the membership.

Here, it appears that the Council properly went into closed session to discuss specific candidates for appointment to the Council. During the course of that discussion, the Council reached an agreement to recommend a particular candidate for a vote at the next open meeting. Whether they narrowed the list of candidates via a "straw poll" or just by consensus reached during that discussion is inconsequential. However, no action taken in the closed meeting shall become effective until a vote is taken in open session. Furthermore, no agreement reached during the closed session would be binding on the Council members. Just because the members agreed to present a particular candidate for a vote, individual members would be free to vote against the appointment of that candidate during the open meeting.

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

Sincerely,

Maria J.K. Everett
Executive Director