FOI Advisory Council Opinion AO-24-04

December 2 , 2004

W.M. "Wally" Bunker
Culpeper, Virginia 22701

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 correspondence of October 21, 2004.

Dear Mr. Bunker:

You have asked for an opinion regarding whether a closed meeting of your local Town Council ("the Council"), which apparently resulted in a decision to terminate the Town Treasurer ("the Treasurer"), violated the open meeting provisions of the Virginia Freedom of Information Act ("FOIA").

You indicate that the Council entered into a closed meeting at its regularly scheduled meeting on May 11, 2004. The minutes of this meeting indicate that the Council convened a closed meeting in order to discuss "issues relating to a specifically named individual" pursuant to § 2.2-3711(a)(1) of the Code of Virginia, among other reasons cited in the minutes. The minutes further reflect that this closed meeting was certified by a vote after the Council members reconvened as an open meeting that same night.

You indicate that on the following Monday, May 17, 2004 the Treasurer was terminated. You also indicate that the Town Manager ("the Manager") sent an electronic mail message that same day notifying "Staff and Council" that the Treasurer had been terminated. On May 18, 2004, the Council held a regular meeting of the Committee of the Whole.1 The minutes of this May 18 meeting, in relevant portion, read as follows: [The Town Manager] stated Council at its regular meeting closed session requested the Mayor, Town Manager and Town Attorney to meet with the Town Treasurer as soon as possible to notify him of his termination. He noted the Treasurer was informed on May 17th of his immediate termination. He said the Town Attorney had advised action be taken by Council in open session to ratify its previous directive to effect the termination of the Treasurer. A motion for immediate termination of the Treasurer was then made, seconded, and approved by vote of the Council.

In summary, it appears based upon your description of events and the minutes you provided that (1) the Council held a closed meeting on May 11, at which the Council decided to terminate the Treasurer, and directed the Manager, Mayor, and Town Attorney to terminate the Treasurer; (2) the Treasurer was terminated on Monday, May 17; and (3) the Council publicly voted to terminate the Treasurer at an open meeting on Tuesday, May 18. Based upon these circumstances you have asked for an opinion regarding the closed meeting held on May 11, and the subsequent actions taken in regard to the termination of the Treasurer.

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 §§ 2.2-3707.1 and 2.2-3711. Section 2.2-3707.1 refers to meetings of the General Assembly of Virginia, and so does not apply to this situation. Section 2.2-3711 authorizes public bodies to hold closed meetings for certain limited purposes. In the minutes of its May 11 meeting the Council cites subdivision (A) (1) of § 2.2-3711 as the applicable exemption in regard to its discussion of "issues relating to a specifically named individual." That subdivision of FOIA authorizes a closed meeting to be held for the purpose of [d]iscussion, 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. Thus the Council could properly convene a closed meeting for the purpose of discussing the termination of the Treasurer, an appointee of the Council.

In addition to limiting the purposes for which closed meetings are authorized, FOIA establishes certain procedural requirements that must be met for a closed meeting to be held. In order to convene a closed meeting, subsection A of § 2.2-3712 requires that a public body must approve by recorded vote a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711. Subsection A of § 2.2-3712 further states 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. This office has previously opined that a motion that lacks any of these three elements would be insufficient under the law.2

According to the minutes of the May 11 meeting, the Council convened the closed meeting pursuant to § 2.2-3711(A)(1) to discuss "issues relating to a specifically named individual," among various other issues. While identifying the applicable statutory citation, the motion does not appear to meet the other requirements of subsection A of § 2.2-3712 to (i) identify the subject matter and (ii) state the purpose of the closed meeting. A discussion of "issues relating to a specifically named individual" could concern any topic and any person. It is too vague to identify either the subject matter under discussion or the purpose of the discussion. A comparison to the other topics listed on the agenda for the closed meeting exemplifies the difference between sufficient and insufficient identification, e.g. "an update on the Washington vs. Town of Culpeper case," "appointments to the Architectural Review Board and Culpeper Parking Authority." Each of these reasons is reasonably clear as to the subject of the discussion and the purpose of the discussion, while the details of the discussion remain confidential. As previously opined by this office, [t]he subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to why the closed session will be held. For example, a public body might state that the subject of a closed session would be to discuss disciplinary action against an employee of the public body. This statement goes a step beyond just stating that the purpose of the meeting is to consider a personnel matter, but does not go so far as to disclose the identity of the individual being discussed and defeat the reason for the closed session.3 In these circumstances, a proper motion should indicate that the Council was entering closed meeting to discuss possible disciplinary action or termination of a Council appointee as authorized by subdivision (A) (1) of § 2.2-3711. Such a motion sufficiently identifies the subject matter and purpose of the closed meeting without compromising confidentiality.

In regard to actions taken at closed meetings, subsection B of § 2.2-3711 provides 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. FOIA thus allows a public body to discuss various matters and reach agreement as to a possible course of action during closed meetings, but such agreement is ineffective until it has been approved by vote at an open meeting. Until approved by such a vote, no agreement reached during a closed meeting would be binding, and individual members of the public body would be free to change their decisions.4 In this instance, the Council voted to terminate the Town Treasurer on May 18, 2004 at the open meeting of the Committee of the Whole. Therefore, the agreement reached at the closed meeting on May 11, 2004 to terminate the Town Treasurer was without effect until the Council voted on May 18, 2004.

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

Sincerely,

Maria J.K. Everett
Executive Director

1Apparently the "Committee of the Whole" consisted of the entirety of the Town Council, and thus a meeting of the Committee of the Whole was effectively a meeting of the Town Council.
2Virginia Freedom of Information Advisory Opinion 8 (2002). See also Virginia Freedom of Information Advisory Opinions 45 (2001), 14 (2001), and 38 (2001).
3Freedom of Information Advisory Opinion 8 (2002).
4Freedom of Information Advisory Opinion 1 (2003). See also Freedom of Information Advisory Opinion 15 (2002).