FOI Advisory Council Opinion AO-31-01

June 11, 2001

Mr. Jamie Clark
WHEO Radio
Stuart, 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 phone conversation of May 3, 2001.

Dear Mr. Clark:

You have asked whether a local Board of Supervisors is required by the Virginia Freedom of Information Act (FOIA) to conduct a public hearing in order to sell a piece of real property. You indicate that your local Board of Supervisors is contemplating selling a 10-acre piece of property to the local School Board, and you indicate some concern that the Board of Supervisors will attempt to conduct the transaction through closed meetings.

There is no requirement in FOIA for a public body to conduct a public hearing to sell real property owned by it. Subsection A of § 2.1-344 of the Code of Virginia requires that [a]ll meetings of public bodies shall be open, except as provided in § 2.1-344. Section 2.1-344 sets forth 27 exemptions to the general requirement of openness. Subdivision A. 3. of § 2.1-344 exempts a discussion of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. This provision would allow the Board of Supervisors to conduct some discussion of the sale of the property in a closed session if the requisite criterion is met. Even if the Board of Supervisors utilizes this exemption and closes some of its discussion, § 2.1-343.2 requires that any vote of a public body must be conducted in open session. Thus, a final decision may only be reached in a meeting open to the public.

Please note that the authority of the Freedom of Information Advisory Council is limited to the interpretation of FOIA. However, I would like to bring to your attention a provision of the Code outside the scope of FOIA relating to public hearings of local governing bodies. Subsection B of § 15.2-1800 requires a locality to hold a public hearing before it may dispose of any of its real property. This provision specifically states that such a public hearing is not required in order to lease the property to another public body. Thus, it would appear that in addition to the exemption and voting requirements set forth in FOIA, another provision of the Code requires a public hearing for the Board of Supervisors to sell a piece of real property.

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

Sincerely,

Maria J.K. Everett
Executive Director