FOI Advisory Council Opinion AO-01-05

February 7, 2005

Judith P. Carter
Orange, 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 correspondence of January 5, 2005.

Dear Ms. Carter:

You have asked whether a motion and vote taken by the Orange County School Board (the Board) at its meeting of November 2, 2004, violated the Virginia Freedom of Information Act (FOIA). According to the meeting minutes, one of the topics of the Board's closed meeting on that date was "[e]valuation of the Superintendent as authorized by Section 2.2-3711(A)(1) of the Code of Virginia." The minutes further indicate that after reconvening in an open meeting, and certifying the closed meeting, the Board voted "to approve the recommendation of the School Board in Personnel Case #45-50 as recommended in Closed Session." You indicate that this vote approved the Board's decision not to renew the contract of the Superintendent.

The policy of FOIA, expressed by the General Assembly in subsection B of § 2.2-3700 of the Code of Virginia, is to ensure the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted. Subsection A of § 2.2-3707 states that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711. Among other purposes, subdivision A1 of § 2.2-3711 allows a public body to convene a closed meeting for assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body. Convening the closed session for the purpose of evaluating the Superintendent is therefore permitted under FOIA.

In addition to limiting the purposes for which a closed meeting may be held, FOIA establishes certain procedural requirements for convening a closed meeting. To convene a closed meeting, subsection A of § 2.2-3712 requires a public body to first approve by 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. In this case the Board's motion (i) identified the subject matter as "the Superintendent," (ii) stated the purpose of the meeting as "evaluation," and (iii) cited the exemption of § 2.2-3711(A)(1). The minutes reflect that this motion was approved by unanimous vote. The Board therefore properly convened its closed meeting. The minutes further reflect that the Board properly certified the closed meeting after reconvening the open meeting, as required by subsection D of § 2.2-3712. Based upon the facts presented, it appears that the Board complied with FOIA in moving to convene a closed meeting to evaluate the Superintendent and reconvening in an open meeting afterward.

FOIA also has provisions addressing how a public body transacts business by vote. 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 any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter. In regard to a closed meeting, subsection 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.

The minutes reflect that after reconvening publicly and certifying the closed meeting, the Board proceeded to vote "to approve the recommendation of the School Board in Personnel Case #45-50 as recommended in Closed Session." Taking such a vote after reconvening the open meeting was the proper course of action under FOIA. However, FOIA requires that the motion for that vote "shall have its substance reasonably identified in the open meeting." FOIA does not define the word "substance." According to statutory construction rules, in the absence of a statutory definition, a term is considered to have its ordinary meaning, given the context in which it is used.1 According to Webster's Third New International Dictionary (2002) "substance" is defined as a fundamental part, quality or aspect; the essential quality or import of a thing.

The motion, as reflected in the Board's minutes, does not reasonably identify the essential import of the action taken by the Board; that is, the nonrenewal of the Superintendent's employment contract. The Board's motion is vague at best. On its face, it is not clear that this motion referred to the Superintendent in any way. Referring to this undisclosed recommendation and the case number do not reasonably identify the substance of the Board's vote. The motion made by the Board to effectuate its decision not to renew the contract of the Superintendent failed to meet the requirements of FOIA to reasonably identify the substance of the action.

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

Sincerely,

Maria J.K. Everett
Executive Director

1Commonwealth 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.