Attorney General's Opinion 1972-73 #491

May 11, 1973

THE HONORABLE W. WARD TEEL
Member, House of Delegates

72-73 491

This is in response to your recent letter with respect to the following inquiries:

1. Whether pursuant to the Virginia Freedom of Information Act a Board of Supervisors may hold executive sessions with its County Administrator to discuss "policy matters as a master to servant relationship," a former opinion of the Attorney General dated August 22, 1968, having been cited as authority for doing so;

2. Whether the specific subject to be discussed must be announced;

3. Whether the agreements reached or decisions made must be announced.

I will answer your questions seriatim.

1. The opinion referred to was rendered to the Honorable Robert L. Gilliam, III, Commonwealth's Attorney for Westmoreland County, and found in Report of the Attorney General (1968-1969), pp. 259-260. Section 2.1-344(a)(6) of the Code of Virginia (1950), as amended, on which the opinion was based and which permitted executive sessions for the county executive in order to brief the Board of Supervisors, was amended in 1970 to read as follows:

"(a) Executive or closed meetings may be held only for the following purposes: * * *

"(6) Consultation with legal counsel and briefings by staff members, consultants or attorneys, pertaining to pending litigation, or legal matters within the jurisdiction of the public body, including legal documents."

While it is not entirely clear from your letter what "master to servant relationship" means, presumably it relates to briefings of the Board by the County Administrator with respect to county business. Unless these discussions relate to one of the purposes enumerated in §2.1-344(a), the convening of an executive session would not be permitted.

It was noted also in the previously cited opinion of 1968 that §2.1-344(a)(7) might provide a basis for executive sessions. If the provisions of that section are complied with, it may provide a basis for closed sessions with respect to the present case. I enclose for your convenience an opinion to the Honorable Lawrence D. Wilder, Member, Senate of Virginia, rendered on December 7, 1972, which discusses this provision.

It is important to note, however, as a result of legislation enacted by the 1973 General Assembly that effective June 1, 1973, §2.1-344(a)(7) is repealed and cannot be cited thereafter as a reason for convening executive sessions.

2. There is no requirement under the present law that a public body announce, prior to the convening of an executive session, the specific subject to be discussed. Again, however, effective June 1, 1973, pursuant to §2.1-344(b), which was amended by the 1973 General Assembly:

"No meeting shall become an executive or closed meeting unless there shall have been recorded an affirmative vote to that effect by the public body holding such meeting, which motion shall state specifically the purpose or purposes herein above set forth in this section which are to be the subject of such meeting."

3. Section 2.1-344(c) provides that any agreement reached or decision made in executive session should not become effective until the public body, following such session, reconvenes in open meeting and votes upon the action taken in closed session. Again for your convenience, enclosed is an opinion to the Honorable Donald G. Pendleton, Member, House of Delegates, dated September 25, 1972, which discusses the Act in a general and comprehensive way.