Attorney General's Opinion 1973-74 #450

April 10, 1974

THE HONORABLE PHILIP H. MILLER
County Attorney for Augusta County

73-74 450

This will acknowledge receipt of your recent letter in which you make the following inquiry: "As attorney for Augusta County it would be appreciated if you would advise me if the Board of Supervisors may hold closed meetings for the purpose of preparing the budget for the ensuing fiscal year. It appears that under FOI, portions of these meetings could be closed namely those relating to salaries, acquisition and use of real property for public purposes, and investment of public funds when competition or bargaining are involved. However, it would be quite cumbersome to call a public meeting only to go into executive session for the greater portion of such meeting. . . ."

Section 2.1-343, Code of Virginia (1950), as amended, provides: "Except as otherwise specifically provided by law and except as provided in §§2.1-344 and 2.1-345, all meetings shall be public meetings. Minutes shall be recorded at all public meetings. Information as to the time and place of each meeting shall be furnished to any citizen of this State who requests such information."

Section 2.1-344(a) sets forth, in subsections (1) through (6), certain specific exceptions to the general open meeting rule recited in §2.1-343 above:

"(a) Executive or closed meetings may be held only for the following purposes: "(1) Discussion or consideration of employment, assignment, appointment, promotion, demotion, salaries, disciplining or resignation of public officers, appointees or employees of any public body.

"(2) Discussion or consideration of the condition, acquisition or use of real property for public purpose, or of the disposition of publicly held property.

"(3) The protection of the privacy of individuals in personal matters not related to public business. "(4) Discussion concerning a prospective business or industry where no previous announcement has been made of the business' or industry's interest in locating in the community.

"(5) The investing of public funds where competition or bargaining are involved, where if made public initially the financial interest of the governmental unit would be adversely affected.

"(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."

The question as to whether budgetary matters, as a whole, may be the subject of executive or closed meetings has been addressed in an opinion of the Attorney General, to the Honorable Thomas A. Graves, President of the College of William and Mary, dated December 3, 1973, a copy of which is enclosed herewith. That opinion holds that budgetary matters, in general, do not fall within any of the specifically enumerated purposes set forth as appropriate for executive meetings in 2.1-344(a), subsections (1) through (6).

To the extent that discussion of budgetary matters necessitates consideration of any of the matters specifically set forth in §2.1-344(a), subsections (1) through (6), including discussion of salaries of public officers or employees, (2.1-344(a)(1)), acquisition and use of real property for public purpose, (2.1-344(a)(2)), or the investment of public funds where competition and bargaining are involved, (2.1-344(a)(5)), discussion of such matters in executive session would be legally permissible. Section 2.1-344(b), however, provides that public bodies, in order to convene an executive meeting, must record an affirmative vote to that effect in open session, stating the specific purpose of such executive session. It should, furthermore, be noted that pursuant to §2.1-344(c) no official action taken by a public body in executive session shall become effective until such public body reconvenes in open session and records an affirmative vote ratifying such official action taken in executive session.

In view of the foregoing, I am of the opinion that the Augusta County Board of Supervisors may not legally consider budgetary matters, as a whole, in executive session, but may consider matters specifically set forth in §2.1-344(a), subsections (1) through (6), so long as such executive sessions are limited in scope to the statutorily authorized areas of discussion, and providing that the procedural requirements of §2.1-344(b) and (c) are complied with.