Attorney General's Opinion 1973-74 #451

January 9, 1974

THE HONORABLE J. HARRY MICHAEL, JR.
Member, Senate of Virginia

73-74 451

This will acknowledge receipt of your recent letter in which you request my advice regarding two inquiries directed to you as follows:

"1. Are Boards of Zoning Appeals subject to the provisions of the Freedom of Information Act.

"2. Was the Charlottesville board violating that act on December 21 when it met in private. If so, are the actions taken by the board as a result of their closed deliberations null and void."

The Freedom of Information Act, pursuant to §2.1-343, Code of Virginia (1950), as amended, requires that all meetings of public bodies of the Commonwealth and its political subdivisions be open to the public as follows:

"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. . . . Information as to the time and place of each meeting shall be furnished to any citizen of this State who requests such information." (Emphasis added.)

Section 2.1-341(a) sets forth the types of public bodies or entities whose meetings shall be subject to the requirements of the Act:

"'Meeting or meetings' means the meetings, when sitting as a body or entity, or as an informal assemblage of the constituent membership, with or without minutes being taken, whether or not votes are cast, of any authority, board, bureau, commission, district or agency of the State, or of any political subdivision of the State, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; and other organizations, corporations or agencies in the State, supported wholly or principally by public funds . . .." (Emphasis added.)

Section 15.1-494 provides that for any county or municipality which has enacted or enacts a zoning ordinance there shall be created a board of zoning appeals which shall be appointed by the Circuit or Corporation Court for the county or city. Boards of zoning appeals are, therefore, unquestionably public bodies of the city or county for which they are created and would, barring the existence of statutory exemption, be subject to the requirements of the Act pursuant to §2.1-341(a).

No provision of Title 15.1 authorizing the creation and defining the powers of local boards of zoning appeals in any way exempts such boards from the requirements of the Freedom of Information Act.

Section 2.1-345, which enumerates certain specifically named types of public bodies which are to be exempted from the requirements of the Act, contains no reference to boards of zoning appeals.

In view of the foregoing, I must conclude that boards of zoning appeals are public bodies of the political subdivisions for which they are created and are subject to the requirements of the Freedom of Information Act. Accordingly, your first inquiry must be answered in the affirmative.

Your second inquiry asks, first, whether the Charlottesville Board violated the provisions of the Freedom of Information Act when it met in closed session on December 21, 1973. This would depend upon the nature of the matters discussed and acted upon by the Board in its closed session. Executive or closed meetings of public bodies may be held only for the purposes specifically set forth in §2.1-344. While it is not entirely clear from the facts supplied by your inquiry and the attached newspaper clippings as to exactly what matters were considered by the Board of Zoning Appeals in its December 21, 1973, meeting, unless that closed meeting was held for one of the purposes specified in §2.1-344, such closed meeting was in violation of the provisions of the Freedom of Information Act contained in §2.1-343.

With respect to the validity of action taken by a public body in an unauthorized executive or closed meeting, §2.1-344(c) clearly provides that no action taken by a public body in closed session shall become effective until such public body takes a vote, in open session, regarding the matters acted upon in executive session. I am, therefore, of the opinion that any action taken by the Charlottesville Board of Zoning Appeals at its closed session on December 21, 1973, not voted upon subsequently in open session, would be null and void.