FOI Advisory Council Opinion AO-06-15
August 5, 2015
Bruce Potter
Northern Virginia Media Services
Post Office Box 591
Leesburg, Virginia 20178
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 electronic mail message dated July 7, 2015 and two news articles linked therein.[1]
Dear Mr. Potter:
You have asked whether a local governing body may convene a closed meeting in order to discuss the salaries of the members pursuant to the personnel closed meeting exemption. As background, you related that the Prince William County Board of Supervisors (the Board) held a closed meeting under this exemption and discussed giving supervisors salary increases. You indicated that two supervisors left the meeting and protested that it was not a proper topic for discussion in closed meeting. It appears that other supervisors disagreed, stating that the discussion in closed meeting was proper because the exemption allows for the discussion of salaries. The news articles you linked stated that by law, the supervisors can only give themselves raises during election years, and that any raise would not go into effect until the next Board is sworn in after the election.[2] The news articles also stated that the proposal was to raise all supervisors' salaries, including the chairman's, in order to bring them closer to the market average for similarly-situated localities. The facts presented do not describe any discussion of particular individuals, instead indicating that the discussions concerned across-the-board salary changes for the positions of supervisor and chairman in comparison to the pay rates in other localities.
The relevant policy of the Virginia Freedom of Information Act (FOIA) stated in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." The policy continues by stating that "[a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked." The policy also provides direction in interpreting exemptions: "Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." The relevant part of the personnel exemption at issue, subdivision A 1 of § 2.2-3711, provides that public bodies may hold closed meetings for the purpose of "[d]iscussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body."
While there are several published advisory opinions from this office and the Office of the Attorney General (OAG) that address the use of this exemption in different situations, it does not appear that any prior published opinions have addressed the specific issue you present. While not directly on point, a 1982 OAG opinion concerning the use of the personnel exemption to discuss an administrative reorganization is informative by analogy. The Attorney General opined that the personnel exemption
allows private discussion of personnel matters involving individual employees. If the executive session discussion dealt with the assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of public officers or employees, then such discussion was the proper subject of an executive meeting. This is proper even when the personnel decision is implemented through action which results in a reorganization. If, however, the discussion was devoid of personnel considerations and dealt with the general policy of reorganization of the administrative structure of the school system, such discussion does not fall within the exemption.[3]
As the quoted OAG opinion and the language of the statute itself make clear, the exemption applies to discussions of "specific public officers, appointees, or employees of any public body." [Emphasis added.] In this instance as you have described it, the Board met to discuss salary increases generally that would not take effect until after the next election, not to discuss individual members of the Board. As such, the discussion appears to be "devoid of personnel considerations" and therefore not a proper topic for a closed meeting under the personnel exemption.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
[1] Jill Palermo, Prince William Board won't vote on raises; divided on legality of closed session, Prince William Today, July 7, 2015, available at http://www.insidenova.com/headlines/prince-william-board-won-t-vote-on-raises-divided-on/article_d5a3ff50-24a8-11e5-9087-7be973153f5c.html; Jill Palermo, Supervisors' closed meeting possibly illegal, Prince William Today, June 18, 2015, available at http://www.insidenova.com/headlines/prince-william-today-exclusive-supervisors-closed-meeting-possibly-illegal/article_116ebc44-15c4-11e5-971e-27354ae5eec4.html.
[2] While the articles do not provide specific Code cites, it appears to refer to Code § 15.2-1414.2.
[3] 1982-1983 Op. Atty. Gen. Va. 713 (internal endnote omitted).
