Closed - Consultation With Legal Counsel

The exemption for a closed meeting relating to discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings pertaining to actual or probable litigation may be performed by staff members or consultants. Conversely, the exemption for a closed meeting pertaining to consultation with legal counsel employed or retained by a public body regarding specific legal matters does require that legal counsel be present accordingly. Public notice of a special, emergency, or continued meeting must be reasonable under the circumstances and shall be given contemporaneously with the notice being provided to the members of the public body conducting the meeting.

Supreme Court of VIrginia rules unanimously, May 28, 2020, that the Smyth County Board of Supervisors used an improper motion to go into closed session and talked about matters beyond the scope of the claimed exemption.

A public body engaged in dispute resolution proceedings may hold closed meetings under the exemptions for discussion of actual or probable litigation and consultation with legal counsel on specific legal matters. However, it does not appear that FOIA or the various laws concerning dispute resolution have considered or addressed situations where two or more public bodies wish to hold a joint meeting for the purpose of dispute resolution. There are also applicable records exemptions for certain records of dispute resolution proceedings both within FOIA and outside of FOIA in statutes that specifically address such dispute resolution proceedings.