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Closed sessions to discuss library closure violated VFOIA

Virginia Lawyers Weekly//June 4, 2020

Closed sessions to discuss library closure violated VFOIA

Virginia Lawyers Weekly//June 4, 2020//

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A county board of supervisors violated the Virginia Freedom of Information Act by improperly going into closed sessions, and by discussing matters than went beyond the scope of the stated reason for going into closed sessions.


The Smyth-Bland Regional Library had a nine-member board of trustees. The Smyth County Board of Supervisors appointed seven of them. The board of supervisors voted to remove its appointees and named its own seven members as new library trustees.

Three of the removed library trustees sued to be reinstated (the Mowbray case). After the suit was filed, the board of supervisors held four public meetings, at which motions to enter closed sessions were approved. The stated purpose was “discussion with legal counsel and staff pertaining to actual or probable litigation,” under Code § 2.2-3711-A-7.

“During the closed sessions … the Board discussed potential disbandment of the Library as it pertained to the Mowbray Case. It also discussed the financial costs and benefits of disbanding the Library.” The board of supervisors then held a special public meeting, at which, with no discussion and no public input, the board voted to disband the library.

Cole, the president of a non-profit that promoted the library, sued the board of supervisors and the county administrator, alleging VFOIA violations. The circuit court refused to granted relief. Cole appealed.

Closed sessions

“To invoke an exemption for a closed meeting, a public body must make a recorded vote in an open meeting via a motion that identifies (i) the subject matter of the closed meeting, (ii) the purpose of the closed meeting, and (iii) the applicable statutory exemption. …

“‘A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.’ … (emphases added). …

“Cole concedes that the Motions properly identified the purpose of the closed sessions and the applicable statutory exemption, but argues that they failed to identify the subject matter of the sessions. We agree, for two reasons.

First, the Motions failed to include a subject matter for the closed sessions at all. … ‘[D]iscussion with legal counsel’ about ‘actual or probable litigation,’ as mentioned in the Motions, did not identify an ‘issue’ or a ‘thing in dispute’ – it merely provided that the Board would discuss issues or things in dispute, in general. The Motions did not include any additional information to reveal the actual subject matter of the closed sessions. …

“[T]he Board gave no indication in the Motions that it intended to discuss the Mowbray Case, the Library, or any other particular case, controversy, or issue in its closed sessions. Thus, the Motions violated Code § 2.2-3712(A)’s subject matter requirement.

“Second, even if it is assumed that the Motions’ mention of ‘actual or probable litigation’ constituted an attempt to state the subject matter of the closed sessions, such reference is too general to adequately identify the subject matter of the closed sessions. …

“The Board nonetheless argues that there is no specificity requirement in Code § 2.2-3712(A) because of that statute’s legislative history. … [W]e cannot consider the legislative history of Code § 2.2-3712(A) to resolve the issue before us.

“‘[W]hen the language of an enactment is free from ambiguity, resort to legislative history and extrinsic facts is not permitted because we take the words as written to determine their meaning.’ …  The relevant statutory terms are not ambiguous. …

“Because the Motions failed to sufficiently identify the subject matter of the closed sessions, the circuit court erred in holding that the closed sessions were properly held pursuant to Code § 2.2-3712.”

Legal matters

“Cole also argues that the circuit court erred in holding that the Board’s discussions in the closed sessions were not outside the parameters of the expressed legal matters exemption for the closed meetings. …

“At the outset, we note that Code § 2.2-3711(A)(7) is not a categorical exemption for any discussion between a public body and staff or legal counsel.

“Instead, the statute exempts consultations with legal counsel and briefings by staff only when such consultation or briefing ‘pertain[s] to actual or probable litigation,’ and only when the briefing or consultation that pertains to the litigation would ‘adversely affect the negotiating or litigating posture of the public body’ in such litigation, if the consultation or briefing were to occur in public. … (emphases added).

“Thus, the inquiry in the instant case is whether the relevant Board discussions in closed sessions concerned the Mowbray Case litigation, and whether the Board’s negotiating or litigating posture in the Mowbray Case would have been adversely affected, if such discussions were held in a meeting open to the public. …

“In the Mowbray Case, the former Library board members sought to be reinstated to the Library’s board. The only alleged relevance of the Mowbray Case to the finances of the Library is that the Library’s disbandment would coincidentally moot the primary relief requested by the Mowbray Case plaintiffs. …

“In its resolution to disband the Library, the Board clearly stated that its decision to disband the Library was based upon the fact that the ‘administrative costs associated with the operation’ of the Library exceeded its financial benefit to the County. The parties agreed that the resolution sets forth the reasons the Board decided to disband the Library. The Board’s resolution does not mention the Mowbray Case or any other pending or potential litigation as being relevant to the Board’s decision. …

“The Board had the authority to disband the Library, whether there was an economic justification for doing so or not. There is nothing in the record showing that the plaintiffs in the Mowbray Case could have gained any advantage in their case as the result of public disclosure of the Board’s consideration of disbanding the Library for economic reasons.”

Reversed and remand.

Cole, et al. v. Smyth County Board of Supervisors, Record No. 171205 (Goodwyn). May 28, 2020, Smyth County Cir. Ct. (Johnson). Paul Vance Morrison II for appellant, Jeffrey Lynn Campbell for appellee. VLW 020-6-038, 16 pp.

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