Board meeting did not fall within VFOIA exceptions

Where plaintiffs allege that five members of a county board of supervisors violated the Virginia Freedom of Information Act’s open meeting requirements when they attended a police Citizens Advisory Board, or CAB, meeting to discuss responses to riots in the wake of George Floyd’s killing, the gathering was a meeting within the meaning of the Virginia Freedom of Information Act.

Defendant board members concede they did not comply with VFOIA’s open meeting requirements. However, they moved to strike at the close of plaintiffs’ case on the basis that the gathering was not a meeting. The trial court incorrectly granted the motion.

In this case, neither the public business nor public forum exceptions apply to VFOIA’s definition of “meeting.”

Overview

On May 30, 2020, in Prince William County, a peaceful protest about police conduct connected with the killing of George Floyd became violent. The events were riots, according to county officials. Police officials emailed all members of the Prince William County Board of Supervisors, apprising them of the situation.

The state police alleged used “chemical agents to control the crowd. …

“County officials … recognized the potential for further problems and a need to address that possibility. As a result, multiple gatherings were scheduled for the next day to collect information about the riots, the police response to those riots, and the steps to be taken going forward by various county officials and others.”

Police officials and members of the police CAB arranged a gathering “attended by more than sixty members of the community. …

“Along with police and ‘community leaders,’ attendees included the five defendant members of the Board: Chairman Wheeler and Supervisors Angry, Bailey, Boddye, and Franklin. …

“Some of the defendants participated in the discussions. Of particular note, according to Supervisor Franklin, Supervisor Boddye made a specific request of the police chief to include certain items in an after-action report. After making the request, Supervisor Boddye inquired of the police chief when the report would be available.”

Plaintiffs filed a petition in circuit court for injunctive and mandamus relief, alleging that the five board members “knowingly and willfully violated the … [VFOIA] … by attending a meeting as defined by VFOIA without complying with statutory requirements.”

The trial court granted defendants’ motion to strike, “concluding that the gathering at issue did not constitute a meeting under VFOIA. On appeal, plaintiffs contend the circuit court erred by doing so.”

We reverse.

‘Meeting’

“If a gathering falls within VFOIA’s definition of a “meeting[,]” it is then subject to the open meeting requirements of Code § 2.2-3707. Among other things, the statute requires that public meetings be publicly noticed, … that any public body having a meeting provide the public with the agenda and related materials … and that written minutes of the meeting be taken. …

“[P]laintiffs contend that the CAB meeting was a ‘meeting’ of a ‘public body’ as those terms are defined in Code § 2.2-3701 and that the open meeting requirements set forth in Code § 2.2-3707 applied.

“Defendants did not and do not contest that the Board constitutes a ‘public body’ within the meaning of VFOIA or that the CAB meeting did not comply with the open meeting requirements of Code § 2.2-3707.

Rather, defendants contend that the evidence was insufficient to allow a rational factfinder to conclude that the CAB meeting was a ‘meeting’ as defined in Code § 2.2-3701. …

“[I]t is undisputed that more than three members of the Board attended the CAB meeting, that the CAB meeting also was attended by community leaders and county employees, and that the events of May 30, 2020, and the county’s response to those events were what was intended to be and what was, in fact, discussed at the CAB meeting.

“As such, unless the CAB meeting falls within one of the two exceptions contained in the definition of ‘meeting’ found in Code § 2.2-3701, it was a meeting for the purpose of VFOIA’s open meeting provisions.”

Public business

“The first exception to VFOIA’s definition of meeting appears in subpart (a) of the definition of meeting, which provides that ‘[n]either the gathering of employees of a public body’ nor the ‘gathering or attendance of two or more members of a public body’ shall be considered a ‘meeting’ if ‘no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body[.]’ … (emphasis added).

“Accordingly, if the purpose of the CAB meeting was the discussion of public business or if the meeting were called or prearranged with the purpose of a discussion of public business of the Board, it does not fit within the exception. …

“[F]or a topic to constitute public business it must not just be something that conceptually could at some point come before a public body, but rather, the topic must be something that is either before the public body or is likely to come before the body in the foreseeable future.”

Public forum

“The ‘public forum’ exception to the definition of ‘meeting’ in Code § 2.2-3701 is designed to further the laudable purposes of VFOIA, not inhibit them. The ultimate purpose of VFOIA is to require government transparency for the purpose of allowing an informed citizenry. …

“As with all VFOIA exceptions to the general rule of open government, the ‘public forum’ exception to the definition of meeting is a narrow one.

“Even a gathering whose motivating purpose ‘is to inform the electorate[,]’ … falls outside of the exception if its purpose expands in such a way that allows for the ‘transact[ion of] public business or’ for ‘discussions relating to the transaction of public business[.]’ …

“Once that line is crossed, the gathering is a meeting under VFOIA and all of the open meeting requirements apply.”

Application

“[T]he evidence adduced by plaintiffs provided more than a sufficient basis for a rational factfinder to conclude that the CAB meeting involved a discussion relating to the transaction of public business.

“Furthermore, crediting Supervisor Franklin’s testimony, it went further than mere discussion, as a Board member made a specific request to the police chief regarding the police chief’s performance of his duties and made further inquiry as to when those duties would be completed.

“Viewing the evidence in the light most favorable to plaintiffs, the CAB meeting fell outside the second exception to the definition of a meeting in Code § 2.2-3701. Accordingly, the circuit court erred in granting the motion to strike.”

Reversed and remanded.

Gloss, et al. v. Wheeler, et al., Record No. 210779; May 18, 2023 (Russell; Goodwyn, dissenting, joined by Powell) From the Circuit Court of Prince William County (Smith). Patrick M. McSweeney (Christopher Kachouroff; Lyndsey L. Bisch; James F. Peterson; McSweeney, Cynkar & Kachouroff; Judicial Watch, on briefs), for appellants. Gifford R. Hampshire (Ian J. McElhaney; Heather K. Bardot; Kenneth D. Bynum; Michael L. Daniels; Blankingship & Keith; McGavin, Boyce, Bardot, Thorsen & Katz; Bynum & Jenkins, on brief), for appellee. VLW 023-6-015, 44 pp.