George,

In reading postings [David Toscano Comments on FOIA and Gatherings of Charlottesville City Council Members, Memorandum from the Office of the City Attorney, and Parties Look For Council Hopefuls ] on your website, I noticed a question on informal assemblages of councilmen. I happen to have done some research on the subject.

Under FOIA, the definition of meeting includes "an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership" (2.2-3701). However, meetings must be prearranged in order to fall under FOIA regulations: "Nothing in this chapter shall be construed to prohibit the gathering or attendance of two or more members of a public body (i) at any place or function where 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" (2.2-3707G).

Notice there are two conditions there for a meeting to fall under FOIA regulations: (1) at least part of the purpose of the meeting must be the discussion or transaction of public business, (2) the meeting must be called or prearranged to discuss or transact public business. Both conditions must be met before an informal assemblage is considered a meeting under FOIA. Prior to 1977 a chance meeting where public business was discussed did fall under FOIA rules. The phrase on prearrangement was added in 1977, and in interpreting the amended language, the Attorney General said:

"The amended provisions of 2.1-341(a) set forth above, in my opinion, provide that, effective July 1, 1977, a chance gathering of two or more members of a governing body at a social function or elsewhere does not constitute a 'meeting' required to be public, even where such gathering results in discussion of official business among members of the governing body, provided discussion of official business was not the purpose of the gathering and the gathering was not prearranged for the purpose of discussing official business." [my emphasis] (AG opinion 76-77 308A).

Other AG opinions confirm this interpretation: 77-78 485, 81-82 442, 82-83 721, 84-85 423.

The VA Supreme Court in Nageotte v. Board of Supervisors also noted the prearrangement requirement: "The only evidence on the issue was that the Board did not arrange the meeting to conduct any public business, but that it merely sought information as to the respective responsibilities of the State and the local governing body. The evidence supports the implicit finding by the trial court that this conference was not a 'meeting' as defined in sec. 2.1-341 of the Act." [my emphasis]

The General Assembly did not need to amend FOIA in 1977 if it meant for any chance meeting where public business was discussed among three or more councilmen to be considered a meeting. The change indicates that for an informal meeting to come under FOIA, it must be called or prearranged for the purpose of discussing or transacting public business.

"Public business" is not defined in FOIA. Attorney General Jerry Kilgore this month released an opinion about Republican and Democratic caucuses. He concluded that when three or more legislators are discussing expected votes on matters pending before the General Assembly at a meeting prearranged for that purpose, the meeting constitutes a meeting under FOIA and should be open to the public. When the legislators are discussing purely political matters or matters like personnel issues or selection of officers for the caucus, the meeting may be closed. Those matters would not be "public business." In the opinion he refers to "public business" as "public business before the body upon which the public official serves." The implication is that public business is something about which the particular public body will make a decision or take some sort of action, something that's on the agenda or to come up on an agenda.

So, in trying to determine whether an informal assemblage of three or more councilmen is a meeting, ask these questions:
1. Are they discussing public business, something that the council will likely take action on?
2. Was the meeting prearranged to discuss that public business?

There's a second part in 2.2-3707G which says gatherings at public forum, candidate appearances and debates are not meetings under FOIA if the purpose is not to discuss or transact public business, even though performance of members may be a topic of discussion. I suppose there were questions ("what about debates where we discuss issues?") and this was put in to try to clarify that it's okay to go to debates and such things. In this case, the gatherings would be prearranged and public business might come up as people talk, but if the purpose of the those kind of gatherings is not to transact or discuss public business, then it's not a meeting under FOIA.

To transact public business, a meeting must be prearranged and notice must be posted. "...no vote...shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter" (2.2-3710). That means notice must be posted and the meeting must be open to the public. At least three working days before the meeting, notice of date, time, and place must be posted in a prominent public location where notices are regularly posted and it must also be posted in the office of the clerk. In emergencies, reasonable notice must be given at the same time that notice is given to the councilmen. Business cannot be transacted except at a scheduled meeting where notice has been properly posted. So, although councilmen may discuss public business in unplanned, unscheduled, chance meetings, they cannot take action at such meetings. Before council can take action, a meeting must be prearranged among the councilmen and the public must be notified that a meeting will take place. The meeting must be open. Parts of the meeting may be held in closed session if FOIA exemptions apply, but all voting must be done in open session (2.2-3712G). Meetings may be formal meetings or informal meetings, but either way, there must be no surprises that they are happening and that actions are being authorized.

Becky Dale (electronic mail, January 21, 2004)

Editor's Note: Becky Dale is a citizen interested in FOIA (not a lawyer). The Richmond Times Dispatch last Tuesday published an op-ed that she wrote on the Fredericksburg e-mail case. In researching the issues, she came across the AG opinions on prearrangement. The oral hearings were Thursday. Here are links to the two newspaper articles reporting on the oral hearings: Virginia High Court Reviews Council's Email Use and Justices Hear Email Arguments.