Gloss v. Wheeler ( 2023 )

PRESENT: All the Justices
B. ALAN GLOSS, ET AL.
OPINION BY
v. Record No. 210779 JUSTICE WESLEY G. RUSSELL, JR.
MAY 18, 2023
ANN B. WHEELER, ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Dennis J. Smith, Judge Designate
B. Alan Gloss and Carol Fox (“plaintiffs”), residents of Prince William County, filed a
“Petition for Mandamus and Injunction” in the Circuit Court of Prince William County alleging
that Ann B. Wheeler, Andrea O. Bailey, Kenny Boddye, Victor S. Angry, and Margaret Angela
Franklin (“defendants”), five members of the Prince William County Board of Supervisors,
knowingly and willfully violated the Virginia Freedom of Information Act (“VFOIA”) by
attending a meeting as defined by VFOIA without complying with statutory requirements. At
the trial of this matter, the circuit court granted the defendants’ motion to strike made at the
conclusion of plaintiffs’ evidence, concluding that the gathering at issue did not constitute a
meeting under VFOIA. On appeal, plaintiffs contend the circuit court erred by doing so. For the
reasons that follow, we conclude that the circuit court erred in granting the motion to strike.
Accordingly, we reverse the judgment of the circuit court and remand the matter for further
proceedings consistent with this opinion.
I. BACKGROUND 1
On May 25, 2020, George Floyd was killed while in the custody of police officers in
Minneapolis, Minnesota. Over the next few days, video showing Floyd’s arrest, detention, and
ultimate death spread, spawning nationwide protests about the conduct of the officers involved,
Floyd’s death, and larger social issues generally.
One such protest occurred in Prince William County on May 30, 2020. The case
underlying this appeal stems from the events of that night and the acts and omissions of certain
Prince William County officials in the aftermath of those events. Resolution of the appeal
requires an understanding of the powers, duties, and responsibilities of the Prince William
County Board of Supervisors (“Board”), the events of May 30, 2020, and the actions taken by
public officials afterwards.
A. Powers, duties, and responsibilities of the Board
Prince William County utilizes the county executive form of government. See Code
§ 15.2-500 et seq. Accordingly, all “powers of the county as a body politic and corporate [are]
vested in [the] [B]oard[.]” Code § 15.2-502(A). At all times relevant, the Board had eight
members. 2
1
“When reviewing a trial court’s decision to grant a motion to strike the plaintiff’s
evidence, we view the evidence presented at trial in the light most favorable to the plaintiff and
accord the plaintiff the benefit of any inferences that may be fairly drawn from the evidence.”
Curtis v. Highfill, 298 Va. 499, 502-03 (2020). Furthermore, “the non-moving party ‘must be
given the benefit of all substantial conflict in the evidence, and all fair inferences that may be
drawn therefrom.’” Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 109 (2021) (quoting Egan v. Butler,
290 Va. 62, 73 (2015)). Accordingly, we recite the facts consistent with this view of the
evidence, omitting reference to evidence that conflicts with such a view.
2
The members of the Board were the defendants along with Supervisors Pete Candland,
Jeanine Lawson, and Yesli Vega. Supervisors Candland, Lawson, and Vega were not given
notice of the gathering that is at issue in this case and none of them were in attendance.
2
The Board is “the policy-determining body of the county and . . . vested with all rights
and powers conferred on boards of supervisors by general law[.]” Code § 15.2-504. These
powers include the power to investigate county officers by “inquir[ing] into the official conduct
of any office or officer under its control,” Code § 15.2-506, and “provid[ing] for the performance
of all the governmental functions of the county” by “provid[ing] for and set[ting] up all
necessary departments of government[.]” Code § 15.2-507.
To assist it in the exercise of these and other powers it possesses, the Board is required to
“appoint a county executive[.]” Code § 15.2-509. Such county executive is “not . . . appointed
for a definite tenure,” but rather, serves “at the pleasure of the [B]oard.” Code § 15.2-510.
Among other duties, the county executive is “responsible to the [B]oard for the proper
administration of the affairs of the county which the [B]oard has authority to control[,]” Code
§ 15.2-516, and is part of the process by which the Board adopts a budget for the county and its
various departments. Code § 15.2-539.
The county executive is charged with assisting the Board in selecting county officers and
employees, but the ultimate authority over such matters resides with the Board. Specifically,
Code § 15.2-512 provides that “[t]he [B]oard shall appoint, upon the recommendation of the
county executive, all officers and employees in the administrative service of the county[.]” “Any
officer or employee of the county appointed pursuant to § 15.2-512 may be suspended or
removed from office or employment . . . by the [B]oard[.]” Code § 15.2-513.
Although it may create additional departments, the Board is required by statute to create
certain, specified departments, including a “[d]epartment of law enforcement.” Code
§§ 15.2-507 & 15.2-518(3). “The department of law enforcement shall consist of such police as
may be appointed pursuant to § 15.2-512, and police officers appointed by the [B]oard, pursuant
3
to such section, including the chief of the department.” Code § 15.2-528. Although, as with all
county departments, the department of law enforcement ultimately is subject to Board control,
“[t]he county executive shall have supervision and control of the county police force.” Id. Like
all other department heads, the head of the department of law enforcement “shall be entitled to
present [his or her] views on matters relating to [the] department[]” to the Board. Code
§ 15.2-512.
B. Events of Saturday, May 30, 2020
On May 30, 2020, a protest related to George Floyd’s killing took place in Prince
William County. The protest, which began peacefully, turned violent. An unlawful assembly
was declared around 8:00 p.m.; however, the protestors did not disband, and the group continued
to grow. The situation escalated with acts of vandalism and violence, and eventually the events
were characterized by county officials as “riots.” The riots were not county-wide and primarily
occurred in the Manassas and Gainesville sections of the county, areas represented on the Board
by Supervisors Candland and Lawson.
The riots were significant enough that, shortly after 10:00 p.m., police officials sent an
email to all members of the Board to provide some information regarding the events. In that
email, each member of the Board was informed that, at that time, police were “still attempting to
regain order” and that portions of “Sudley Rd remain[ed] closed” because of the ongoing riots.
The Board members also were informed that “[a]n alert” had been sent to residents of the
affected areas and that the police department would continue to post updates on its social media
platforms. Eventually, the Virginia State Police dispersed the riot, allegedly using chemical
agents to control the crowd.
4
Because the initial demonstrations were, in part, about the police misconduct related to
George Floyd and policing generally, and the fact the riots that developed in the county had
caused conflict between protestors and police, tensions were high. County officials, including
police, Board members, and the county executive, as well as community leaders all 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.
Three such gatherings are central to this appeal. At 12:30 p.m., Board-chairman Wheeler
met with police officials to discuss the situation. At 1:00 that afternoon, five members of the
Board attended a gathering arranged by police officials and members of the police Citizens’
Advisory Board that also was attended by more than sixty members of the community. Finally,
at 4:00 that afternoon, all eight members of the Board attended a properly noticed, emergency
public meeting of the Board. Given the compressed time frame, communication about and the
scheduling of some of these gatherings was occurring while another of the gatherings was
ongoing. As a result, the timeline for each involves some degree of overlap. For clarity’s sake,
we address each of the three gatherings separately below.
C. Sunday, May 31, 2020 gatherings
1. Chairman Wheeler meets with police officials
Shortly after midnight on May 31, 2020, Chairman Wheeler had sufficient information
about the May 30, 2020 riots and the potential for further problems to believe she needed to take
some action. At 12:06 a.m., Chairman Wheeler sent a text message to the county executive
requesting to meet with police officials. At trial, she testified that she sought to meet with police
5
to learn “what happened that evening that was going on with the demonstrations in Manassas”
and agreed that that information and any responses to it were “part of the county’s business[.]”
(Emphasis added.)
The county executive responded by text at 8:40 a.m. that he had arranged for Chairman
Wheeler to meet with police at 12:30 at the Central District police station. In that text message,
the county executive also informed Chairman Wheeler that Police “Chief Barnard has also
scheduled a 1:00 meeting with a few community leaders which I believe you should be at.”
Chairman Wheeler responded to the text, writing “Yes[,] that would [be] fine. I would like to
talk before hand with a few quick questions.”
Chairman Wheeler met with the chief of police and the deputy chief of police at 12:30
that afternoon. She confirmed with police officials that chemical agents had been used to
disperse the riots. She expressed her opinion to the police officials that “we could do better and
that the Virginia State Police the night before, you know, seemed a little aggressive.” At the
conclusion of her discussions with police officials, Chairman Wheeler walked directly to the
1:00 gathering.
2. 1:00 p.m. gathering
While Chairman Wheeler was attempting to set up her meeting with police officials,
others were busy organizing another gathering to discuss the riots. Specifically, Prince William
County Police Chief Barry Barnard “coordinated and orchestrated” a gathering at police
headquarters to be held on May 31, 2020, at 1:00 p.m. Chief Barnard, Deputy Chief Jarad
Phelps, and Reverend Cozy Bailey,3 who then served as Chair of the police department’s
Citizens’ Advisory Board and also as the head of the local NAACP Chapter, were involved in
3
Reverend Bailey is the husband of Supervisor Bailey, one of the defendants.
6
organizing the gathering. Given the county executive’s text message to Chairman Wheeler at
8:40 a.m. on May 31, 2020, the time and place of the meeting were known to the organizers and
others as early as 8:40 that morning.
Although there was conflicting testimony at trial, multiple members of the Board adopted
the characterization of the 1:00 gathering as a police Citizens’ Advisory Board meeting. Prior to
trial, Deputy Chief Phelps characterized it in a Board meeting as a Citizens’ Advisory Board
meeting. Furthermore, in a statement made at a June 2, 2020 formal meeting of the Board that
was introduced in evidence, Supervisor Bailey identified the gathering as a Citizen’s Advisory
Board meeting. The two police chiefs and Reverend Bailey ran the meeting. Thus, viewed in
the light most favorable to the plaintiffs, the meeting was a meeting of Prince William County’s
police Citizens’ Advisory Board. Accordingly, we will refer to it as the “CAB meeting.”
Invitations to the CAB meeting were extended by members of the police staff and by
word of mouth from various participants, including members of the Board who were aware of
the CAB meeting. 4 Approximately sixty people attended the CAB meeting. Along with police
and “community leaders,” attendees included the five defendant members of the Board:
Chairman Wheeler and Supervisors Angry, Bailey, Boddye, and Franklin.
Despite attending and being aware of the meeting, the defendants did not invite the
remaining three members of the Board to the CAB meeting. Similarly, police officials did not
invite the three other members of the Board to the CAB meeting. Eventually, Deputy Chief
4
Supervisor Bailey testified that she made Supervisor Franklin aware of the CAB
meeting. Despite Supervisor Bailey’s testimony that she only learned of the CAB meeting on the
morning of May 31, 2020, Supervisor Franklin testified that Supervisor Bailey informed her
about the CAB meeting on May 30, 2020. Supervisor Franklin testified that she, in turn,
informed Supervisor Boddye of the CAB meeting.
7
Phelps offered a public apology at a formal Board meeting for the failure to invite at least
Supervisor Lawson to the CAB meeting.
When Chairman Wheeler arrived at the CAB meeting, she “felt [she] should sit near the
front, because [she] was the chair of the county.” She moved the chair in which she chose to sit,
“pull[ing] it in front of the front row[.]” She testified that she attended the meeting and sat
where she sat because she was there to “represent the [B]oard.” During the course of the
meeting, the meeting organizers identified her to the audience as Board Chairman and gave her
an opportunity to address the audience as a result. She did so.
The CAB meeting began with a presentation from police officials regarding the events of
the previous night. The riots, the use of force by police, the use of chemical agents to quell the
riots, and the property damage that was caused all were discussed. The discussion also included
an explanation of “how the Virginia State Police were called in [and] about how it was turned
over to the Virginia State Police.”
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. 5 After making the request, Supervisor Boddye inquired of
the police chief when the report would be available.
5
Defendants, pointing to Supervisor Boddye’s testimony, argue that he never made such
a request. Because Supervisor Franklin’s testimony that such a request was made is more
favorable to plaintiffs, the circuit court was required to credit her testimony and reject Supervisor
Boddye’s testimony on this point in deciding the motion to strike. Similarly, we are required to
credit Supervisor Franklin’s testimony regarding this issue in resolving this appeal. Dill, 300 Va.
at 109.
8
The CAB meeting lasted for several hours. While the CAB meeting was in progress, the
Board members in attendance had to leave the CAB meeting so that they could attend the
emergency Board meeting that had been scheduled and formally noticed for 4:00 that afternoon.
3. Emergency meeting of the Board of Supervisors at 4:00 p.m.
Before the CAB meeting started, Supervisor Vega sent an email addressed to the county
executive and Chairman Wheeler requesting an emergency meeting of the Board due to “the
events that transpired last night, and the ones potentially to follow[.]” All of the members of the
Board as well as the county attorney were copied on the email, which was sent at 12:08 p.m. In
the email, Supervisor Vega stated that it was “imperative that all board members are kept
informed so that we can help restore peace and order.”
Within five minutes of Supervisor Vega’s email, Supervisor Candland responded by
email. In his email, which he sent to all Board members, the county executive, and the county
attorney, Supervisor Candland “second[ed]” Supervisor Vega’s request for an emergency
meeting and noted that he had been hearing “rumors” of further disturbances to come, had been
receiving calls from concerned constituents, and stated his position that it was “critical [that] we
hear an update on how these events will be handled.”
Less than ten minutes later, at 12:21 p.m., Supervisor Lawson sent an email to all the
members of the Board, the county executive, and the county attorney. In her email, she
“concur[red]” in the request for an emergency meeting of the Board and stated that she had
“several property owners on edge[.]”
At 12:30 p.m., Supervisor Bailey responded regarding the request for an emergency
meeting by sending an email to all of the Board members, the county executive, and the county
attorney. In the email, she enthusiastically endorsed the need for an emergency meeting of the
9
Board, writing that such a meeting was “necessary!” She opined that “[t]here needs to be an
emergency meeting and press conference collective with ‘all’ board members for the community
held immediately.” She continued by opining that “[o]ur procrastination is not serving.” She
ended her email by stating that she would “be in a community meeting with the NAACP starting
at 1pm[,]” and thus, would be “available to meet at 3 or 4pm.”
From the evidence, it is clear that the “NAACP meeting” referenced in Supervisor
Bailey’s email was the 1:00 CAB meeting referenced above. Despite having invited at least one
other Board member to the CAB meeting, Supervisor Bailey did not use the email to invite
Supervisors Candland, Lawson, or Vega to what Supervisor Bailey has characterized as a CAB
meeting. She did not inform them that county employees would be present at the meeting and
did not, at any point before the 4:00 meeting of the Board, inform them that more than three
members of the Board attended the CAB meeting.
At 1:08 p.m., while attending the CAB meeting, Chairman Wheeler responded with an
email to the members of the Board, the county executive, and the county attorney regarding the
request for an emergency meeting. She indicated that she presently was “in a meeting with
police and community leaders” but had “instructed” the county executive “to arrange a board
meeting for 4 pm if possible.” She noted that she was “consulting the county attorney with
regard to notice” requirements of VFOIA for such a meeting, but believed those requirements
could be met “because of [the] emergency conditions[.]”
From the evidence, it is clear that the “meeting with police and community leaders”
referenced in Chairman Wheeler’s email was the 1:00 CAB meeting referenced above, and thus,
was the same meeting that Supervisor Bailey had referenced in her 12:30 p.m. email to the
group. Chairman Wheeler did not indicate that the meeting she referenced was the same meeting
10
as the one referenced by Supervisor Bailey or that five members of the Board were present at the
meeting.
Three minutes later, at 1:11 p.m., Supervisor Bailey responded to Chairman Wheeler’s
email. The email was sent to all of the members of the Board, the county executive, and the
county attorney. The email thanked Chairman Wheeler for her leadership; but again, it did not
inform the recipients that Supervisor Bailey, Chairman Wheeler, and three other members of the
Board were, at that time, in the CAB meeting. It also did not suggest that the “meeting with
police and community leaders” referenced in Chairman Wheeler’s email was the same meeting
that Supervisor Bailey had referenced in her 12:30 p.m. email to the group.
The county executive responded with an email to the members of the Board, the county
attorney, and other county staff at 1:24 p.m. He indicated that an emergency Board meeting
would take place “at 4:00 PM in the [B]oard chambers in the McCoart Bldg.” and instructed
county staff to take certain steps. Apparently recognizing that VFOIA’s requirements applied to
the meeting, he instructed county staff to review the “rules of procedure and schedule an
emergency meeting[.]” He indicated that there was a “need to advertise this meeting as soon as
possible.” Furthermore, regarding the Board meeting, he informed the recipients of the email
that “the topic of discussion will be, and can only be, the demonstrations that are occurring in
PWC in response to the events in MN and what we can do to allow, and help ensure, the
demonstrations occur safely and peacefully.” He concluded the email by inquiring of the county
attorney if he had “missed anything with regard to scheduling the emergency meeting.”
At 1:49 p.m., Supervisor Candland sent an email to thank Chairman Wheeler for setting
up the meeting. In the email, which was sent to the members of the Board, the county executive,
and the county attorney, Supervisor Candland expressed his appreciation for Chairman
11
Wheeler’s efforts, thanking her for “listening to us in supporting Supervisor Vega’s call for an
emergency meeting.” He concluded by noting that he would “[s]ee you at 4:00pm.”
County staff emailed formal notice of the emergency Board meeting to members of the
Board at 2:54 p.m. In addition to identifying the time and place of the meeting, the notice
indicated that the meeting agenda was limited to “[d]iscussion of the demonstrations occurring in
Prince William County in response to events in Minnesota and what measures can be taken to
ensure that demonstrations occur safely and peacefully.”
The members of the Board convened for the 4:00 meeting. Consistent with the agenda
provided for in the notice, issues related to the riots, the use of force by police, the use of
chemical agents to quell the riots, and the property damage that was caused were discussed.
Multiple members of the Board who attended both the CAB meeting and the emergency Board
meeting confirmed that the same topics were discussed at the two meetings. Supervisor Bailey
testified that the police chief gave the same presentation at the 4:00 Board meeting that had been
given at the 1:00 CAB meeting.
In addition to covering these topics, the 4:00 Board meeting involved a discussion of the
1:00 CAB meeting and why three members of the Board had not been given notice of or
otherwise invited to the CAB meeting. There also was discussion of whether, given the presence
and involvement of a majority of the Board, the CAB meeting had been held in violation of
VFOIA’s open meeting requirements.
D. Proceedings in the circuit court and the ruling on the motion to strike
Echoing the VFOIA concerns raised at the 4:00 emergency meeting of the Board,
plaintiffs filed suit, alleging that the CAB meeting violated the open meeting requirements of
VFOIA. Among other things, plaintiffs sought a finding that defendants had “knowingly and
12
willfully” violated VFOIA, a mandate and injunction requiring defendants to comply with
VFOIA going forward, and recovery of the plaintiffs’ costs and attorney fees.
The trial was held on October 7, 2020. In their case, plaintiffs called all five of the Board
members who attended the CAB meeting. In addition to testimony, the parties introduced
documentary evidence, including text messages and emails related to the various meetings.
Finally, plaintiffs introduced portions of video recordings of the 4:00 emergency Board meeting
and a subsequent meeting of the Board where the May 31, 2020 meetings were discussed.
At the conclusion of plaintiffs’ evidence, defendants moved to strike. Their primary
contention was that the CAB meeting did not fall within VFOIA’s definition of “meeting,” and
therefore, VFOIA did not apply to the CAB meeting.
Agreeing with defendants, the circuit court granted the motion to strike from the bench.
Prior to the circuit court entering an order memorializing its ruling, plaintiffs filed a motion for
reconsideration. The circuit court held a hearing on the motion on January 8, 2021. On May 18,
2021, the circuit court entered an order memorializing its granting of the motion to strike and
denying the motion for reconsideration. In that order, the circuit court noted that its ruling was
based “on the [c]ourt’s finding that the evidence presented was insufficient as a matter of law to
establish that the [CAB] meeting . . . was a meeting subject to the provisions of the Virginia
Freedom of Information Act as alleged[.]” As a result, the circuit court concluded that
defendants were “not liable for any alleged violations of [VFOIA] as pleaded or argued[,]” and
thus, were entitled to judgment. Asserting that the circuit court erred in granting the motion to
strike, plaintiffs petitioned to this Court, and we granted review.
13
II. ANALYSIS
A. Standard of review
In granting a motion to strike, a “circuit court must not judge the weight or credibility of
evidence[.]” Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 109 (2021). Rather, a circuit court must
“accept as true all the evidence favorable to the plaintiff” and grant to the plaintiff “any
reasonable inference” that may be drawn from such a view of the evidence. Austin v. Shoney’s,
Inc., 254 Va. 134, 138 (1997). A circuit court may grant a motion to strike at the conclusion of a
plaintiff’s evidence “only where ‘it is conclusively apparent that plaintiff has proven no cause of
action[.]’” Int’l Paper Co. v. Cnty. of Isle of Wight, 299 Va. 150, 170 (2020) (quoting Brown v.
Koulizakis, 229 Va. 524, 531 (1985)). Accordingly, “[w]hen reviewing a trial court’s decision to
grant a motion to strike the plaintiff’s evidence, we view the evidence presented at trial in the
light most favorable to the plaintiff and accord the plaintiff the benefit of any inferences that may
be fairly drawn from the evidence.” Curtis v. Highfill, 298 Va. 499, 502-03 (2020). To the
extent our review of the circuit court’s judgment requires us to engage in statutory interpretation,
it presents questions of law subject to de novo review. Transparent GMU v. George Mason
Univ., 298 Va. 222, 237 (2019).
B. Purpose and construction of VFOIA
Currently codified at Code § 2.2-3700 et seq., 6 “VFOIA has existed, in one form or
another, since 1968.” Am. Tradition Inst. v. Rector & Visitors of Univ. of Virginia, 287 Va. 330,
339 (2014). In adopting VFOIA, the General Assembly included an express statement of the
purpose of the statutory scheme. Specifically, the General Assembly adopted VFOIA to
6
Plaintiffs initiated their suit in 2020. The General Assembly amended Code § 2.2-3700
et seq. in 2022. See 2022 Acts chs. 325, 597 (Reg. Sess.). These amendments have no bearing
on this case.
14
“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.” Code § 2.2-3700(B). VFOIA guarantees such
access because “[t]he affairs of government are not intended to be conducted in an atmosphere of
secrecy since at all times the public is to be the beneficiary of any action taken at any level of
government.” Id. Absent proper invocation of a statutory exception, “every meeting shall be
open to the public” and “[a]ll public records and meetings shall be presumed open[.]” Id.
To help effectuate these purposes, the General Assembly adopted a special rule of
construction for interpreting VFOIA. Specifically, VFOIA “shall be liberally construed to
promote an increased awareness by all persons of governmental activities and afford every
opportunity to citizens to witness the operations of government” and “[a]ny 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.” Id. We previously have recognized that this VFOIA-specific rule of
construction “puts the interpretative thumb on the scale in favor of” open government.
Fitzgerald v. Loudoun Cnty. Sheriff’s Off., 289 Va. 499, 505 (2015).
C. Meetings of public bodies under VFOIA
To further its purpose, VFOIA requires that “[a]ll meetings of public bodies shall be
open[,]” Code § 2.2-3707(A), raising the questions of what constitutes both a “public body” and
a “meeting.” VFOIA’s definitions section provides the answers.
Code § 2.2-3701 defines “public body” to encompass, among other things, “governing
bodies of counties[,]” making such governing bodies subject to the open meeting provisions of
VFOIA. In turn, VFOIA defines “meeting” to include
15
work sessions . . . as a body or entity, or as an informal assemblage
of (i) as many as three members or (ii) a quorum, if less than three,
of the constituent membership, wherever held, with or without
minutes being taken, whether or not votes are cast, of any public
body.
Id. Having defined “meeting” in broad terms, VFOIA then creates exceptions to that definition.
Specifically,
[n]either the gathering of employees of a public body nor the
gathering or attendance of two or more members of a public body
(a) 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, or (b) at a public forum, candidate
appearance, or debate, the purpose of which is to inform the
electorate and not to transact public business or to hold discussions
relating to the transaction of public business, even though the
performance of the members individually or collectively in the
conduct of public business may be a topic of discussion or debate
at such public meeting, shall be deemed a “meeting” subject to the
provisions of this chapter.
Id.
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, Code § 2.2-3707(C)-(D), that any public body having a
meeting provide the public with the agenda and related materials, Code § 2.2-3707(F), and that
written minutes of the meeting be taken. Code § 2.2-3707(H).
Here and in the proceedings below, plaintiffs 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,
16
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.
D. CAB meeting as a meeting under VFOIA
As noted above, there is no dispute that the Board is a public body as defined in VFOIA
and that both it and its members are subject to the open meeting requirements of VFOIA.
Furthermore, it 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.
Viewing the evidence in the light most favorable to plaintiffs, the CAB meeting falls within
neither exception.
1. Discussion of 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[.]”
Code § 2.2-3701 (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. See
17
Commonwealth v. Miller, 273 Va. 540, 550 (2007) (recognizing the general rule that when
statutory conditions are stated in the conjunctive each condition so stated must be met to satisfy
the statutory requirement).
To appreciate the scope of the exception requires an understanding of the meaning of
“public business” as the phrase is used in Code § 2.2-3701. Because VFOIA does not include a
definition of the phrase “public business,” we seek to apply its “plain and ordinary meaning” and
are “guided by the context in which [the . . . phrase] is used.” Protestant Episcopal Church v.
Truro Church, 280 Va. 6, 21 (2010) (internal quotation marks and citations omitted). Given the
requirement that all VFOIA exceptions be construed narrowly, Code § 2.2-3700, and VFOIA’s
heavy “interpretative thumb on the scale in favor of” open and transparent government,
Fitzgerald, 289 Va. at 505, we must give the phrase “public business” a broad reading. 7
Although we must interpret “public business” broadly, we agree with the defendants that
the fact that a topic or topics generate significant public interest does not compel the conclusion
that the topic or topics constitute public business. Of course, it often will be the case that topics
of intense public interest also will represent topics of public business.
For a topic to constitute the “business” of a public body, it must relate to a subject that
falls within the purview of that public body. Thus, a topic or topics may constitute “public
7
Because VFOIA applies to government officials and bodies, the parties largely do not
dispute the meaning of the modifier “public.” It limits the scope of VFOIA’s requirements to
governmental matters as opposed to the purely personal or private affairs of the individuals who
serve in government. This general agreement on the meaning of “public” does not extend to the
meaning of “business” for the purpose of Code § 2.2-3701.
18
business” for one public body, such as a board of supervisors, but not constitute the “public
business” of another, such as a county’s industrial development authority. 8
Furthermore, for 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. Beck v. Shelton, 267 Va. 482, 494 (2004). In Beck, we affirmed a circuit
court’s conclusion that a protest related to traffic controls at a particular street corner “was a
citizen-organized ‘informational forum’ and that no part of the purpose of the gathering or
attendance was the discussion or transaction of any public business” because “[t]he undisputed
evidence at trial was that City Council did not have any business pending before it on the issue of
traffic controls, nor was it likely to have such matters come before it in the future.” Id.(emphasis added). Embracing this language and reasoning from Beck, today we make clear that
a topic is “public business” for the purpose of Code § 2.2-3701 if it is either “pending before” the
public body at the time or it is “likely to . . . come before it in the future.” Beck, 267 Va. at 494.
Recognizing that such a definition of “public business” logically follows from a “literal
reading” of the language we used in Beck, the defendants requested at oral argument in this
Court that we revisit that language and conclude that, for a matter to constitute “public business,”
it must appear on the public body’s formal agenda. (Oral Argument Recording at 27:28-27:58).
To adopt the defendants’ construction—that a topic cannot be public business until it appears on
a formal Board agenda—would gut the open meeting provisions of VFOIA. It would allow
portions of or full boards of supervisors to meet, discuss, and decide county business in secrecy
8
Given that the Board possesses all “powers of the county as a body politic and
corporate[,]” Code § 15.2-502(A), and is “the policy-determining body of the county[,]” Code
§ 15.2-504, all county business is Board business.
19
by waiting until after their private discussions and decisions to place an item on a formal agenda.
Such a result cannot be reconciled with either the language or purpose of VFOIA, and we reject
such a construction of the statute. Accordingly, “public business” in Code § 2.2-3701 means
business that is on a public body’s agenda or is likely to come before the public body in the
foreseeable future.
Contrary to the repeated assertions of the dissent, such a definition of “public business” is
neither new nor unprecedented. The language we utilize comes directly from our opinion in
Beck. Although the dissent may disagree with our reading of the import of that language,
because it is based on a quotation from a prior case, it simply is factually inaccurate to say this
definition of “public business” is “new.”
Furthermore, our reading of the language from Beck is neither strained nor idiosyncratic.
Even the defendant Board members conceded at oral argument in this Court that the definition
the dissent criticizes as unprecedented logically follows from a “literal reading” of the language
from Beck. (Oral Argument Recording at 27:28-27:58). Although we are not bound by such a
concession, it certainly suggests that there is nothing overly aggressive or idiosyncratic about our
reading of the language.
Even absent the language from Beck, however, we think it clear under the express terms
of VFOIA that the business of a local, legislative body encompasses the contemplation of topics
that come before it or soon will. It matters not whether the topics are raised by a member of the
body, another governmental employee, or a member of the community. As a deliberative body,
part of the legislative body’s business at every formal meeting is to hear from the community and
20
employees and consider those concerns. 9 Thus, the consideration of topics that are on the
Board’s agenda or soon will be is the business of the legislative body.
Our dissenting colleagues suggest that consideration is not enough and that some further
“action” or “activity” by a legislative body is necessary to transform the contemplation of issues
before it into “public business.” The dissent, however, does not suggest what that action or
activity might be. Critically, VFOIA makes clear that the action or activity cannot involve
voting on the topic because the definition of meeting makes clear that “work sessions” of the
body and an “informal assemblage” of members of the body—neither of which would permit
votes on issues or any other formal Board action—are meetings under VFOIA and thus outside
the exception. Code § 2.2-3701. Lest there be any doubt that voting is not necessary for there to
have been a discussion of public business, the definition of meeting further provides that it
applies “whether or not votes are cast[.]” 10 Id. As to what action or activity beyond
9
Certainly, such listening and consideration is “an activity engaged in” by local
legislative bodies in the normal course and is considered a part of its usual “role” and “function.”
According to the definition relied upon by the dissent, slip op. at 33, n.1, and the dictionary upon
which the dissent relies, see Webster’s Third New International Dictionary 302 (1993), this
meets the literal definition of “business.”
10
That VFOIA can apply to gatherings at which the public body does not engage in the
“action” or “activity” of voting is well established and will come as no surprise to practitioners.
For example, the Handbook of Virginia Local Government Law provides that “‘[w]ork sessions,’
‘retreats’ and other informal gatherings of the public body at which public business is discussed
are meetings covered by [VFOIA] just as certainly as more formal assemblies, regardless of
whether a formal agenda will be followed or votes taken.” Roger C. Wiley, The Freedom of
Information and Government Data Collection and Dissemination Practices Acts, in Handbook of
Virginia Local Government Law § 23-2.02(c), at 23-8 (April Wimberley ed., 2023 ed.)
(emphasis added) (citing Code §§ 2.2-3701, -3707; Ops. Va. Att’y Gen. 1981-82 at 442, 1977-78
at 484-85, 1974-75 at 579).
21
contemplation but less than voting the dissent contends is needed to transform the discussion and
contemplation of the topic to public business, we are left to guess. 11
Utilizing the proper definition of “public business” and viewing the evidence in the light
most favorable to the plaintiffs, “part of the purpose[,]” Code § 2.2-3701, of the CAB meeting
was the discussion of public business of the Board, and such public business was, in fact,
discussed at that gathering. 12 It is undisputed that the purpose of the CAB meeting was to
11
Ultimately, the error in the dissent’s overly crimped definition of the discussion of
public business becomes clear when one recognizes what it would allow. Although disclaiming
that its view would do so, the dissent’s interpretation, carried to its logical conclusion, would
allow a group of lobbyists, the heads of political parties, or groups of campaign contributors to
hold a private meeting with a majority of a local legislative board. In that private meeting, the
lobbyists, political officials, and donors could detail for the assembled board members their
positions and expectations of the board regarding any and all topics that, while not yet on the
board’s agenda, are sure to appear on it in the next month. This would permit the interested
parties to address all manner of topics, including the locality’s budget, policing issues, tax rates,
land use permits, and anything and everything else that properly could come before the board but
had yet to appear on the agenda. So long as the board members took no action and engaged in
no further activity at the private meeting, the dissent’s construction of the statute would place the
gathering beyond the reach of VFOIA. This cannot be so because such private meetings are
exactly the type of back-room, secretive dealing that VFOIA was enacted to prevent. Such a
result simply cannot be squared with VFOIA’s admonitions that “affairs of government are not
intended to be conducted in an atmosphere of secrecy since at all times the public is to be the
beneficiary of any action taken at any level of government[,]” that VFOIA be “liberally
construed to promote an increased awareness by all persons of governmental activities and afford
every opportunity to citizens to witness the operations of government[,]” and that ”[a]ny
exemption from public access to records or meetings . . . be narrowly construed[.]” Code § 2.2-
3700. To the contrary, the dissent’s interpretation would allow the discussion of public business
exception to swallow the rule.
12
In advancing their argument that items must appear on a formal agenda for there to be
a discussion of public business, defendants conceded at oral argument that if the 1:00 gathering
had been (1) jointly called by the Citizen Advisory Board and the chief of police, (2) to provide
for discussion of police use of force, property damage, riots, and use of chemical agents, and (3)
that, during the 1:00 gathering, at least one Board member requested that the police include
specific information in the after-action report, the gathering “could” be considered a “public
meeting where public business was discussed” if the items previously had been placed on a
formal Board agenda. In rejecting the “formal agenda” argument advanced by defendants, we
note that, when the record is viewed in the light most favorable to plaintiffs, each of the
circumstances detailed above existed relative to the CAB meeting.
22
discuss the events of May 30, 2020, and the police response to those events. Issues related to the
riots, the use of force by police, the use of chemical agents to quell the riots, and the property
damage that was caused were all discussed. One of the first responsibilities of any government
is to protect the lives, safety, and property of its citizens. As such, it is hard to imagine any
scenario in which the Board would not soon address a night of protest and unrest that eventually
led to riots that caused significant safety concerns and property damage. Without question, the
subsequent police response, an after-action report about that response, and how police should
respond in the future were matters of public business that were all but certain to come before the
Board.
After all, the county’s response to the events and any steps it decided to take going
forward are matters of county policy. As such, the ultimate decisions in these matters belonged
to the Board as “the policy-determining body of the county[,]” Code § 15.2-504, possessing all
“powers of the county as a body politic and corporate[.]” Code § 15.2-502(A). The information
discussed would be part and parcel of any official county response, and the review of the
performance of police officials falls within the Board’s power and responsibility to “inquire into
the official conduct of any office or officer under its control[.]” Code § 15.2-506. Such inquiry
into the performance of the police during the events of May 30, 2020, is a necessary component
of the Board’s oversight of the department of law enforcement, which includes the power to hire
and fire police officers or other county officials responsible for how the department carries out
its function. See Code §§ 15.2-510, 15.2-512, 15.2-513, & 15.2-528. Certainly, a review of the
events of that night and any policy changes by the county in response would have an effect on
the police department’s budget, which defendants acknowledged at trial is subject to Board
“control.” See also Code § 15.2-539.
23
Additionally, and again viewing the evidence in the light most favorable to the plaintiffs,
there was evidence adduced to suggest not only that public business of the Board was discussed
at the CAB meeting, but that business of the Board may have been transacted. 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. Crediting Supervisor Franklin’s testimony,
coupled with the fact that a majority of the Board was present when Supervisor Boddye made the
request, a reasonable factfinder could conclude that public business of the Board was not only
discussed, but may have actually been transacted at the CAB meeting.
That the evidence properly viewed more than amply supports the conclusion that the 1:00
meeting was intended to and did involve the discussion of public business finds further support
in the fact that the exact same topics were discussed at the properly noticed emergency Board
meeting that occurred at 4:00 that very afternoon. Supervisors Bailey, Boddye, Angry, and
Franklin each testified that the topics that were discussed at the 1:00 CAB meeting were
discussed at the 4:00 Board meeting. Thus, evidence establishes not only that the topics
discussed at the CAB meeting were likely to come before the Board in the future, but they
actually came before the Board that very afternoon. 13
Furthermore, although we reiterate our holding that topics being discussed need not be on
a formal Board agenda to constitute a discussion of “public business,” we note that the topics
being discussed at the CAB meeting were on a formal Board agenda while they were being
13
The defendants concede that the topics discussed were “public business” when
discussed at the 4:00 meeting. Given this concession, absent the defendants’ proposed “agenda”
requirement, it is difficult to envision a scenario in which the discussion of the same topics at the
CAB meeting do not constitute a discussion of public business of the Board.
24
discussed in the CAB meeting. At 1:24 p.m., while the CAB meeting was in progress, the county
executive identified the agenda for the 4:00 Board meeting, informing Board members that “the
topic of discussion will be, and can only be, the demonstrations that are occurring in PWC in
response to the events in MN and what we can do to allow, and help ensure, the demonstrations
occur safely and peacefully.” Further, at 2:54 p.m., while the CAB meeting still was ongoing
and the topics still were being discussed, the formal notice for the 4:00 Board meeting was
issued and identified the meeting agenda as “[d]iscussion of the demonstrations occurring in
Prince William County in response to events in Minnesota and what measures can be taken to
ensure that demonstrations occur safely and peacefully.” Thus, at least a portion of the
discussion of the topics in the CAB meeting occurred after the topics had already been placed on
a formal agenda for the Board.
From the evidence, a rational factfinder could conclude that the CAB meeting was called
to discuss issues related to the riots and the police response to those riots and that such
discussions occurred as planned. Thus, there was more than sufficient evidence to support the
conclusion that the CAB meeting fell outside the first exception to the definition of a meeting in
Code § 2.2-3701. Accordingly, the circuit court erred in granting the motion to strike on that
basis.
2. Public forum
In criticizing the definition of “public business” described above, the dissent, on multiple
occasions, uses some form of the phrases “informational gathering” or “informational meeting.”
Such references are notable in that not only do these phrases not appear in the text of the “public
business” exception to the definition of meeting found in Code § 2.2-3701, they do not appear
anywhere in VFOIA. The closest analog in VFOIA to either of these otherwise absent phrases is
25
found in the second exception to VFOIA’s definition of meeting that appears in subpart (b) of the
definition. That subpart 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 the gathering is
at a public forum, candidate appearance, or debate, the purpose of
which is to inform the electorate and not to transact public business
or to hold discussions relating to the transaction of public business,
even though the performance of the members individually or
collectively in the conduct of public business may be a topic of
discussion or debate at such public meeting[.]
Code § 2.2-3701 (emphasis added).
Defendants do not contend that the CAB meeting was a “candidate appearance” or a
“debate[.]” Asserting the purpose of the gathering was to inform the electorate, they argue that
every rational factfinder would be required to conclude that the CAB meeting falls within the
“public forum” exception to the definition of meeting in Code § 2.2-3701.14 We disagree.
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.
See Code § 2.2-3700 (“This chapter shall not be construed to discourage the free discussion by
government officials or employees of public matters with the citizens of the Commonwealth.”).
VFOIA is not intended to and does not prevent government officials, even in groups of three or
more, from attending a gathering “the purpose of which is to inform the electorate[.]” Such
14
Presumably, if the CAB meeting constitutes a “public forum . . . the purpose of which
[wa]s to inform the electorate[,]” Code § 2.2-3701, it would fall within the meaning of the
phrases “informational gathering” and “informational meeting” as those phrases are used by the
dissent. Thus, the dissent’s concerns in this regard would be more appropriate in a discussion of
the subpart (b) exception rather than in a discussion of the meaning of “public business” in
subpart (a).
26
forums permissibly may be convened by community groups, federal officials, or even
government officials who are subject to VFOIA, such as members of a board of supervisors. A
purely informational meeting, that does not involve “discussions relating to the transaction of
public business,” Code § 2.2-3701, does not constitute a meeting under VFOIA. 15
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[,]” Code § 2.2-3701, 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[.]” Id. Once that line
is crossed, the gathering is a meeting under VFOIA and all of the open meeting requirements
apply.
It can be difficult in the abstract to provide clear benchmarks for determining when a
gathering has been called and held for the sole purpose of informing the electorate and when it
has, either at its inception or over time, evolved to advance an impermissible purpose such as a
discussion relating to the transaction of public business. Such determinations are inherently
factual. Although some circumstances will be obvious, others will turn on fine factual
distinctions involving what was said, by whom, and in what context. As a result, we are unable
to provide bright lines to guide courts in making this determination—save one.
15
The “public forum” exception does allow for a discussion of “the performance of” the
subject officials “in the conduct of public business[.]” Code § 2.2-3701. That is, a discussion of
the past performance of public business is permissible, but a discussion of a covered official’s
acts related to transactions of public business that may occur in the future is not. No evidence
was adduced to suggest that the CAB meeting involved a discussion of defendants’ past
performance as members of the Board. Accordingly, this portion of the exception does not apply
in this case.
27
That bright line is VFOIA’s expressly stated presumption in favor of open government.
Every provision of VFOIA, including the “public forum” exception in Code § 2.2-3701, “shall
be liberally construed to promote an increased awareness by all persons of governmental
activities and afford every opportunity to citizens to witness the operations of government” and
“[a]ny 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.” Code § 2.2-3700(B). Accordingly,
courts making this determination must “put[] the interpretative thumb on the scale in favor of”
open government. Fitzgerald, 289 Va. at 505. Thus, in truly doubtful cases, the “public forum”
exception does not apply, and the gathering is a meeting subject to Code § 2.2-3707.
Applying the statutory language and this standard to the instant case, the circuit court
erred in granting the motion to strike. As noted above, the 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.
III. CONCLUSION
In enacting VFOIA, the General Assembly evinced a strong preference for open
government. Absent proper invocation of a statutory exception, VFOIA requires “every meeting
28
. . . be open to the public” and that “[a]ll public records and meetings shall be presumed open[.]”
Code § 2.2-3700(B). To ensure that this policy preference is respected, the General Assembly
has instructed courts that VFOIA “shall be liberally construed to promote an increased awareness
by all persons of governmental activities and afford every opportunity to citizens to witness the
operations of government” and that “[a]ny 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.” Id.
This instruction “puts the interpretative thumb on the scale in favor of” open government,
Fitzgerald, 289 Va. at 505, and requires that courts resolving disputes under VFOIA favor open
government in close cases.
Viewing the record in this case through such a lens and in the light most favorable to
plaintiffs, we conclude that the evidence adduced at trial was sufficient to allow a rational
factfinder to conclude that the CAB meeting was a meeting subject to the requirements of
VFOIA. Thus, the circuit court erred in granting the motion to strike. Accordingly, we reverse
the judgment of the circuit court and remand the matter for further proceedings consistent with
this opinion.
Reversed and remanded.
29
CHIEF JUSTICE GOODWYN, with whom JUSTICE POWELL joins, dissenting, in part.
The definition of public business announced by the majority in its opinion, which asserts
that certain topics are public business, is unsupported by the plain meaning of the phrase “public
business,” the context in which the phrase is used in the Virginia Freedom of Information Act
(VFOIA), and this Court’s precedent regarding what constitutes public business. This broadened
definition of public business will make gatherings for the purpose of purely informational
discussions between government officials and citizens subject to the notice requirements of
VFOIA, despite language in VFOIA clearly intended to exempt such discussions from its
requirements. Therefore, I dissent regarding the majority’s new definition of “public business”
and regarding the majority’s analysis which incorporates that definition. “Public business”
should be defined consistently with its plain meaning and the context in which it is used in
VFOIA.
I. BACKGROUND
A. Purpose of VFOIA
The General Assembly adopted VFOIA 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.”
Code § 2.2-3700(B). Under VFOIA, “[t]he affairs of government are not intended to be
conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any
action taken at any level of government.” Id. The purpose of VFOIA is to provide citizens
access to meetings where business is being conducted and actions are being taken or proposed by
certain governmental bodies.
30
As an additional aspect of open government, VFOIA requires that it be construed to
allow free discussion between government officials and citizens regarding matters of public
interest. Such opportunities for information sharing are so important to open government in
Virginia that interpreting VFOIA so as not to discourage such gatherings is specifically stated as
a requirement of VFOIA. See Code § 2.2-3700 (“This chapter shall not be construed to
discourage free discussion by government officials or employees of public matters with the
citizens of the Commonwealth.”).
Our Court has stated:
The public policy of the Commonwealth “ensures 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.” Code § 2.2-3700(B). But FOIA “shall not be construed
to discourage the free discussion by government officials or employees of public
matters with the citizens of the Commonwealth.” Id. Obviously, the balance
between these values must be considered on a case-by-case basis according [to] the
facts presented.
Beck v. Shelton, 267 Va. 482, 493 (2004).
B. Discussion of Public Matters
The VFOIA requirement, regarding encouragement of discussions of public matters, is
effectuated through exceptions to the definition of the term “meeting” under VFOIA. The
exceptions allow informational gatherings to be exempted from VFOIA meeting requirements.
See Code § 2.2-3701. As noted by the majority, “[t]he first exception to VFOIA’s definition of
meeting appears in subpart (a) of the definition of ‘meeting’ (hereinafter ‘subpart (a)’), 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
31
discussing or transacting any business of the public body[.]’ Code § 2.2-3701 (emphasis
added).” Thus, a discussion of public matters between citizens and government officials or
employees, which may be referred to as an “informational gathering,” is not a “meeting” as
defined by VFOIA and therefore is not subject to the notice and other requirements of VFOIA.
However, if the discussion of public business is the purpose of the gathering, it becomes a
meeting, and VFOIA applies.
The scope of the exception in subpart (a) is dependent upon the meaning of “public
business” as the phrase is used in Code § 2.2-3701. The scope of exception (a) can be
manipulated by changing the definition of public business from that intended by the General
Assembly. VFOIA seeks to prevent deviation from the intended definition by its directive which
states that “[t]his chapter shall not be construed to discourage free discussion by government
officials or employees of public matters with the citizens of the Commonwealth. Code § 2.2-
3700.
The majority’s new definition of public business states that a topic is “public business”
for purposes of Code § 2.2-3701 if it is either “pending before” the public body at the time or is
“likely to . . . come before it in the future.” (Slip Op. pp. 19-20). Any information discussed
regarding any aspect of the topic by anyone is considered to be the discussion of public business,
regardless of the involvement of members of the governing body in the discussion or the type of
business pending regarding the topic. The new definition of what constitutes public business
expressed by the majority is therefore unique and unprecedented in its extreme broadness.
By interpreting the definition of public business to include the discussion of any
information concerning any aspect of a topic which is likely to come before the governing body,
the majority eliminates the application of the subpart (a) exception to any gathering discussing
32
the demonstrations which occurred in Prince William County, regardless of what was actually
discussed by anyone at the gathering or the purpose of the gathering. This is contrary to prior
precedent.
II. DEFINITION OF PUBLIC BUSINESS
A. Plain Meaning and Context
VFOIA does not include a definition for “public business.” Because VFOIA does not
include a definition of the phrase “public business,” we seek to apply its “plain and ordinary
meaning” and are “guided by the context in which [the . . . phrase] is used” in determining the
General Assembly’s intended meaning of the phrase. Protestant Episcopal Church v. Truro
Church, 280 Va. 6, 21 (2010) (internal quotation marks and citations omitted).
“Public business” has long been a term of art used to describe the government’s role or
responsibility in carrying out its duties. Public business is activity undertaken or contemplated to
be undertaken by a public entity; as the term is used in VFOIA, public business is contemplated
and conducted by a public body on behalf of the people it represents.1 It is not the information
considered by the governmental body (the topic) that is the public business of the governing
body, rather it is any activity contemplated or conducted by the governmental body that is the
public business of the body and subject to the requirements of VFOIA. Stated differently, if a
governing body has pending business before it on the topic of a demonstration which occurred in
its county, the demonstration (the topic) is being discussed, but it is the action(s) the board
contemplates or takes regarding the demonstration that constitutes the public business of the
board. The demonstration is not the public business of the governmental body; it is a matter of
1
“Business” is defined as “an activity engaged in as normal, logical, or inevitable and
usu. extending over a considerable period of time: role, function.” Webster’s Third New
International Dictionary 302 (1993).
33
public concern that all the citizens of the county have an interest in. Information concerning the
demonstration should be allowed to be freely discussed and exchanged with the public, whereas
contemplated public action of the board regarding the demonstration would be public business
and discussion of that public business would be subject to the requirements of VFOIA.
The language of VFOIA underscores the distinction between matters of public interest
and the conducting of the business of the people by a governing body. Consistent with that
distinction, subparts (a) and (b) of the definition of meeting in VFOIA exempt informational
gatherings—referred to in the VFOIA statute as “free discussions of public matters”—from the
notice requirements of VFOIA. See supra at 32; Code §§ 2.2-3700 and 3701. Under subpart (a),
such gatherings are subject to the requirements of VFOIA if any part of the purpose of the
gathering is to discuss or transact contemplated public action of the governing body; VFOIA
applies in such instances because the public should have access to meetings where business is
being conducted or contemplated by the governmental body.
By defining “public business” as a topic, disconnected from the purpose for which the
topic is being discussed or by whom, and the context in which it is being discussed, the
majority’s definition of “public business” sweeps too broadly in the context of Code § 2.2-3701.
Expanding the scope of the definition of “public business” beyond its plain meaning to include
practically all topics of public interest eliminates the subpart (a) exception for informational
discussions between citizens and government officials regarding most public matters. It makes
the inquiry regarding the purpose of the meeting, designed and previously used to distinguish
discussions of public matters from discussions of public business of the governing body,
irrelevant.
34
The majority’s new definition is therefore an extremely significant change in the scope of
VFOIA which will reduce the openness of government by discouraging the free exchange of
information between government employees and citizens, through subjecting such gatherings,
which would not be public business under the plain meaning of that term, to VFOIA notice
requirements. 2 See Code § 2.2-3700. For example, under this new definition which makes a
topic public business, a police briefing for victims to explain facts and answer questions
concerning an ongoing crisis would be a violation of VFOIA, if three or more members of the
governing board were present and no VFOIA notice had been sent, although the purpose of the
gathering had nothing to do with the governing board exercising its deliberative authority.
Neither the plain meaning nor the context in which “public business” is used in VFOIA
provide any authority for the majority’s assertion that a “topic” of public interest constitutes
“public business” for purposes of Code § 2.2-3701, merely because the topic may in some way
be the subject of some business either “pending before” or “likely to . . . come before” the public
body in the future.
B. Judicial Precedent
The majority’s new definition of public business is contrary to prior decisions of this
Court. In our prior cases regarding the application of VFOIA to a gathering of citizens, the party
or parties alleging a violation of VFOIA, as in this case, claimed that there was a discussion of
public business at a gathering which took the purportedly offending gathering outside of the
exemption which is now stated in subpart (a) of the definition of meeting. See Beck, 267 Va. at
2
The statute requires that public meetings be publicly noticed, Code § 2.2-3707(C)-(D),
that any public body having a meeting provide the public with the agenda and related materials,
Code § 2.2-3707(F), and that written minutes of the meeting be taken, Code § 2.2-3707(H),
among other things.
35
486; Nageotte v. Board of Supervisors, 223 Va. 259, 268 (1982). In each case, the trial court, as
in this case, appropriately did a factual inquiry regarding the purpose of the meeting to determine
whether any part of the purpose of the gathering was the discussion of public business. Beck,
267 Va. at 493; Nageotte, 223 Va. at 269. In other words, the trial court judges realized that they
were required to determine whether the gathering had been called and held for the purpose of
acquiring or providing information or whether a purpose of the gathering was to discuss or
transact public business, which would take the gathering outside of the VFOIA exception.
In Nageotte, the members of a Board of Supervisors attended a gathering to acquire
information concerning a matter pending before the Board. The complainants asserted that the
gathering violated VFOIA, but the Board claimed that the gathering was only for the purpose of
acquiring information, that the Board did not arrange the gathering for the purpose of discussing
or conducting business about the pending matter, and that the gathering was therefore exempt
from the notice requirements of VFOIA. Nageotte, 223 Va. at 268. The trial court concluded
that the purpose of the gathering was to obtain information regarding the matter pending before
the Board and not for the Board to conduct business and that the gathering was therefore not a
meeting subject to VFOIA.3 On appeal, this Court upheld the trial court’s determination. Id.Beck, cited by the majority in its opinion, is a case in which approximately 20 residents
concerned about the lack of a stop sign and other related traffic safety issues invited two city
employees and three city council members to meet with them at an intersection to discuss the
traffic issues. Beck, 267 Va. at 492-93. As recounted in the opinion, at trial the trial court judge
found that the meeting was
3
The statute involved in Nageotte was not Code § 2.2-3701 but a prior statute with
similar language.
36
scheduled as a consequence of citizen inquiry; that the meeting’s purpose, in
essence, was an information forum in reference to traffic issues in a given
neighborhood or on a specific street; that the three members of Council who
appeared did not, according to the testimony which is uncontradicted, . . . discuss
anything with each other as a group of three or otherwise.
Id. at 493.
It was not questioned that the traffic issues fell within the purview of the city council as
the governing body of the city. However, the trial court ruled that the meeting was for
informational purposes only and was not for the purposes of discussing public business. Id. On
appeal, our Court noted that the evidence presented at trial and the competing requirements of
VFOIA had to be considered on a case-by-case basis, in determining the purpose of the
gathering, using the language in what is now subparts (a) and (b) of the definition of “meeting”
as guidance. 4 Id. The Court concluded its discussion in that case by ruling that:
The trial court was not plainly wrong or without evidence to support its judgment
that the Charlotte Street gathering was a citizen-organized “informational forum”
and that no part of the purpose of the gathering or attendance was the discussion or
transaction of any public business. The undisputed evidence at trial was that City
Council did not have any business pending before it on the issue of traffic controls,
nor was it likely to have such matters come before it in the future.
Id. at 493-94.
Realizing that determinations regarding the purpose of a gathering are inherently factual
and depend on the circumstances and distinctions involving what was said, by whom and in what
context, in both prior cases, as in this one, the trial court heard evidence concerning facts such as
who arranged the gathering, whether information was sought or given, whether the matter was
pending before the governing body, whether the members of the governing body who attended
sat together, whether they discussed anything with each other as a group or otherwise, etc., to
4
The statute considered in Beck was an earlier version of Code § 2.2-3701, but the
relevant statutory language is the same as in the current version of Code § 2.2-3701.
37
determine whether discussion of public business was a purpose of the gathering. Such analysis
would have been unnecessary under subpart (a) if the new definition of public business declared
by the majority had been acknowledged and applied in those cases. It was not.
In the present case, the majority’s assertion that “a topic is ‘public business’ . . . if it is
either ‘pending before’ the public body at that time or likely to . . . come before it in the future,”
(Slip Op. p. 19), is contrary to this Court’s ruling in Nageotte and finds little support in Beck. As
the majority’s only authority for its claim that a “topic,” rather than the activity of a
governmental body, constitutes public business, the majority asserts that it “embraces [the]
language and reasoning from Beck,” then quotes and italicizes a single-sentence factual recitation
from the Beck opinion which states: “[t]he undisputed evidence at trial was that City Council did
not have any business pending before it on the issue of traffic controls, nor was it likely to have
such matters come before it in the future.”
The quoted fact is not otherwise mentioned in the opinion’s analysis. There is no stated
reasoning concerning that sentence in the Beck opinion for the majority to embrace. 5 The extent
of its relevance to the Court’s ruling can only be speculated.
5
Further, rather than providing support for the majority’s proposition that a topic can be
“public business,” the language in Beck quoted by the majority demonstrates that this Court’s
prior use of the plain language meaning of “business” is different from the majority’s new
definition. Clearly, “business,” as that term is used in the sentence quoted from Beck, refers to
activity that was to be undertaken by the governmental body in carrying out its function as a
public body. That reference to business is consistent with the plain meaning of “business” as
used in Nageotte and in the context of VFOIA. Obviously, identification of a “topic”—without
more—is not indicative of whether or what business was to be conducted.
The sentence quoted from Beck provides little, if any, authority for the assertion that a
topic of interest which is the subject of public business becomes public business, as that term is
used in Code § 2.2-3701, when it is the subject of the Board’s consideration.
38
Although its mention in the opinion indicates that it was a factor relevant in determining
whether the purpose of the gathering was the discussion of public business, there is no language
in Beck asserting that the lack of pending business before the governmental body was the sole
factor considered in the Court’s decision regarding the purpose of the gathering. In fact, the
Court’s actual reasoning indicates that numerous factors needed to be considered in determining
the purpose of the particular gathering. In its analysis, the Beck court stated that determination of
the purpose of a gathering needed to be “considered on a case-by-case basis according [to] the
facts presented.” Id. at 493.
Business of a local legislative body includes the Board’s contemplation and action upon
any matter that comes before it; whether a vote is taken is irrelevant. It does not matter whether
the issue it considers was raised by a member of the body, a citizen, an employee, or otherwise.
The governmental body’s business at its formal meetings is to hear and consider the issues
presented to it. The consideration of issues that are on the Board’s agenda, or raised from the
floor at the meeting or come before the body in some other way, are the business of the
governing body. The topic of the issue considered is not.6
6
The majority believes that giving the words chosen by the General Assembly their usual
and plain meaning “crimps” the statute and that applying the exemption in subpart (a)
consistently with its plain language would allow private meetings that “would permit the
interested parties to address all manner of topics, including the locality’s budget, policing issues,
tax rates, land use permits, and anything and everything else that properly could come before the
board but had yet to appear on the agenda.” (Slip. Op. p.22, n.10). It would not.
Those are exactly the types of gatherings that the General Assembly made subject to
VFOIA, through the plain language it drafted. The majority’s “uncrimping” of the General
Assembly’s legislation by its strained interpretation of public business is unnecessary.
To the extent the purpose of the discussion or gathering concerns Board action, pending
or prospective, on any issue, it is a discussion of public business of the Board and subject to
VFOIA. Likewise, private meetings prearranged for the purpose of discussing activity to be
undertaken by the Board are subject to VFOIA requirements pursuant to the plain meaning of
VFOIA’s terms, no matter the topic. There is no logical or other support for the majority’s claim
39
There is no precedent from this Court which supports the assertion that “a topic is ‘public
business’ if it is either ‘pending before’ the public body or it is ‘likely to . . . come before it in the
future.’” Numerous other jurisdictions which have considered similar propositions have rejected
them. See In re Kansas City Star Co., 73 F.3d 191, 195 (8th Cir. 1996) (interpreting Missouri’s
open meeting law in deciding, as matter of law, that merely providing information or receiving
viewpoints is not discussing public business); Cal. Gov’t Code § 54952.2(c)(2) (exempting
gatherings open to the public involving a discussion of a matter of public interest so long as the
board members do not discuss business amongst themselves); Board of Cnty. Comm’rs v.
Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1193 (Colo. 2004) (noting that broadening the
concept of public business to encompass all matters of public concern would lead to absurd
results by requiring notice be given anytime “members attend meetings on any public issue”);
Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 940 (Mo. Ct. App. 1933) (“Matters of public
business are not synonymous with matters of public interest.”); White v. King, 60 N.E.3d 1234,
1239 (Ohio 2016) (defining “public business” as activity undertaken “within the purview of [a
public body’s] duties, functions and jurisdiction”); Wood v. Battle Ground Sch. Dist., 27 P.3d
1208, 1217 (Wash. Ct. App. 2001) (“[P]articipants must collectively intend to meet to transact
the governing body’s official business.”).
that “as long as board members took no action and engaged in no further activity in the private
meeting the gathering would be beyond the reach of VFOIA.” Id.The concept that business has to appear on the agenda of the governing body or be likely
to appear on the agenda to be public business is not stated in VFOIA and is a concept derived
from the majority’s interpretation of Beck, which, as noted in this dissent, would appear to be
inconsistent with the plain language of VFOIA regarding the meaning of “public business”
expressed in the statute and prior opinions of this Court. See Nageotte, 223 Va. at 268; Beck,
267 Va. at 493-94. (Slip Op. pp. 36-38).
40
To be clear, the proposition that is disputed, and not recognized by our Court in Beck or
by the defendants, is the proposition that a topic can constitute the public business of a governing
body, as the term “public business” is used in VFOIA. 7 The language in Beck does not state
what constitutes public business, but the Court’s use of the term “business” in Nageotte and in
Beck indicates that public business is not the topic discussed but rather the action or prospective
action contemplated, considered, or undertaken by the governmental body. The relevance of the
distinction is that the majority’s new definition of public business, by stating that topics are
public business, includes practically all information concerning issues of public interest within
the definition of public business. That broad definition of public business will short-circuit any
inquiry regarding the purpose or circumstances of a gathering and undermine the exemption in
subpart (a) by making any informational discussions, no matter the purpose, situation, or
circumstances, discussions of public business subject to the restrictions of VFOIA.
C. VFOIA
The majority, in its interpretation of the meaning of public business, as the term is used in
VFOIA, has failed to consider VFOIA’s “special rule of construction” 8 stating that VFOIA
7
The majority claims that “the defendant Board members conceded at oral argument in
this Court that the definition the dissent criticizes as unprecedented logically follows from a
‘literal reading’ of the language from Beck.” (Slip. Op. p. 20). The record does not support that
assertion. The unprecedented definition which is being criticized in this dissent is the assertion
that certain topics constitute public business. The response perceived and cited by the majority
as a concession (to the majority’s assertion that a topic can be public business regardless of the
context in which it is discussed or by whom) was in response to a question regarding whether
business that was likely to be on the agenda in the future could be public business, and the
defendants replied: “That is a literal reading of Beck and I urge the Court to look at that case and
that context when evaluating this case because that was a very different . . . that was a very
different set of circumstances there.” That statement by defendant Board members is not a
concession that a general topic can be considered to be public business.
8
The majority refers to the other directives stated in the same paragraph of VFOIA as
“special rules of construction for interpreting VFOIA,” adopted by the General Assembly “to
help effectuate [the] purposes” of VFOIA.
41
“shall not be construed to discourage the free discussion by government officials or employees of
public matters with the citizens of the Commonwealth,” Code § 2.2-3700, and the heavy thumb
such directive should have placed on the scales against the interpretation the majority settled
upon. (See Slip Op. p.15.) As a result, the majority, contrary to the plain language of VFOIA
and court precedent, construes VFOIA in a manner that discourages the free discussion of
information between government officials and citizens, in direct conflict with language in
VFOIA. See Code § 2.2-3700; Beck, 268 Va. at 493.
The new definition of public business subjects informational gatherings, previously
exempted by subpart (a), to the requirements of VFOIA, and eliminates consideration of the
purpose of the gathering inquiry embedded in subpart (a), which is used to distinguish public
matters from public business, for purposes of VFOIA coverage.
Subpart (a) was included in the statute to make sure that certain informational meetings
between citizens and government officials were not curtailed by VFOIA. However, under the
majority’s new definition, a purely and undeniably informational gathering between police and
citizens, concerning the facts surrounding a crime and the police response to it, attended by
board members, would be found to violate VFOIA, if the topic of the crime was pending or
likely to be on the agenda at a future board meeting, even though the purpose of the gathering
had nothing to do with the Board taking any action regarding the matter. That is contrary to how
VFOIA was designed to operate pursuant to the plain language used by the General Assembly in
drafting the statute. The new definition discourages citizen-organized informational gatherings
by requiring the application of VFOIA notice requirements, even if the purpose of the meeting is
purely informational.
42
Thus, the new definition construes VFOIA in a manner which is in clear defiance to a
VFOIA directive to the contrary. The majority repeats the mantra that exceptions to VFOIA are
to be construed narrowly and that VFOIA requires a heavy “interpretive thumb” on the scale in
favor of open and transparent government as justification for its novel and broad definition of
public business. However, neither the narrow construction of exceptions, nor the supposed
“heavy thumb,” is sufficient to supplant first principles of statutory construction and
interpretation. The mantra is not a talisman which allows the Court to ignore the plain language
and the context of the words used by the General Assembly in VFOIA, nor is it justification for a
strained interpretation of the plain language of a statute in a manner which will eliminate an
exception that the General Assembly, in its wisdom, has included for the purpose of improving
the openness of government.
Although, inexplicably not considered by the majority in its analysis, the General
Assembly’s directive that the VFOIA “not be construed to discourage the free discussion . . . of
public matters by government officials and employees with the citizens of the Commonwealth,”
(“the third directive”) stands on equal footing with, and is not subordinate to, the directive that
exceptions are to be construed narrowly, which the majority refers to in isolation and often. The
two directives are in consecutive sentences of the same paragraph, and they must both be
considered when they are relevant to interpreting the language of VFOIA. 9
III. CONCLUSION
The definition of public business announced by the majority asserts that certain topics of
public interest are public business. Considering a topic to be the public business of a
9
The third directive appears to be a guardrail put in place by the General Assembly to
protect the subparts (a) and (b) exceptions to the definition of meetings.
43
governmental body is contrary to the plain meaning and context in which the term “public
business” is used in VFOIA. It is also inconsistent with and unsupported by prior precedent of
this Court, and contrary to a special rule of construction required by the General Assembly. By
broadening the definition of public business to include topics which are likely to be the subject of
some unidentified public business, the majority unnecessarily narrows the application of the
subpart (a) exception and creates VFOIA violations in situations where none would exist if the
plain language definition of public business were applied.
Thus, I respectfully dissent to the majority’s definition of public business and its
application and analysis associated with that definition.
44