In Denton v. City Council for the City of Hopewell, CL 2015-71 (Hopewell Cir. Ct. 2015), a suit brought under the Virginia Freedom of Information Act, Va. Code §§ 2.2-3700 et seq., (“FOIA”), the Hopewell Circuit Court recently held that the Hopewell City Council “cannot hold closed meetings to discuss whom to elect to the position of mayor or vice-mayor.” During its organizational meeting held January 6, 2015, the City Council went into closed session pursuant to Va. Code § 2.2-3711(A)(1) “[f]or the discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body.” Denton at 1. In the closed session, the City Council discussed elections for the office of mayor and vice-mayor.
The petitioner challenged this practice and sought an injunction to prohibit the City Council from going into closed session to discuss such elections in the future. The Circuit Court issued the injunction, reasoning that “there is a fundamental distinction between an ‘election’ and an ‘appointment’ . . . and that only an ‘appointment’ is covered by the exemption.” Id. The court concluded that because the mayor and vice-mayor were elected rather than appointed, the discussion of the election in closed session was improper. Id.
The Denton case is relevant to school boards because, like the Hopewell City Council that elects its mayor and vice-mayor, a school board elects its chair and vice-chair. See Va. Code § 22.1-76(A) (“at its annual meeting each school board shall elect one of its members as chairman . . . The school board may also elect one of its members as vice-chairman.”)(emphasis added). While the circuit court’s decision in Denton is not binding on other Virginia circuit courts, other circuit courts may find this decision persuasive. If the court’s reasoning in Denton is applied, a school board may not properly discuss the election of its chair or vice-chair in closed session.
Most school boards will hold their organizational meetings and elect chairs and vice-chairs1 in the coming days. Therefore, it is important that school board members are aware of the Denton decision. If you or your school board members have any questions about proper closed session discussions, please contact us or your school board attorney.
- It should also be noted that § 22.1-76 specifically provides that the clerk and deputy clerk are appointed. Thus, the closed-meeting exemption applies and those appointments may be discussed in closed session.
Client Alert 2016-004