Closed Versus Open Meetings

For the past year I’ve been providing reports on what is discussed at school board meetings. At the start of each meeting the school board certifies in open session that nothing was discussed in closed session that ought to have been discussed in public session.  Several people have asked about this recently, so I wanted to explain this a bit.  My source for this explanation is the Digital Media Law Project’s page on Open Meeting Laws in Virginia.

Under the Virginia Freedom of Information Act, the public has a right to know what happens in any “meeting” of public officials – school board, board of county supervisors, planning commission, etc.  The right to know includes notice that a meeting will be held three days before the meeting and the right to inspect and copy minutes from those meetings.  A meeting, per the digital media law project is defined as, “any gathering of three or more members of a public body (or a quorum, if a quorum is less than three) to discuss or transact business of the public body. The law applies to all discussions, deliberations, and formal action. A gathering of employees of a public body, as opposed to members of the body, is not a meeting covered by Virginia FOIA.”

What does that mean?  It means any time 3 or more school board members get together to discuss issues pertaining to the school division, you are entitled to to be notified that they will be getting together and attend the meeting, and the school division must take and provide minutes of the items discussed at that meeting for anyone to view and copy.  Social events and conferences are not considered meetings and spontaneous gatherings, like 3 school board members attending the same football game, are also not considered “meetings”.

You also have a right to receive any and all documents and packets provided to elected officials prior to meetings. For instance, school board members frequently ask questions during school board meetings that are answered in their board packets as opposed to in open session.  Any member of the public is entitled to receive a copy of that packet and those responses.

Minutes of the deliberations of some committees or appointed groups are not required.  Per the digital media law project, these include, “(1) committees of the General Assembly; (2) legislative interim study commissions and committees, including the Virginia Code Commission; (3) study committees or commissions appointed by the Governor; and (4) study commissions or study committees, or any other committees or subcommittees appointed by the governing body or school board of a county, city or town, except where the membership of the commission, committee or subcommittee includes a majority of the members of the governing body.”

That means minutes from textbook adoption committees are not required, however, those meetings are all open to the public to observe, even people who are not members of the committee.

Because governing bodies sometimes cover things that must be kept confidential, like deliberations about suspending a student, the law provides exemptions to the open meeting statutes for 44 specific subjects.  If the governing body is going to deliberate, discuss, or take action on any of those 44 specific areas, then they can do so in closed session, however, once the closed meeting is over, they must certify by vote in public session that they only discussed exempt issues while in closed session.

The 44 exemptions are provided in Section 2.2-3711 of the Code of Virginia. Rather than provide the entire list, word for word, below are some of the items that can be discussed in closed session by the school board:

  • Anything about hiring, firing, promoting, reassigning, disciplining, evaluating, or giving raises to faculty, staff,  employees, and appointees of the school board.
  • Anything about admitting or disciplining a student.
  • Anything about real property purchases or sales “where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body”
  • Discussion of the award of public contracts requiring expenditure of public funds “where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body”
  • Consultations with legal counsel and / or briefings by staff about actual or probable litigation. provided such litigation has been threatened or is considered likely to occur.
  • Anything of a personal nature not related to public business about an individual to protect their privacy.
  • Discussions about tests, examinations, or other records.
  • Discussions about a business or industry planning to expand into the area, when the business or industry has not yet announced their intention in public.
  • Discussions about investing public funds where competition or bargaining is involved or where the financial interest of the school division would be adversely affected.
  • Discussion of honorary degrees or special awards.
  • Discussion of plans to allow hazardous waste to be sited on public property.
  • Discussion of mental health records.
  • Discussion of plans to protect the public from acts of terror.
  • Certain information and deliberations relating to child death cases.
  • Meetings with the Board of the Virginia College Savings Plan where personal information might be disclosed.
  • Discussion of records excluded from open meetings.
  • Discussion or consideration of confidential proprietary records and trade secrets
  • Discussion or consideration by the Board of Education of records relating to the denial, suspension, or revocation of teacher licenses

Discussion of anything other than the items listed in the statute MUST occur in public session.  When they approve the closed session certificate, school board members are certifying that only items allowed to be discussed in closed session were discussed.

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