by James C. Sherlock
I submitted questions to the Virginia Freedom of Information Advisory Council concerning FOIA open meetings requirements applicable to local government sessions discussing contracts with unions.
I received a very prompt and thorough reply.
The following is the response of Alan Gernhart, Esq., Executive Director.
My general understanding is that such negotiations would normally be carried out by representatives rather than by the public bodies themselves, and therefore the open meeting rules generally would not come into play until the representative brings a proposal to the public body for its approval. (In other words, the public body’s representative meeting with the union representative normally would not be a “meeting” subject to FOIA since the public body would not be directly involved at that stage.)
Once the public body becomes involved, it appears that there are not any specific exemptions to allow such negotiations or the discussion of such collective bargaining agreements to be held in closed meetings, but there are several exemptions that might apply (at least to some parts of such meetings) depending on the exact nature of the discussions.
For example, subdivision A 1 of § 2.2-3711 allows for the discussion of certain personnel matters concerning identifiable individuals in closed meetings. While it would not apply to collective bargaining negotiations as a whole since such negotiations do not necessarily involve the discussion of individuals, to the extent individual employees were being discussed, it would allow those portions of the discussion to be held in closed meetings.
Similarly, consultation with legal counsel about specific legal matters under subdivision A 8 of § 2.2-3711 would probably apply to much of the discussion, because as you observed in your article, there are likely to be many legal questions involved.
I would also note that there is an exemption concerning the award of public contracts (subdivision A 29 of § 2.2-3711), but the Supreme Court of Virginia has interpreted it to apply to procurement transactions, so it would not cover collective bargaining negotiations outside of the procurement context. (See White Dog Publishing v. Culpeper Co. Bd. of Supervisors (2006) (available here).)
Finally, I did check in Chapter 4 of Title 40.1 concerning Labor Unions, but I did not find anything there addressing the Freedom of Information Act or closed meetings.
Take-aways:
- Negotiating sessions will not be public meetings unless the public body is involved;
- School board and city council meetings will need to be structured to accommodate the exceptions to which Mr. Gernhart points. Matters involving individual personnel (unlikely) and consultation with legal counsel (extremely likely) can be held in closed session;
- Everything else on this subject is an open meeting of both the school boards and city/town/county councils.
They will be must-see TV for residents of communities affected.
I have thanked Mr. Gernhart for all of us, including, I am sure, the public bodies that will be involved.
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