If a Virginia city council holds a meeting without giving the FOIA-required public notice and then votes on something, is the vote still good?

Plain-English summary

Franklin's at-large school board member resigned. The City Council held a properly noticed public hearing on March 24, 2008 and took nominations from three citizens. At that meeting, the Council talked about scheduling a separate meeting to interview the nominees and settled on April 1, 2008. Then it went to the April 1 meeting, voted to appoint one of the three, and moved on. Three and a half months later, a citizen pointed out at a July 14, 2008 Council meeting that the April 1 meeting itself had never been publicly noticed as required by Va. Code § 2.2-3707(C). Was the school-board appointment still valid?

Attorney General Bob McDonnell said no. Virginia's FOIA expressly requires every public body to give notice of "the date, time, and location of its meetings" by posting it in a prominent public location and in the clerk's office. The Virginia Supreme Court sometimes treats statutory "shall" language as directory, not mandatory, but here § 2.2-3710(A) closes the loop: "no vote of any kind … shall be taken to authorize the transaction of any public business" except at a meeting "conducted in accordance with" FOIA. Read together, the AG concluded, the notice requirement is mandatory and a vote at an unnoticed meeting is void ab initio (from the beginning).

For the Franklin school board appointment, the practical result was that the new member's appointment had no legal effect; the seat remained vacant. The City Council had to re-notice a meeting, take the vote again, and document compliance with § 2.2-3707(C).

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Virginia FOIA has been substantively amended several times since 2009, including changes to electronic posting and meeting-notice procedures.

Background and statutory framework

Virginia FOIA (Title 2.2, Chapter 37) is built around the policy in § 2.2-3700(B): citizens are to have "free entry to meetings of public bodies wherein the business of the people is being conducted." The same subsection also makes a notable structural choice: "Any ordinance adopted by a local governing body that conflicts with the provisions of [Chapter 37] shall be void." Local FOIA-conflicting rules cannot survive.

Section 2.2-3707(C) says "Every public body shall give notice of the date, time, and location of its meetings by placing the notice in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body that has no clerk, in the office of the chief administrator."

Section 2.2-3710(A) is the enforcement mechanism: "Unless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of [Chapter 37]."

The City Attorney had argued there was no specific provision invalidating actions taken at unnoticed meetings, citing the Virginia Supreme Court's general rule (from Jamborsky v. Baskins) that "shall" in a statute requiring action by a public official is presumptively directory rather than mandatory. The AG rejected the argument by reading § 2.2-3707(C) together with § 2.2-3710(A) as a coordinated whole, not in isolation.

What the AG concluded, point by point

The notice statute is mandatory in this context, not directory. The presumption from Jamborsky is rebutted when the statutory scheme manifests a contrary intent. Section 2.2-3710(A)'s flat ban on votes at non-compliant meetings is that contrary intent.

The April 1, 2008 meeting was not "conducted in accordance" with FOIA. Without § 2.2-3707(C) notice, the meeting cannot satisfy § 2.2-3710(A).

The vote was void. The AG borrowed Glazebrook v. Spotsylvania County and City Council v. Potomac Greens Associates P'ship for the void-ab-initio framework. In both cases, the Virginia Supreme Court held that local-body actions taken in violation of mandatory notice requirements are void from the start, not merely voidable.

Dillon Rule reinforcement. Even outside FOIA, a city council is exercising delegated powers; it can act only as authorized. An unnoticed vote is an unauthorized act. The AG cited Nat'l Realty, Horne, Commonwealth v. County Bd., and Countryside Invest. Co. for the Dillon-Rule strict construction.

The proper fix is to re-notice and re-vote. Although the opinion does not state the procedure expressly, the natural implication of void ab initio is that the appointment has to be redone, properly. The seat is treated as still vacant until that occurs.

What this meant at the time

For the Franklin City Council and City Attorney (as of 2009)

The City Attorney's hopeful view that the appointment "was valid because there was no remedy specified" did not survive contact with FOIA's structural rules. The Council needed to schedule a new meeting with proper § 2.2-3707(C) notice, re-take the vote (after appropriate hearing as required by the Charter), and document everything.

For citizens and FOIA advocates (as of 2009)

This opinion was a clean piece of authority for raising notice defects at city council and county board meetings. If you spotted an unnoticed meeting that produced a controversial vote, you had AG support for arguing the vote was void from the beginning.

For local government attorneys generally (as of 2009)

The opinion reinforced the practice of treating notice failures as procedurally fatal. Curing a noticed defect after the fact (by noting the omission in subsequent minutes, or by ratifying the action at a later, properly noticed meeting) was not enough; the vote itself had to be retaken.

For school boards, planning commissions, and other appointed bodies (as of 2009)

Anyone serving on a body whose authority depends on a city or county council's vote should care about the procedural soundness of that vote. A void appointment means a void seat; decisions made by the appointee may themselves be vulnerable.

Common questions

Q: What's the difference between "directory" and "mandatory" in this context?
A: A directory statutory requirement is one whose violation can be cured or excused. A mandatory requirement is one whose violation invalidates the underlying action. Here, the FOIA notice rule is mandatory because § 2.2-3710(A) expressly conditions valid votes on compliant meetings.

Q: Does this apply to closed (executive) sessions?
A: The opinion focuses on open-meeting notice under § 2.2-3707(C). Closed-session procedures have their own requirements in other FOIA sections. The general principle, that mandatory procedural steps must be honored, applies across both.

Q: What about emergency meetings?
A: Virginia FOIA contains shorter-notice rules for genuine emergencies elsewhere in Chapter 37. The April 1, 2008 Franklin meeting was not characterized as an emergency, and the opinion does not address emergency-meeting protocols.

Q: What if a meeting was discussed and scheduled at a properly noticed prior meeting?
A: That is exactly what happened in Franklin: the April 1 meeting was scheduled at the March 24 hearing. The AG says that's not enough. Each meeting must have its own § 2.2-3707(C) notice posted at the time-and-place locations the statute identifies.

Q: Could the City Charter override FOIA?
A: No. Section 2.2-3700(B) expressly voids any local ordinance that conflicts with FOIA. The Charter cannot relax the notice requirement.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. §§ 2.2-3700 through 2.2-3714 (Virginia FOIA)
• Va. Code Ann. § 2.2-3707
• Va. Code Ann. § 2.2-3710

Cases:

• Glazebrook v. Spotsylvania County, 266 Va. 550 (2003), board acting outside authority, amendments void ab initio
• City Council v. Potomac Greens Associates P'ship, 245 Va. 371 (1993), missed notice voids ordinance
• Jamborsky v. Baskins, 247 Va. 506 (1994), "shall" presumptively directory unless contrary intent
• Nat'l Realty Corp. v. Va. Beach, 209 Va. 172 (1968), Dillon Rule
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975), express or implied power requirement
• Commonwealth v. County Bd., 217 Va. 558 (1977), inquiry ends if power cannot be found
• Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497 (1999)
• Prillaman v. Commonwealth, 199 Va. 401 (1957), reading statutes as coordinated whole
• Marsh v. City of Richmond, 234 Va. 4 (1987), plain-meaning rule
• Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97 (1987)
• Ambrogi v. Koontz, 224 Va. 381 (1982)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-078-Williams.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

January 6, 2009

H. Taylor Williams, IV, Esq.
City Attorney for Franklin

Dear Mr. Williams:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the failure of the City Council of the City of Franklin to give the notice of meeting required by § 2.2-3707(C) invalidates the selection and appointment of a nominee to the school board.

Response

It is my opinion the failure of the City Council of the City of Franklin to give the notice of meeting required by § 2.2-3707(C) invalidates the appointment of a nominee to the school board.

Background

You advise that the Charter for the City of Franklin ("Charter") creates a separate school district. The school board ("Board") consists of seven members who are qualified voters of the City of Franklin ("City") and not members of the City Council of the City of Franklin ("City Council"). One member of the Board is to be selected from each ward of the City and one member is selected from the City at large. The City Council fills any vacancy on the Board for the unexpired term.

You advise that the at-large member of the Board resigned. Pursuant to proper notice posted in the local newspaper, a public hearing was held by the City Council on March 24, 2008, to receive nominations from the public to fill this vacancy. At the public hearing, three citizens were considered to fill the unexpired term. The City Council in open session discussed a date for interviewing the three nominees and agreed upon April 1, 2008.

You advise that no other notice was given regarding the City Council meeting scheduled for April 1, 2008. You state that City Council met on April 1, 2008, and voted for one of the three citizens to fill the unexpired term. At the City Council meeting held on July 14, 2008, a citizen noted that the April 1, 2008 Council meeting was conducted without the notice required by § 2.2-3707(C).

You state there is no authority to invalidate the actions taken by the City Council due to the failure to give notice. Therefore, you conclude the actions taken by the City Council on April 1, 2008,[1] including the appointment to the Board, are valid.

Applicable Law and Discussion

The power of a local governing body, unlike that of the General Assembly, "must be exercised pursuant to an express grant"[2] because the powers of a county "are limited to those conferred expressly or by necessary implication."[3] "If the power cannot be found, the inquiry is at an end."[4] The Dillon Rule requires a narrow interpretation of all powers conferred on local governments since they are delegated powers.[5] Therefore, any doubt as to the existence of power must be resolved against the locality.[6]

Section 2.2-3700(B) of The Virginia Freedom of Information Act ("Act")[7] expresses the public policy that the citizens of the Commonwealth are to have "free entry to meetings of public bodies wherein the business of the people is being conducted." Furthermore, "[a]ny ordinance adopted by a local governing body that conflicts with the provisions of [Chapter 37] shall be void."[8] Section 2.2-3707(C) of the Act provides, in part, that:

Every public body shall give notice of the date, time, and location of its meetings by placing the notice in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body that has no clerk, in the office of the chief administrator.

The Supreme Court of Virginia repeatedly has held that "the use of 'shall,' in a statute requiring action by a public official[, such as in § 2.2-3707(C),] is directory and not mandatory unless the statute manifests a contrary intent."[9] However, statutory construction dictates that statutes on a particular subject should not be read in isolation, but must be construed as parts of a coordinated whole.[10] Section 2.2-3710(A) of the Act provides, in part, that:

Unless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of [Chapter 37].

When a statute is clear and unambiguous, its plain meaning must be accepted without resort to extrinsic evidence or to the rules of construction.[11] Legislative intent is determined from the plain meaning of the words used.[12] Furthermore, when legislative intent is plain, I am required to respect it and give it effect.[13] It is clear that the use of the word "shall" by the General Assembly in § 2.2-3707(C) is intended to make its requirements mandatory.

It also is clear, with respect to meetings of public bodies such as the City Council, that no vote of any kind is authorized "other than a vote taken at a meeting conducted in accordance" with the Act.[14] The City Council may only exercise powers expressly granted, and in the manner granted, by the General Assembly. The General Assembly clearly and unequivocally requires the City Council to "give notice of the date, time, and location of its meetings" in a prominent public location "at which notices are regularly posted," and in the office of its clerk or the administrator's office if there is no clerk.[15]

You have advised that the City Council did not give notice of the meeting held on April 1, 2008. Section 2.2-3710(A) specifically forbids any vote by the City Council on any public business unless the vote is taken "at a meeting conducted in accordance with the provisions" of the Act. Since proper notice of the April 1, 2008 meeting was not given, I must conclude that the vote of the City Council was not taken "at a meeting conducted in accordance" with the Act.[16] Therefore, the City Council's vote selecting a person to fill the unexpired term of the at-large school board member is null and void.[17]

Conclusion

Accordingly, it is my opinion the failure of the City Council of the City of Franklin to give the notice of meeting required by § 2.2-3707(C) invalidates the appointment of a nominee to the school board.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. Section 2.2-505(B) requires that an opinion request from a city attorney "shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney's legal conclusions."

2. Nat'l Realty Corp. v. Va. Beach, 209 Va. 172, 175, 163 S.E.2d 154, 156 (1968).

3. Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975) (noting Dillon Rule).

4. Commonwealth v. County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).

5. See Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497, 504-05, 522 S.E.2d 610, 613-14 (1999) (holding that county board of supervisors does not have unfettered authority to decide what matters to include in subdivision ordinance; must include requirements mandated by Land Subdivision and Development Act and may include optional provisions contained in act); Op. Va. Att'y Gen: 2002 at 77, 78; 1974-1975 at 403, 405.

6. 2A EUGENE MCQUILLEN, THE LAW OF MUNICIPAL CORPORATIONS § 10.19, at 369 (3d ed. 1996); see also Op. Va. Att'y Gen.: 2002 at 83, 84; 2000 at 75, 76.

7. See VA. CODE ANN. tit. 2.2, ch. 37, §§ 2.2-3700 to 2.2-3714 (2008) (codified in scattered sections).

8. Section 2.2-3700(B).

9. Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994).

10. See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); Op. Va. Att'y Gen.: 2002 at 331, 333; 1993 at 177, 187; 1992 at 108, 112.

11. Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987); Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 99, 353 S.E.2d 758, 760-61 (1987); Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982).

12. Marsh, 234 Va. at 11, 360 S.E.2d at 167.

13. Arlington County Board, 217 Va. at 579, 232 S.E.2d at 43.

14. Section 2.2-3710(A).

15. Section 2.2-3707(C).

16. See Glazebrook v. Spotsylvania County, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003) (holding that if notice published by board of supervisors did not meet requirements of Code, board acted outside authority granted by General Assembly and amendments are void ab initio); City Council v. Potomac Greens Associates P'ship, 245 Va. 371, 378, 429 S.E.2d 225, 228 (1993) (concluding that where Code required two notices for hearing before planning commission and city failed to give requisite notices, ordinance was void ab initio). "Ab initio" means "from the beginning." BLACK'S LAW DICTIONARY 5 (8th ed. 2004).

17. Id.