If a Virginia city council holds a meeting without posting the required public notice and uses that meeting to appoint a school board member, is the appointment valid?

Plain-English summary

The City of Franklin's at-large school board member resigned. After proper notice, the Franklin City Council held a March 24, 2008, public hearing to take nominations. Three citizens were nominated. In open session, the council scheduled a follow-up meeting for April 1, 2008, to interview the candidates and vote. The council met on April 1, voted, and appointed one of the three. The problem: no notice of the April 1 meeting was posted in the manner § 2.2-3707(C) of the Virginia Freedom of Information Act requires. Months later, in July 2008, a citizen at a council meeting pointed out the lapse. Delegate Tyler asked the Attorney General whether the appointment was still valid.

Attorney General Bob McDonnell concluded that the appointment was void from the start. Section 2.2-3707(C) mandates that "[e]very public body shall give notice" of its meetings by posting "in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body." Section 2.2-3710(A) then forbids any vote of a public body "to authorize the transaction of any public business" except at a meeting "conducted in accordance with the provisions" of the Act. Read together, those provisions make FOIA notice a prerequisite for any valid vote.

The AG anchored the conclusion in two Virginia Supreme Court cases. Glazebrook v. Spotsylvania County held that where a board's published notice fell short of the Code's requirements, the board "acted outside the authority granted by the General Assembly" and the resulting amendments were "void ab initio" (void from the beginning). City Council v. Potomac Greens Associates Partnership reached the same conclusion where a city failed to give the required notices before a planning commission hearing: the resulting ordinance was void ab initio.

The takeaway is severe but predictable. FOIA notice is not a procedural courtesy. It is a mandatory precondition to the validity of the council's actions. The Franklin appointment had to be redone with proper notice.

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.

Background and statutory framework

Virginia's Freedom of Information Act (FOIA), in §§ 2.2-3700 to 2.2-3714, codifies a strong public-access policy. Section 2.2-3700(B) declares that citizens are to have "free entry to meetings of public bodies wherein the business of the people is being conducted." Section 2.2-3707(C) sets the notice requirement:

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) sets the consequence for failing that requirement:

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].

Although the Virginia Supreme Court has held that "shall" in a statute directing a public official's action is often directory rather than mandatory, the AG reads § 2.2-3707(C) in light of § 2.2-3710(A) and concludes that the General Assembly intended the notice requirement to be mandatory. Section 2.2-3700(B) reinforces the intent by voiding "any ordinance adopted by a local governing body that conflicts with the provisions of [Chapter 37]."

The Dillon Rule sits in the background. Localities have only those powers the General Assembly has granted, exercised in the manner the General Assembly has prescribed. Holding a meeting without statutory notice is exercising power outside the prescribed manner.

The void ab initio doctrine pulls it all together. When a public body acts without statutory authority, the act is treated as never having occurred. Glazebrook and Potomac Greens are squarely on point.

What the AG concluded

Section 2.2-3707(C) notice is mandatory. The General Assembly intended the word "shall" to make the notice requirement compulsory, not advisory. The pairing with § 2.2-3710(A), which forbids any vote at a non-compliant meeting, removes any doubt.

A vote at a non-compliant meeting is not a vote at all. Section 2.2-3710(A) treats a non-FOIA-compliant meeting as ineffective for purposes of conducting public business. The members may have raised their hands, but legally, no authorized vote occurred.

The appointment is void ab initio. Glazebrook and Potomac Greens establish that the consequence of a notice failure is voidness from the start. The appointment never had legal effect; the school board seat remained vacant.

No mere ratification fixes it. Although the opinion does not directly address curative action, the void ab initio framing implies that a later acknowledgment or even a later vote in a properly noticed meeting would have to be a fresh appointment, not a confirmation of the April 1 vote. The remedy is to start over.

Common questions

What is "void ab initio"?
"Void from the beginning." A legal action declared void ab initio is treated as having never occurred. The school board appointment, in this case, never legally took effect; the seat remained vacant.

Could the council just hold a new properly noticed meeting and ratify the April 1 vote?
Not really. The April 1 vote is a legal nullity, so there is nothing to ratify. The council would have to hold a fresh properly noticed meeting, conduct the appointment process anew (or at minimum take a fresh vote), and have the result stand on its own.

Did the school board's appointee actually serve in the interim?
The opinion does not address that question. As a practical matter, the appointee may have attended meetings and participated in decisions during the months between April 1 and the discovery of the notice problem. Actions of an appointee whose appointment was later declared void can become complicated; courts sometimes apply the de facto officer doctrine to validate the appointee's intervening acts even if the appointment itself was invalid.

What kind of notice is sufficient under § 2.2-3707(C)?
The statute requires notice posted in a prominent public location at which notices are regularly posted, and in the office of the clerk of the public body (or chief administrator if no clerk). FOIA has additional notice requirements for special meetings (three working days' notice) and electronic publication options that vary by year. The opinion only addresses the basic posting requirement.

Why didn't the city catch the problem sooner?
The opinion does not explain. As a practical matter, FOIA notice failures often go unnoticed until a citizen, journalist, or political opponent raises them. The lesson is that public bodies need procedural discipline regardless of how routine a meeting feels.

Is the school board itself liable for any of this?
The opinion is about the City Council's appointment process, not about the school board's separate FOIA compliance. The school board would have its own notice obligations for its own meetings.

Citations

• Va. Code Ann. §§ 2.2-3700, 2.2-3707(C), 2.2-3710(A) (Virginia Freedom of Information Act)
• Glazebrook v. Spotsylvania County, 266 Va. 550 (2003)
• City Council v. Potomac Greens Associates P'ship, 245 Va. 371 (1993)
• Jamborsky v. Baskins, 247 Va. 506 (1994)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-114-Tyler.pdf

Original opinion text

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

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

January 6, 2009

The Honorable Roslyn C. Tyler
Member, House of Delegates
25359 Blue Star Highway
Jarratt, Virginia 23867

Dear Delegate Tyler:

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, including the appointment to the Board, are valid.[1]

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
1:213; 1:941/08-078

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.