Nageotte v. Board of Supervisors of King George County

• Decision Date: 12 March 1982
• Docket Number: No. 791388,791388
• Citation: 223 Va. 259,288 S.E.2d 423
• Court: Virginia Supreme Court
• Parties: Richard R. NAGEOTTE, et al. v. BOARD OF SUPERVISORS OF KING GEORGE COUNTY, et al. Record

Page 423

288 S.E.2d 423

223 Va. 259

Richard R. NAGEOTTE, et al. v. BOARD OF SUPERVISORS OF KING GEORGE COUNTY, et al.

Record No. 791388.

Supreme Court of Virginia.

March 12, 1982.

Richard R. Nageotte, Woodbridge, pro se (B. Calvin Burns, pro se, on brief).

John P. Harris, III, Fredericksburg (Harris & Harris, Fredericksburg, on brief), for appellees.

Before CARRICO, C. J., COCHRAN, POFF, COMPTON, THOMPSON, and STEPHENSON, JJ., and HARRISON, Retired Justice.

COCHRAN, Justice.

This is one of three appeals arising from rulings of trial courts in cases in which local governing bodies were alleged to have violated the Virginia Freedom of Information Act, Code §§ 2.1-340 et seq. (the Act). See Marsh v. Richmond Newspapers, 223 Va. 245, 288 S.E.2d 415 (1982), and City of Danville v. Laird, 223 Va. 271, 288 S.E.2d 429 (1982), both this day decided.

In this case, Richard R. Nageotte and B. Calvin Burns filed in the trial court a bill of complaint, subsequently amended, against defendants, James B. Howard, Woodrow W. Saft, and Reginald P. Hayden, individually, and collectively as the Board of Supervisors of King George County, and John P. Harris, III, Commonwealth's Attorney and County Attorney of King George County. The amended bill of complaint alleged that the Board violated the Act by conducting meetings without proper notice to the public, by failing to maintain and make available for inspection records of such meetings, and by holding executive or closed meetings in violation of Code § 2.1-344. Complainants sought to have the court invalidate all actions taken in violation of the Act, enjoin defendants from further violations, award attorneys' fees and costs to complainants, determine that the violations were willful and knowing, and impose upon defendants in their individual capacities a civil penalty of not less than $25 nor more than $500 for such willful and knowing violations. An answer was filed on behalf of the defendants denying any violations of the Act.

The trial court, after hearing the evidence ore tenus on four separate dates, filed a written opinion dated May 22, 1979, ruling in favor of defendants. Complainants filed a motion to reconsider on the ground that the court's opinion failed to address certain meetings which complainants had alleged were held in violation of the Act. In its final order entered June 18, 1979, the court referred to complainants' motion to reconsider but implicitly overruled it by awarding judgment in favor of defendants and dismissing the cause with prejudice. We granted Nageotte and Burns an appeal limited to the questions whether the trial court erred in not finding that the Board violated the Act by not stating the specific purpose for going into executive session, and whether the court erred in finding that the Board did not violate the Act by holding specific meetings without giving public notice and recording minutes.

On November 9, 1978, the Board, consisting of three members, convened in a special meeting. The minutes of the meeting show that it was called for the purpose of discussing with representatives of DANO Resource Recovery, Inc., "the company's plans to locate in the county and the pertinent permits which must be obtained." After Board members had expressed a desire to consider with open minds the proposed DANO operation, which they recognized as a controversial issue, the DANO representatives made an extensive presentation. They explained that DANO proposed to transport solid waste and sewage sludge from Washington, D.C., for processing into usable compost with "three times the nutrient value of cow manure" in a $10 million facility to be constructed in King George County. The representatives described various safety and screening measures to protect the public, and responded to questions. The minutes reflect the following actions:

Upon a motion by Mr. Saft, seconded by Mr. Hayden, and carried unanimously, the Board went into Executive Session to confer with legal counsel.

On a motion by Mr. Hayden, seconded by Mr. Saft, and carried unanimously, the Board returned to Public Session.

Mr. Howard stated that during Executive Session the Board had received the advice of counsel and no decisions had been made by the Board.

The meeting was adjourned at this point.

The Executive Secretary of the County testified that the minutes of the November 9 meeting reflected typical motions of the Board to convene in executive session, and that such motions appeared consistently in the minutes. She said that she did not attend executive sessions and that no minutes were taken at such sessions.

On November 16, the Board held a regular meeting and considered many matters, including a presentation by the King George Environmental Association of a statement in opposition to the DANO proposal. Immediately following this presentation, the minutes show that on motion unanimously approved "the Board went into Executive Session to receive advice of legal counsel." Upon returning to public session, the chairman stated that "during Executive Session the Board had received the advice of counsel and no decisions were reached."

Later in the meeting a second executive session was convened "for legal counsel." Upon returning to public session, the chairman reported that no decision had been reached in the closed session. The Board then approved motions directing the Commonwealth's Attorney "to contact the Attorney's General's office to arrange an appearance before the Board of Supervisors to render legal advice," and directing the Commonwealth's Attorney to represent the defendants in a certain law action. The record shows that this law action was filed by Nageotte and Burns against members of the Board individually, alleging interference with a contract. A non-suit subsequently was taken in the action.

The Board convened in a regular meeting on January 4, 1979, at which many items of business were considered. After setting dates for public hearings concerning a possible application to a federal agency for a Community Development Grant, the Board approved a motion to go into executive session, "for legal counsel and to discuss personnel matters." Following the closed session the chairman stated that the Board in executive session had discussed "legal and personnel matters and no decisions had been reached." The Board then passed a resolution concerning the location of a proposed new post office, and a detailed resolution opposing location by Southern Marine and Salvage Company of a composting facility (the DANO project).

On January 18, the Board met again in regular session and discussed a variety of subjects. After approving a request to use a County facility, the Board went into executive session "for legal counsel." Returning to public session, the Chairman announced that the Board had gone into executive session "for legal counsel and no action had been taken or decisions made." The Commonwealth's Attorney then advised the Board that upon investigation he had found discrepancies in the applications of Southern Marine and Salvage Company for permits for the DANO project. Thereupon, the Board approved a motion revoking the building permits.

In addition to the foregoing meetings of the Board, there was evidence that two members met with the County Administrator on the morning of November 12, a Sunday, and that all three members met in the office of the Attorney General of Virginia on November 20. No minutes were kept on either occasion.

At trial, Nageotte, representing himself and Burns, examined as adverse witnesses the Board members and others present during executive sessions of the Board, for the purpose of proving that in such sessions the Board members discussed and acted on nonexempt topics in violation of the Act. ¹ The Board members testified, consistently with the Board minutes, that they discussed only legal matters relating to the DANO project. They declined to divulge the details or substance of their discussions with counsel on the ground that such information was privileged because of the attorney-client relationship.

After hearing the witnesses, the trial court found that none of the discussions conducted in executive session violated the Act. Nageotte and Burns have not assigned error to this finding, but they challenge on appeal the adequacy of the motions to go into executive session.

In Marsh and City of Danville, supra, we held that a motion to meet in executive session that follows the language of the statutory exemption and identifies the agenda item or items to be discussed with legal counsel is sufficient. In the present case, none of the motions followed the language of the applicable statutory exemption. Since the November 9 meeting was a special meeting limited to consideration of the DANO project, the purpose of the executive session necessarily related to that business. Likewise, the first executive session convened at the November 16 meeting apparently was related to the DANO project because the closed session immediately followed the presentation of a statement opposing the project. At the January 4 and January 18 meetings there were no identifiable connections between the motions to go into executive session and business then under consideration by the Board.

On appeal, the Board members contend that by stating that the executive sessions would be held for legal advice, or the equivalent, they adequately stated the purpose in compliance with § 2.1-344(b). They say that the statute does not require that the subject matter be stated. But, as we have ruled in Marsh and City of Danville, we construe the Act to require that the purpose be identified with the applicable item of business on the agenda where the executive session is convened under the provisions of § 2.1-344(a)(6). One of the executive sessions, however, was convened to confer with counsel and also to consider personnel matters, presumably under § 2.1-344(a)...