Beck v. Shelton

Present: All the Justices

BILL BECK, ET AL.

v. Record No. 030723 OPINION BY JUSTICE DONALD W. LEMONS
March 5, 2004
GORDON SHELTON, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge

In this appeal, we consider several issues relating to

The Virginia Freedom of Information Act ("FOIA" or the "Act"),

Code §§ 2.2-3700 to -3714, including: 1) whether "members-

elect" are "members" of a public body for the purpose of

application of FOIA; 2) whether the use of electronic mail

("e-mail") for communication between three or more members of

a public body constitutes a "meeting" for the purposes of

FOIA; and, 3) whether a particular gathering of citizens

attended by three members of the Fredericksburg City Council

constituted a "meeting" under the Act.

Facts and Proceedings Below

Gordon Shelton, Anthony Jenkins, and Patrick J. Timpone

(collectively, "Shelton") filed an 18-count petition for writ

of mandamus and injunction against William M. Beck, Mayor of

the City of Fredericksburg; W. Scott Howson III, Vice-Mayor of

the City of Fredericksburg; and three Councilmen, Thomas P.

Fortune, William C. Withers, Jr., and Matthew J. Kelly 1

1
Fortune and Withers are not appellants herein.
(collectively, "Defendants" or "Beck"). While citing multiple

incidents of alleged violations of FOIA, the gravamen of the

complaint was that Defendants "deliberately e-mailed each

other in a knowing, willful and deliberate attempt to hold

secret meetings, avoid public scrutiny" and "discuss City

business and decide City issues without the input of all the

council members and the public." Shelton asserted that various

exchanges of e-mail, face-to-face meetings, and one public

gathering on the streets of Fredericksburg constituted

"meetings" under FOIA for which there was no notice pursuant

to Code § 2.2-3707 and no emergency or other exception which

would relieve the Defendants from the obligations imposed upon

them concerning public meetings.

Defendants prevailed on demurrers or at trial on fourteen

of the eighteen counts and Shelton voluntarily dismissed three

other counts before trial. 2 The trial court held that the Act

did not apply to conduct of members-elect of the

Fredericksburg City Council, that certain e-mail

communications did constitute a "meeting" as defined in FOIA,

and that a particular gathering of citizens and council

members, the Charlotte Street gathering, was not a "meeting"

under the Act. While holding that Defendants violated the

2
Only Counts I-IX, XI, XIV, and XVII are specifically
before us on appeal.

2
open meeting provisions of FOIA, the trial court found that

the violations were not "willful or knowing," declined to

impose any penalty, and declined Shelton's motion for

attorney's fees. The final order was silent regarding

Shelton's request for a writ of mandamus or injunctive relief.

Beck appeals the adverse judgment of the trial court and

Shelton assigns cross-error.

Application of FOIA to "Members-elect"

In Counts I - IX of his petition, Shelton alleged various

violations of FOIA by face-to-face meetings and e-mail

communications between Mayor Beck, Vice Mayor Howson, and then

council members-elect Kelly, Fortune, and Withers. Kelly,

Fortune, and Withers did not become council members until they

took their respective oaths of office and began their

respective terms on July 1, 2002. Under the facts of this

case, pursuant to Code § 2.2-3701, an informal assemblage of

three members may trigger the application of the open meeting

requirements of FOIA. 3 In these counts, Shelton alleges

"meetings" between two members of council and three members-

elect. Defendants demurred to Counts I - IX, asserting that

3
The definition of "meeting" in Code § 2.2-3701 would
apply to a quorum, if less than three. Four members represent
a quorum of the City Council; consequently, under the
circumstances of this case, a meeting of at least three
members is required before FOIA open meeting requirements are
implicated.

3
as a matter of law the application of FOIA does not extend to

members-elect of a public body. If FOIA does not apply to

members-elect, then only two members are alleged to have met

and the threshold requirement of an assemblage of three

members was not met. The trial court agreed and sustained the

demurrers.

In support of his assignment of cross-error, Shelton

argues that the definition of "public body" specifically

contemplates that "private sector or citizen members" may be

included as a part of a public body, that members-elect have a

"statutory obligation to become familiar with the requirements

of the Act," and that the provisions of FOIA are to be

"liberally construed." For these reasons, Shelton maintains

that the provisions of FOIA are applicable to conduct of a

member-elect as if she were a member of the public body.

Under Code § 2.2-3701, the definition of "public body" is

extended to

(ii) any committee, subcommittee, or other entity
however designated, of the public body created to
perform delegated functions of the public body or
to advise the public body. It shall not exclude
any such committee, subcommittee or entity
because it has private sector or citizen members.

This provision simply includes committees, subcommittees, or

entities within the types of public bodies covered by FOIA,

irrespective of participation by private sector or citizen

4
members. It does not expand the meaning of "members" in the

definition of "meetings" also contained in Code § 2.2-3701.

Furthermore, the City Council does not have private sector or

citizen members and did not use a committee or subcommittee

structure. The full body or a quorum of the City Council

cannot logically be presumed to be a committee or subcommittee

of itself.

Additionally, it is true that members-elect are to

familiarize themselves with the provisions of FOIA after they

are elected and before they take office.

Any person elected, reelected, appointed or
reappointed to any body not excepted from this
chapter shall (i) be furnished by the public
body's administrator or legal counsel with a copy
of this chapter within two weeks following
election, reelection, appointment or
reappointment and (ii) read and become familiar
with the provisions of this chapter.

Code § 2.2-3702. However, nothing in this statutory provision

alters the application of FOIA or modifies the meaning of

"members" in Code § 2.2-3701.

Finally, Shelton argues that the statutory admonition of

"liberal construction" found in the policy statement of Code

§ 2.2-3700(B) justifies extending the term "members" in Code

§ 2.2-3701 to include "members-elect." We do not believe that

the legislature was inviting the judiciary, under the guise of

5
"liberal construction," to rewrite the provisions of FOIA as

we deem proper or advisable. To the contrary,

[w]hen the language of a statute is plain and
unambiguous, we are bound by the plain meaning of
that statutory language. Thus, when the General
Assembly has used words that have a plain
meaning, courts cannot give those words a
construction that amounts to holding that the
General Assembly meant something other than that
which it actually expressed.

Lee County v. Town of St. Charles, 264 Va. 344, 348, 568

S.E.2d 680, 682 (2002) (citations omitted).

We will not rewrite Code § 2.2-3701 to change the word

"members" to the phrase "members or members-elect." It is not

our prerogative. If the legislature chooses to do so, it is

properly within its power to do so. The trial court did not

err in holding that the open meeting provisions of FOIA did

not apply to meetings of members of a public body that reach

the required threshold of participants under Code § 2.2-3701

only by inclusion of members-elect.

E-mail Communications

It is not disputed that on several occasions after July

1, 2002, more than three members of City Council corresponded

with each other concerning specific items of public business

by use of e-mail. It would serve no useful purpose to relate

the particular subjects of the communications because the

issue before us involves the method of communication.

6
Succinctly stated, assuming all other statutory requirements

are met, does the exchange of e-mails between members of a

public body constitute a "meeting" subject to the provisions

of FOIA? Beck assigns error to the trial court's holding that

it does. 4

Indisputably, the use of computers for textual

communication has become commonplace around the world. It can

involve communication that is functionally similar to a letter

sent by ordinary mail, courier, or facsimile transmission. In

this respect, there may be significant delay before the

communication is received and additional delay in response.

However, computers can be utilized to exchange text in the

nature of a discussion, potentially involving multiple

participants, in what are euphemistically called "chat rooms"

or by "instant messaging." In these forms, computer generated

communication is virtually simultaneous.

In the case before us, the e-mail communications did not

involve virtually simultaneous interaction. Rather, the e-

mail communications at issue in this case were more like

traditional letters sent by ordinary mail, courier, or

facsimile. The record contains printed copies of the e-mails

4
Shelton raises for the first time on appeal that a vote
was taken by e-mail. Nothing in the record supports such an
allegation and furthermore it is barred from consideration
under Rule 5:25.

7
in question. The shortest interval between sending a

particular e-mail and receiving a response was more than four

hours. The longest interval was well over two days.

The trial court held that such use of e-mail constituted

a "meeting" pursuant to Code § 2.2-3702 and that Defendants

held such meetings in private, without notice to the public

and without opportunity for the public to attend in violation

of the open meeting requirements of Code § 2.2-3707. The

trial court held that the issue was not the electronic nature

of the transmission; rather, "It is how the e-mail is used."

While we agree with the trial court that "how the e-mail is

used" is the dispositive consideration, we disagree that this

case presents circumstances constituting a "meeting" for the

purposes of FOIA.

FOIA deals with public access to records and meetings of

public bodies. There is no question that e-mails fall within

the definition of public records under Code § 2.2-3701. As

previously stated, the issue in this case is whether the

exchange of e-mail also constitutes a "meeting" under FOIA.

Code § 2.2-3708 provides that

[i]t shall be a violation of this chapter for any
political subdivision or any governing body . . .
to conduct a meeting wherein the public business
is discussed or transacted through telephonic,
video, electronic or other communication means
where the members are not physically assembled.

8
By definition, a violation under § 2.2-3708 presumes a

"meeting" as defined in FOIA. Code § 2.2-3701 provides in

part:

"Meeting" or "meetings" means the meetings
including work sessions, when sitting physically,
or through telephonic or video equipment pursuant
to § 2.2-3708, as a body or entity, or as an
informal assemblage of (i) as many as three
members or (ii) a quorum, if less than three, of
the constituent membership, wherever held, with
or without minutes being taken, whether or not
votes are cast, of any public body. The
gathering of employees of a public body shall not
be deemed a "meeting" subject to the provisions
of this chapter.

Clearly, the conduct in question did not involve "sitting

physically" in a "work session." Consequently, the key to

resolving the question before us is whether there was an

"assemblage." The term "assemble" means "to bring together"

and comes from the Latin simul, meaning "together, at the same

time." Webster's Third New International Dictionary 131

(1993). The term inherently entails the quality of

simultaneity. While such simultaneity may be present when e-

mail technology is used in a "chat room" or as "instant

messaging," 5 it is not present when e-mail is used as the

functional equivalent of letter communication by ordinary

mail, courier, or facsimile transmission. The General

5
This issue is not before us and we do not decide it
today.

9
Assembly anticipated this type of communication when it

provided:

nothing contained herein shall be construed to
prohibit (i) separately contacting the
membership, or any part thereof, of any public
body for the purpose of ascertaining a member's
position with respect to the transaction of
public business, whether such contact is done in
person, by telephone or by electronic
communication, provided the contact is done on a
basis that does not constitute a meeting as
defined in this chapter . . .

Code § 2.2-3710(B). Under the terms of this provision, it is

anticipated that some electronic communication may constitute

a "meeting" and some may not. As previously stated, the key

difference between permitted use of electronic communication,

such as e-mail, outside the notice and open meeting

requirements of FOIA, and those that constitute a "meeting"

under FOIA, is the feature of simultaneity inherent in the

term "assemblage."

The Attorney General of Virginia has had occasion to

render an opinion on this subject. 1999 Op. Atty. Gen. 12.

The question presented to the Attorney General was "whether

§ 2.1-343.1(A), a portion of The Virginia Freedom of

Information Act, §§ 2.1-340 through 2.1-346.1 of the Code of

Virginia, prohibits an elected member of a local governing

body from sending electronic mail communications to three or

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more other members of the governing body." 6 Id. The Attorney

General did not consider the dynamics presented in "chat

rooms" or "instant messaging," but did consider the precise

use of e-mail at issue in this case. For the purposes of the

Opinion, the Attorney General used the following definition:

Electronic mail is commonly understood to be the
electronic transmission of keyboard-entered
correspondence over communication networks. An
electronic mail system enables the sender to
compose and transmit a message to a recipient's
electronic mailbox, where the message is stored
until the recipient retrieves it. The message
may be sent to several recipients at the same
time.

Id. at 13. Concluding that "[t]ransmitting messages through

an electronic mail system is essentially a form of written

communication," the Attorney General opined that such

communication does not constitute a "meeting" under FOIA. Id.

While it is not binding on this Court, an Opinion of the

Attorney General is "entitled to due consideration."

Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d

858, 861 (1998). This is particularly so when the General

Assembly has known of the Attorney General's Opinion, in this

case for five years, and has done nothing to change it. "The

legislature is presumed to have had knowledge of the Attorney

6
The question was premised upon FOIA prior to its
recodification in Title 2.2 of the Code of Virginia. The
language involved is substantially the same in the
recodification. See Code §§ 2.1-340 to –346.1 (1968).

11
General's interpretation of the statutes, and its failure to

make corrective amendments evinces legislative acquiescence in

the Attorney General's view." Browning-Ferris, Inc. v.

Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06

(1983).

We hold that the trial court erred in its determination

that the e-mail communications at issue in this case

constituted a "meeting" under FOIA. Count XI of Shelton's

petition must fail because it is premised upon e-mail

communications constituting a meeting under FOIA.

E-mails Concerning Historic Preservation

In Count XIV of Shelton's petition, it is alleged that a

"meeting" took place by e-mail communication between at least

three members of City Council. The trial court granted

summary judgment to Defendants, holding that the alleged

meeting was for information purposes only and was not for the

purpose of discussing public business. Shelton assigns cross-

error to the trial court's holding. Shelton argues that the

trial court too narrowly construed what it means to "discuss"

the public's business. It is unnecessary to address this

assignment of cross-error because we have held that the e-mail

communications at issue in this case do not constitute a

"meeting" under FOIA.

The Charlotte Street Gathering

12
 In July 2002, citizens living near the intersection of

Charlotte and Weedon Streets in the City of Fredericksburg

were concerned about the lack of a stop sign at the

intersection and other issues related to traffic safety. Two

city employees and three members of City Council were

separately invited by concerned citizens to attend a gathering

at the intersection in the middle of the day on July 25, 2002.

Approximately 20 people were in attendance. After hearing

testimony and the arguments of counsel, the trial court found

as a matter of fact that the gathering was

scheduled as a consequence of citizen inquiry;
that the meeting's purpose, in essence, was an
informational forum in reference to traffic
issues in a given neighborhood or on a specific
street; that the three members of Council who
appeared did not, according to the testimony
which is uncontradicted, . . . discuss anything
with each other as a group of three or otherwise.

On appeal, Shelton maintains that such a gathering was a

"meeting" under the terms of FOIA. We disagree. The public

policy of the Commonwealth "ensures the people of the

Commonwealth ready access to public records in the custody of

a public body or its officers and employees, and free entry to

meetings of public bodies wherein the business of the people

is being conducted." Code § 2.2-3700(B). But FOIA "shall not

be construed to discourage the free discussion by government

officials or employees of public matters with the citizens of

13
the Commonwealth." Id. Obviously, the balance between these

values must be considered on a case-by-case basis according

the facts presented. Here, FOIA gives additional guidance:

Nothing in this chapter shall be construed to
prohibit the gathering or attendance of two or
more members of a public body (i) at any place or
function where no part of the purpose of such
gathering or attendance is the discussion or
transaction of any public business, and such
gathering or attendance was not called or
prearranged with any purpose of discussing or
transacting any business of the public body or
(ii) at a public forum, candidate appearance, or
debate, the purpose of which is to inform the
electorate and not to transact public business or
to hold discussions relating to the transaction
of public business, even though the performance
of the members individually or collectively in
the conduct of public business may be a topic of
discussion or debate at such public meeting.

Code § 2.2-3707(G).

The trial court was not plainly wrong or without evidence

to support its judgment that the Charlotte Street gathering

was a citizen-organized "informational forum" and that no part

of the purpose of the gathering or attendance was the

discussion or transaction of any public business. The

undisputed evidence at trial was that City Council did not

have any business pending before it on the issue of traffic

controls, nor was it likely to have such matters come before

it in the future. The trial court did not err in granting

summary judgment to Defendants on Count XVII.

Conclusion

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 The trial court did not err in granting summary judgment

for Defendants on Counts I - IX of Shelton's petition. These

counts were premised upon FOIA being applicable to members-

elect of a public body. Members-elect are not "members" under

the plain language of Code § 2.2-3701. Count XI of Shelton's

petition is premised upon e-mail communications constituting a

"meeting" under FOIA. Under the facts of this case, such e-

mail communications did not constitute a "meeting" under FOIA,

and the trial court erred in holding that they did. The trial

court granted Defendants' motion for summary judgment on Count

XIV on the basis that the e-mails were for informational

purposes and did not constitute a meeting. We need not

address this reason for the trial court's holding because we

have already concluded that e-mail communications in this case

did not constitute a "meeting" under FOIA. Finally, the trial

court did not err in holding that the Charlotte Street

gathering was not a "meeting" under FOIA. We will affirm the

trial court's judgment with respect to Counts I-IX and XVII.

We will affirm the trial court's judgment with respect to

Count XIV, albeit for different reasons. We will reverse the

trial court's judgment with respect to Count XI. Having

disposed of all matters, and nothing remaining for the trial

court to consider, we will enter final judgment for

Defendants.

15
 Affirmed in part,
reversed in part,
and final judgment.

16