Must a Virginia local electoral board post draft minutes online, or only finalized minutes?

Plain-English summary

The Secretary of the Albemarle County Electoral Board asked the AG to interpret a 2016 amendment to § 24.2-107 of the Code of Virginia. The new paragraph required electoral boards to post their meeting minutes online "as soon as possible but no later than one week prior to the following meeting." The Albemarle board read the legislative history of Senate Bill 89 to suggest the legislature affirmatively decided not to require posting of draft minutes, because the introduced version had explicitly addressed both draft and final minutes and the enacted version dropped the draft-minute language.

Attorney General Mark R. Herring read it the other way. He concluded that § 24.2-107 requires local electoral boards to post both draft and final minutes.

The reasoning ran through two layers. First, plain language: the amendment cross-references § 2.2-3707 (FOIA), and § 2.2-3707(I) expressly defines "minutes" to include "draft minutes" as well as final minutes. The unqualified word "minutes" in § 24.2-107 therefore pulls in both categories. Second, on the legislative-history argument: legislative history is generally not available to interpret an unambiguous statute, and reading meaning into language the legislature did not enact is "fraught with difficulty and uncertainty." The General Assembly's drop of explicit draft-minute language can be read either as a decision to exclude draft minutes or as a decision that the existing language already covered them. The latter reading aligns with the cross-reference to FOIA.

Even if the statute were ambiguous, the AG noted, reading "minutes" to include both draft and final best advances the legislative intent in § 2.2-3707(I) and § 2.2-3700(B) that public meeting records be open. It also ensures § 24.2-107's posting requirement remains meaningful regardless of how individual electoral boards structure their minute-finalization processes.

The opinion noted that § 24.2-107 does not regulate the process by which minutes are produced or finalized, nor the level of detail required. Public bodies retain substantial discretion on those questions, subject to FOIA's content requirements in § 2.2-3707(I).

Currency note

This opinion was issued in 2016. 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 and Title 24.2 have been amended periodically since 2016. Before relying on the specific language in § 24.2-107 or § 2.2-3707, check the current text. The FOIA Advisory Council's opinions also continue to develop.

Background and statutory framework

The amendment to § 24.2-107 was enacted by 2016 Va. Acts ch. 403, originating in Senate Bill 89. As introduced, S.B. 89 explicitly distinguished draft and final minutes:

Minutes of meetings that are required to be recorded pursuant to § 2.2-3707 shall be posted on the website of the electoral board or the official website for the county or city. Draft minutes of meetings shall be posted as soon as possible but no later than 10 working days after the conclusion of the meeting. Final approved meeting minutes shall be posted within three working days of final approval of the minutes.

Senate committee amendments stripped the explicit draft/final distinction. The enacted version reads:

Minutes of meetings that are required to be recorded pursuant to § 2.2-3707 shall be posted on the website of the electoral board or the official website for the county or city, when such means are available. Minutes of meetings shall be posted as soon as possible but no later than one week prior to the following meeting of the electoral board.

The Albemarle Electoral Board read the removal of explicit draft-minute language as a legislative choice not to require posting of draft minutes.

The AG took a different view, grounded in three principles. First, plain meaning controls when statutory language is unambiguous (Brown v. Lukhard, 229 Va. 316, 321 (1985)). The cross-reference in § 24.2-107 to § 2.2-3707 is significant: § 2.2-3707(I) defines "minutes" to expressly include draft minutes: "Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter." Reading "minutes" in § 24.2-107 to include only final minutes would create an inconsistency with the cross-referenced FOIA definition.

Second, statutes that cross-reference one another should be read in pari materia to give full meaning, force, and effect to each (Ainslie v. Inman, 265 Va. 347, 353 (2003); L.F. v. Breit, 285 Va. 163, 176 (2013)). The § 24.2-107 / § 2.2-3707 cross-reference invokes this principle.

Third, on legislative history, "Virginia does not keep official legislative history, like that which can be found at the congressional level" (Edwards v. Vesilind, No. 160643, 2016 Va. LEXIS 125, at *36-37 (Va. Sept. 15, 2016)). Even where legislative history exists, it is generally not consulted for an unambiguous statute (Brown v. Lukhard). Reading meaning from unenacted bill language is especially risky: it can support more than one inference. Commonwealth v. Shifflett, 257 Va. 34, 44 n.1 (1999), explicitly rejected the inference that legislative failure to enact specific language meant the statute should be read restrictively, because "the legislature may well have determined that such amendment was unnecessary because the statutory and case law already so provided." Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989), and Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947), describe such "mute intermediate legislative maneuvers" as unreliable indicators of intent. The numerical vote on a bill, the AG added, is not by itself a reliable indicator of intent either.

The Department of Legislative Services (DLS), a legislative agency that drafts bills and helps members perform legislative duties (§§ 30-28.12 to 30-28.18), takes the same position on the unreliability of unenacted text. While its view is not binding, it is informative (LaCava v. Commonwealth, 283 Va. 465, 470 (2012)).

The AG also noted that public bodies retain substantial discretion over the process of producing and finalizing minutes (using recordings, the level of detail) subject to FOIA's content baselines. Virginia FOIA Advisory Council Opinion AO-05-15 (June 10, 2015) discussed these baselines in another context.

Common questions

Q: Do Virginia electoral boards have to post draft minutes online, not just final minutes?
A: The AG concluded yes. Both draft and final minutes must be posted on an official website under § 24.2-107.

Q: What about the legislative history suggesting the General Assembly chose not to require draft minutes?
A: The AG read the removal of explicit draft-minute language as ambiguous at best. One reasonable inference is that the General Assembly concluded the existing language already covered both. And legislative history is not generally used to interpret an unambiguous statute.

Q: Where does the "draft minutes are minutes" rule come from?
A: Section 2.2-3707(I) (FOIA): "Minutes, including draft minutes, and all other records of open meetings ... shall be deemed public records ...." Section 24.2-107 cross-references § 2.2-3707, and the FOIA definition flows through.

Q: What's the timing for posting?
A: Section 24.2-107 says "as soon as possible but no later than one week prior to the following meeting of the electoral board."

Q: Does the statute control how detailed the minutes have to be?
A: No. Section 24.2-107 just requires posting. Section 2.2-3707(I) sets baseline content requirements. Public bodies have substantial discretion on the process and level of detail beyond those baselines.

Q: Where should the minutes be posted?
A: On the website of the electoral board or the official website of the county or city, "when such means are available."

Citations and references

Virginia statutes:

• Va. Code Ann. § 2.2-3700 (FOIA policy)
• Va. Code Ann. § 2.2-3707 (FOIA meeting and minutes requirements)
• Va. Code Ann. § 24.2-107 (electoral board minute posting)
• Va. Code Ann. §§ 30-28.12 to 30-28.18 (Department of Legislative Services)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)
• 2016 Va. Acts ch. 403 (amending § 24.2-107)

Cases:

• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012)
• L.F. v. Breit, 285 Va. 163 (2013)
• Ainslie v. Inman, 265 Va. 347 (2003)
• Brown v. Lukhard, 229 Va. 316 (1985)
• Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)
• Mead Corp. v. Tilley, 490 U.S. 714 (1989)
• Trailmobile Co. v. Whirls, 331 U.S. 40 (1947)
• Commonwealth v. Shifflett, 257 Va. 34 (1999)
• Edwards v. Vesilind, No. 160643, 2016 Va. LEXIS 125 (Sept. 15, 2016)
• LaCava v. Commonwealth, 283 Va. 465 (2012)

Administrative materials:

• Va. Freedom of Info. Advisory Council Op. AO-13-03 (May 30, 2003)
• Va. Freedom of Info. Advisory Council Op. AO-05-15 (June 10, 2015)

Prior AG opinions:

• 1977-1978 Op. Va. Att'y Gen. 39

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-046-Heilman-issued-PDF.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

November 3, 2016

Mr. James M. Heilman
Secretary, Albemarle County Electoral Board
401 McIntire Road, Room 130
Charlottesville, Virginia 22902

Dear Mr. Heilman:

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 have asked for an interpretation of Virginia Code § 24.2-107, in light of the 2016 amendment to that statute. Specifically, you have asked whether local Electoral Boards must post on an official website draft minutes of their meetings.

Background

The amendment at issue was enacted through Senate Bill 89 (2016 Session) and added the following paragraph to § 24.2-107:

Minutes of meetings that are required to be recorded pursuant to § 2.2-3707 shall be posted on the website of the electoral board or the official website for the county or city, when such means are available. Minutes of meetings shall be posted as soon as possible but no later than one week prior to the following meeting of the electoral board.[1]

You note that, in its original, introduced form, S.B. 89 made explicit reference to the posting of draft minutes, as follows:

Minutes of meetings that are required to be recorded pursuant to § 2.2-3707 shall be posted on the website of the electoral board or the official website for the county or city. Draft minutes of meetings shall be posted as soon as possible but no later than 10 working days after the conclusion of the meeting. Final approved meeting minutes shall be posted within three working days of final approval of the minutes.[2]

You further note that amendments during the legislative process eliminated the reference to draft minutes.[3] You state that "the Albemarle County Electoral Board reads the legislative history of SB 89 as clearly indicating a legislative intent that draft minutes are not required to be posted, but that final approved minutes are required to be posted,"[4] given that "the legislature saw fit to eliminate the requirement regarding draft minutes from the final version of the bill" and that "the legislative history reveals that there was nothing in any way partisan or contentious about the legislation," which passed both houses of the General Assembly unanimously.[5]

Your question is solely about the affirmative obligation to post draft minutes on an official website. You are not questioning whether a local Electoral Board is required to release draft minutes, recordings, or other records of open meetings upon request, which is an issue expressly addressed and resolved in § 2.2-3707.[6]

Applicable Law and Discussion

The general framework for statutory interpretation in Virginia is well-settled:

When construing a statute, our primary objective is "'to ascertain and give effect to legislative intent,'" as expressed by the language used in the statute. "'When the language of a statute is unambiguous, we are bound by the plain meaning of that language.'" And if the language of the statute "'is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.'"

In evaluating a statute, moreover, we have said that "consideration of the entire statute ... to place its terms in context to ascertain their plain meaning does not offend the rule because 'it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.'" Thus, "'[a] statute is not to be construed by singling out a particular phrase.'"[7]

Related statutes should be construed together, particularly where one statute cross references another, and should be read to give full meaning, force, and effect to each.[8]

Although legislative history may be consulted when interpreting an ambiguous statute, resort to legislative history and extrinsic facts generally is not permitted when examining an unambiguous statute because the statute's words provide its meaning.[9] Moreover, it can be difficult to divine legislative intent from somewhere other than the legislation itself,[10] particularly given that "Virginia does not keep official legislative history, like that which can be found at the congressional level."[11]

Attempts to interpret statutes based on language the General Assembly did not adopt, as you suggest, are especially fraught with difficulty and uncertainty because the legislature's decision not to enact particular language can often support multiple, differing conclusions.[12] For example, one might as easily conclude from the legislative history of S.B. 89 that the General Assembly thought specific reference to draft minutes was unnecessary because the existing and enacted statutory language already was sufficient to include both draft and final minutes.[13]

In this case, the paragraph added to § 24.2-107 states unambiguously that minutes of local electoral board meetings shall be posted. The paragraph cross references § 2.2-3707, subsection I of which sets forth the legal requirements for minutes under the Virginia Freedom of Information Act (FOIA). Although § 2.2-3707(I) often uses the term "minutes" without differentiation among different possible types of minutes, a key part of § 2.2-3707(I) expressly states that draft minutes are included in referencing "minutes."[14] Nowhere does the plain language of either § 24.2-107 or § 2.2-3707 exclude draft minutes or support ascribing more than one meaning to the word "minutes" as used in those statutes. Accordingly, the plain language of § 24.2-107 and § 2.2-3707 unambiguously encompasses both draft and final minutes.

Even if there were statutory ambiguity, the same conclusion would result. Reading "minutes" as encompassing whatever kinds of minutes public bodies keep, including both draft and final minutes, best carries out the intent that the General Assembly has expressed in the Code of Virginia. In the specific publication requirement added in 2016 to § 24.2-107, in § 2.2-3707(I)'s requirements for minutes, and in § 2.2-3700(B), the General Assembly has expressed a legislative intent that minutes of public meetings be open and available to the public. Interpreting the word "minutes" as including both draft and final minutes best effectuates such enacted legislative intent. Interpreting "minutes" broadly also ensures that the specific disclosure requirement of § 24.2-107 is meaningful regardless of how public bodies exercise their substantial discretion regarding minutes.[15]

Conclusion

For the reasons set forth above, it is my opinion that § 24.2-107 of the Code of Virginia requires local electoral boards to post on an official website whatever kinds of minutes they keep, including both draft and final minutes.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] 2016 Va. Acts ch. 403, available at http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0403.

[2] S.B. 89 (2016 Sess.) (offered Jan. 13, 2016), available at http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+SB89.

[3] See Senate committee amends. (agreed to Jan. 29, 2016) to S.B. 89, available at http://lis.virginia.gov/cgi-bin/legp604.exe?161+amd+SB89AS.

[4] Emphasis in original.

[5] See S.B. 89 (2016 Sess.), History, at http://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+SB89.

[6] See VA. CODE ANN. § 2.2-3707(I) (Supp. 2016) ("Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter."); accord Va. Freedom of Info. Advisory Council Op. AO-13-03 (May 30, 2003), available at http://foiacouncil.dls.virginia.gov/ops/03/AO_13_03.htm.

[7] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425-26 (2012) (citations omitted, alteration in original).

[8] See, e.g., L.F. v. Breit, 285 Va. 163, 176 (2013) (expressly disagreeing with the argument "that when a statute is unambiguous, we must apply the plain meaning of that language without reference to related statutes" and stating that the assisted conception statute's explicit cross reference to another part of the Code of Virginia "requires that [it] be read in conjunction with" the other Code section); Ainslie v. Inman, 265 Va. 347, 353 (2003) ("[I]t is a familiar rule of statutory construction that when a given controversy involves a number of related statutes, they should be read and construed together in order to give full meaning, force, and effect to each.").

[9] See Brown v. Lukhard, 229 Va. 316, 321 (1985); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S. Ct. 2517, 2528-29 (2013) ("'What the legislative intention was, can be derived only from the words ... used; and we cannot speculate beyond the reasonable import of these words.'") (quoting Gardner v. Collins, 27 U.S. 58, 93 (1829)).

[10] See DIV. OF LEGISLATIVE SERVS. [DLS], "Legislative Reference Center" at http://dls.virginia.gov/lrc/leghist.htm (last visited Oct. 20, 2016) (explaining how to conduct legislative research in Virginia, and noting that "The intent of the General Assembly in passing the bill is generally not recorded, and if it is, it is printed on the face of the bill or referenced in the Code of Virginia.").

[11] Id. DLS is a legislative agency, charged by statute with helping General Assembly members in performing their legislative duties, including drafting bills. See Edwards v. Vesilind, No. 160643, 2016 Va. LEXIS 125, at *36-37 & n.13 (Va. Sept. 15, 2016); see generally VA. CODE ANN. § 30-28.12 to § 30-28.18 (2015) (creating DLS and defining its duties). Although DLS's position regarding what can be determined from drafting and legislative history is not binding, it is informative. See, e.g., LaCava v. Commonwealth, 283 Va. 465, 470 (2012) (discussing the need to consider agency decisions when they fall within an area of the agency's specialized competence).

[12] See, e.g., Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (noting, in light of the "unexplained disappearance of one word from an unenacted bill" in amendments to the bill, that "'mute intermediate legislative maneuvers' are not reliable indicators of congressional intent") (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947)). The numerical vote on a particular bill also does not, by itself, provide any reliable indicator of legislative intent.

[13] See Commonwealth v. Shifflett, 257 Va. 34, 44 n.1 (1999) (stating that the Court was not persuaded that the General Assembly's failure to enact a bill was evidence that a statute should be interpreted in a restrictive manner because "the legislature may well have determined that such amendment was unnecessary because the statutory and case law already so provided").

[14] See VA. CODE ANN. § 2.2-3707 (Supp. 2016) ("Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter.").

[15] Minimum requirements for minutes have been the subject of both legislation and guidance, but public bodies retain substantial discretion regarding matters such as the process by which minutes are produced and finalized, whether and how to use recordings, and the level of detail to include in minutes. See VA. CODE ANN. § 2.2-3707(I) (Supp. 2016) (requiring written minutes and setting forth certain required content); Va. Freedom of Info. Advisory Council Op. AO-05-15 (June 10, 2015), available at http://foiacouncil.dls.virginia.gov/ops/15/AO_05_15.htm (assessing the sufficiency of planning commission minutes and quoting an opinion of this Office, 1977-78 Op. Va. Att'y Gen. 39).