Tourism Council members don’t know if the entity, which is funded entirely by public money, is considered a public body.
While open-government experts dispute the suggestion the Tourism Council isn’t a public body, the uncertainty throws into question whether the Tourism Council is legally subject to the requirements that definition entails, such as holding open meetings and fulfilling Freedom of Information Act requests.
As the Tourism Council awaits a legal opinion from the state’s Division of Legislative Services to settle the issue, its membership expressed split opinions on whether the body should be legally subject to public scrutiny.
Even a casual follower of the Tourism Council’s activities knows the organization, a sub-unit of the Greater Williamsburg Chamber and Tourism Alliance tasked with marketing the region to overnight tourists, essentially operates as a public body.
The Tourism Council’s monthly meetings are open to the public and include a public comment period. Meetings are advertised online, and the group’s website has agendas, meeting materials and minutes.
“We’ve operated in a transparent way,” said Jeff Wassmer, Tourism Council board chairman and a York supervisor. “I feel the tax dollars there need to be held accountable.”
But according to the Tourism Council’s legal counsel, transparency may not be a requirement. The intent of the legislation that created the Tourism Council, according to the body’s legal counsel Greg Davis, appears to exempt the organization from Freedom of Information Act requests and a requirement to hold public meetings.
As such, should a legal opinion find the Tourism Council isn’t a public body, residents will have to trust the organization to maintain its own transparency.
Williamsburg vice mayor and Tourism Council member Doug Pons posed the question about the organization’s public-body status during a larger conversation about the organization’s bylaws at its monthly meeting in March – is or isn’t the Tourism Council a public body?
“From a municipal perspective, we operate under Sunshine Laws as a public body, and there are certain requirements that are a part of that,” Pons said. “What I believe is a public body is based on funding from tax payer dollars. This could, I think, be deemed a public body.”
A public body is defined in the Virginia State Code as “any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth … and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.”
The Tourism Council gets its money primarily from a 1 percent surcharge to the sales tax rate in Williamsburg, James City and York. The localities also allocate funding to the alliance, most of which will find its way to the Tourism Council. The Tourism Council also generates revenue from collections of the $2 transient occupancy tax.
According to the latest projections shared with Tourism Council members at the March meeting, the Tourism Council’s revenue streams are expected to generate a total of $16.3 million in 2019.
Based on its revenue’s origin, the Tourism Council would seem to fit the bill as a public body.
But not so fast, Davis told the group in March. Based on his understanding of advice the Division of Legislative Services gave to the General Assembly, the Tourism Council isn’t a public body. The Division of Legislative Services is a state agency that provides legal guidance and research resources to the General Assembly.
“My understanding of the legislative intent was that by creating this council under the auspices of the (Greater Williamsburg Chamber and Tourism Alliance), the office of legislative services in Richmond had advised the General Assembly that this body was not a public body,” he said.
The General Assembly didn’t want to “burden” the Tourism Council with the formalities a public body requires — the Freedom of Information Act, records retention, open meeting requirements and the like, Davis said.
“There are many good things about that, but they are expensive and can be cumbersome,” Davis said.
On the question of whether the Tourism Council should or should not be a public body, the members of the Tourism Council’s board had mixed opinions in interviews over the past couple weeks.
“Everyone is interested in doing everything right,” said Mickey Chohany, who represents the Williamsburg Area Restaurant Association on the board, adding that ultimately he wants to do what the legal opinion directs.
In Chohany’s opinion, the Tourism Council isn’t a public body. He noted he isn’t an elected or appointed political figure. And in his view, he, along with the other non-municipal entities, not taxpayers, are the revenue generators with their destinations and businesses.
When asked about the language of the Virginia Code’s definition of a public body, Chohany seemed unfamiliar with the passage and declined to comment.
On the question of that tax revenue’s origin, Wassmer acknowledged the language of state code, but stopped short of explicitly saying one way or another if he felt the Tourism Council fit the definition of a public body.
“Those words are certainly in there,” he said, adding that he didn’t have “full context” on the issue. He reiterated the need for a legal opinion to guide the Tourism Council.
He said there isn’t a specific timeline on when that legal opinion may be rendered.
Wassmer said the Tourism Council does a number of things to be transparent now, and would continue to act in a transparent way in the future.
“Having a public comment period doesn’t hurt anybody,” Wassmer said, and added that he personally doesn’t see why a resident wouldn’t be able to have access to some level of Tourism Council documentation through a Freedom of Information Act request.
The Tourism Council’s adopted bylaws stipulate that meetings be open to the public and that public notice of meetings be given. The bylaws also state that minutes be public record.
Ruth Larson, a James City County supervisor and member of the Tourism Council, said she thought of the Tourism Council as a public body.
“I am of the belief that it is a public body,” Larson said. “It is taxpayer money.”
She said she was in favor of providing as much information as possible publicly, and said that in her experience, most discussion around the public-body status revolved around concerns that information about marketing techniques or targeted populations could find its way to competing destinations.
“The Greater Williamsburg Chamber and Tourism Alliance has been operating with the understanding that the (Tourism Council) is not a public body. If a legal opinion supersedes this at some point, I believe everyone will adjust accordingly,” Jeanne Zeidler, Tourism Council member and chairwoman of the alliance, said in an email.
When asked for comment, other members talked around the question of whether the Tourism Council meets the criteria to be a public body.
“Our region must work together to increase visitation in a highly competitive tourism marketplace. The tourism tax established last year is already providing millions of much-needed marketing dollars to support those efforts. The Williamsburg Tourism Council, created along with the tax by statute, inclusively administers the region’s shared resources and efforts,” said Colonial Williamsburg president and CEO Mitchell Reiss, a board member, in a statement.
“As an appointed private sector council member, the priority for me is to ensure we return the investment of taxpayer dollars to the community through increased tourism revenues. Also, it is critical that we operate with transparency as an organization. I’ll defer to the legal opinion we are seeking as to the determination of public body status,” board member and president of Busch Gardens Kevin Lembke said in a statement.
Rita McClenny, Virginia Tourism Corporation president and CEO and Tourism Council member, declined to answer questions related to whether she thinks the Tourism Council should be a public body, deferring to the anticipated legal opinion in an emailed statement.
A Jamestown-Yorktown Foundation spokeswoman said Philip Emerson, a member of the Tourism Council and the foundation’s executive director, was unavailable for comment.
Williamsburg Hotel Motel Association President Neal Chalkley and Colonial National Historical Park Superintendent Kym Hall did not respond to requests for comment.
Wassmer said the Tourism Council is a strange beast in some respects, which is what prompted the confusion about its exact status as a public body. On one hand, there’s the sizable amount of tax revenue. On the other hand, the Tourism Council falls under the leadership of the alliance, a non-government entity.
Clarity from a chief architect of Senate Bill 942, the legislation that created the Tourism Council and its revenue streams, was not forthcoming. A spokesman for Sen. Thomas K. “Tommy” Norment, R-James City, didn’t respond to requests for comment. Norment introduced SB 942 during the 2018 General Assembly session.
The idea that the Tourism Council may not be a public body subject to the Freedom of Information Act didn’t pass muster with an open-government advocate and a Freedom of Information Act expert.
“Ultimately, it is a legal interpretation. But the way it reads in the statute, it looks to be a public body,” said Megan Rhyne of the Virginia Coalition for Open Government. That the Tourism Council is a state-created entity and its revenue is derived from public money makes it a strong contender for public-body status.
Based on the language of the legislation, the Tourism Council would appear to be subject to the Freedom of Information Act, said Alan Gernhardt, executive director of the Freedom of Information Advisory Council, a state agency.
“It’s wholly supported by public funds,” Gernhardt said. “The theme of FOIA is follow the money.”
Jack Jacobs, 757-298-6007, email@example.com, @jajacobs_