Over the past several weeks, we have written a few stories about the Tourism Council and its members’ apparent confusion about whether or not the group is a public body and subject to Virginia’s open meetings and Freedom of Information laws.
As a reminder, the Tourism Council was created under the umbrella of the Greater Williamsburg Chamber and Tourism Alliance last year as part of SB 942 which — as I’m sure you recall — raised the sales tax in Williamsburg, James City and York counties. The bill sends half of that money to the Tourism Council to market the Historic Triangle to overnight visitors, and the other half to the localities to use as they deem best.
At last count, the Tourism Council expected to receive $14.8 million in sales tax funds and money from the $2 hotel room tax. When you toss in some budget allocations from the localities, it expects to have $16.3 million to work with in 2019.
When I look at that inflow of money, it’s clear the work of the Tourism Council is funded with public money.
This question about the nature of the body was raised by Williamsburg vice mayor and Tourism Council member Doug Pons during a discussion of the group’s bylaws in March. His take was that considering where the group’s money comes from, it is a public body and subject to appropriate laws.
Virginia State Code defines a public body 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.”
But the Tourism Council’s lawyer Greg Davis says the intent of the legislation that created the Tourism Council appears to exempt the organization from Freedom of Information Act requests and a requirement to hold public meetings.
Here is a passage from a story Jack Jacobs wrote in April:
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.
So, those who believe they know best drafted and introduced SB 942 out of sight of the public, and now they want to be able to spend that tax money out of public sight as well.
To its credit, the Tourism Council so far has operated as if it were a public body: its meetings are open and there is a public comment period. The website posts meeting announcements and agendas.
Jeff Wassmer, Tourism Council board chairman and a York supervisor, acknowledged the group has acted in a transparent way and expects that would continue.
But the promise of transparency is no substitute for a legal obligation for it.
But just to be certain, the Tourism Council asked the Division of Legislative Services what it thought; the answer wasn’t definitive. So, now we’re awaiting an opinion from the Attorney General.
This all may be moot.
In response to a question about the public body status of the Chamber and Tourism Alliance, the Freedom of Information Council, which is part of the Division of Legislative Services, determined in 2017 that the Alliance was a public body as at least two-thirds of its funding was public money. The council determined the amount of public money a group received was the litmus test for whether it was subject to open meetings and FOIA laws.
So unless you’re shopping for a friendly opinion, it follows that the Tourism Council also is a public body subject to the “burden” of open meetings, open records and other good government practices.
The lesson here is clear: If you’re going to make the case that public money should be spent on something — be it schools or marketing the region to overnight visitors — you need to live with the burdens and responsibilities public money brings with it.
Bellows is editor of The Virginia Gazette. You can reach her at 757-345-2347, @PeggyBellows or at firstname.lastname@example.org.