January 13, 1978

THE HONORABLE JAMES B. KENLEY, M.D.
Commissioner, State Department of Health

77-78 5

This is in reply to your inquiry concerning the Statewide Health Coordinating Council. Specifically, you ask the following questions:

"1. Whether individual members of the Council may be liable for actions which the Council takes?

"2. If so, whether the Attorney General will provide legal representation to the Council members?

"3. Whether the Council's activity is subject to the provisions of the Virginia Freedom of Information Act?"

Before replying to your questions, I must discuss pertinent legislative enactments and case decisions which bear upon the nature and authority of the Council. The United States Congress passed the National Health Planning and Resources Development Act of 1974, see 42 U.S.C. §300k to 300t (Supp. V, 1975), which prescribes a comprehensive approach to health care on a national scale. The general purposes of the Act are to contain health care costs, to ensure accessible quality health care services to all citizens, to educate the public about proper personal health care and methods for effective use of available health services, and to foster the development of a national health planning policy for achieving those ends. See 42,U.S.C. §300k (Supp. V, 1975). Within the statutory scheme of the Act, there is a provision that each state must "provide for adequate consultation with, and authority for the Statewide Health Coordinating Council (Emphasis added.)

See 42 U.S.C. §300m l(b) (3) (Supp. V, 1975). The Congress clearly contemplated, as you described in your letter, that the Council play an integral role in the Act's implementation. If the Commonwealth were not to establish a Statewide Health Coordinating Council with the requisite authority, it would not be in compliance with the requirements of the federal Act. The consequences of such noncompliance could include, among other things, the denial of federal funds to the Commonwealth for expenditure in various health care and planning programs which the Commonwealth has undertaken. See 42 U.S.C. §300m(d) (Supp. V, 1975). Therefore, except for the federal Act and the Commonwealth's desire to obtain federal funding, no need would exist to create the Commonwealth's Statewide Health Coordinating Council.

Remembering this fact, the answers to the questions which you present depend, in part, upon an appreciation of the powers and responsibility of the Council as envisioned in the federal Act. The Council is supposed to prepare a State health plan, as "well as review the State Department of Health's State plan, with approval and disapproval authority over: (1) the expenditure of federal funds that may be appropriated under the Public Health Service Act, see 42 U.S.C. §201 to 300t (5upp. V, 1975); and (2) over any application submitted from within the Commonwealth to the Secretary of the United States Department of Health,Education and Welfare for federal funds which may be available under specified federal acts. See 42 U.S.C. §300m 3(c) (2) and (6) (Supp. V, 1975). In my opinion, the Council's State health plan qualifies as a "substantive" regulation under the laws of the Commonwealth because it assists the Council in its review of applications for federal funds. See 9-6. 14: 4H of the Code. Such reviews with decisions of approval or disapproval would also constitute "case decisions" as that term is defined by the Administrative Process Act, 9-6.14: 4D of the Code. See also Opinion to the Honorable James B. Kenley, State Health Commissioner, dated September 7, 1977. Thus, the federal Act envisions that the Statewide Health Coordinating Council would have a significant role in the scheme of State government, a role which includes promulgation of regulations and making case decisions.

Our inquiry thus becomes whether the Council has authority to perform these duties. Any authority which the Council has must be derived from State law because no State body or official can gain authority from federal law. This principle is expressly recognized in the provisions of the federal Act itself, which require each State to provide authority for the Council. See 42 U.S.C. §300m l(b) (3) (Supp. V, 1975). In response to this requirement, Governor Godwin issued Executive Order 32(76) on June 18, 1976, directing that the Council be established effective July 1, 1976, "to carry out the responsibilities of such a body as specified in § 1524 (c) of the National Health Planning and Resources Development Act of 1974 [see 42 U.S.C. 300m 3(c) (Supp. V, 1975)]. ...

In my judgment, an analysis of the legal effect of this executive order is necessary in order to respond to your questions. No provision of the Constitution of Virginia (1971) explicitly authorizes the Governor to issue executive orders. Further, no Virginia statute provides a general grant of authority to issue such orders; particular State statutes do, however, authorize such orders to aid in the implementation of those statutes. See, e.g., §§44-146.17 (1) and 58-46 of the Code. Historically, though, the Governors of the Commonwealth have issued executive orders in the absence of a specific statute expressly conferring the authority or a statute generally conferring such authority. In my opinion, it is a well established principle of Virginia law that the Governor has the inherent authority to issue executive orders so that he can "take care that the laws be faithfully executed See Article V, § 7, of the Constitution. In other words, there is a general reservoir of power granted by the Constitution to the Governor as the Chief Executive of the Commonwealth. See Opinion to the Honorable William M. Tuck, Governor of Virginia, dated April 18, 1946, and found in Report of the Attorney General (1945-1946) at 144. One must bear in mind, however, that the legislative power of the Commonwealth is vested in the General Assembly. See Article IV, § 1, of the Constitution of Virginia (1971). The Governor may not exercise any of that power. See Article 111, § I, of the Constitution of Virginia (1971); accord Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863,567 (1952). Thus, the Governor cannot legislate by executive order where an Act of Assembly is required. Examples of situations in which executive orders are appropriate are as follows:

(1) Whenever a statute of the Commonwealth confers that authority upon the Governor. Compare Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975) "with Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 1940); cc also Opinion to the Honorable James H. Price, Governor of Virginia, dated July 17, 1941, and found in Report of the Attorney General (1971-1972)at 75;

(2) Whenever there is a genuine emergency which requires the Governor to it, order, pursuant to his constitutional responsibility and power, to `that a danger to the public regardless of the absence of explicit authority. See Opinion to the Honorable William M. Tuck, supra,' and

(3) Whenever the order is administrative in nature, as opposed to legislative See, e.g., Opinion to the Honorable Robert H. Kirby, Coordinator, Economic Opportunity Programs, dated July 21, 1965, and found in Report of the Attorney General (1965-1966) at 143.

With these principles in mind, attention may be focused on the Council's authority. First, the Council has, pursuant to the Virginia Medical Care Facilities Certificate of Public Need Law, the power to advise the State Health Commissioner whether to issue certificates of public need. See §32-211.6(b) (1) and -211.7. The only other general statute which in any way relates to the Council is at appropriation item to the State Board of Health. This item appropriates money from special funds made available by the federal government for planning activities that will be conducted by the Council.

See Chapter 779, Item 651 [1976] Acts of Assembly 1344. This item, however, does not mention the Council by name, nor does it empower the Council to conduct any activity. If the Council has any further authority, it must be derived from Executive Order 32(76). That order, the pertinent portion of which is quoted above, authorizes the Council to carry out the responsibilities specified in the federal Act. Those functions include planning and rendering advice, but also include promulgation of regulations and making of case decisions. Because the Council's reason for being is not occasioned by a genuine emergency, and because the power to make case decisions and promulgate regulations can only be granted by the legislature, Executive Order 32(76) cannot be construed to authorize the Council to undertake those latter functions. Such authority must be conferred by the General Assembly.

Consequently, with respect to the liability of members of the Council for actions which the Council may take, I can conceive of no situation in which liability can arise, absent some malicious intent, unless the Council exceeds its authority under State law. As indicated, that authority is limited to a planning and advisory role. If an action were instituted against the Council or its members on account of, e.g., its recommendation on an application for a certificate of need, this Office would provide representation, If the Council were to exceed its present responsibilities, e.g., by purporting to promulgate a State health plan or by approving or disapproving applications for federal funds, those actions would be ultra vires and may create personal liability on the part of the Council's members.

Concerning your third inquiry, the Virginia Freedom of Information Act, §2.1-340 to -346.1 of the Code, applies to "other organizations, corporations or agencies in the State, supported wholly or principally by public funds." See §2. 1-341(a) of the Code. I am advised that members of the Council are reimbursed expenses by the Commonwealth and that the Council's activities are likewise financed. I am of the opinion, therefore, that the Council is an "organization" within the meaning of §2.1-341(a) and that, therefore, it must comply with the provisions of the Virginia Freedom of Information Act.