ADMINISTRATION OF THE GOVERNMENT GENERALLY - VIRGINIA FREEDOM OF INFORMATION ACT. HEALTH - HEALTH CARE PLANNING. MEETINGS BETWEEN PRIVATE PARTY AND EMERGENCY MEDICAL SERVICES ADVISORY BOARD SUBJECT TO ACT, BUT NOT MEETINGS WITH STAFF OF DIVISION OF EMERGENCY MEDICAL SERVICES. APPOINTEES TO BOARD MAY NOT DESIGNATE ALTERNATE.

August 30, 1986

The Honorable John G. Dicks, III
Member, House of Delegates

86-87 30

You ask for my opinion on two issues. First, you ask whether meetings between the Virginia Association of Volunteer Rescue Squads, Inc. (the "Association"), a private organization, and either the Division of Emergency Medical Services (the "Division"), a State agency, or the Emergency Medical Services Advisory Board (the "Board"), a State advisory board, are required to be open to the public. Second, you ask whether an individual appointed by the Governor to the Board as a representative of the Association may have an alternate designated by the Association attend, and vote at, the Board meetings when he is unable to attend.

I. Relevant Statutes

The Virginia Freedom of Information Act, §2.1-340 et seq. of the Code of Virginia (the "Act"), requires that, except as otherwise provided by law, all meetings of public bodies shall be open to the public. See §2.1-343. The term "meetings" is defined, in pertinent part, by §2.1-341(a) as

meetings, when sitting 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 . . . of any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth . . . .

Under the Act, therefore, a "meeting" is a gathering of "constituent members" of a legally constituted public or governmental body. The term does not include a gathering of employees of the Commonwealth, even if the latter are employed by the same agency. See Roanoke School Bd. v. Times-World, 226 Va. 185 , 307 S.E.2 d 256 (1983); 1981-1982 Report of the Attorney General at 437.

II. Meetings with Three or More Members of Board Must Be Open to Public; Meetings with Employees May Be Closed

To the extent your first inquiry relates to a meeting between the Association and three or more members of the Board, such a meeting, even if intended to be an informal gathering, clearly would be subject to the Act since the Board is a public body created pursuant to §32.1-114, and the gathering would qualify as a "meeting" under §2.1-341(a). As a result, the meeting would have to be open to the public unless it had expressly been closed in accordance with the conditions and procedures set forth in §§2.1-343 and 2.1-344 of the Act.

If, however, the Association members meet with a group of officials or staff of the Division who are employees of the Virginia Department of Health and not appointees or "constituent members" of a public body, it is my opinion that such a meeting is not subject to the Act.

III. Appointment of Alternate to Attend Meetings Not Permitted

Members of the Board are appointed by the Governor pursuant to §32.1- 114. Although appointments from the groups listed therein usually are made from lists of nominees submitted by those organizations, the Governor appoints a named individual, not a group, to any vacancy which exists. A commission is issued to the person appointed. There is no authority to permit either the appointee or the group represented by the appointee to designate an alternate to attend or vote in the appointee's stead. Accordingly, your second question must be answered in the negative.