COUNTIES, CITIES AND TOWNS: VIRGINIA AREA DEVELOPMENT ACT - PLANNING DISTRICTS. ADMINISTRATION OF THE GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Requirement that elected officials of planning district commissions comprise majority of membership prevails over provision for alternate members. Commission may not delegate substantive powers to executive committee; may establish advisory committees subject to public meeting requirements of Virginia Freedom of Information Act.

August 30, 1988

The Honorable W. Tayloe Murphy, Jr.
Member, House of Delegates

87-88 236

You ask two questions concerning proposed revisions to the bylaws of the Northern Neck Planning District Commission. The proposed changes involve membership on the Commission, the appointment of alternate members and the proposed establishment of an "Executive Committee."

I. Applicable Statutes

Planning district commissions ("PDCs") operate pursuant to the Virginia Area Development Act, §§15.1-1400 through 15.1-1452 of the Code of Virginia (the "Act"). The composition of the membership of a PDC is provided for in §15.1-1403. Section 15.1-1403 (b) provides, in part:

The charter agreement [of a PDC] shall set forth:

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(4) The composition of the membership of the [PDC]. At least a majority of its members shall be elected officials of the governing bodies of the governmental subdivisions within the district, with each county, city and town of more than 3,500 population having at least one representative. In any planning district other than planning district number 8 and planning district number 20, a town of 3,500 or less population may petition the [PDC] to be represented thereon. The [PDC] may, in its discretion, grant representation to such town by a majority vote of the members of the [PDC]. Other members shall be qualified voters and residents of the district who hold no office elected by the people. Should the charter agreement, as adopted, so provide, an alternate may serve in lieu of one of the elected officials of each of the governing bodies of the participating governmental subdivisions. [Emphasis added.]

The powers of a PDC are enumerated in 15.1-1404.

II. Requirement That Elected Officials Comprise Majority of PDC Membership Prevails over Provision for Alternate Members

You first ask whether alternate PDC members appointed pursuant to a charter agreement adopted under §15.1-1403(b)(4) should be elected officials to ensure a majority of elected officials on a PDC.

Section 15.1-1403(b)(4), quoted above, authorizes alternate PDC members to serve in lieu of one of the elected officials of each of the participating governing bodies if the charter agreement so provides. The service of elected members of participating local governing bodies has been cited repeatedly as a key element in the effectiveness of PDCs. See 1 H. & S. Docs., Report on the Virginia Area Development Act by the Counties, Cites and Towns Committee of the House of Delegates to the General Assembly, H. Doc. No. 22, at 22, 51, 53-54 (1976 Sess.); H. &. S. Docs., Report of the Virginia Metropolitan Areas Study Commission, S. Doc. No. 16, at 23-24 (1968 Reg. Sess.). Section 15.1-1403 (b)(4) authorizes the charter agreement to provide for a PDC's membership but requires that a majority of PDC members shall be elected members of the participating governing bodies. Under §15.1-1403(b)(4), therefore, the number of representatives from each participating subdivision will vary based on the provisions of the charter agreement. A prior Opinion of this Office interpreting §15.1-1403(b)(4) concludes that the legislative intent underlying the statute is to ensure representation of a governmental subdivision on the PDC by at least one elected official of that subdivision. See 1970-1971 Att'y Gen. Ann. Rep. 293. It is my opinion, therefore, that the membership provisions of a charter agreement must provide for the representation of each participating subdivision by an elected official and for an elected official majority of a PDC's membership.

Section 15.1-1403(b)(4), however, also authorizes the service of alternate PDC members to serve in lieu of one of the elected officials representing each of the participating governmental subdivisions. The purpose of this provision was characterized in a prior Opinion as: "(1) to assure that a local government with only one member on a [PDC] could be represented in the event that its single member was unable to attend a meeting, and (2) to lighten the burden of extra duties which make demands upon the time of public officials." See 1970-1971 Att'y Gen. Ann. Rep., supra. This Opinion concludes that the provision of §15.1-1403(b)(4) requiring a majority of elected officials should be given precedence over the potentially conflicting provision authorizing the service of alternate members. When a governmental subdivision has only one elected member on a PDC, therefore, that member could not be replaced by an alternate who was not an elected official. Id. On the other hand, if a governmental subdivision had more than one member on a PDC, one alternate who is not an elected official could be appointed to serve in lieu of any one of the members who is an elected official. See 1970-1971 Att'y Gen. Ann. Rep. 296. I agree with the conclusions in these prior Opinions. It is my opinion, therefore, that alternate PDC members appointed pursuant to a duly adopted charter agreement to serve in lieu of elected officials also must be elected officials to ensure that elected officials constitute a majority of the membership of the PDC members. If a participating governmental subdivision has more than one member, however, it is my opinion that one alternate who is not an elected official may be appointed in lieu of one of the elected officials representing that governmental subdivision, provided the appointment of such an unelected alternate would not eliminate the elected official PDC majority.

III. PDC May Not Delegate Its Substantive Powers to Executive Committee

You next ask whether §15.1-1404(b)(6) and (8) authorize a PDC to select an "Executive Committee" established by the PDC's bylaws to take action on any matter, without limitation or guidelines concerning how matters are to be brought before the Executive Committee.

Section 15.1-1404(a) provides that the powers granted by the Act are vested in a PDC. The term "commission" is defined in §15.1-1402(g) as a "[PDC] composed of the duly appointed representatives of the governmental subdivisions which are parties powers to a lesser entity, in my opinion, is inconsistent with the provisions of the Act and the purposes underlying the provisions concerning the composition of a PDC. It is further my opinion, however, that a PDC may establish advisory committees to advise its membership on any given topic. See 1977-1978 Att'y Gen. Ann. Rep., supra. In response to your final question, the meetings of such advisory committees would be subject to the public meeting requirements of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1. See Att'y Gen. Ann. Rep.: 1985-1986 at 332; 1981-1982 at 437; 1980-1981 at 384.