Attorney General's Opinion 1982-83 #719



January 28, 1983

The Honorable David T. Stitt
County Attorney for Fairfax County

82-83 719

This is in reply to your letter of January 11, 1983, requesting an Opinion whether the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), applies to the Fairfax Hospital Association (the "Association").

You have advised that the Association is a non-profit, non-stock corporation organized under Ch. 2, Title 13.1, of the Code, and that it operates the Fairfax Hospital and other facilities under a lease with the county. The construction of Fairfax Hospital was financed by county bonds. You do not indicate whether the county contributes to the Association's operating budget. You have advised, however, that the Board of Supervisors of Fairfax County has appointed three of its members to the board of trustees of the Association as provided in the lease. In light of this arrangement, you have specifically asked:

"1. Whether meetings of the Board of Trustees of the FHA [Fairfax Hospital Association] are subject to the open meeting requirements of Va. Code §2.1-343 (Supp.) due to the presence and participation of three of the nine members of the Fairfax County Board of Supervisors as trustees.

2. Whether the FHA is an `other organization, corporation, or agency in the State, supported wholly or principally by public funds' such that it is a `public body ' within the meaning of Va. Code §2.1-341(e) (Supp.), subject to the VFOIA."

I will address your questions in inverse order.

Section 2.1-341(e) defines "public body" to mean "any of the groups, agencies or organizations enumerated in subsection (a) of this section."

Subsection (a) of 2.1-341 provides:

"`Meeting ' or `meetings' means the 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, wherever held, with or without minutes being taken, whether or not votes are cast, of any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of State institutions of higher education; and other organizations, corporations or agencies in the Commonwealth, supported wholly or principally by public funds.

Nothing in this chapter shall be construed to make unlawful the gathering or attendance of two or more members of a body or entity at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the body or entity." (Emphasis added.)

The question of whether the Association is supported principally by public funds, which would bring it within the scope of the Act, is a factual one. Webster s New Collegiate Dictionary (1979) defines "principal" as "most important, consequential, or influential." Black's Law Dictionary 1073 (5th ed. 1979) defines "principal" as "[c]hief; leading; most important or considerable; primary; original." As you will note, no objective standard is set forth.

Although the Association clearly receives public support by use of facilities owned or financed by government, I Cannot conclude from the information available to me that it is "principally" supported by public funds. If it is determined that the principal support of the Association is from public funds, it would be a public body subject to the Act.

The question remains that, even if the Association is not deemed to be supported principally by public funds, would it still be subject to the open meeting requirements of the Act (§2.1-344) because three members of the board of trustees of the Association are also members of the Board of Supervisors of Fairfax County. The question here is actually whether the assemblage of three members of the board of supervisors constitutes a meeting of the board of supervisors which would be subject to the Act. I fully recognize the sound purpose of the Act and the liberal construction to which its provisions are entitled Nevertheless, I do not believe that the mere presence of three members of a board of supervisors on an entirely different and otherwise private board transforms the second board ' into a public body subject to the Act. While the three members will undoubtedly promote the public interest, they are gathered to conduct the business of the Association, not the board of supervisors Accordingy, I conclude that the Association does not become a "public body" subject to the Act simply because three of its members are also members of the board of supervisors.

To summarize, I am of the opinion that if a determination is made that the Association is supported wholly or principally by public funds, it is deemed to be a public body which is subject to the Act. Otherwise, based on the facts presented, the Association would not be subject to the Act.