Can the Williamsburg Tourism Council exercise powers listed in its bylaws when the statute that created it doesn't expressly grant those powers, and can it sit inside the Greater Williamsburg Chamber and Tourism Alliance?

Subject

The Williamsburg Tourism Council may exercise those powers that are not contrary to § 58.1-603.2 and other state laws and that are appropriate ways to accomplish the purposes the General Assembly set out in § 58.1-603.2. Additionally, the Tourism Council remains a separate entity from the Greater Williamsburg Chamber and Tourism Alliance.

Plain-English summary

The Williamsburg Tourism Council is a public body the General Assembly created in 2018 to promote tourism in the "Historic Triangle" (James City County, York County, and the City of Williamsburg). It is funded through a one percent local sales and use tax under Va. Code § 58.1-603.2.

The James City County Attorney asked two practical questions. First, can the Council exercise powers listed in its bylaws if the bylaw power is not spelled out in the enabling statute? Second, can the Council lawfully operate as a component of (and be administered by) the Greater Williamsburg Chamber and Tourism Alliance, a private nonprofit chamber of commerce?

The Attorney General said yes to both, with limits. Because the Council is a Virginia public body, its powers are constrained by a corollary of Dillon's Rule: it has only the powers expressly granted, those necessarily implied, and those essential and indispensable to its statutory mission. So a bylaw power survives only if (a) it does not conflict with § 58.1-603.2 or other state law, and (b) it is a reasonable way to carry out the tourism-promotion purpose the General Assembly set out. On the structural question, the Council can sit inside the Chamber and be administered by it without losing its identity as a separate public body. The Chamber is a private nonprofit and is not governed by § 58.1-603.2. The Council is not responsible for what the Chamber does, even though the two are intertwined operationally.

What this means for you

For the Tourism Council and its staff

The opinion holds that a power written into the Council's bylaws is lawful only if it (a) is not contrary to § 58.1-603.2 or other state law and (b) is an appropriate way to accomplish the tourism-promotion purpose the General Assembly set out. It applies the corollary of Dillon's Rule that a public body has only the powers expressly granted, necessarily implied, or essential and indispensable, and that the doctrine of implied powers cannot create a power that does not exist or expand one beyond rational limits.

For the localities in the Historic Triangle

The opinion records that the Council's creation, membership, function, and termination are controlled by the General Assembly through § 58.1-603.2, and that no Council action may conflict with the statute's stated purposes. It notes that where reasonable doubt about a public body's power exists, the doubt is resolved against the body.

For the Greater Williamsburg Chamber and Tourism Alliance

The opinion concludes the Council may operate within the GWCTA's administrative structure while remaining a separate public body of the Commonwealth with its own statutory duties. It states that the Council is not responsible for the GWCTA's actions and that the GWCTA, a private nonprofit chamber of commerce, is not governed by § 58.1-603.2.

For citizens and business owners in the Historic Triangle

The opinion, drawing on a prior opinion (2019 Op. Va. Att'y Gen. 86), treats the Council as a "board of the Commonwealth" within FOIA's definition of "public body." It frames the Council, not the Chamber, as the public body whose tourism-marketing decisions are governed by § 58.1-603.2.

Common questions

What is the Williamsburg Tourism Council?
A public body created by the 2018 General Assembly to develop strategic plans and run a marketing office for tourism promotion in the Historic Triangle (James City County, York County, City of Williamsburg). Its membership and structure are fixed in Va. Code § 58.1-603.2.

Where does the Council's money come from?
A one percent additional retail sales and use tax in the Historic Triangle. Half goes to the localities where it was collected; half goes into a state Historic Triangle Marketing Fund that the Council uses to run its marketing office.

Can the Council just write whatever powers it wants into its bylaws?
No. Bylaw powers survive only if they don't conflict with § 58.1-603.2 (or other state law) and if they are reasonable ways to accomplish the tourism-promotion purpose the legislature set out. The doctrine of implied powers cannot be used to manufacture authority the General Assembly did not give.

Is the Tourism Council just a committee of the Chamber?
No. It operates inside the Chamber's administrative structure, but it is a separate Commonwealth public body with its own statutory duties. The Chamber is a private nonprofit. The Council is not responsible for the Chamber's actions, and the Chamber is not governed by § 58.1-603.2.

Are Tourism Council meetings open to the public?
A previous AG opinion (2019 Op. Va. Att'y Gen. 86) concluded the Council functions as a "board of the Commonwealth" within FOIA's definition of "public body." That means VFOIA and other public-body rules apply.

Does Dillon's Rule apply to the Council?
A close cousin of it does. The AG noted that the rule limiting a public body to expressly granted, necessarily implied, or indispensable powers is "a corollary to Dillon's Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable."

Background and statutory framework

The General Assembly enacted § 58.1-603.2 in 2018 to create a one percent retail sales and use tax in the Historic Triangle, fund a special Historic Triangle Marketing Fund, and stand up a Tourism Council with a marketing office. The Council's membership combines local officials with industry representatives from Colonial Williamsburg, the Jamestown-Yorktown Foundation, Busch Gardens Williamsburg, Historic Jamestowne, and area hotel and restaurant associations.

The AG borrowed his analytical frame from Board of Supervisors v. Horne, 216 Va. 113 (1975), and a chain of Virginia Supreme Court cases extending the same rule: a public body's authority is limited to what is conferred "expressly or by necessary implication," and implied powers cannot expand statutory authority beyond rational limits. Where doubt exists, Reed's Landing controls and the doubt cuts against the public body.

The Council's bylaws are publicly posted at visitwilliamsburg.com/tourism-council-bylaws. The opinion does not bless any specific bylaw provision; it sets the framework that future bylaw exercises must satisfy.

Citations

• Va. Code § 2.2-505 (procedure for AG advisory opinions)
• Va. Code § 58.1-603.2 (Historic Triangle sales and use tax, Tourism Council, Marketing Fund)
• Va. Code § 58.1-3823(C) (transient occupancy taxes)
• Board of Supervisors v. Horne, 216 Va. 113 (1975)
• Dumfries-Triangle Rescue Squad, Inc. v. Bd. of County Supervisors, 299 Va. 226 (2020)
• Cuccinelli v. Rector, 283 Va. 420 (2012)
• Commonwealth v. County Bd., 217 Va. 558 (1977)
• Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397 (1995)
• 2019 Op. Va. Att'y Gen. 86

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: http://www.oag.state.va.us/files/Opinions/2021/21-018-Kinsman-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General
Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

December 3, 2021

Adam R. Kinsman, Esquire
County Attorney, James City County
101-D Mounts Bay Road
Post Office Box 8784
Williamsburg, Virginia 23187

Dear Mr. Kinsman:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have asked the following questions relating to the Williamsburg Tourism Council:

1) Whether the powers set forth in the bylaws of the Williamsburg Tourism Council (the "Tourism Council"), as a Virginia public body created and described in Virginia Code § 58.1-603.2 as the "Tourism Council of the Greater Williamsburg Chamber and Tourism Alliance," may lawfully be exercised by the Tourism Council when those powers are not expressly conferred in the enabling statute; and

2) Whether, as a Virginia public body, the Tourism Council lawfully may be a component of and administered by the Greater Williamsburg Chamber and Tourism Alliance (the "GWCTA"), or does its status as a "separate entity," as stated in an earlier opinion of the Attorney General, preclude that?

Background

The relevant background information was provided in a previous opinion from my Office:

In 2018, the General Assembly enacted § 58.1-603.2 to establish a special retail sales and use tax of one percent in the Historic Triangle, which includes James City County, York County, and the City of Williamsburg. The statute requires that the State Comptroller distribute one-half of the revenues generated from the tax to the localities in which the tax was collected, and one-half into a special state fund known as the Historic Triangle Marketing Fund (the "Fund"). The Fund consists of tax revenues collected in the Historic Triangle area and is required by statute to be used to promote tourism within the area.

The statute also created the Tourism Council of the Greater Williamsburg Chamber and Tourism Alliance ("Tourism Council"), which consists of one member from each of the governing bodies of the Historic Triangle, as well as representatives from the Colonial Williamsburg Foundation, the Jamestown Yorktown Foundation, Busch Gardens Williamsburg, Historic Jamestowne, the Williamsburg Hotel and Motel Association, and the Williamsburg Area Restaurant Association. In addition, the Chief Executive Officer of the Virginia Tourism Alliance and the Chief Executive Officer of the Virginia Tourism Corporation serve as ex-officio, non-voting members. The Tourism Council is tasked with developing strategic plans for the promotion of tourism in the Historic Triangle and with creating the Office to help develop and administer such plans. The Office is statutorily tasked with duties such as developing and implementing plans for the advertisement and promotion of the Historic Triangle as a travel destination, coordinating certain advertising and marketing efforts between tourism venues in the Historic Triangle, and "performing any other function related to the promotion of the Historic Triangle region as may be identified by the Council." The Tourism Council is required under the statute to use monies in the Fund to pay for necessary expenses of the Office and to fund the activities of the Office. The Tourism Council is required to report annually on its and the Office's activities and use of the Fund. The annual report is submitted not only to the managers or chief executive officers of the localities within the Historic Triangle, but also the respective chairs of the House Committee on Finance and Appropriations and the Senate Committee on Finance.

Discussion and Relevant Laws

As stated in a previous opinion, "the Tourism Council functions as a board of the Commonwealth within the definition of 'public body' under FOIA." As a public body created by the General Assembly, the Tourism Council's powers are fixed by Code § 58.1-603.2 "and are limited to those [powers] conferred expressly or by necessary implication." "This rule is a corollary to Dillon's Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable."

"'A necessary implication is [a]n implication so strong in its probability that anything to the contrary would be unreasonable.'" "'[T]he doctrine of implied powers should never be applied to create a power that does not exist or to expand an existing power beyond rational limits.'" Virginia's courts determine whether a public body, like the Tourism Council, has implied powers by examining the legislative intent.

In determining legislative intent, the rule is clear that where a power is conferred and the mode of its execution is specified, no other method may be selected; any other means would be contrary to legislative intent and, therefore, unreasonable. A necessary corollary is that where a grant of power is silent upon its mode of execution, a method of exercise clearly contrary to legislative intent, or inappropriate to the ends sought to be accomplished by the grant, also would be unreasonable.

Consistent with the necessity to uphold legislative intent, the doctrine of implied powers should never be applied to create a power that does not exist or to expand an existing power beyond rational limits. Always, the test in application of the doctrine is reasonableness, in which concern for what is necessary to promote the public interest is a key element.

"If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body."

You ask whether the powers set forth in the Tourism Council's bylaws may be lawfully exercised by the Tourism Council when the powers are not expressly conferred by § 58.1-603.2. By statute, the Tourism Council was created by the General Assembly for the purpose of marketing, advertising, and promoting tourism in the Historic Triangle. As long as the powers contained in the bylaws are not contrary to § 58.1-603.2 and other state laws and those powers are appropriate ways to accomplish the purposes the General Assembly set out in § 58.1-603.2, then the Tourism Council may lawfully exercise those powers. Further, no action by the Tourism Council may conflict with any of the stated purposes of the Tourism Council contained in § 58.1-603.2. As previously noted, "the creation, membership, function, and termination of the Tourism Council are controlled by the General Assembly."

You also ask whether the Tourism Council lawfully may be a component of and administered by the Greater Williamsburg Chamber and Tourism Alliance (the "GWCTA") or if its status as a "separate entity" precludes that. In accordance with my previous opinion, the Tourism Council is a public body and a separate entity from the GWCTA. The Tourism Council operates within the GWCTA, however, as a public body with its own statutory duties. The Tourism Council is not responsible for any actions taken by the GWCTA, and the Council is a self-sufficient public body of the Commonwealth entrusted with marketing, advertising, and promoting tourism in the Historic Triangle. The GWCTA, a private nonprofit chamber of commerce, is not governed by the provisions of § 58.1-603.2.

Conclusion

Accordingly, it is my opinion that the Tourism Council may exercise those powers that are not contrary to § 58.1-603.2 and other state laws and that are appropriate ways to accomplish the purposes the General Assembly set out in § 58.1-603.2. Additionally, the Tourism Council remains a separate entity from the GWCTA.

With kindest regards I am,

Very truly yours,

Mark R. Herring
Attorney General