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In
May, the Virginia Freedom of Information Advisory
Council issued an opinion regarding student
government at George Mason University. Repeating an
attorney general opinion from 1984, the opinion said
that the student senate is a public body because it
is principally supported by public funds. The AG had
said that once student activity fees are paid into
the state treasury, they become public funds.
Wait
a minute! If that’s all it takes to be a public
body subject to FOIA, then all the student
organizations receiving funding would be public
bodies: the newspaper, chess club, whitewater
rafting club, etc. Should free stylers and
breast strokers have to take minutes each time the
swim team gets together? Should they have to post
notice three days in advance before meeting?
That’s absurd!
Do
student fees automatically become public funds?
In the Code of Virginia, 2.2-1815, state funds are
defined as “public funds or moneys from any
source, belonging to or for the use of the
Commonwealth, or for the use of any state
department, division, officer, board, commission,
institution, or other agency or authority owned or
controlled by the Commonwealth.”
If
there are two kinds of funds, public funds and other
funds derived from various places, then public funds
must be the kind that comes from the public — in
other words, from taxpayers. Student activity fees
would fall into the “moneys from any source”
category and would thus be state funds but not
public funds. In the case of Rosenberger v. UVA,
Justice Sandra Day O’Connor noted that student
activity fees are not paid by taxpayers, that
they’re the students’ own funds. They can
be distinguished from ordinary public funds.
But
it’s not necessary to quibble over the definition
of public funds. There’s an even more basic
problem: Student governments, like all the other
student organizations, are not authorized to conduct
public business. Virginia is a Dillon Rule state and
the legislature must grant authorizations to the
various boards and subdivisions of government to
empower them to govern.
I’ve
looked in the Code of Virginia and don’t see that
the General Assembly has empowered the student
government bodies at the state universities and
colleges to do anything. The code empowers the
boards of visitors to govern. The boards might let
the student government make decisions on certain
matters, but ultimate responsibility lies with the
boards of visitors. The boards can overrule student
government if they so choose.
How
can student governments be public bodies if
they’re not authorized by the legislature to
conduct public business? If the boards of visitors
consider them a committee of the board, then
they’d be a public body. Public bodies can set up
committees, and committees of public bodies are
public bodies themselves. But the boards of visitors
don’t list the student government as one of their
committees.
Student
governments might hold public records as agents of
the board and those records would fall under FOIA.
If so, then they would be required to provide access
to them. But holding public records wouldn’t turn
them into public bodies.
Of
course, student governments should have open
meetings. They should post notice in advance, and
they should
take minutes. They should make their records
accessible. Students participating in student
government are learning how to take part in local
(and state and national) government later on. They
should learn good habits for conducting meetings and
keeping records. There is no reason why the student
government constitutions and bylaws cannot include
open government provisions similar to FOIA. The only
difference is that the university, rather than the
circuit court, would address violations.
Attorney
generals are not infallible. Gerald Baliles didn’t
hit the mark on the opinion in 1984. Once is enough
for an error; let’s not keep repeating it.
Copyright
VA Lawyers Weekly, 2007. Used with permission.
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July 16, 2006
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