Who has authority under Virginia's Public-Private Transportation Act to evaluate proposals for a private concession to operate the Port of Virginia?

Plain-English summary

Five legislators asked who, under the Public-Private Transportation Act of 1995 (PPTA), had authority to review proposals to privatize operations of the Port of Virginia. Three private firms (APM Terminals, Carlyle Infrastructure Partners, and RREEF America) had submitted concession proposals to the Secretary of Transportation. The Governor had issued Executive Order 46 in May 2012, declaring that the Secretary, as the Governor's designee, would serve as the "responsible public entity" under the PPTA.

The AG concluded that the Virginia Port Authority (VPA), not the Secretary or the Governor, was the responsible public entity for any concession of Port facilities.

The PPTA defines "responsible public entity" as "a public entity, including local governments and regional authorities, that has the power to develop and/or operate the qualifying transportation facility." The General Assembly created the VPA and gave it, alone, the power to develop and operate Port facilities. Under § 62.1-132.19, the VPA itself may lease all or part of its real or personal property on whatever terms it determines. Because the PPTA defines "transportation facility" to include "port facility," and because the General Assembly placed exclusive authority for Port facilities in the VPA, only the VPA fit the definition of "responsible public entity" for Port concessions.

The Governor's executive order purporting to designate the Secretary as the responsible public entity exceeded his authority. The legislative power is vested in the General Assembly, not the Governor. The Governor cannot use an executive order to reassign legislative grants. Prior AG opinions had been emphatic on this: executive orders cannot change public policy fixed by statute, reorganize agencies in ways the legislature has not authorized, or rewrite statutory authority. The PPTA's procedure for multiple-public-entity proposals (§ 56-566.2) requires representatives of the affected public entities to meet and determine which entity shall serve as the coordinating responsible public entity. The Governor's unilateral designation didn't follow that procedure.

The AG broke the answer into five parts.

1. The VPA is the responsible public entity for any concession of Port facilities and must review and evaluate proposals.

2. The VPA decides whether to select a preferred proposer for negotiation.

3. The VPA's selection is its discretion, but no comprehensive agreement may be signed without the Secretary of Transportation's approval under § 56-573.1(2).

4. The VPA approves entering into the comprehensive agreement and, after the Secretary's approval, executes it on behalf of the Commonwealth.

5. Because the Governor has supervisory authority over the Secretary, he can provide coordination and guidance as the Secretary exercises his § 56-573.1(2) approval power, but he cannot displace the VPA's role.

The AG also declined to render an opinion on whether the three private proposals met PPTA requirements, because they had been submitted to the Secretary rather than to the VPA (the actual responsible public entity), and only the responsible public entity could waive PPTA minimum standards or require additional information.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does it matter who the responsible public entity is?
Because the PPTA gives that entity wide-ranging discretion: to review proposals, waive minimum requirements, select a preferred proposer, negotiate, and enter the comprehensive agreement. Mis-identifying that entity could invalidate any concession deal that resulted.

Can the Governor delegate his executive powers to the Secretary?
Generally yes, to the extent the Governor has the powers in the first place. The AG's point was different: the Governor doesn't have the power to act as a PPTA responsible public entity for the Port, because the General Assembly assigned that role to the VPA. The Governor cannot delegate something he doesn't possess.

What was the role of the Secretary of Transportation then?
A separate approval gatekeeper. Section 56-573.1(2) requires the Secretary's approval before the comprehensive agreement is signed if the responsible public entity functions as a state agency. The VPA fits that description. So the Secretary's role is real, but it's a sign-off role, not a substitute-for-VPA role.

What about Executive Order 46?
The AG concluded that the Governor exceeded his authority. Past AG opinions cited in this one had held that executive orders can't reorganize agencies where the General Assembly has prescribed a different method, can't authorize regulatory decisions reserved by statute to a different body, and can't change policy fixed by law.

Could the VPA have refused to review the proposals?
The VPA had not formally accepted or rejected the proposals at the time of the opinion. The opinion strongly suggested that the VPA, as responsible public entity, was the only body with statutory authority to accept the proposals for further consideration.

Background and statutory framework

The PPTA, Va. Code §§ 56-556 through 56-575, allows public entities to contract with private entities to develop or operate "qualifying transportation facilities." The General Assembly's policy is to encourage private investment by giving public and private entities maximum flexibility. The PPTA process is not subject to the Virginia Public Procurement Act, but does require either competitive sealed bidding or competitive negotiation procedures (§ 56-573.1).

Section 56-557 defines "responsible public entity" as a public entity that has the power to develop or operate the qualifying transportation facility. "Public entity" includes the Commonwealth, agencies, authorities, political subdivisions. "Transportation facility" includes "port facility." "Develop" includes plan, design, finance, lease, acquire, install, construct, expand. "Operate" includes finance, maintain, improve, equip, modify, repair, operate.

Section 56-560 sets out the proposal review procedure: required information, the responsible public entity's discretion to waive or require additional information, and the four public-purpose findings the responsible public entity must make.

Section 56-566.2 addresses multi-public-entity scenarios: representatives must meet and choose a coordinating responsible public entity.

Section 56-573.1(2) requires the Secretary of Transportation's approval before a comprehensive agreement is signed if the responsible public entity is a state agency.

The Virginia Port Authority is created at Va. Code § 62.1-128 as a body corporate and political subdivision. Its powers and duties are at §§ 62.1-128 through 62.1-147.2. It is charged with developing the commerce of Virginia's ports and consolidating maritime harbor and water terminals (§§ 62.1-132.3, 62.1-132.8). Section 62.1-132.19 authorizes the VPA to lease its real or personal property on whatever terms it determines.

The Virginia Constitution separates powers (art. III, § 1; art. I, § 5). Legislative power is vested in the General Assembly (art. IV). Executive power is vested in the Governor (art. V) but is limited to what the Constitution and laws confer (Lewis v. Whittle; Dean v. Paolicelli; Newport News v. Elizabeth City County). The General Assembly's power is plenary, limited only by the federal and state constitutions.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 2.2-103 (Governor's general powers)
• Va. Code § 2.2-104 (Governor's appointment of Secretary)
• Va. Code § 2.2-200 (Secretary's duties)
• Va. Code §§ 2.2-4300 through 2.2-4377 (Virginia Public Procurement Act)
• Va. Code §§ 56-556 through 56-575 (Public-Private Transportation Act of 1995)
• Va. Code § 56-557 (definitions)
• Va. Code § 56-558 (policy)
• Va. Code § 56-559 (approval required)
• Va. Code § 56-560 (proposal review procedure)
• Va. Code § 56-566 (agreement)
• Va. Code § 56-566.2 (multi-entity scenarios)
• Va. Code § 56-573.1 (procurement; Secretary approval)
• Va. Code §§ 62.1-128 through 62.1-147.2 (Virginia Port Authority statutes)
• Va. Const. art. III, § 1 (separation of powers)
• Va. Const. art. IV (General Assembly powers)
• Va. Const. art. V (Governor's powers)
• Dean v. Paolicelli, 194 Va. 219, 72 S.E.2d 506 (1952) (Va. Supreme Court; General Assembly plenary power)
• Lewis v. Whittle, 77 Va. 415 (1883) (Va. Supreme Court; Governor's powers)
• Harrison v. Day, 200 Va. 764, 107 S.E.2d 594 (1959) (Va. Supreme Court; VPA predecessor authority)
• Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 (1940) (Va. Supreme Court; executive order limits)
• Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975) (Va. Supreme Court; executive order)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-078_Wagner-Stolle_et_al.pdf

Original opinion text

Best-effort transcription from the AG's scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 3, 2012

The Honorable Frank W. Wagner, Member, Senate of Virginia
The Honorable Christopher P. Stolle, M.D., Member, House of Delegates
The Honorable Barry D. Knight, Member, House of Delegates
The Honorable Ralph S. Northam, M.D., Member, Senate of Virginia
The Honorable Jeffrey L. McWaters, Member, Senate of Virginia

Dear Senator Wagner, Delegates Stolle and Knight, and Senators Northam and McWaters:

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 present the following questions related to the Public-Private Transportation Act of 1995 ("PPTA"), the Secretary of Transportation's PPTA Implementation Manual and Guidelines of May 21, 2012 ("PPTA Guidelines") and the current consideration by the Governor and the Secretary of Transportation of proposals submitted by three private entities for the concession to operate Port of Virginia ("Port") facilities owned and/or leased by the Commonwealth of Virginia through the Virginia Port Authority ("VPA"):

1. You ask who or which public entity has authority under the PPTA to review and evaluate the proposals from these three private entities;

2. You ask who or which public entity has the authority, following the vetting of the proposals, to determine whether or not to select a preferred proposer with which to enter into negotiations for a comprehensive agreement for the concession to operate Port facilities;

3. You ask who or which public entity has the authority under the PPTA, after negotiations with the preferred proposer, to reverse or override the selection of that proposer;

4. You ask who or which public entity has the authority under the PPTA (i) to approve and, (ii) to execute any final comprehensive agreement on behalf of the Commonwealth for the concession to operate Port facilities; and

5. You ask whether the Governor has the authority to reverse or override (i) the selection of a preferred proposer, or (ii) the approval of the final comprehensive agreement.

Response

It is my opinion that:

1. The VPA, pursuant to § 56-557, is the responsible public entity under the PPTA for any concession of Port facilities because the General Assembly has conferred on it alone the power to develop and/or operate Port facilities and, as a result, the VPA bears statutory responsibility to review and evaluate the proposals received from APMT, Carlyle and RREEF, and to do so according to any guidelines adopted by it pursuant to §§ 56-560 and 56-573.1;

2. The VPA, as the responsible public entity under the PPTA, has the authority pursuant to §§ 56-560 and 56-573.1 to determine whether or not to select a preferred proposer with which to enter into negotiations for a comprehensive agreement for the concession to operate Port facilities;

3. The selection of the preferred proposer remains in the discretion of the VPA as the responsible public entity, but the VPA may not sign a comprehensive agreement without first receiving the approval of the Secretary of Transportation as required by § 56-573.1(2);

4. Under the PPTA, specifically §§ 56-560 and 56-573.1, the VPA, as the responsible public entity, has the authority to (i) approve entering into a comprehensive agreement, and (ii) subject to final approval by the Secretary of Transportation pursuant to § 56-573.1(2), execute a comprehensive agreement on behalf of the Commonwealth for the concession to operate Port facilities; and

5. The Governor, having supervisory authority over the Secretary of Transportation under § 2.2-200(B), may provide appropriate coordination and guidance as the Secretary of Transportation exercises his authority under § 56-573.1(2) to determine whether to give final approval before the responsible public entity signs a comprehensive agreement.

[You also ask whether the unsolicited conceptual proposal received by the Secretary of Transportation from APM Terminals, Inc. ("APMT"), and the two subsequently received alternative conceptual proposals solicited from Carlyle Infrastructure Partners, L.P. ("Carlyle") and RREEF America, L.L.C. ("RREEF"), meet the requirements of the PPTA and the PPTA Guidelines. I decline to render an opinion on this issue, however, because the sufficiency of the contents of the proposals cannot be determined. Those proposals neither were submitted to nor accepted by the responsible public entity as required by the PPTA, and the PPTA empowers only the responsible public entity to determine whether to waive any of the minimum standards for PPTA proposals enumerated in § 56-560 or to require additional information pursuant to guidelines adopted by the responsible public entity or other written instructions from the responsible public entity.]

Background

The VPA is a body corporate and a political subdivision of the Commonwealth of Virginia. All powers, rights and duties provided to the VPA legislatively are to be exercised by the VPA Board of Commissioners ("VPA Board"). It is the duty of the VPA, on behalf of the Commonwealth to "foster and stimulate the commerce of the ports of the Commonwealth, to promote the shipment of goods and cargoes through the ports, to seek to secure necessary improvements of navigable tidal waters within the Commonwealth, and in general to perform any act or function which may be useful in developing, improving, or increasing the commerce, both foreign and domestic, of the ports of the Commonwealth."

In 1952, the General Assembly established the VPA's predecessor entity, and the legislature subsequently assigned to the VPA the mission of consolidating the maritime harbor and water terminals of the cities of Norfolk, Newport News, and Portsmouth and providing for the centrally directed operation of all state-owned port facilities in Hampton Roads. Pursuant to its statutory authorities, the VPA currently controls the following Commonwealth-owned Port facilities that constitute part of the Port of Virginia: Norfolk International Terminals ("NIT"); Newport News Marine Terminal ("NNMT"); Portsmouth Marine Terminal ("PMT"); and the Virginia Inland Port ("VIP"), located in Warren County, Virginia.

The Secretary of Transportation ("the Secretary") received from APMT an unsolicited conceptual proposal dated April 4, 2012, for the concession of Port facilities. APMT supplemented that proposal with additional information on April 30, 2012, and July 23, 2012.

In May 2012, the Secretary of Transportation adopted the new PPTA guidelines setting forth the organizational structure adopted by the Office of the Secretary of Transportation for developing, implementing and administering PPTA projects. These guidelines confer upon the Secretary overall authority respecting that entire process and establish a PPTA Steering Committee. The PPTA Steering Committee is chaired by the Commonwealth Transportation Commissioner and consists of numerous Virginia governmental transportation officials, including a VPA representative. The PPTA Steering Committee is tasked, among other responsibilities, with reviewing the recommendations of Office of Transportation Public-Private Partnerships ("OTP3") regarding which proposers should advance in the PPTA evaluation process. In conjunction with representatives of the responsible public entity, the OTP3 Director, subject to oversight by the PPTA Steering Committee, bears overall responsibility for conducting the PPTA process following the Secretary's receipt of an unsolicited or solicited proposal regarding a qualifying transportation project.

In a memorandum dated May 22, 2012, to the Secretary and the Chairman of the VPA Board ("the OTP3 Memorandum"), the OTP3 Director recommended certain modifications to the review process described in the PPTA Guidelines and a proposed schedule for the review process. Near in time to the issuance of the OTP3 Memorandum, the Secretary accepted the APMT proposal for further consideration, citing §§ 56-560 and 56-573.1. The Secretary then directed OTP3 to take steps to solicit publicly additional conceptual proposals. On May 23, 2012, the Office of the Secretary of Transportation issued a Request for Alternative Proposals Relating to the Virginia Port Authority.

On May 30, 2012, the Governor issued Executive Order 46, affirming his delegation to the Secretary of the Governor's powers and duties under the PPTA to act as the responsible public entity on behalf of the Commonwealth for both solicited and unsolicited proposals involving VPA qualifying transportation facilities. In support of this delegation, Executive Order 46 cites the authority bestowed on the Governor by the Constitution of Virginia, Article V, §§ 1, 7, 8, and 10, and Virginia Code §§ 2.2-103 and 2.2-104.

In a letter dated August 7, 2012, to the VPA Board Chairman, the Governor referenced that executive order and declared that the Secretary "is serving as the responsible public entity on my behalf for unsolicited and solicited proposals involving the Virginia Port Authority." The Governor stated that "the VPA also can be considered a responsible public entity under the PPTA," and he asserted that "the purpose of this letter is to clarify the respective roles of the Secretary, acting as my designee, and the VPA in the proposal review and evaluation process." The Governor directed that the Secretary "serve as the coordinating responsible public entity," to leverage the resources of OTP3 to manage the proposal review and evaluation process, "and to provide for a single point of contact for private entities participating in the PPTA process" for the potential concession of Port facilities. The Governor also stated in the letter that the Commonwealth would look to the VPA "to provide input on the proposal review and evaluation process and provide subject matter expertise in support of negotiations for a comprehensive agreement."

Carlyle and RREEF submitted to the OTP3 their alternative conceptual proposals on August 13, 2012. On or about August 22, 2012, after making a presentation to the VPA Board, the Secretary also accepted these latter two proposals for further consideration in the ongoing PPTA process. To date, the VPA Board has not acted to accept any of the proposals for further consideration.

Applicable Law and Discussion

The separation of powers is one of the central tenets of Virginia's system of government. The Constitution of Virginia provides that:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe.

The Virginia Constitution vests the legislative power of the Commonwealth in the General Assembly. The power of the General Assembly is plenary, limited only by the Constitutions of the United States and Virginia. See Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952) ("'The Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited, and except as far as restrained by the Constitution of this State and the Constitution of the United States, the legislature has plenary power.'") (quoting Newport News v. Elizabeth City County, 189 Va. 825, 831, 55 S.E.2d 56, 60 (1949)). In contrast, the executive power of the Commonwealth that the Virginia Constitution vests in the Governor is not nearly as extensive. As the Supreme Court of Virginia has observed, "[u]nder our system of government, the governor has and can rightly exercise no power except such as may be bestowed upon him by the constitution and the laws." Lewis v. Whittle, 77 Va. 415, 420 (1883).

In an exercise of its legislative power, the General Assembly enacted the PPTA. To further the General Assembly's policy objective "to encourage investment in the Commonwealth by private entities that facilitates the development and/or operation of transportation facilities" by according public and private entities "the greatest possible flexibility in contracting with each other," the PPTA provides the authority for the Commonwealth, and any agency or authority thereof, any county, city or town and any other political subdivision of the foregoing to enter into agreements with private entities so that the private entities may develop and/or operate qualifying transportation facilities, i.e., those facilities included within the legislation's scope.

By the plain terms of the PPTA, the General Assembly assigned to the "responsible public entity" the central role in the PPTA proposal evaluation process. Any private entity seeking to develop and/or operate a transportation facility "shall first obtain approval of the responsible public entity under § 56-560." The responsible public entity is authorized to grant such approval only after determining that the proposed development and/or operation of the transportation facility by the private entity "serves the public purpose" of the PPTA. The responsible public entity further is charged with developing guidelines that establish the process for the acceptance and review of proposals. Although § 56-560(A) enumerates the specific information required to be included in a private entity's proposal, the PPTA grants to the responsible public entity the discretion to waive any of the required information or to require additional information from the private entity. Moreover, any agreement resulting from the established process is between the private entity and the responsible public entity. The PPTA does not afford any entity other than the responsible public entity the authority to exercise these functions.

For purposes of the PPTA, the General Assembly defined "responsible public entity" as a "public entity, including local governments and regional authorities, that has the power to develop and/or operate the qualifying transportation facility." The PPTA further defines a "public entity" to mean "the Commonwealth and any agency or authority thereof, any county, city, or town and any other political subdivision of any of the foregoing, but shall not include any public service company." Additionally, a "transportation facility" includes a "port facility or similar commercial facility used for the transportation of persons or goods;" to "develop" means "to plan, design, develop, finance, lease, acquire, install, construct, or expand;" and to "operate" means "to finance, maintain, improve, equip, modify, repair, or operate."

Based on these definitions, I conclude that the Virginia Port Authority is the "responsible public entity" for purposes of the consideration of proposals under the PPTA associated with the Port of Virginia. Like the PPTA process itself, the creation of the VPA as a body corporate and political subdivision is the product of legislative action. Pursuant to its legislative power, the General Assembly vested in the VPA, through its board, oversight of the Port, which includes an extensive grant of power to the VPA to carry out its important role. The VPA specifically is tasked with the duty to develop and operate the Port. Particularly relevant to your questions is the fact that the VPA itself may lease part or all of its real or personal property for such time period and upon such terms and conditions as the VPA may determine. This means that the General Assembly has empowered the VPA Board independently to lease or enter into a concession with another entity to operate its marine terminal facilities. Further, given that (i) the PPTA defines "transportation facility" to include "port facility" and (ii) the General Assembly has placed solely in the hands of the VPA the authority to manage the Port facilities, I must conclude that the VPA is the only public entity that meets the definition of "responsible public entity" under the PPTA respecting any proposals for the concession of Port facilities. Thus, absent a legislative change made by the General Assembly, only the VPA can effectuate a concession with a private entity to operate the Port facilities.

Although the PPTA recognizes that some projects may involve more than one interested public body, this Office cannot conclude that the Governor, or the Secretary acting as his designee, correctly meets the PPTA's definition of a "responsible public entity" under these circumstances, notwithstanding the language of Executive Order 46, the Governor's August 7, 2012, letter to the VPA Board Chairman, and the OTP3 Memorandum. In situations where a private entity submits a proposal under the PPTA "that may require approval by more than one public entity," § 56-566.2 provides that representatives of the affected public entities must meet and "determine which public entity shall serve as the coordinating responsible public entity." Thereafter, "the coordinating responsible public entity and the private entity shall proceed in accordance with this chapter." The Governor's actions in designating the Secretary of Transportation as the "coordinating responsible public entity" do not comport with this procedure, as established by the General Assembly. A Governor may not use an executive order to exercise any of the legislative power that is vested solely in the General Assembly. See Jackson v. Hodges, 176 Va. 89, 94-95, 10 S.E.2d 566, 567 (1940) (Governor cannot by executive order increase salary of Secretary of the Commonwealth for additional duties undertaken because the Constitution provided for such salary to be fixed by law, a responsibility of the General Assembly). Executive orders are appropriate whenever: (i) the Code of Virginia expressly confers that authority upon the Governor, see Boyd v. Commonwealth, 216 Va. 16, 19, 215 S.E.2d 915, 917 (1975) (emergency services and disaster law provided the statutory basis for executive order changing speed limit during acute fuel shortage); (ii) there is a genuine emergency that requires the Governor to issue an order under his constitutional responsibility to abate a danger to the public; and (iii) the executive order is merely administrative in nature, as opposed to legislative.

In response to your first two inquiries, I therefore conclude that the VPA, as the sole responsible public entity, is the only entity with authority to review and evaluate the proposals submitted by the private entities you name in your inquiry and to select a preferred proposer, if any. With regard to your next two questions, however, while the VPA remains the sole responsible public entity, the fact that the VPA nominally functions as a state agency within the meaning of § 56-573.1(2) means that "the approval of the Secretary of Transportation shall be required as more specifically set forth in the guidelines before the comprehensive agreement is signed." The responsible public entity's "approval" of a proposal, that is, acceptance of it for further consideration pursuant to § 56-560, remains subject to subsequent negotiation and entry of a comprehensive agreement. Pursuant to §§ 56-560 and 56-573.1, as the responsible public entity for the Port facilities, VPA maintains under the PPTA the prerogative to approve entry of an interim agreement and/or a comprehensive agreement for the concession to operate Port facilities. The signing of a comprehensive agreement under the PPTA, however, is subject to the Secretary's authority to approve execution thereof. Once the VPA Board has received the Secretary's approval, and after having considered and approved the comprehensive agreement by passing an appropriate VPA Board resolution, VPA's Executive Director then would execute such an agreement.

Lastly, in response to your final question, because the Governor has supervisory authority over the Secretary of Transportation, I conclude that the Governor may provide appropriate coordination and guidance as the Secretary of Transportation exercises his authority under § 56-573.1(2), as discussed above, to determine whether to give final approval before the responsible public entity signs a comprehensive agreement.

Conclusion

Accordingly, it is my opinion that:

1. The VPA, pursuant to § 56-557, is the responsible public entity under the PPTA for any concession of Port facilities because the General Assembly has conferred on it alone the power to develop and/or operate Port facilities and, as a result, the VPA bears statutory responsibility to review and evaluate the proposals received from APMT, Carlyle and RREEF, and to do so according to any guidelines adopted by it pursuant to §§ 56-560 and 56-573.1;

2. The VPA, as the responsible public entity under the PPTA, has the authority pursuant to §§ 56-560 and 56-573.1 to determine whether or not to select a preferred proposer with which to enter into negotiations for a comprehensive agreement for the concession to operate Port facilities;

3. The selection of the preferred proposer remains in the discretion of the VPA as the responsible public entity, but the VPA may not sign a comprehensive agreement without first receiving the approval of the Secretary of Transportation as required by § 56-573.1(2);

4. Under the PPTA, specifically §§ 56-560 and 56-573.1, the VPA, as the responsible public entity, has the authority to (i) approve entering into a comprehensive agreement, and (ii) subject to final approval by the Secretary of Transportation pursuant to § 56-573.1(2), execute a comprehensive agreement on behalf of the Commonwealth for the concession to operate Port facilities; and

5. The Governor, having supervisory authority over the Secretary of Transportation under § 2.2-200(B), may provide appropriate coordination and guidance as the Secretary of Transportation exercises his authority under § 56-573.1(2) to determine whether to give final approval before the responsible public entity signs a comprehensive agreement.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General