Can the Chesapeake Bay Restoration Fund Advisory Committee use specialty license plate revenue to pay a marketing firm to sell more 'Friend of the Chesapeake' plates?

Plain-English summary

Virginia drivers can pay extra to get a "Friend of the Chesapeake" specialty license plate. A portion of that fee goes into the Chesapeake Bay Restoration Fund, which the Chesapeake Bay Restoration Fund Advisory Committee oversees. Since 1995, the Committee has been awarding grants from the Fund to nonprofits, government agencies, and schools for environmental education and restoration projects around the Bay.

The Committee then had a tempting idea: hire a marketing firm to develop a strategy to sell more plates. More plates equals more Fund revenue equals more grants for actual Bay work. It seemed like an investment in the mission.

Senator Jeffrey McWaters asked the Attorney General whether the Committee could legally spend Fund money on plate marketing. The answer was no.

Attorney General Herring read the two enabling statutes carefully:

• Va. Code § 46.2-749.2(B) says the Fund is "for use by the Commonwealth of Virginia for environmental education and restoration projects relating to the Chesapeake Bay and its tributaries."
• Va. Code § 30-256(D) says the Committee can award grants for "environmental education and projects relating to the restoration and conservation of the Chesapeake Bay."

Both provisions tie Fund spending to a narrow purpose. Paying a marketing firm to develop a sales strategy is advertising, "a part of commerce," and not environmental education or a restoration project, no matter how laudable the long-term goal. The statutes' specific limits on permitted use cannot be ignored.

Having answered the threshold question "no," Herring didn't need to reach the secondary question of whether the recipient could be a for-profit entity.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The specialty license plate framework and the Chesapeake Bay Restoration Fund statutes may have been amended since. Verify current law before relying on any specific rule mentioned here.

Common questions

Can the Chesapeake Bay Restoration Fund pay for any kind of marketing or outreach?

Under Herring's reading, marketing aimed at selling more plates doesn't count. But marketing that is itself environmental education (a curriculum or campaign teaching the public about the Bay) might qualify, depending on the specifics. The opinion doesn't draw that line in detail.

Why does this matter if the marketing would ultimately boost the Fund?

Because the statute's limits don't bend based on long-term benefits. A statute that creates "a specific grant of authority" only authorizes spending within that grant. The General Assembly chose to restrict the Fund to direct environmental purposes, and the Committee cannot expand that scope on its own.

What kinds of grants does the Fund typically support?

Environmental education and restoration projects related to the Chesapeake Bay and its tributaries, awarded historically to nonprofit organizations, public agencies, and educational institutions.

What would the Committee need to use Fund money on plate marketing?

A statutory amendment from the General Assembly expanding the permitted uses of the Fund. Without that, the limits stand.

Background and statutory framework

Virginia's specialty license plate program (Va. Code § 46.2-749.2) issues "Friend of the Chesapeake" plates upon application and payment of an additional $25 fee. After the first 1,000 plate registrations, $15 of each plate's $25 surcharge goes into the Chesapeake Bay Restoration Fund.

The Fund is a special nonreverting fund overseen by the Chesapeake Bay Restoration Fund Advisory Committee, created by Va. Code § 30-256. The Committee develops goals and guidelines for the use of Fund monies. The statute authorizes "cooperative programs with, or project grants to, state agencies, the federal government, or any not-for-profit agency, institution, organization, or entity, public or private, whose purpose is to provide environmental education and projects relating to the restoration and conservation of the Chesapeake Bay."

Herring applied two standard interpretive principles. First, plain meaning controls unless ambiguous or absurd (Reston Hosp. Ctr. v. Remiley, 2011). Second, statutes on the same subject must be read together (Prillaman v. Commonwealth, 1957). Reading § 46.2-749.2 and § 30-256 in concert produced a clear restriction: Fund money goes to environmental education and restoration projects. Marketing for license plate sales is neither.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 30-256 (Chesapeake Bay Restoration Fund Advisory Committee)
• Va. Code Ann. § 46.2-749.2 ("Friend of the Chesapeake" specialty plate)
• Reston Hosp. Ctr., L.L.C. v. Remiley, 59 Va. App. 96 (2011)
• Prillaman v. Commonwealth, 199 Va. 401 (1957)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-013_McWaters.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

900 East Main Street
Richmond, Virginia 23219
804-786-2071

October 9, 2015

The Honorable Jeffrey L. McWaters
Member, Senate of Virginia
1207 Laskin Road
Virginia Beach, Virginia 23451

Dear Senator McWaters:

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

Issues Presented

Your inquiry concerns the potential expenditure of funds from the Chesapeake Bay Restoration Fund (the "Fund"). You ask whether the Chesapeake Bay Restoration Fund Advisory Committee (the "Committee") may disburse monies from the Fund in the form of grants for the development of a marketing strategy to promote the sale of "Friend of the Chesapeake" specialty license plates, and, if so, whether those grants may be awarded to a "for profit" entity or organization.

Background

The Committee is authorized by law to exercise general oversight over the expenditure of monies in the Fund, which are derived from the sale of the "Friend of the Chesapeake" license plate. You relate that, in 1995, the Committee developed guidelines pursuant to § 30-256(D) for the use of monies in the Fund. Under these guidelines, the Committee established a grant program to award monies in the Fund to nonprofit organizations; to local, state and federal public agencies; and to educational institutions for the purposes of environmental education and restoration projects related to the Chesapeake Bay.

Currently, the Committee is interested in funding grants for the development of a marketing strategy to increase sales of the "Friend of the Chesapeake" license plate. Increased sales of the license plate would result in more revenue for the Fund, which would in turn allow the Committee to provide more grant funding to the entities engaged in educational and restoration efforts related to the Chesapeake Bay. You inquire whether the Committee has the statutory authority to fund the development of a marketing strategy for the license plate in this manner.

Applicable Law and Discussion

Section 46.2-749.2 provides that the Commissioner of the Department of Motor Vehicles shall issue a special license plate bearing the words "Friend of the Chesapeake," and that a portion of the proceeds from the sale of these plates "shall be paid into the state treasury and credited to the special nonreverting fund known as the Chesapeake Bay Restoration Fund." The statute provides that monies in the Fund are "for use by the Commonwealth of Virginia for environmental education and restoration projects relating to the Chesapeake Bay and its tributaries."

The Chesapeake Bay Restoration Fund Advisory Committee was created to advise the General Assembly on the expenditure of monies received in the Chesapeake Bay Restoration Fund. Pursuant to § 30-256, the Committee is directed to develop goals and guidelines for the use of the Fund, which

may include but not be limited to cooperative programs with, or project grants to, state agencies, the federal government, or any not-for-profit agency, institution, organization, or entity, public or private, whose purpose is to provide environmental education and projects relating to the restoration and conservation of the Chesapeake Bay.

The only additional condition listed is that monies in the Fund may not be used to supplant existing general fund appropriations, except as provided in the Code.

I must consider both statutes when making a determination as to how monies in the Fund may be disbursed. The application and meaning of a statute are controlled by "the plain language used by the legislature . . . unless that language is ambiguous or otherwise leads to an absurd result." In addition, "statutes dealing with a specific subject must be construed together in order to arrive at the object sought to be accomplished."

Based on the plain language of the statutes, it is clear that the purpose of the Fund is for "environmental education and restoration projects" relating to the Chesapeake Bay. Using these monies to pay an organization to develop a marketing strategy to increase sales of license plates, whatever the end goal may be, does not fall into either of those categories. Paying a marketing firm is, simply stated, advertising, and a part of commerce. It is not environmental education, nor is it a restoration project. Each of these statutes, read separately, and more importantly, read together, emphasizes this requirement, and this requirement cannot be ignored.

Given the above analysis, the Committee may not use the Fund to finance a grant to develop a marketing strategy to promote the sale of the license plates. Having answered this inquiry in the negative, it is unnecessary to address your second inquiry regarding the "for-profit" or "non-profit" status of the proposed recipient of the funding.

Conclusion

Accordingly, it is my opinion that the Chesapeake Bay Restoration Fund Advisory Committee may not disburse monies from the Fund in the form of grants for the development of a marketing strategy to promote the sale of the "Friend of the Chesapeake" specialty license plates.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General