Skip to main content

Virginia Advisory Opinions July 01, 2024: AGO 24-014

⤴ Up to Virginia Advisory Opinions

Collection: Virginia Attorney General Opinions
Docket: AGO 24-014
Date: July 1, 2024

Advisory Opinion Text

The Honorable Carrie E. Coyner

AGO 24-014

No. 24-014

Attorney General of Virginia

July 1, 2024

COMMONWEALTH of VIRGINIA Office of the Attorney General

The Honorable Carrie E. Coyner

Member, Virginia House of Delegates

9910 Wagners Way

Post Office Box 58

Chesterfield, Virginia 23832

Dear Delegate Coyner:

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 ask whether the City of Hopewell may adopt an ordinance containing certain provisions related to city employment and public office holding. You specifically inquire regarding provisions that direct as follows:

(a) Any employee . . . may be a candidate for political office but shall resign, or shall be released, from employment with the City upon successful election to political office within the City, or other political office due to the responsibilities of that office [sic] will interfere with the employee's ability to perform the duties of his/her City position.

(b) Any member of the governing body who seeks employment with the City shall resign from their elected office and may be eligible for such employment one year from their date of resignation in order to avoid the appearance of impropriety and any potential conflicts of interest.

(c) Any Constitutional Officer who seeks employment with the City shall resign from their elected office and may become eligible for such employment one year from the date of their resignation in order to avoid the appearance of impropriety and any potential conflicts of interest.

Applicable Law and Discussion

In Virginia, the powers of local governing bodies are governed by the Dillon Rule, which establishes that local governments may exercise "only those powers expressly granted by the General

2

Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable. When "there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body." "The Dillon Rule is applicable to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end. Moreover, local action, when authorized, must be exercised in a manner consistent with state law. Actions taken by a locality that are ultra vires, i.e., beyond the powers of the locality, are void and of no effect.

The provision terms about which you inquire, in effect, impose restrictions on who may hold local office. Article II, § 5 of the Virginia Constitution provides that "[t]he only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office[.]" Nevertheless, "nothing in this Constitution shall limit the power of the General Assembly to prevent conflict of interests, dual officeholding, or other incompatible activities by elective or appointive officials of the Commonwealth or of any political subdivision." Recognizing the salutary purposes such laws may serve in certain circumstances, the Constitution thus contemplates that laws defining impermissible conflicts of interests or incompatible activities by officials will be enacted. The power to do so directly lies with the General Assembly. While the General Assembly has clear authority to enact laws governing conflicts of interests and incompatible activities by local officials, under the Dillon Rule, a locality may adopt such measures only if the General Assembly first has enacted legislation empowering it to do so, whether by general law or special act.

I find no act of the General Assembly that establishes directly restrictions like those you present. I also find neither a statute that generally grants localities authority to adopt such rules nor a provision of the Hopewell City Charter that expressly or impliedly authorizes the Hopewell City Council to adopt

3

them. While the charters for several other municipalities contain provisions similar to those you present, the Hopewell City Charter is silent on such issues. In the absence of any enabling legislation, I must conclude that the Hopewell City Council lacks authority to adopt the provisions you describe and they are ultra vires.

Conclusion

Accordingly, it is my opinion that the City of Hopewell lacks the authority to adopt the specific ordinance provisions presented. The authority to enact such measures, or to authorize the Hopewell City Council to do so, lies with the General Assembly.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares, Attorney General

---------

Notes:

CITY OF HOPEWELL, VA., Ordinance No. 0424(B)(4). The analysis contained herein is limited to these provisions.

City of Richmond v. Confrere Club of Richmond, Va., Inc., 239 Va. 77, 78 (1990). See also, e.g., Marble Techs., Inc. v. City of Hampton , 279 Va. 409, 417 (2010); City of Va. Beach v. Hay, 258 Va. 217, 221 (1999).

Marble Techs., Inc., 279 Va. at 417 (quoting Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397, 400 (1995)).

Id. at 416-17 (quoting Commonwealth v. Arlington Cnty. Bd., 217 Va. 558, 575 (1977)); see also Commonwealth v. Rivera , 18 Va.App. 103, 107 (1994).

See VA. CODE ANN. § 1-248 (2022); Blanton v. Amelia Cnty ., 261 Va. 55, 63 (2001).

See City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243, 246 (1997); Rivera, 18 Va.App. at 107; see also 2008 Op. Va. Att'y Gen. 73, 76; 1986-87 Op. Va. Att'y Gen. 315, 316; 1975-76 Op. Va. Att'y Gen. 156, 158.

VA. CONST, art. II, § 5 (emphasis added).

Id. art. II, § 5(c).

See id.

Id.; see also VA. CONST, art. IV, § 1 (establishing that "[t]he legislative power of the Commonwealth shall be vested in a General Assembly"); VA. CONST, art. VII, § 2 (providing that the General Assembly shall provide for "the organization, government, [and] powers ... of counties, cities, towns, and regional governments), Confrere Club of Richmond, Va., Inc., 239 Va. at 78 (setting forth the Dillon Rule of strict construction).

I note that the State and Local Government Conflict of Interests Act (the "Conflicts Act") does not prohibit a member of a city council from retaining a personal interest in a contract of employment with the city if that member's "employment first began prior to the member becoming a member of the [city council]." See VA. CODE ANN. § 2.2-3107 (2022). The Conflicts Act, however, does not address "matters related to dual officeholding or to incompatibility of offices or positions." 1996 Op. Va. Att'y Gen. 33, 35 (citing 1974-75 Op. Va. Att y Gen. 561,562). Although the General Assembly has enacted statutes barring certain types of dual officeholding by constitutional officers and members of local governing bodies, see §§ 15.2-1534 and 15.2-1535, these provisions do not implicate the types of restrictions you describe.

Although the Conflicts Act generally bars a city council member from acquiring a personal interest in a contract of employment with the city subsequent to taking office, see § 2.2-3107, it does not require that the member resign his position on the city council and wait one year in order to become eligible for such employment. Nevertheless, as indicated above, the Act does not address matters related to incompatibility of offices or positions. Moreover, the Conflicts Act does not contain any provisions that authorize a local government to adopt its own conflict-of-interests ordinances; rather, the state law "establish [es] a single body of law applicable to all state and local government officers and employees on the subject of conflict of interests ... so that the standards of conduct for such officers and employees may be uniform throughout the Commonwealth." Section 2.2-3100 (2022).

See, e.g , CHARTER FOR THE CITY OF FRANKLIN, VA., § 3.10; CHARTER FOR THE TOWN OF RICH CREEK, VA., § 7; CHARTER FOR THE TOWN OF WISE, YA., § 3.9. See also generally 1996 Op. Va. Att'y Gen. 33, 34 (noting that the General Assembly was authorized under Article II, § 5 of the Constitution to pass a charter provision barring a town employee from serving as a member of the town council); 1979-80 Op. Va. Att'y Gen. 94, 95 (detailing the authority of the General Assembly under Article II, § 5 to pass a charter provision "prevent[ing] local employees from holding local office" (citing 1975-76 Op. Va. Att'y Gen. 35, 35)).

I note that localities have been afforded a process by which they can seek charter amendments by the General Assembly. See § 15.2-201 (2018). Whether such amendments are warranted is a policy question reserved to the General Assembly and one that is beyond the scope of an Opinion of this Office. See, e.g, 2013 Op. Va. Att'y Gen. 82, 87; 2015 Op. Va. Att'y Gen. 87, 90; 1982-83 Op. Va. Att'y Gen. 220, 221; 1973-74 Op. Va. Att'y Gen. 142, 143.

---------

Explore Related Documents

This section contains links to related documents with the same tags to allow you quickly access other relevant legal materials. These links include document types and counts, enabling you to explore similar content efficiently.