Can the Virginia Secretary of Technology also serve as the Commonwealth's Chief Information Officer, and can the Information Technology Investment Board negotiate or modify VITA's big technology contracts?

Plain-English summary

In 2003, Delegate Samuel Nixon patroned legislation that created Virginia's standalone Chief Information Officer position, separated from the Secretary of Technology. The change followed a 2002 JLARC study that flagged the prior structure (Secretary doubling as state CIO) as having a part-time CIO too entangled with politics to manage IT effectively. The Information Technology Investment Board (the Board) was created as the supervisory body; the Board hires the CIO on a special contract (up to five years) and the CIO oversees VITA's operations under the Board's direction. The Secretary of Technology remains an ex officio voting member of the Board.

In 2009, the Board named the sitting Secretary of Technology to serve as CIO on an interim basis. Delegate Nixon asked the Attorney General three questions about that arrangement: (1) could one person hold both offices simultaneously; (2) could the Secretary participate in the Board's vote on his own CIO appointment; and (3) who has authority to negotiate or modify VITA's existing IT contracts, the CIO/VITA or the Board?

Acting AG William Mims answered. On the dual-office question, the answer is no. The 2003 Act explicitly authorized the Secretary to temporarily serve as CIO for only six months (or until the Board hired a new CIO), and that authority is long expired. Beyond the statutory text, the offices are legally incompatible because the Secretary, as an ex officio Board member, would have to contract with his own Board if he also served as CIO, violating the Conflict of Interests Act's general prohibition (§ 2.2-3106(A)) on a state officer having a personal interest in a contract with the government agency of which he is an officer. The 1826 Amory v. Justices of Gloucester case is cited for the proposition that two offices, one subject to the control of the other, are "incompatible," with acceptance of the second operating as a surrender of the first.

The AG noted but declined to answer the Conflict Act vote question, because the Conflict Act allows only the officer or employee with a potential personal interest to seek an opinion on their own situation. So if the Secretary himself wanted advice on whether he could vote on his own CIO appointment, he had to request it; Delegate Nixon could not get that opinion by proxy.

On the contract-modification question, the General Assembly placed IT procurement authority with VITA (§ 2.2-2012(A)), not with the Board. The CIO has specific power to "direct the modification or suspension of any major information technology project" under § 2.2-2015. The Board's role is supervisory; it can instruct VITA to modify a contract through proper procedures, but the Board itself cannot negotiate or sign contract modifications. Even within the Board, the Chair has no individual authority to act on behalf of the Board beyond presiding over meetings and being its public spokesperson (§ 2.2-2457(C)). The Board can authorize specific officers or employees to act for it only through duly adopted motions at public meetings conducted under FOIA.

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

Virginia's IT governance is split across multiple statutes:

• § 2.2-2457(A) establishes the Information Technology Investment Board as a supervisory body in the executive branch responsible for "planning, budgeting, acquiring, using, disposing, managing, and administering of information technology in the Commonwealth."
• § 2.2-2457(B) makes the Secretary of Technology an ex officio voting member of the Board.
• § 2.2-2005(B) requires the Board to hire a CIO under a special contract for a term not exceeding five years; the CIO oversees VITA "under the direction and control of the Board."
• § 2.2-2012(A) assigns the procurement of IT goods and services to VITA.
• § 2.2-2015 gives the CIO authority to direct modification or suspension of any major IT project.
• § 2.2-2458 lists the Board's general powers.
• The PPEA (§§ 56-575.1 to 56-575.18) is the procurement vehicle under which VITA entered the 2005 Comprehensive Infrastructure Agreement with Northrop Grumman.
• The State and Local Government Conflict of Interests Act (§§ 2.2-3100 to 2.2-3131) governs state officer ethics.

The 2003 Act repealed the pre-2003 § 2.2-226(A), which had directed the Secretary to function as the CIO. It contained an explicit transitional provision allowing the Secretary to continue serving as CIO for six months after the Act's effective date or until the Board hired a CIO. Once that transitional window closed, the Secretary's authority to serve as CIO ended. Reading the Act under the maxim expressio unius est exclusio alterius, the AG concluded that the statutory grant of dual service was deliberately time-limited and could not be revived by the Board appointing the Secretary again.

The incompatibility analysis layered the Conflict of Interests Act on top. Section 2.2-3106(A) prohibits a state officer or employee from having "a personal interest in a contract with the government agency of which is an officer or employee, other than his own contract of employment." The Secretary's ex officio Board membership combined with a CIO employment contract executed by that same Board would create exactly the structure the statute forbids. Section 2.2-3112(A)(1) further requires officers to disqualify from transactions in which they have a personal interest, reinforcing that the dual role creates persistent conflict situations.

Common questions

Why does the AG say the two offices are 'legally incompatible'?

Because one supervises the other (the Board oversees the CIO; the Secretary sits on the Board ex officio with full voting rights), and because the CIO is hired by contract from the very Board the Secretary serves on. Putting one person in both offices creates structural conflict-of-interest violations (§ 2.2-3106(A) bars a state officer from having a personal interest in a contract with his own agency) and creates impossible disqualification situations under § 2.2-3112(A)(1).

What did the AG say about the Secretary voting on his own CIO appointment?

He declined to answer. The Conflict of Interests Act is structured so that only the affected officer or employee can request an AG opinion on their own conflict situation, supported by full disclosure of facts. Delegate Nixon, as the requester, could not stand in the Secretary's shoes for that question.

Can the Board direct VITA to change the Northrop Grumman contract?

Yes, indirectly. The Board has supervisory authority over the CIO and through the CIO over VITA. The Board can instruct VITA, through proper procedures, to modify the contract. What the Board cannot do is negotiate or sign the modification itself. Section 2.2-2012(A) gives that operational procurement authority to VITA.

Can a single Board member, like the chair, negotiate contract changes on the Board's behalf?

No. Section 2.2-2457(C) explicitly forbids the Board from delegating duties to its chair other than presiding over meetings and acting as the Board's public spokesperson. The Board acts through duly adopted motions at public meetings under FOIA. Individual member action without that authorization is not authorized action of the Board.

Could the Board hire the Secretary as CIO if he resigned as Secretary first?

The opinion expressly leaves room for that: "the Board is [not] unable to hire as CIO an individual then serving as Secretary. However, that individual may not serve in both offices simultaneously." Under the doctrine cited from Amory v. Justices of Gloucester and longstanding AG practice, acceptance of a second incompatible office operates as a surrender of the first. So a Secretary who accepted the CIO position would effectively resign the Secretary post by operation of law.

Citations

• Va. Code Ann. § 2.2-2005(B) (CIO appointment by Board under contract; Board direction and control)
• Va. Code Ann. § 2.2-2012(A) (VITA procurement authority)
• Va. Code Ann. § 2.2-2015 (CIO modification/suspension authority)
• Va. Code Ann. § 2.2-2457 (IT Investment Board structure; Secretary ex officio)
• Va. Code Ann. § 2.2-3106(A) (officer cannot have personal interest in contract with own agency)
• Va. Code Ann. § 2.2-3112(A)(1) (disqualification from transactions of personal interest)
• 2003 Va. Acts chs. 981, 1021 (creating CIO position and Board, with six-month transitional dual service)
• Amory v. Justices of Gloucester, 4 Va. (2 Va. Cas.) 523, 1826 Va. LEXIS 99 (1826) (incompatible offices)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-053-Nixon.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

August 14, 2009

The Honorable Samuel A. Nixon, Jr.
Member, House of Delegates
P.O. Box 34908
Richmond, Virginia 23234

Dear Delegate Nixon:

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 Information Technology Investment Board may appoint one of its members, the Secretary of Technology, to serve as Chief Information Officer. Further, you ask whether the Secretary could participate in the Board's vote concerning the appointment as CIO.[1] Finally, you inquire about the authority of the Chairman or other members of the Board to act individually, or as a whole, to negotiate or approve changes to an existing contract of the Virginia Information Technologies Agency.

Response

It is my opinion that an individual may not serve simultaneously as the Secretary of Technology and the Chief Information Officer. Further, it is my opinion that the General Assembly has authorized the Virginia Information Technologies Agency, rather than the Information Technology Investment Board, to enter into or modify contracts for the purchase of information technology goods and services.

Background

The Information Technology Investment Board ("Board") is "a supervisory board ... in the executive branch of state government" and "is responsible for the planning, budgeting, acquiring, using, disposing, managing, and administering of information technology in the Commonwealth."[2] The Secretary of Technology ("Secretary") is an ex officio member of the Board with full voting privileges.[3] The Board is required to appoint a Chief Information Officer ("CIO") to "be employed under a special contract for a term not to exceed five years."[4] The CIO oversees the operation of the Virginia Information Technologies Agency ("VITA") "under the direction and control of the Board."[5]

You relate that you were the chief patron of legislation in 2003 that created the CIO position (the "2003 Act").[6] Further, you note this legislation was intended to implement the recommendations of a 2002 Study of the Joint Legislative Audit and Review Commission.[7] The study noted that the Secretary at that time served also as the state's CIO,[8] found that a part-time CIO who was not insulated from the political process was a limiting factor,[9] and recommended that "the role of State CIO should be transferred to a separate position."[10] You relate that the Board recently named the Secretary to serve as CIO on an interim basis, which you view as violating the legislative intent and possibly the letter of the 2003 Act.

You state that VITA currently has a Comprehensive Infrastructure Agreement with Northrop Grumman Information Technology, Inc. ("Northrop Grumman"), which VITA entered into in 2005 pursuant to the Public-Private Education Facilities and Infrastructure Act of 2002.[11] Thus, you inquire regarding the authority to negotiate or approve contract modifications related to the Agreement.

Applicable Law and Discussion

Prior to 2003, § 2.2-226(A) directed the Secretary to function as the CIO of the Commonwealth.[12] The 2003 Act creating the Board repealed § 2.2-226(A)[13] and provided that

the Secretary of Technology shall continue to serve as the Chief Information Officer of the Commonwealth for six months after the effective date of this act or until such time as the Information Technology Investment Board has hired the Chief Information Officer as provided by the first enactment of this act.[14]

When a statute creates a specific grant of authority, the authority is deemed to exist only to the extent granted in the statute.[15] Accordingly, it is my opinion that the authority for the Secretary to serve also as CIO was limited to the brief period following the enactment of the 2003 Act to allow the Board time to fill the CIO position.

This conclusion is reinforced when one considers that the Secretary is an ex officio member of the Board. Should the Secretary also serve as CIO, this dual service would require the Board to have a contractual relationship with one of its members.[16] The Conflict Act prohibits board members,[17] who are state officers,[18] from having a personal interest in a contract with their own board.[19]

Similarly, the tension between the Board's duty to supervise the CIO,[20] the Secretary's duty to serve as a Board member,[21] and a state officer's duty to disqualify himself from participating in matters in which he has a personal interest[22] underscores that a single individual is unable to perform fully the regular duties of all these positions.[23] Thus, such dual service cannot be seen as consistent with the legislative intent for the CIO position.[24]

While it is my opinion that the offices of Secretary and CIO legally are incompatible, it does not mean that the Board is unable to hire as CIO an individual then serving as Secretary. However, that individual may not serve in both offices simultaneously. When two governmental offices are incompatible and "[i]n the absence of a statutory provision to the contrary, acceptance of a second incompatible office operates to vacate or surrender the first office."[25]

You also inquire whether the Secretary could participate in the Board's vote concerning his appointment as CIO. The Conflict Act requires governmental officers and employees to disqualify themselves from participating in certain matters in which they have a personal interest.[26] The Conflict Act authorizes the Attorney General to render advisory opinions to certain state and local officials based upon a full disclosure of the facts by such officer or employee.[27] The Conflict Act is very specific in providing that only the officer or employee with a potential conflict may seek an opinion.[28]

Finally, you inquire about the authority of the Chairman or other members of the Board, individually or as a whole, to negotiate or approve changes to VITA's Comprehensive Infrastructure Agreement with Northrop Grumman. The General Assembly has assigned the authority to procure information technology goods and services for the Commonwealth to VITA.[29] Such authority includes the power of the CIO to "direct the modification or suspension of any major information technology project" when he deems such action appropriate.[30] While the Board is "responsible for the ... acquiring ... of information technology in the Commonwealth,"[31] the fact that the direct control of procurement is assigned to VITA makes clear that the Board's duties and powers in this area are supervisory and do not include the duty and power directly to procure information technology goods and services for the Commonwealth.[32] Therefore, it is my opinion that pursuant to its supervisory power, the Board may instruct VITA to modify an existing contract in accordance with any required procedures or approvals; however, the Board is not itself authorized to modify the Comprehensive Infrastructure Agreement.[33]

Conclusion

Accordingly, it is my opinion that an individual may not serve simultaneously as the Secretary of Technology and the Chief Information Officer. Further, it is my opinion that the General Assembly has authorized the Virginia Information Technologies Agency, rather than the Information Technology Investment Board, to enter into or modify contracts for the purchase of information technology goods and services.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. I decline to render or express an opinion regarding whether the facts you present concerning a vote would constitute a violation of the State and Local Government Conflict of Interests Act ("Conflict Act"). See VA. CODE ANN. §§ 2.2-3100 through 2.2-3131 (2008 & Supp. 2009). However, I offer general comments concerning the Act governing the participation of supervisory board members in matters in which they have a personal interest.
2. Section 2.2-2457(A) (Supp. 2009).
3. See § 2.2-2457(B).
4. Section 2.2-2005(B) (Supp. 2009).
5. Id.
6. See 2003 H.B. 1926, available at http://leg1.state.va.us/cgi-bin/legp504.exe?ses=031&typ=bil&val=hb1926 ("HB 1926"); see also 2003 Va. Acts chs. 981, 1021, at 1536, 1536-53, 1654, 1654-71, respectively (enacting provisions of HB 1926; adding Chapter 20 to Title 2.2, codified as Chapter 20.1; and adding Article 18 of Chapter 24 to Title 2.2, codified as Article 20).
7. See J. LEGIS. AUDIT & REVIEW COMM'N, REVIEW OF INFORMATION TECHNOLOGY SYSTEMS DEVELOPMENT, *67 (Feb. 6, 2003), available at http://jlarc.state.va.us/reports/Rpt289.pdf.
8. Id.
9. Id. at *67-68.
10. Id. at *67.
11. See VA. CODE ANN. §§ 56-575.1 to 56-575.18 (2007 & Supp. 2009).
12. See § 2.2-226(A) (Supp. 2002); see also 2003 Va. Acts, supra note 6, cl. 2, at 1552, 1670, respectively (repealing § 2.2-226).
13. Id.
14. Id., cl. 5, at 1552, 1670, respectively.
15. See, e.g., 2008 Op. Va. Att'y Gen. 126, 127 (citation omitted) (explaining rule of statutory construction known as "expressio unius est exclusio alterius").
16. See § 2.2-2005(B) (requiring Board to employ CIO pursuant to contract for term not to exceed five years); § 2.2-2457(B) (making Secretary ex-officio member of Board). You do not indicate whether the Board has entered into a contract with the recently-named CIO.
17. See supra note 1.
18. See § 2.2-3101 (2008) (defining "officer" as "any person appointed or elected to any governmental or advisory agency").
19. Section 2.2-3106(A) (2008) ("No officer or employee of any governmental agency of state government ... shall have a personal interest in a contract with the government agency of which is an officer or employee, other than his own contract of employment."). This allows a board member to have a personal interest in the contract, if any, by which he serves as a board member but generally prohibits any additional contract of employment.
20. See § 2.2-2005(B).
21. See § 2.2-2457(B).
22. See § 2.2-3112(A)(1) (2009); see also infra note 26.
23. See Amory v. Justices of Gloucester, 4 Va. (2 Va. Cas.) 523, 525, 1826 Va. LEXIS 99, *5 (1826) (decreeing that two offices, one of which is subject to control of other, are "incompatible"; suggesting there is legal incapacity to execute duties of the two offices at same time). In this case, the Secretary does not directly supervise the CIO, but has a duty to serve on the board that does supervise the CIO.
24. See 2001 Op. Va. Att'y Gen. 192, 193 (citations omitted) (noting that Virginia Code constitutes single body of law; legislature is presumed to have intended each enactment to have meaning that is consistent with other provisions of law and that is not superfluous).
25. See Op. Va. Att'y Gen.: 1980-1981 at 279, 280; see also 1974-1975 at 251, 251 ("The acceptance of an incompatible office operates as a surrender of the former office."). You do not indicate whether the contract contemplated by § 2.2-2005(B) has been signed. I express no opinion on whether the appointment of the Secretary as CIO for purposes of the above rule can precede signing of the contract.
26. See § 2.2-3112(A)(1) (providing that each state officer of any governmental or advisory agency having personal interest in transaction "[s]hall disqualify himself from participating in the transaction if (i) the transaction has application solely to ... a business or governmental agency in which he has a personal interest ... or (ii) he is unable to participate pursuant to subdivision 2, 3 or 4"); see also § 2.2-3101 (defining "business," "personal interest in a transaction," and "personal interest"); 2009 Va. Acts ch. 781, § 4-6.01(a), (c)(6)(b), available at http://leg1.state.va.us/cgi-bin/legp504.exe?091+bud+24-6.01 (stating minimum CIO salary is $136,806).
27. See § 2.2-3126(A)(3) (2008) (directing Attorney general to render advisory opinions to state officer seeking advice); see also § 2.2-3121(A) (2008) (providing that state officer may not be prosecuted for knowing violation of Conflict Act if such violation results from good faith reliance on written opinion of Attorney General made in response to written request and based on full disclosure of facts).
28. See id. This is particularly important given the enforcement responsibilities of the Attorney General.
29. See, e.g., § 2.2-2012(A) (2008); § 56-575.16 (2008); see also 2009 Va. Acts, supra note 26, at § 4-5.04(b)(1)(a). This authority is subject to any required procedures or approvals. See, e.g., § 2.2-4309(A) (2008).
30. See § 2.2-2015 (2008); see also § 2.2-2006 (2008) (defining "major information technology project").
31. Section 2.2-2457(A).
32. See § 2.2-2005(B) (providing that CIO exercises his powers under direction and control of Board); § 2.2-2012(A) (providing that information technology may be purchased by other agencies "to the extent authorized by VITA"); § 2.2-2458 (Supp. 2009) (listing powers and duties of Board).
33. Further, I note that such supervisory power is a power of the Board and not that of its individual members. Unless specifically provided by law, public bodies may authorize the transaction of public business only through motions duly adopted at public meetings conducted in accordance with The Freedom of Information Act. See §§ 2.2-3710(A), 2.2-3712(G) (2008). It is possible for a public body to adopt a motion authorizing certain officers or employees to act on its behalf. See, e.g., § 2.2-604 (2008). However, the Board cannot "delegate any duties or responsibilities to the chairman other than to preside over meetings or act as the spokesperson for the Board in public meetings." Section 2.2-2457(C).