Can a Virginia school division employee run for and serve on that same school board, and can a Department of Health employee run an outside radon-testing business?
Plain-English summary
A delegate brought the AG two separate ethics questions. First: can a person who works for a school division also serve on the school board that employs her? Second: can a classified Department of Health employee (whose job has nothing to do with radon) run a private radon-testing consulting business on the side?
The school board question was easy. Va. Code § 22.1-57.3:1(G) says flatly that "[n]o employee of a school board shall be eligible to serve on the board with whom he is employed." Employees of a school division count as employees of the school board (the AG cited Tazewell County School Board v. Gillenwater, 241 Va. 166 (1991), and a 2008 AG opinion involving a school bus driver). So a school division employee is not eligible.
The radon-business question required more work because it depends on facts. The AG laid out the framework under the State and Local Government Conflict of Interests Act (COIA). COIA does not contain a general ban on state employees holding outside jobs. As long as the outside work does not conflict with the employee's state duties and complies with agency policy on outside employment, it's allowed.
Here, the delegate's facts said the employee's state duties did not include radon testing, the consulting business did not contract with the Department of Health or other state agencies, and the conduct would happen during nonworking hours. Assuming those facts hold, the contract-restriction provisions of COIA don't kick in. But if the employee's official duties ever touched the radon-testing industry, they would have a "personal interest" in those transactions and would have to disqualify themselves from those transactions.
Currency note
This opinion was issued in 2010. 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.
The State and Local Government Conflict of Interests Act has been amended multiple times since 2010. Section 22.1-57.3:1 has also been revised. Anyone considering similar dual roles or outside employment today should look at the current text of those statutes and at their employer's current outside-employment policy.
Common questions
Why can't a school board employee run for the school board?
Because the General Assembly said so in § 22.1-57.3:1(G). The statute is a bright-line rule: an employee of the board is "not eligible" to serve on it. The reason is the obvious conflict of having an employee vote on their own pay, benefits, and discipline.
Does this apply to teachers? Bus drivers? Cafeteria staff?
Yes. Anyone employed by the school division is treated as a school board employee for this purpose. The AG cited Tazewell County School Board v. Gillenwater (teachers are employees of the school board) and a 2008 opinion involving a school bus driver.
What about a school board member's spouse who works for the division?
That's a different question (involving COIA and possibly specific anti-nepotism rules) not addressed in this opinion. The opinion is only about the employee themselves serving on the board.
Can any state employee run a side business?
Generally yes, under COIA. The statutes do not bar outside work. They focus on whether the outside activity creates a conflict with state duties, whether the employee has a personal interest in transactions handled by their agency, and whether the agency's own internal policy permits the activity. Each of those three layers matters.
What's a "personal interest" under COIA?
At the time of this opinion, a personal interest could be triggered if the employee's outside business stood to benefit (or be harmed) by something the employee's agency was doing. If so, the employee had to disqualify themselves from participating in that specific transaction. Disqualification does not require quitting the job or the business; it requires stepping out of that specific decision.
Does the Department of Health employee have to tell anyone about the business?
The opinion does not address disclosure requirements directly, but says the outside business must be "consistent with the employing agency's policies concerning outside employment." Many agencies require disclosure or pre-approval; check the specific Department of Health policy in place at the time.
Background and statutory framework
The State and Local Government Conflict of Interests Act is the General Assembly's stated effort to create "a single body of law applicable to all state and local government officers and employees on the subject of conflict of interests" so that ethics standards are uniform. The Act has three general categories of restrictions:
- Improper conduct. The Act lists specific kinds of conduct that are improper for state and local officers and employees.
- Contract personal interests. It limits an employee's ability to have personal interests in contracts with their own agency or other governmental agencies.
- Transaction personal interests. It restricts participation in transactions in which the employee has a personal interest.
As an employee of a state "governmental agency," the Department of Health employee is subject to the Act.
The AG flagged that the third layer (transaction personal interests) is fact-specific. If the radon-testing employee's job at VDH never touches policies, contracts, or transactions affecting the radon-testing industry, there's no problem. If it does, the employee must disqualify themselves from participating in that specific transaction.
Citations
- Va. Code § 2.2-505
- Va. Code Ann. § 22.1-57.3:1(G)
- State and Local Government Conflict of Interests Act
- Tazewell Cty. Sch. Bd. v. Gillenwater, 241 Va. 166, 167, 400 S.E.2d 199, 199 (1991)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-048-Nutter_Revised.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
September 10, 2010
The Honorable Dave Nutter
Member, House of Delegates
Post Office Box 1344
Christiansburg, Virginia 24068
Dear Delegate Nutter:
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 first ask whether an employee of a school division can seek election to and serve on the corresponding school board of the governing body while still employed by the school board. You also inquire whether a classified state employee who is employed by the Department of Health, whose duties do not include radon testing, can operate a consulting business that specializes in radon testing.
Response
It is my opinion that an employee of the local school division may not serve on the school board of which she is an employee. It is further my opinion that an employee of the Department of Health may operate a consulting business that specializes in radon testing, as long as the employee does so during nonworking hours in a manner that does not conflict with his responsibilities to the Commonwealth, and the business does not conflict with any Department of Health policies governing outside employment.
Applicable Law and Discussion
First, § 22.1-57.3:1(G) provides that "[n]o employee of a school board shall be eligible to serve on the board with whom he is employed." Employees of a school division are considered employees of the school board. The plain language of this provision would preclude an employee of the school board from serving on the school board.
Second, as an "employee" of a state "governmental agency," the Department of Health employee about whom you inquire is subject to the State and Local Government Conflict of Interests Act (the "Act"). The Act provides minimum rules of ethical conduct for state and local government officers and employees and contains three general types of restrictions and prohibitions: (1) it details certain types of conduct that are improper for such officers and employees; (2) it restricts the ability of such officers and employees to have personal interests in certain contracts with their own or other governmental agencies; and (3) it restricts the participation of such officers and employees in transactions of their governmental agencies in which they have a personal interest.
There is no general prohibition against an employee of the Commonwealth engaging in part-time, outside employment as long as such activities do not conflict with or affect his employment with the Commonwealth and are consistent with the employing agency's policies concerning outside employment.
Based on the facts you present, the employee's official duties do not include radon testing. Therefore, there does not appear to be any overlap between official duties and private business. You do not indicate that the employee's business provides radon testing for the Department of Health, or for other state agencies. Assuming that is the case, the restrictions governing contracts between the employee and the agency for which he works, and other state agencies, do not come into play. To the extent the employee's official duties would call for him to participate in matters affecting the radon testing industry, the employee might have a "personal interest" in such a transaction and would have to disqualify himself from participating in such transactions.
Conclusion
Accordingly, it is my opinion that an employee of the local school division may not serve on the school board. It is further my opinion that an employee of the Department of Health may operate a consulting business that specializes in radon testing, as long as the employee does so during nonworking hours in a manner that does not conflict with his responsibilities to the Commonwealth or with any Department of Health policies governing outside employment.
With kindest regards, I am
Very truly yours,
Kenneth T. Cuccinelli, II
Attorney General