Can a Virginia town council start negotiating an employment contract with a town manager without first voting as a body, and can the contract have a multi-year term?
Plain-English summary
A delegate asked whether the Christiansburg Town Council could begin negotiating an employment contract with the town manager before the full council voted to authorize the negotiations. The opinion request also surfaced a separate issue: the contract under discussion (though not ultimately approved) had been a "multi-year" contract.
The AG answered both:
1. Preliminary negotiations. Nothing in the Code or the Town Charter forbids members of the town council from negotiating with a candidate informally before the council formally votes. Preliminary negotiations aren't binding. The ultimate decision to appoint a town manager and approve the contract has to be approved by a vote of the council, and § 15.2-1540 puts the power to appoint a chief administrative officer with "the governing body of any locality."
2. Multi-year contract. Here the AG sounded a clear warning. The General Assembly has provided that all appointments of officers and hiring of employees by a locality "shall be without definite term, unless for temporary services not to exceed one year or except as otherwise provided by general law or special act." The Christiansburg Charter is consistent: "all officers and employees appointed may be removed by the town council at its pleasure." So a multi-year contract specifying a term of years would violate the General Assembly's intent that the town manager, as a municipal officer, serve at the pleasure of the council.
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.
Section 15.2-1503 and related provisions have been amended. The Christiansburg Charter may have changed. Anyone negotiating a town manager contract today must look at the current statutory text and the current charter.
Common questions
Can a few council members negotiate without consulting the whole council?
Yes, as a preliminary matter. The opinion is clear that informal exploratory negotiations don't bind the council. But the final appointment and contract have to be approved by a council vote.
What's the practical problem with a fixed multi-year contract?
The General Assembly chose to make most municipal officers serve at the pleasure of the local governing body. That arrangement gives councils flexibility (and gives officers less job security). A multi-year contract with a fixed term would lock the council into keeping the officer for that period, which conflicts with the at-will principle.
Why does it matter that the town manager is a municipal "officer"?
Because the at-will rule applies specifically to "officers and employees" of a locality, and the General Assembly's authority over officers comes from Va. Const. art. VII, § 4, which authorizes it to "provide by general law or special act for [] officers and for the terms of their office." The opinion treats the town manager as a municipal officer who serves at-will.
Background and statutory framework
The Virginia Constitution authorizes the General Assembly to provide for the organization and powers of towns by either general law (uniformly applicable) or special act (one specific locality). Va. Const. art. VII, §§ 1, 2. The General Assembly's power to set terms of office for local officers is at Va. Const. art. VII, § 4.
Under the Dillon Rule, towns have only the powers their charters and Code provisions grant. The general empowering provisions are §§ 15.2-1100 through 15.2-1133. Section 15.2-1102 authorizes towns to exercise "powers pertinent to the conduct of the affairs and function of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth." Section 15.2-1107 authorizes municipal corporations to provide for the organization, conduct, and operation of all departments, offices, boards, and agencies, subject to charter and other law limitations.
The chief administrative officer provision is § 15.2-1540: "The governing body of any locality may appoint a chief administrative officer, who shall be designated . . . town administrator or manager or executive, as the case may be." Town charters often have a parallel provision; Christiansburg's charter has one to the same effect.
The at-will rule for officers and employees provides: "All appointments of officers and hiring of other employees by a locality shall be without definite term, unless for temporary services not to exceed one year or except as otherwise provided by general law or special act." The Christiansburg Charter is consistent: "all officers and employees appointed may be removed by the town council at its pleasure."
Citations
- Va. Code § 2.2-505
- Va. Code Ann. § 15.2-1100 (2008)
- Va. Code Ann. § 15.2-1102 (2008)
- Va. Code Ann. § 15.2-1107 (2008)
- Va. Code Ann. § 15.2-1503 (2008)
- Va. Code Ann. § 15.2-1540
- Va. Const. art. VII, §§ 1, 2, 4
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-077-Nutter.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General
September 20, 2010
The Honorable David A. Nutter
Member, House of Delegates
Post Office Box 1344
Christiansburg, Virginia 24068
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
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.
Issue Presented
You inquire whether the Town Council of the Town of Christiansburg is authorized to initiate negotiations for a multi-year employment contract with the Town Manager without the Town Council first affirmatively voting to enter into any such contract.
Response
It is my opinion that a Town Council may initiate negotiations for the appointment of a town manager without a resolution of the Council, so long as the contract and the appointment ultimately are approved by a vote of the Council.
Applicable Law and Discussion
The Constitution of Virginia provides that "[t]he General Assembly shall provide by general law for the organization, government, powers, change of boundaries, consolidation, and dissolution of counties, cities, towns, and regional governments" and that "[t]he General Assembly may also provide by special act for the organization, government, and powers of any city, town, or regional government, including such powers of legislation, taxation, and assessment as the General Assembly may determine[.]"
Under the Dillon Rule, localities have only those powers that the General Assembly grants them. Towns, in particular, have all the powers conferred upon them by their charters and those set forth in §§ 15.2-1100 through 15.2-1133. Section 15.2-1102 authorizes towns to exercise all necessary "powers pertinent to the conduct of the affairs and function of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth." Moreover, "[a] municipal corporation may provide for the organization, conduct and operation of all departments, offices, boards and agencies . . . subject to such limitations as may be imposed by its charter or otherwise by law[;]" "may establish, consolidate, abolish or change" them; and "may prescribe the powers, duties and functions thereof, except where such departments, offices, boards, commissions and agencies or the powers, duties and functions thereof are specifically established or prescribed by its charter or otherwise by law."
Section 15.2-1540 provides that "[t]he governing body of any locality may appoint a chief administrative officer, who shall be designated . . . town administrator or manager or executive, as the case may be." The analogous provision of the Town Charter is to the same effect. Under the plain language of this statute, it is the governing body that must appoint the chief administrative officer. Nothing in the Code or Charter, however, would preclude preliminary negotiations by some members of the Town Council without the affirmative vote of all of the members, because these negotiations would not be binding on the Town Council. There is no statutory impediment so long as the ultimate decision to appoint the administrative officer and to determine the final form of the employment contract rests with the Town Council.
Your inquiry raises a further question. You indicate that the contract under negotiation, but that ultimately was not approved, was a "multi-year contract." Pursuant to its authority to "provide by general law or special act for [] officers and for the terms of their office[,]" the General Assembly has provided that "[a]ll appointments of officers and hiring of other employees by a locality shall be without definite term, unless for temporary services not to exceed one year or except as otherwise provided by general law or special act." The Town Charter is consistent with this enactment. It provides that "all officers and employees appointed may be removed by the town council at its pleasure[.]" I therefore conclude that a contract of employment specifying a term of years would violate the General Assembly's clear intent that the Town Manager, as a municipal officer, serve the Town on an at-will basis.
Conclusion
Accordingly, it is my opinion that a Town Council may initiate negotiations for the appointment of a town manager without a resolution of the Council, so long as the contract and the appointment ultimately are approved by a vote of the Council.
With kindest regards, I am
Very truly yours,
Kenneth T. Cuccinelli, II
Attorney General