If a Virginia county fails to adopt a budget, can the circuit court clerk close the office, and what happens to electronic filings?

Plain-English summary

Wise County's circuit court clerk asked what happens to a clerk's office if the locality fails to adopt a budget. By statute, Virginia circuit court clerks must keep their offices open during weekdays. At the same time, employees cannot be forced to work without pay, and a county is forbidden from paying out funds until they have been appropriated. The clerk owns no independent revenue stream: clerk's fees and state revenue must be deposited with the state treasurer, and the office is dependent on the locality for offices and supplies. When the budget process breaks down, the clerk is caught between conflicting obligations.

Cuccinelli concluded the clerk may close the office when a budget has not been approved and salaries cannot be paid. The clerk and staff are free to volunteer through the impasse, and any function (electronic filing, in particular) that can keep running without county funding or with volunteer staffing should stay operational. Employee safety also bears on the question: if the locality cannot provide a secure environment, that supports closing.

The AG also pointed to mandamus as a tool. Although the details of a budget are primarily a matter of the governing body's discretion, the act of adopting one is a non-discretionary duty of the board of supervisors. The clerk, or anyone else with standing, may file for mandamus to compel the board to adopt a budget. Failure to obey the resulting court order can result in contempt.

Currency note

This opinion was issued in 2011. 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.

Common questions

Why couldn't the clerk just keep operating on fees?
Item 67.70(A)(5) of the budget bill required clerks to deposit all clerk's fees and state revenue with the state treasurer. Retaining those funds to run the office was not an option. Local appropriation was the only spending source.

What about the rule that the clerk's office stays open during weekdays?
The AG read it together with the practical impossibility of paying staff. With conflicting statutory obligations and no appropriation, the clerk's authority to close turns on the absence of funding (and the lack of any duty to operate without pay), not on a wholesale repeal of the open-office requirement.

Can the clerk personally cover for the office?
Yes, the AG said the clerk and the staff can volunteer through the impasse. Functions that can keep running without county appropriations (electronic filing was the AG's specific example) should continue, with or without volunteer support.

How does mandamus work against a board of supervisors?
The board's duty to adopt a budget is mandatory. The details of the budget are primarily a matter of the board's discretion, but adopting one at all is non-discretionary, and where a duty is non-discretionary, mandamus lies. The clerk, or anyone with standing, may seek mandamus to require the board to adopt a budget, and failure to obey the resulting order can result in contempt.

Does this analysis apply to other constitutional officers (sheriff, treasurer, commonwealth's attorney)?
The AG limited the opinion to clerks. Section 2.2-505(B) restricts the Attorney General to questions directly related to the requester's duties, and the clerk asked about the clerk's office.

Background and statutory framework

The opinion describes the clerk's operating environment without printing section numbers. The conflicting duties it identifies are: clerks of the circuit court must keep their offices open during weekdays; employees cannot be forced to work without pay; a county is forbidden from paying out any funds until they have been appropriated; and clerks are dependent on localities for their offices and supplies. The opinion also notes that a Code provision lets a court declare a judicial emergency in a natural disaster, but that provision does not reach a budget impasse.

The AG cited one specific provision by reference: Item 67.70, paragraph A(5) of the budget bill, which required clerks to "deposit all clerk's fees and state revenue with the state treasurer," so retaining those funds to run the office was not an option.

Citations

• Va. Code § 2.2-505 (authority for the advisory opinion; subsection (B) limits opinions to the requester's duties)
• Item 67.70, paragraph A(5) of the budget bill (clerks deposit fees and state revenue with the state treasurer)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-063-Kennedy.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 22, 2011

The Honorable Jack Kennedy
Clerk of the Circuit Court
Wise County and City of Norton
Wise, Virginia 24293-1248

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Kennedy:
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 inquire whether constitutional officers generally, and the Clerk of a circuit court specifically, have the authority to keep the office operational in the event there is no county budget adopted in accordance with the Virginia Constitution. You further ask whether a Clerk may continue to function by electronic filing procedures and agreements with the Virginia State Bar and state agencies.

Response
It is my opinion that a Clerk of Court can close the office when a county has failed to adopt a budget and the Clerk cannot pay his employees. A Clerk, or the employees of the Clerk's office, can volunteer to continue serving until the budget impasse is resolved. To the extent particular functions, including electronic filing procedures, can continue in the absence of funding from the County and without staffing, or with volunteer staffing, the Clerk should continue to keep such systems operational.

I limit my answer to the Clerk of Court and offer no opinion with respect to other constitutional officers. By statute, the Attorney General "shall have no authority to render an official opinion [requested by a local government official] unless the question dealt with is directly related to the discharge of the duties of the official requesting the opinion." VA. CODE ANN. § 2.2-505(B).

Applicable Law and Discussion
Nothing in the Code addresses what Clerk's offices must do in the event a locality's governing body fails to adopt a budget. Although a provision in the Code of Virginia allows a court to declare a judicial emergency in the event of a natural disaster, and to take certain measures to ensure the continuity of operations, that provision does not cover a situation where a county fails to adopt a budget. When a locality fails to adopt a budget, Clerks are in a very difficult position because they are subjected to conflicting statutory obligations.

By statute, Clerks of the circuit court are required to keep their offices open during weekdays. At the same time, employees cannot be forced to work without pay. Without a County budget, Clerks cannot pay their employees or cover the expenses of running the office. Furthermore, a County is forbidden from paying out any funds until they have been appropriated. Clerks are also dependent on localities for their offices and supplies.

Under Item 67.70, paragraph A(5) of the budget bill, Clerks must "deposit all clerk's fees and state revenue with the state treasurer." Therefore, the option of retaining these funds to operate the office is not available. Furthermore, Clerks cannot spend local funds without an appropriation by the local body.

Because County appropriations are necessary for the Clerk's office to function and for the Clerk to pay his employees, the Clerk may close the office until a budget has been approved. The Clerk, and employees of the Clerk's office, may, of course, work as volunteers until the budget impasse has been resolved. To the extent particular functions, including electronic filing procedures, can operate without the appropriations from the County and without staffing, or with volunteer staffing, those should continue. If they cannot operate without county funding, they may be suspended.

An additional consideration is the safety of the employees of the Clerk's office. If, due to the budget impasse, the locality is unable to provide a secure environment for the Clerk's office to function, those considerations would support closing the office until the impasse is resolved.

Finally, I note that the Clerk, or anyone with standing, may seek mandamus relief to require the County Board of Supervisors to adopt a budget. Although the details of the budget are primarily a matter of discretion for the governing body, the adoption of a budget is a non-discretionary duty that the Board must fulfill. Failure to obey a court order can result in a finding of contempt.

Conclusion

Accordingly, it is my opinion that a Clerk of court can close the office when a county has failed to adopt a budget and the Clerk cannot pay his employees. A Clerk, or the employees of the Clerk's office, can serve on a volunteer basis until the budget impasse is resolved. To the extent particular functions, including electronic filing procedures, can continue in the absence of funding from the County and without staffing, or with volunteer staffmg, the Clerk should continue to keep such systems operational.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General