Can a Virginia county board of supervisors give a 5% salary supplement to constitutional officers and their staff out of county funds?

Plain-English summary

Russell County's attorney asked whether the Board of Supervisors had authority to award a 5% salary increase to constitutional officers (sheriff, treasurer, commissioner of the revenue, director of finance, clerk of the circuit court, attorney for the Commonwealth) and their staff. The Compensation Board sets the salary floor for these officers, but localities have traditionally been able to supplement that compensation locally. Cuccinelli confirmed that authority resides in § 15.2-1605.1.

The statute states: "Notwithstanding any other provision of law, the governing body of any county or city, in its discretion, may supplement the compensation of the sheriff, treasurer, commissioner of the revenue, director of finance, clerk of the circuit court, or attorney for the Commonwealth, or any of their deputies or employees, above the salary of any such officer, deputy or employee, in such amounts as it may deem expedient. Such additional compensation shall be wholly payable from the funds of any such county or city." The plain language gives the board that discretion, including a 5% raise, paid from county funds. The board can increase, decrease, or eliminate the supplement in future years. The fact that Russell County operates under the board form of government does not change the answer; § 15.2-403(A) gives such boards "all the rights and powers conferred on boards of supervisors by general law."

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

Where does the Compensation Board floor come from?
The Compensation Board sets the salaries of constitutional officers (treasurers, sheriffs and their deputies, Commonwealth's attorneys, commissioners of the revenue, and others), subject to General Assembly appropriation. Local governments cannot pay less than the Compensation Board-approved minimum but can supplement above it.

Does the supplement have to match what local employees receive?
No. The opinion notes that "the extent to which a locality wishes to maintain parity between the salaries paid to constitutional officers and their staff and county employees is a matter within the discretion of the locality."

Can the board take the supplement away later?
Yes. The opinion states the board is free in future years to increase, decrease, or eliminate the supplement.

Does the board form of government change anything?
No. Section 15.2-403(A) grants the board the same powers as a board of supervisors under general law, so § 15.2-1605.1 applies.

Background and statutory framework

Constitutional officers' salaries are set by the Compensation Board, subject to General Assembly appropriation. Once set by the Board, its decision sets the minimum amount such officers can be paid. Section 15.2-1605.1 sits above any conflicting provision ("Notwithstanding any other provision of law") and expressly authorizes locality supplementation, paid wholly from local funds.

Virginia adheres to the Dillon Rule of strict construction, which limits localities to powers expressly granted, fairly or necessarily implied, or essential and indispensable. Here, § 15.2-1605.1 is an express grant, so the Dillon Rule analysis confirms rather than restricts the authority.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code § 15.2-1605.1 (locality may supplement constitutional officer compensation)
• Va. Code § 15.2-403 (board form of government powers)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-088-Jones.pdf

Original opinion text

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

July 8, 2011

Attorney General

Dennis E. Jones, Esquire
County Attorney for Russell County
210 Abingdon Place
Abingdon, Virginia 24211

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. Jones:
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 Board of Supervisors has the authority to award Russell County constitutional officers and their employees a 5% salary increase.

Response
It is my opinion that under § 15.2-1605.1, the Board of Supervisors may authorize a 5% salary supplement to constitutional officers and their employees to be paid out of county funds.

Applicable Law and Discussion
The salaries of constitutional officers, including those serving counties that have adopted the board form of government, are set by the Compensation Board, subject to appropriation by the General Assembly. Once set by the Board, unless overturned, the Board's decision sets the minimum amount such officers can be paid. Local governing bodies may not set a lower compensation level than that set by the State Compensation Board for these officers. The General Assembly, however, has provided that:

Notwithstanding any other provision of law, the governing body of any county or city, in its discretion, may supplement the compensation of the sheriff, treasurer, commissioner of the revenue, director of finance, clerk of the circuit court, or attorney for the Commonwealth, or any of their deputies or employees, above the salary of any such officer, deputy or employee, in such amounts as it may deem expedient. Such additional compensation shall be wholly payable from the funds of any such county or city.

Virginia adheres to the Dillon Rule of strict construction, which provides that "[local governing bodies] have only those powers which are expressly granted by the state legislature, those powers fairly or necessarily implied from expressly granted powers, and those powers, which are essential and indispensable." The plain language of § 15.2-1605.1 makes clear that a county Board of Supervisors may supplement the compensation of a constitutional officer out of the county's funds. The Board is free in future years to increase, decrease, or eliminate such a supplement.

That a county operates under the board form of government is of no consequence. Section 15.2-403(A) grants the board of supervisors of a county with the board form of government "all the rights and powers conferred on boards of supervisors by general law[.]"

The extent to which a locality wishes to maintain parity between the salaries paid to constitutional officers and their staff and county employees is a matter within the discretion of the locality.

Conclusion

Accordingly, it is my opinion that the Russell County Board of Supervisors may authorize a 5% salary supplement to constitutional officers and their employees to be paid out of county funds.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General