Can a Virginia town council member also serve on the county school board at the same time?

Plain-English summary

In September 2011, Attorney General Kenneth Cuccinelli answered a question from the Isle of Wight County Electoral Board: could a single citizen sit on the town council and on the county school board at the same time? His answer was yes, subject to the usual eligibility rules.

The reasoning had two parts. Article VII, § 6 of the Virginia Constitution forbids holding more than one of certain listed offices and bars a person from being on a governing body that appoints him to another office. The Constitution lists town councils there, but school boards are created under Article VIII, not Article VII, so the dual-holding ban did not reach this combination. And because a town council has no power to appoint a county school board, the second prong of § 6 did not apply either.

The statutory restriction in Va. Code § 22.1-30(A) blocks a governing-body member from being appointed to the school board "for such county, city or town" he serves. The opinion read that phrase narrowly: a town councilman cannot be appointed to his own town's school board, but the statute does not stop him from sitting on the surrounding county's school board, whether elected or appointed. A prior AG opinion had also limited § 22.1-30 to appointed boards, not elected ones.

The opinion did caution that the State and Local Government Conflict of Interests Act would still apply to anyone holding both seats. If the combined compensation cleared the $10,000 personal-interest threshold of § 2.2-3101, the official would have a personal interest in each governmental agency and would need to watch for contractual or transactional conflicts when the two bodies interact.

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.

Background and statutory framework

The State and Local Government Conflict of Interests Act sets baseline ethics rules for state and local officers. The opinion grouped them into three buckets: (1) improper conduct (§ 2.2-3103), (2) restrictions on personal interests in contracts with the official's own or other government agencies (§ 2.2-3106), and (3) restrictions on participating in agency transactions where the official has a personal interest (§ 2.2-3112). Compensation above $10,000 annually from a governmental agency creates a "personal interest" in that agency under § 2.2-3101.

The opinion also flagged collateral eligibility rules: residency requirements under § 22.1-29 and the composition rule in § 22.1-36.1 for county school boards where a town within the county is a separate school division.

Common questions

Q: Can a Virginia town councilman serve on the school board of his own town?
A: Generally no, if it is an appointed school board. Va. Code § 22.1-30(A) bars a governing-body member from being appointed to the school board "for such county, city or town" he serves. A 2011 prior opinion of the AG also concluded § 22.1-30 applies only to appointed school boards, not elected ones, so an elected town school board is a different question.

Q: Why was the county school board treated differently from the town's own school board?
A: § 22.1-30(A) is phrased in terms of the school board "for such county, city or town" that the council member serves. The AG read that as locality-specific. Sitting on a different jurisdiction's school board, here the county's, was not covered by the appointment ban.

Q: Does the Virginia Constitution's dual office holding rule prevent serving on both a town council and a school board?
A: No, in the AG's view. The dual-holding ban in Va. Const. art. VII, § 6 is keyed to offices listed in Article VII. School boards are established under Article VIII, so they were not on that list, and the town council has no appointment authority over the county school board.

Q: Are there ethics concerns even though both seats are allowed?
A: Yes. The Conflict of Interests Act still applies. If either seat pays more than $10,000 annually, the official has a personal interest in that agency and must avoid voting on or participating in transactions where the two bodies do business with one another.

Q: Does this opinion settle every eligibility question for serving on both?
A: No. The AG noted other restrictions, including residency requirements (§ 22.1-29) and a composition limit when a town inside a county functions as its own school division (§ 22.1-36.1). Anyone considering the dual role should check those individually.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-099-Bell.pdf

Original opinion text

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

September 30, 2011

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

Mr. William A. Bell, Jr.
Secretary, Isle of Wight County Electoral Board
Post Office Box 77
Isle of Wight, Virginia 23397

Dear Mr. Bell:

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 ask whether a citizen concurrently may serve on the county school board and as a member of a town council of a town located within that county.

Response

It is my opinion that a town councilman may serve on the county school board, provided all other eligibility requirements are met.

Applicable Law and Discussion

Article VII, § 6 of the Virginia Constitution restricts dual office holding. A person is prohibited from simultaneously holding more than one of the offices listed in Article VII, and no member of a governing body is eligible to hold concurrently an office filled by that governing body. This constitutional provision poses no bar to a town councilman serving on the county school board. Article VII addresses the governing bodies of towns, but it does not mention school boards, which are established pursuant to Article VIII. In addition, the town council has no appointment authority over the county school board. Therefore, the office holding restrictions of Article VII, § 6 do not apply in the matter presented.

Section 22.1-30(A) of the Code of Virginia provides that "no member of a governing body of a county, city or town ... may, during his term of office, be appointed as a member of the school board for such county, city or town[.]" That members of town councils generally are precluded from serving on appointed school boards is further evidenced by § 22.1-30(A)(12), which provides a limited exemption for council members serving towns within certain counties.

This prohibition, however, is limited in two ways. First, as a previous opinion of this Office concludes, § 22.1-30 applies only to appointed school boards, not to those whose members are elected. Additionally, a member of a governing body is precluded from being appointed to "the school board for such county, city or town" that he serves. Thus, § 22.1-30 provides that a town councilman may not be appointed to the school board of the town he serves, but it does not limit his service, whether by appointment or election, on a county school board. Had the General Assembly intended to adopt this prohibition, it knew how to do so. I note, however, that certain other eligibility restrictions apply to service on a school board.

Members of both town councils and local school boards are subject to restrictions imposed by the State and Local Government Conflict of Interests Act ("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. Assuming the compensation for service on either the town council or county school board exceeds $10,000 annually, a personal interest in the governmental agency arises. Thus, although the Act does not preclude simultaneous service, the potential interaction between the two bodies requires that any person so serving remain alert to any possible contractual and transactional conflicts that may arise.

I therefore conclude that no constitutional or statutory provision prohibits a member of a town council from simultaneously serving as a member of the county school board of the county in which the town served is located.

Conclusion

Accordingly, it is my opinion that a town councilman may serve on the county school board of the county in which the town he serves is located, provided all other eligibility requirements are met.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General