Can a Virginia city council appoint its own mayor or council members to the Fort Monroe Authority Board of Trustees?

Plain-English summary

The Fort Monroe Authority was created by the General Assembly in 2010 to manage the historic Fort Monroe property after the federal base closure. The FMA Act provides for a twelve-member Board of Trustees, including "two members appointed by the Hampton City Council." From the start, Hampton's council had filled both seats with council members themselves: the Mayor and the Vice Mayor.

Delegate Jones asked whether that practice was constitutionally and statutorily permissible. He flagged a concrete tension. The FMA, as the Commonwealth's manager of Fort Monroe, deals directly with the City of Hampton on matters like fee-in-lieu-of-tax assessments. A Hampton council member sitting on the FMA Board would have a foot on each side of those negotiations.

The AG concluded that the practice violated both the Virginia Constitution and the Code.

Article VII, § 6 of the Virginia Constitution provides that "No member of a governing body shall be eligible, during the term of office for which he was elected or appointed, to hold any office filled by the governing body by election or appointment, except that a member of a governing body may be named a member of such other boards, commissions, and bodies as may be permitted by general law." Va. Code § 15.2-1535(A) repeats this in statutory form. Section 15.2-1535(B) then lists specific boards, commissions, and authorities that are exempt from the prohibition; the FMA Board is not on that list.

To trigger the prohibition, the FMA Board seat had to qualify as an "office." Prior AG opinions had identified the criteria: created by Constitution or statute, filled by election or appointment, with title and duties concerning the public assigned by law, often with a fixed term. The FMA Board ticked every box: created by the FMA Act, fixed terms, oaths of office, governance over public functions, fee setting and contracting power. So FMA Board seats were public offices, and the prohibition applied.

The AG also addressed the second and third questions: fiduciary duties and remedies. FMA Board members, as public officers, owe common-law fiduciary duties to the FMA. The AG quoted longstanding language: public officials "are trustees for the people who have a right to require them to exercise their best judgment in everything that pertains to the people or their welfare, unaffected and unprejudiced by anything that might inure to the official's own interest as individuals." Members who failed to fulfill those duties could be removed by the appointing authority in accordance with the FMA bylaws (which incorporated Va. Code § 24.2-230's removal procedure).

Because the AG concluded that council members were flatly prohibited from sitting on the FMA Board, the opinion declined to address the specific conflict-of-interest scenarios Delegate Jones described (the fee-in-lieu disputes, the developer proposals opposed by the city). Those scenarios became academic once the dual-service question was answered.

Currency note

This opinion was issued in 2013. 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.

In particular, Va. Code § 15.2-1535(B)'s list of exempted boards is amended frequently; before assuming any specific board is in or out, check the current text.

Common questions

What is the Fort Monroe Authority?
A political subdivision of the Commonwealth created in 2010 to manage land at the former Fort Monroe Army base (BRAC closure) on behalf of the state, including zoning, land use, and implementation of various preservation agreements.

Why did the General Assembly include two Hampton City Council appointees on the FMA Board?
The FMA Act specified that the City of Hampton (as the local jurisdiction within whose boundaries the fort sits) gets two appointees to the twelve-member board. The act did not specify that those appointees had to be council members. The original FADA and FMFADA predecessor authorities had not included any council members. Hampton chose to appoint its own council members to the FMA Board.

What is Article VII, § 6 of the Virginia Constitution doing?
It is an anti-self-dealing rule. A governing body should not be able to give its own members other public offices that the body itself controls. This prevents council members from packing other boards with themselves.

Are there exceptions?
Yes. Va. Code § 15.2-1535(B) lists specific boards, commissions, and authorities that are exempt from the prohibition. Common exemptions historically have included regional jails, transportation districts, and other multi-jurisdictional bodies. The list changes over time; checking the current text is essential. In 2013 the FMA was not on it.

Could Hampton's council appoint a non-council member to the FMA Board instead?
Yes. The prohibition is only on appointing the council's own members. Anyone else from Hampton (a citizen, a business person, a former official) could be appointed without running into Article VII, § 6.

What duties do FMA Board members owe?
The common-law fiduciary duties of loyalty, care, obedience, and disclosure. The AG drew on longstanding Virginia and AG-opinion authority describing public officials as trustees for the people.

How can a Board member be removed for breach?
Per the FMA bylaws, removal follows Va. Code § 24.2-230, which generally allows removal only by the appointing authority (with some narrow criminal-conviction and mental-incompetence exceptions). So practically: the Hampton City Council had to remove its own appointees; the Governor had to remove the gubernatorial appointees.

Background and statutory framework

The pieces:

• Va. Const. art. VII, § 6: bars governing-body self-appointment to other offices the body fills, with a general-law exemption.
• Va. Code § 15.2-1535(A) and (B): statutory parallel to the constitutional rule, with a specific list of exempted bodies in (B).
• The Fort Monroe Authority Act (FMA Act): establishes the FMA, defines its public functions, and sets up the twelve-member Board with city-council appointees, including the city/authority financial relationship (fee in lieu of taxes and assessment disputes). The opinion refers to the FMA Act without citing its individual code sections.
• Va. Code § 24.2-230: removal procedure for elected/appointed officers.

The interpretive moves:

• The "office" question was settled by prior AG opinions and case law: an FMA Board seat met every criterion.
• The exemption question was a straight statutory check: § 15.2-1535(B) did not list the FMA.
• The fiduciary-duty question turned on the public-office classification: once the seat was an office, the trust relationship attached automatically.
• Removal followed the bylaws and § 24.2-230, which channels removal back to the appointing authority.

Citations

• Va. Const. art. VII, § 6
• Va. Code § 2.2-505
• Va. Code § 15.2-1535(A), (B)
• Va. Code § 24.2-230
• The Fort Monroe Authority Act (referenced without individual section numbers)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-009_Jones.pdf

Original opinion text

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

April 12, 2013

The Honorable S. Chris Jones
Member, House of Delegates
Post Office Box 5059
Suffolk, Virginia 23435

Dear Delegate Jones:

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 the Mayor, Vice Mayor or any other Hampton City Council member may be appointed by the Hampton City Council to serve as a member of the Fort Monroe Authority ("FMA" or "Authority") Board of Trustees ("Board"). You further ask whether members of the Board of the Authority, a political subdivision and public body corporate and politic of the Commonwealth of Virginia, are subject to the common law duties of loyalty, care, obedience, and disclosure that are generally applicable to the directors of boards of corporations in Virginia. Also, you inquire about the remedies available to address a Board member's failure to fulfill his lawful duties.

Response

It is my opinion that, because there is no available exemption to the prohibitions of Article VII, § 6 of the Constitution of Virginia and § 15.2-1535 of the Code of Virginia, neither the Mayor, Vice Mayor, or any other Hampton City Council member may be appointed by the Hampton City Council to serve as a member of the FMA Board. It is further my opinion that members of the FMA Board, as individuals holding public office, stand in a fiduciary relationship with the FMA and thus are subject to the common law duties of loyalty, care, obedience, and disclosure that are generally applicable to those in such a fiduciary relationship. Finally, it is my opinion that an FMA Board member who fails to fulfill his lawful duties may be removed from office in accordance with the Board's by-laws and applicable law.

Background

In 2005, the City of Hampton created a Federal Area Development Authority (FADA) to deal with issues related to Fort Monroe. The FADA was transformed into the Fort Monroe Federal Area Development Authority (FMFADA) in 2007 to continue the planning required by the Defense Base Closure and Realignment Act. In 2010, pursuant to the Fort Monroe Authority Act (FMA Act), the Virginia General Assembly created the FMA

to serve as the Commonwealth's management agent exercising all the Commonwealth's powers over public and private land in the Area of Operation, including regulation of land use, zoning, and permitting and implementation of actions and fulfillment of obligations under the Programmatic Agreement, Design Standards, Reuse Plan, State Memorandum of Understanding, and any other agreements regarding Fort Monroe to which the Commonwealth is a party.

The FMA is empowered to enter into contracts, to foster and stimulate economic development, to sue and be sued and to exercise other powers necessary to the fulfillment of its mission. The FMA Act contains provisions specifying the relationship of the Authority to the City of Hampton, including provisions concerning the collection of taxes from private parties when owed and the payment of a fee in lieu of taxes on property owned by the Commonwealth based on the assessed value of the properties. This provision gives the FMA the right to contest the assessments made by the City.

The FMA Act further specifies a governing Board of Trustees consisting of twelve (12) voting members, including "two members appointed by the Hampton City Council," to perform these duties. Members of the Board take an oath of office that requires, in part, that each Board member "... will faithfully and impartially discharge all the duties incumbent upon me as ..." a member of the Fort Monroe Authority Board of Trustees. The City appointees to the Hampton FADA and the FMFADA contained no members of the City Council. Since the creation of the FMA, the City has appointed only City Council members to serve on the Board. The present City of Hampton representatives are the Mayor, Molly Joseph Ward, and the Vice Mayor, George E. Wallace.

You ask whether these individuals, and more generally, whether any Hampton City Council member, can serve on the FMA Board in light of specific prohibitions contained in the Constitution of Virginia and the Code of Virginia. You express concern that, even if the appointment of the City Council members to the FMA Board is allowed under the Constitution and the Code of Virginia, such appointments may present those members with potential conflicts because of the differing interests of the FMA and the City of Hampton. You describe two situations that may raise conflicts for the Hampton City Council members. The first involves the work of the FMA Board to develop its positions and plans to deal with disagreements that arise between the FMA and the City of Hampton regarding the real property assessments used to calculate the fees in lieu of taxes paid by the FMA to the City. The second involves the work of the Board to consider proposals from developers for possible projects at Fort Monroe when the City of Hampton takes an official position against the projects.

Applicable Law and Discussion

Article VII, § 6 of the Constitution of Virginia provides, in pertinent part, that

No member of a governing body shall be eligible, during the term of office for which he was elected or appointed, to hold any office filled by the governing body by election or appointed, except that a member of a governing body may be named a member of such other boards, commissions, and bodies as may be permitted by general law.

In accordance with this constitutional provision, § 15.2-1535(A) of the Code of Virginia also provides that, "[n]o member of a governing body of a locality shall be eligible, during the term of office for which he was elected or appointed, to hold any office filled by the governing body by election or appointment, except that a member of a governing body may be named a member of such other boards, commissions, and bodies as may be permitted by general law ...." Section 15.2-1535(B) then sets forth boards, commission and authorities that are exempted from this prohibition.

Thus, whether the City Council members may serve on the FMA board depends on whether a board position constitutes an "office" as contemplated in the Constitution and Code and, if so, whether such service can avail itself of the statutory exemption to the prohibition.

A previous opinion of this Office addressed the criteria for determining whether a particular position constitutes a public office. It concludes:

To constitute a public office, the position must be created by the Constitution or statutes. It is a position filled by election or appointment, with a designation or title, and duties concerning the public, assigned by law. A frequent characteristic of such a post is a fixed term of office.

The FMA is the creation of the FMA Act, which establishes the Authority as a "public body politic and corporate ... constituted as a public instrumentality exercising public functions." The General Assembly has declared that the Authority "serves a public purpose" and that the exercise of its powers and duties constitutes "the performance of an essential governmental function[.]" The enabling legislation further provides that the FMA is to be governed by a Board of Trustees and sets forth the method of appointment and prescribes terms of office for Board members. Based on the above criteria, I therefore conclude that FMA Board positions are public offices for purposes of Article VII, § 6 and Virginia Code § 15.2-1535.

The FMA Act provides that two Board members are to be appointed by the Hampton City Council. Thus, a position on the FMA Board is an office appointed by City Council, and, in accordance with Article VII, § 6, no member of an appointing city council is eligible to be appointed to the Authority unless such appointment is expressly authorized by law. I am unaware of any provision of general law which expressly authorizes such an appointment. In addition, § 15.2-1535(B) does not include among its specific exemptions any provisions applicable to the FMA Board. Consequently, I conclude that neither the Mayor, Vice Mayor, nor any other Hampton City Council member may be appointed by the Hampton City Council to serve as a member of the FMA Board.

With regard to your second question, as discussed above, FMA Board members hold public office. As this Office previously has stated "[a] public officer or official has a fiduciary relationship with the body of which he is a member ...." A fiduciary is "a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence and candor." Additionally, public officials "are trustees for the people who have a right to require them to exercise their best judgment in everything that pertains to the people or their welfare, unaffected and unprejudiced by anything that might inure to the official's own interest as individuals." As noted previously, FMA Board members must take an oath of office obligating them to "faithfully and impartially" serve as members of the Board. Consequently, FMA Board members owe a duty of "good faith, trust, confidence and candor" to the entity that they serve, the FMA, and by extension, to the Commonwealth of Virginia as the entity to whom the Board is responsible. Those duties must be discharged in a faithful and impartial manner.

Members of Hampton City Council, of course, also serve in a public office and owe the same duties of good faith, trust, confidence, and candor to the constituents that they represent as members of the Council, as well as the same obligation to serve those constituents faithfully and impartially pursuant to their oath of office as Council members. To the extent that any FMA Board member serves in another position that would divide his or her loyalties to the FMA, there would be a conflict of interests based on the duties enumerated above and the obligations flowing from their oath of office. Nonetheless, because I conclude that Hampton City Council members are prohibited from serving on the FMA Board, I offer no further comments regarding the specific examples provide in your letter.

You also request my opinion regarding remedies that might be available to the FMA in the event a Board member failed to fulfill his duties to the FMA. Pursuant to the Authority's ability to adopt bylaws, rules, and regulations, the FMA has determined that "the removal of any Trustee will be in accordance with Section 24.2-230." Section 24.2-230 allows for the removal of an elected or appointed Commonwealth officer only by the person or authority who appointed him, unless the member is convicted of certain crimes or is determined to be mentally incompetent.

Conclusion

Accordingly, it is my opinion that, because there is no available exemption to the prohibitions of Article VII, § 6 of the Constitution of Virginia and § 15.2-1535 of the Code of Virginia, neither the Mayor, Vice Mayor, or any other Hampton City Council member may be appointed by the Hampton City Council to serve as a member of the FMA Board. It is further my opinion that members of the FMA Board, as individuals holding public office, stand in a fiduciary relationship with the FMA and thus are subject to the common law duties of loyalty, care, obedience, and disclosure that are generally applicable to those in such a fiduciary relationship. Finally, it is my opinion that an FMA Board member who fails to fulfill his lawful duties may be removed from office in accordance with the Board's by-laws and applicable law.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General