If my sibling is a partner at a law or consulting firm whose clients appear before the state commission I serve on, do I have to recuse from their matters under Virginia's conflict-of-interest act?

Plain-English summary

Delegate Terry Kilgore asked a question that comes up routinely on state boards and commissions: a member has a sibling who is a partner at a law or consulting firm. The firm represents an entity or organization that has business before the commission. Does the sibling's partnership stake count as a "personal interest" of the member, requiring the member to disqualify from the vote?

The State and Local Government Conflict of Interests Act (§§ 2.2-3100 to 2.2-3131) attaches to two kinds of interests: (i) the officer's own personal interest, and (ii) a personal interest of a member of the officer's "immediate family," which is imputed to the officer. The pivot point of the question is what "immediate family" means.

Section 2.2-3101 defines immediate family in two prongs:

1. A spouse.
2. Any person residing in the same household as the officer or employee, who is a dependent of the officer or employee or of whom the officer or employee is a dependent.

The same statute defines "dependent" as "a son, daughter, father, mother, brother, sister or other person, whether or not related by blood or marriage, if such person receives from the officer or employee, or provides the officer or employee, more than one-half of his financial support."

A sibling is not automatically in either prong. The sibling is not a spouse. To fit the second prong, the sibling must both (a) live in the same household with the member, and (b) be financially dependent on the member or have the member financially dependent on them (more-than-50% support).

Apply that to the facts. A sibling who is a partner at a law or consulting firm, living in a different household and financially self-sustaining, is not in the member's immediate family for purposes of the Act. The sibling's financial benefit from the firm's representation of an entity before the commission is therefore not imputed to the member. The member is not required to recuse from votes involving those entities, and a vote in their favor is not a violation of the Act.

The opinion was carefully framed. It applied only to the State and Local Government Conflict of Interests Act. The Virginia Tobacco Indemnification and Community Revitalization Commission's members include legislators, who are separately subject to the General Assembly Conflicts of Interests Act (§§ 30-100 to 30-129); the opinion did not address whether the same conclusion would hold under the General Assembly act. The AG also did not address general-purpose ethics policies the commission may have adopted on top of the statutory minimums.

Currency note

This opinion was issued in 2014. 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.

Virginia's ethics laws were substantially overhauled in 2014 and 2015 following the McDonnell controversy. The Conflict of Interest and Ethics Advisory Council (now Virginia Conflict of Interest and Ethics Advisory Council) was created, gift limits were added, disclosure was tightened. Section 2.2-3101 has been amended multiple times since 2014. Anyone applying this to a present-day fact pattern should verify the current definition of "immediate family" and "dependent" and consult any current Advisory Council guidance. The Tobacco Commission has also been restructured (renamed the Virginia Tobacco Region Revitalization Commission in 2015).

Common questions

Who counts as "immediate family" under the Act?
At the time of this opinion, two categories: (i) a spouse and (ii) any person who both resides in the same household as the officer and is financially dependent on the officer (or vice versa) for more than half their support.

Does this mean a sibling never creates a conflict?
No. The Act creates a conflict whenever a sibling does meet the immediate-family test. Adult siblings can share a household and be financially interdependent (caregiving for an elderly parent in the same household, a sibling temporarily dependent on the officer for support). When that fact pattern is present, the sibling's interest is imputed.

What about a sibling who lives nearby but in a separate household?
Same answer the AG gave: not imputed. The "residing in the same household" requirement is the threshold. A sibling living across town in their own home does not trigger imputation, no matter how close the personal relationship is.

What about parents and adult children?
The same two-prong test applies. A parent or adult child in the same household and financially dependent on the officer (or vice versa) is in the immediate family. A non-cohabiting, financially independent parent or adult child is not, under the statutory definition.

Does the gift, contribution, or "thing of value" rule under § 2.2-3103 still apply?
Yes. Even if the sibling is not in the immediate family, the officer cannot accept money or other things of value for services performed within the scope of his official duties, cannot accept money "for or in consideration of" using his public position to obtain a contract for someone, and cannot accept business or professional opportunities that reasonably tend to influence the performance of official duties (§ 2.2-3103(1), (3), (5), (6)).

What if the sibling is the lawyer personally appearing before the commission?
The opinion was about the sibling being a partner in a firm that represents an entity before the commission. If the sibling personally has a contract with the commission, or personally appears as advocate or contractor, the analysis would shift to the contract-related restrictions in § 2.2-3106 and to the personal-interest-in-transaction restrictions in § 2.2-3112. Counsel should be consulted in fact-specific situations.

Should the member disclose the sibling's relationship anyway?
The opinion did not address disclosure separately. As a practical matter, many ethics programs encourage proactive disclosure even when formal recusal is not required, both to manage public perception and to ensure the matter is decided on a clean record. Specific commissions may have policies on top of the statutory minimum.

Does this apply to local boards too?
Yes. The State and Local Government Conflict of Interests Act applies to "state and local government officers and employees" (§ 2.2-3100). The same definitions of immediate family and dependent apply to county supervisors, city council members, school board members, and other local appointees. Specific local ethics ordinances may impose stricter rules.

Background and statutory framework

• Va. Code §§ 2.2-3100 to 2.2-3131: State and Local Government Conflict of Interests Act.
• Va. Code § 2.2-3100: declares the Act's purpose: to assure citizens that public officers' judgment will not be compromised by inappropriate conflicts.
• Va. Code § 2.2-3101: defines "officer," "governmental agency," "personal interest," "personal interest in a transaction," "immediate family," and "dependent."
• Va. Code § 2.2-3103: prohibits various forms of compensated influence and gift-taking by officers.
• Va. Code § 2.2-3106(A): prohibits officers from having a personal interest in a contract with their own agency.
• Va. Code § 2.2-3112(A)(1): requires an officer to disqualify from participating in a transaction in which he has a personal interest.
• Va. Code §§ 30-100 to 30-129: General Assembly Conflicts of Interests Act (governs legislators separately).

The interpretive moves:

• "Immediate family" is defined narrowly and is not coextensive with "kin" or "relatives."
• The sibling-is-a-partner fact triggers the Act only if the cohabitation-and-dependency test is met.
• The Act creates a uniform statewide minimum standard, not a ceiling; commissions may adopt stricter ethics policies.

Citations

• Va. Code §§ 2.2-3100 through 2.2-3131
• Va. Code § 2.2-3100
• Va. Code § 2.2-3101
• Va. Code § 2.2-3103
• Va. Code § 2.2-3106
• Va. Code § 2.2-3112(A)(1)
• Va. Code §§ 30-100 through 30-129
• 1995 COI Adv. Op. Va. Att'y Gen. No. 95-A16
• 2000 COI Adv. Op. Va. Att'y Gen. No. 00-A06
• 2007 COI Adv. Op. Va. Att'y Gen. No. 00-A05
• 2012 COI Adv. Op. Va. Att'y Gen. No. 12-A07

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-001_Kilgore.pdf

Original opinion text

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

January 10, 2014

The Honorable Terry G. Kilgore
General Assembly Building, Room 704
Capitol Square
Richmond, Virginia 23219

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 Kilgore:

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 it would be a violation of the State and Local Government Conflict of Interests Act (the "Act"),[1] for members of the Virginia Tobacco Indemnification and Community Revitalization Commission ("Commission") to vote on transactions before the Commission where such transaction involves an entity or organization represented by a consulting or law firm where a member's sibling is a partner.

Response

It is my opinion that it is not a violation of the Act for members of the Commission to vote on transactions before the Commission where such transaction involves an entity or organization represented by a consulting or law firm where a member's sibling is a partner, unless such sibling resides in the same household with the member and the member is dependent on the sibling or the sibling is dependent on the member.[2]

Applicable Law and Discussion

In enacting the Act, the General Assembly recognized that our system of government is dependent in part upon its citizens maintaining the highest trust in their public officers and employees. The purpose of the Act is to assure the citizens of the Commonwealth that the judgment of public officers and employees will not be compromised by inappropriate conflicts.[3] The Act provides minimum rules of ethical conduct for state 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;[4] (2) it restricts the personal interest such officers and employees may have in certain contracts with their own or other governmental agencies;[5] and (3) it restricts the participation of such officers and employees in transactions of their governmental agencies in which they have a personal interest.[6]

The Act applies to state and local government officers and employees.[7] Members of the Commission are an "officer"[8] of a state "governmental agency,"[9] subject to the Act's prohibitions and restrictions.

Prior opinions have held that the Act restricts the private financial activities of officers of state governmental agencies when there is a close relationship between the officers' private financial activities and their official duties.[10] Section 2.2-3103 provides that no state officer or employee shall:

1. Solicit or accept money or other thing of value for services performed within the scope of his official duties, except the compensation, expenses or other remuneration paid by the agency of which he is an officer or employee. This prohibition shall not apply to the acceptance of special benefits that may be authorized by law;

...

3. Offer or accept any money or other thing of value for or in consideration of the use of his public position to obtain a contract for any person or business with any governmental or advisory agency;

...

5. Accept any money, loan, gift, favor, service, or business or professional opportunity that reasonably tends to influence him in the performance of his official duties....; [or]

6. Accept any business or professional opportunity when he knows that there is a reasonable likelihood that the opportunity is being afforded him to influence him in the performance of his official duties[.]

Section 2.2-3106(A) provides that "[n]o officer or employee of any governmental agency of state government ... shall have a personal interest in a contract with the governmental agency of which he is an officer or employee, other than his own contract of employment." Section 2.2-3112(A)(1) further requires an officer of a state governmental agency to "disqualify himself from participating in the transaction if (i) the transaction has application solely to property or a business ... in which he has a personal interest ... or (ii) he is unable to participate pursuant to subdivision 2, 3 or 4." Personal interest includes "salary, other compensation, fringe benefits, or benefits from the use of property, or any combination thereof, ... that exceeds, or may reasonably be anticipated to exceed, $10,000 annually."[11] Personal interest in a transaction includes a personal interest of an officer in any matter considered by his agency when the officer may realize a reasonably foreseeable direct or indirect benefit as a result of the agency's action.[12]

You ask whether any benefit a member's sibling may receive as a partner in a consulting or law firm where the firm represents entities or organizations before the Commission is imputed to the member such that it gives rise to an impermissible conflict of interest in violation of the Act.

The Act defines a personal interest to include "a financial benefit or liability accruing to an officer or employee or to a member of his immediate family."[13] Section 2.2-3101 defines immediate family as "(i) a spouse and (ii) any person residing in the same household as the officer or employee, who is a dependent of the officer or employee or of whom the officer or employee is a dependent." Section 2.2-3101 further defines dependent as a "son, daughter, father, mother, brother, sister or other person, whether or not related by blood or marriage, if such person receives from the officer or employee, or provides the officer or employee, more than one-half of his financial support." In the situation you describe, the member would be precluded from participating in, or voting on matters before the Commission only if the siblings lived together and if one provided the other with more than one-half of his financial support. If the siblings live apart and are not financially dependent upon one another, the Act does not prohibit a vote by the member.[14]

Conclusion

Accordingly, it is my opinion that it is not a violation of the State and Local Government Conflict of Interests Act for members of the Commission to vote on transactions before the Commission where such transaction involves an entity or organization represented by a consulting or law firm where a member's sibling is a partner, unless such sibling resides in the same household with the member or the member is dependent on the sibling or the sibling is dependent on the member.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

1. Va. Code Ann. §§ 2.2-3100 through 2.2-3131 (2011 & Supp. 2013).
2. This Opinion is limited to the application of the State and Local Conflict of Interests Act, and does not consider any implications under the General Assembly Conflicts of Interests Act, Va. Code Ann. §§ 30-100 through 30-129 (2011 & Supp. 2013).
3. See § 2.2-3100 (Supp. 2013).
4. See § 2.2-3103 (2011).
5. See § 2.2-3106(A), (B) (Supp. 2013).
6. See § 2.2-3112(A)(1) (Supp. 2013).
7. "[F]or the purpose of establishing a single body of law applicable to all state and local government officers and employees on the subject of conflict of interests, the General Assembly enacts [the] State and Local Government Conflict of Interests Act so that the standards of conduct for such officers and employees may be uniform throughout the Commonwealth." Section 2.2-3100.
8. "'Officer' means any person appointed or elected to any governmental or advisory agency ... whether or not he receives compensation or other emolument of office." Section 2.2-3101 (Supp. 2013).
9. "'Governmental agency' means each component part of the legislative, executive or judicial branches of state and local government, including each office, department, authority, post, commission, committee, and each institution or board created by law to exercise some regulatory or sovereign power or duty as distinguished from purely advisory powers or duties." Id.
10. See 2000 COI Adv. Op. Va. Att'y Gen. No. 00-A06 (concluding that it is not an impermissible conflict of interest for environmental health manager employed by state Health Department to teach course for regional health environment association).
11. Section 2.2-3101.
12. Id.
13. Id.
14. See 1995 COI Adv. Op. Va. Att'y Gen. No. 95-A16; 2007 COI Adv. Op. Va. Att'y Gen. No. 00-A05; 2012 COI Adv. Op. Va. Att'y Gen. No. 12-A07 (applying the definition of "immediate family" for purposes of the Act).