If a Virginia school board member is already in office when her spouse is elected to the board of supervisors, does the anti-nepotism statute force her to resign?

Plain-English summary

Senator McDougle asked the AG a question that involved a sitting Richmond County School Board member. Richmond County uses a school board selection commission (one of three available methods under Virginia law for choosing school board members). The commission appointed a school board member to a term from July 1, 2012, to July 1, 2016. In November 2013, her husband was elected to the Richmond County Board of Supervisors for a term beginning January 1, 2014. Section 22.1-30(A) of the Code says that "no member of a governing body of a county ... and no father, mother, brother, sister, spouse, son, [or] daughter ... of a member of the county governing body may, during his term of office, be appointed as a member of the school board for such county ...." Was the school board member required to resign?

The AG broke the answer into two pieces.

Does § 22.1-30 apply to appointments made by a school board selection commission? Yes. Virginia has three statutory methods for choosing school board members: popular election (§ 22.1-57.3(A)), appointment by the local governing body (§ 22.1-44), or appointment by a school board selection commission (§§ 22.1-35, 22.1-36). The text of § 22.1-30 uses the word "appointed" without limiting which appointment method. The General Assembly knows how to limit a statute to a particular appointment method when it wants to. Section 22.1-32(B) treats school boards chosen by selection commissions as "appointed school boards" for salary purposes, which reinforces the conclusion that "appointed" in § 22.1-30 means appointed by any of the appointment methods, including by a selection commission.

Does the statute apply only to the moment of appointment, or also to continued service? Only to appointment. The statute bars covered relatives from being "appointed ... during [the governing body member's] term of office." If the school board member was appointed before her relative joined the board of supervisors, the appointment was lawful at the time it was made (no relative was then in office on the board of supervisors). Section 22.1-30 does not require her to resign when a relationship becomes covered later.

The AG strengthened this reading with a legislative history point. A 2011 AG opinion had noted that § 22.1-30 was amended in 1993 to delete the words "or serve" from the language "be appointed or serve." The deletion was significant: it removed a textual basis for forcing resignations and limited the statute to the moment of appointment. The 2011 opinion had reasoned that, if "or serve" had remained, listed persons would have been prohibited from serving as well as from being appointed. The 1993 deletion narrowed the rule.

The corollary on reappointment. The school board member could complete her term, but she would not be eligible for reappointment if her husband was still on the board of supervisors when her term expired. At the moment of any new appointment, the husband would be in his "term of office" on the board of supervisors, and § 22.1-30 would forbid the appointment.

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.

The school board appointment framework (§§ 22.1-30, 22.1-35, 22.1-36, 22.1-44, 22.1-57.3) has been amended multiple times since 2014. Richmond County's selection-commission status should be verified; some Virginia counties have switched between selection commission, direct election, and governing-body appointment over the years. The 1993 amendment removing "or serve" remains the key legislative-history fact, and the resulting narrowing has not been undone by subsequent amendments cited here.

Common questions

Why does Virginia have an anti-nepotism rule for school boards specifically?
The General Assembly has long been concerned about overlap between local governing bodies and the school boards they fund. The school board sets the budget request, and the governing body approves and appropriates. A close family relationship between a governing body member and a school board member could compromise the arm's-length nature of that budgeting relationship.

Who counts as a "covered relative" under § 22.1-30?
Under the statute at the time of the opinion: father, mother, brother, sister, spouse, son, daughter, and several in-law relationships (son-in-law, daughter-in-law, sister-in-law, brother-in-law). The exact list has been amended over time.

Does § 22.1-30 apply if the school board member is elected?
The 2011 AG opinion concluded the statute applies to appointed school board members only, not elected ones. Section 22.1-30 by its terms uses "appointed." Elected school board members are subject to the general voter qualifications and to the ordinary political-accountability mechanisms.

What if a governing body member dies or resigns?
The opinion did not address mid-term changes on the governing body. As a structural matter, once the governing body member's term ends, the relationship is no longer covered. A covered relative could then be appointed to the school board without violating § 22.1-30. If the school board member's term has not expired, the opinion's logic suggests no resignation is required.

What about a sibling or in-law elected to the governing body after a school board appointment?
Same answer for direct relatives in the statute (spouse, sibling, parent, child). The 1993 deletion of "or serve" means later-arising relationships do not trigger forced resignation. The covered school board member can finish the appointed term but cannot be reappointed while the relative is in office.

What if the school board member is appointed for an unexpired vacancy?
The opinion did not separately address vacancies, but the same plain-meaning rule would apply: the relevant question is whether a covered relative was in office on the governing body at the moment of appointment. If yes, the appointment is barred. If no, the appointment is valid even if a covered relative is later elected.

Does the same rule apply for county/city governing bodies appointing other officials?
This opinion was specifically about § 22.1-30 (school boards). Virginia has other anti-nepotism statutes (e.g., for state officers) that use different language. Each has to be read on its own terms.

Why did the 1993 amendment matter so much?
Before 1993, the statute said covered relatives could not "be appointed or serve" as school board members during a relative's term on the governing body. The "or serve" language could have been read to forbid continued service when a relationship became covered after appointment. Removing those two words narrowed the prohibition to the moment of appointment. The General Assembly's choice to remove that language is a clear textual indication that mid-term resignation is not required.

Background and statutory framework

• Va. Code § 22.1-30: anti-nepotism rule for appointments to school boards; bars appointment of covered relatives of governing body members during the governing body member's term.
• Va. Code § 22.1-30(A): the operative prohibition.
• Va. Code § 22.1-32(B): classifies selection-commission school boards as "appointed school boards" for salary purposes.
• Va. Code § 22.1-35: school board selection commission members are chosen by the circuit court.
• Va. Code § 22.1-36: school board members in selection-commission counties are appointed by the commission.
• Va. Code § 22.1-44: school board appointment by the local governing body.
• Va. Code § 22.1-57.3(A): popular election of school board members.

The interpretive moves:

• "Appointed" in § 22.1-30 covers all methods of appointment, including by selection commission (no statutory limit to governing-body appointments).
• The "during his term of office" language fixes the prohibition to the moment of appointment.
• The 1993 deletion of "or serve" narrows the statute to appointment, not continued service.
• A covered relative validly appointed before the relationship became covered may complete her term but is ineligible for reappointment while the relationship persists.

Citations

• Va. Code § 22.1-30
• Va. Code § 22.1-30(A)
• Va. Code § 22.1-32(B)
• Va. Code § 22.1-35
• Va. Code § 22.1-36
• Va. Code § 22.1-44
• Va. Code § 22.1-57.3(A)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Lamb v. Parsons, 195 Va. 353, 78 S.E.2d 707 (1953)
• Barr v. Town & County Props., Inc., 240 Va. 292, 396 S.E.2d 672 (1990)
• Jackson v. Fid. & Deposit Co., 269 Va. 303, 608 S.E.2d 901 (2005)
• 2011 Op. Va. Att'y Gen. 124
• 1983-84 Op. Va. Att'y Gen. 271
• 1993 Va. Acts ch. 352

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-019_McDougle.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 26, 2014

The Honorable Ryan T. McDougle
Member, Senate of Virginia
Post Office Box 187
Mechanicsville, Virginia 23111

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

Dear Senator McDougle:

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 regarding the application of § 22.1-30 of the Code of Virginia, which prohibits the appointment of certain relatives of a member of a board of supervisors to a school board during the term of the supervisor. Your initial question is whether the prohibition applies to an appointment made by a school board selection commission. You also ask whether an incumbent appointee may continue to serve on the school board where her husband is elected at a later time to the board of supervisors.

Response

It is my opinion that, although § 22.1-30 does apply to school board appointments made by a school board selection commission, it prohibits only an appointment that is made while the relative is serving on the board of supervisors. It is therefore further my opinion that § 22.1-30 does not preclude a school board member who was appointed prior to the election of the member's spouse to the county's board of supervisors from continuing to serve on the school board after his election.

Background

You advise that Richmond County uses a school board selection commission to appoint the members of the Richmond County School Board. You relate that a member of the school board was appointed by the commission to serve a term from July 1, 2012 to July 1, 2016. After her appointment, in November 2013, her husband was elected to the Richmond County Board of Supervisors for a term beginning January 1, 2014, and ending December 31, 2017.

Applicable Law and Discussion

In Virginia, county school board members can be elected by popular vote, appointed by the county's governing body, or chosen by a school board selection commission. The members of such a commission are chosen by the Circuit Court. Richmond County employs the school board selection commission method, whereby "[e]ach school board member shall be appointed by the school board selection commission."

The initial part of your inquiry is whether § 22.1-30(A) of the Code of Virginia, which provides that "no member of a governing body of a county ... and no father, mother, brother, sister, spouse, son, [or] daughter ... of a member of the county governing body may, during his term of office, be appointed as a member of the school board for such county ...[,]" applies to school board appointments made by a selection commission.

It is well settled that, "[w]hen construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Statutes related to the same subject are to be read in pari materia, and, unless there is some indication that the legislature intended otherwise, the same meaning will be attributed to the same terms used in related statutes. Moreover, we assume the legislature chose, with care, the words it used in its enactments.

By its terms, § 22.1-30 applies to appointees to school boards, and not to school board members who are elected. The language of the statute makes no distinction between school board members who are appointed by local governing bodies and those appointed by a selection commission; rather, it merely uses the term "appointed." Because the General Assembly knows how to express its intention and did not limit the application of § 22.1-30 to only those school boards whose members are appointed by the local governing body, I must conclude that the restrictions of § 22.1-30 also apply to appointments made by a selection commission.

The next part of your inquiry is whether the subsequent election of an incumbent school board member's husband to the board of supervisors requires her to resign. The prohibition against appointments of certain relatives under § 22.1-30 is limited to appointments that are made "during [the member of the governing body's] term of office[.]" In the situation you describe, the school board member was appointed prior to the election of her husband to the board of supervisors. Therefore, at the time of the appointment there was no prohibition as to her appointment, because the appointment was not made during her husband's "term of office."

The statute speaks only to relationships existing at the time of appointment. It does not require an appointed school board member to resign if a covered relationship comes into existence at a later time, such as by the later election of a spouse to the board of supervisors.

I conclude, therefore, that § 22.1-30 does not require a school board member to resign from the school board position based on a spouse's subsequent election to the county board of supervisors, and the member may continue to serve the remainder of her term. I note, however, that the school board member will not be eligible for reappointment if her spouse is still in "his term of office" at that time.

Conclusion

Accordingly, it is my opinion that § 22.1-30 applies to persons appointed to a school board by a school board selection commission. It is further my opinion that, because the school board member about whom you inquire was appointed before her husband was elected to the board of supervisors, she may continue to serve on the school board, and she is not required to resign. However, if her husband is still a member of the board of supervisors when her term expires, she may not be reappointed at that time.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General