Must a Virginia county with a county-administrator form of government create a citizen-appointed library board to qualify for state library aid?

Plain-English summary

The Librarian of Virginia asked whether Roanoke County's public library had to be governed by a citizen-appointed managing board under § 42.1-35 of the Code of Virginia. Roanoke County had resisted that requirement for decades. The county's position, restated in 1991, 1996, and again in 2016, was that its 1986 county charter let the Board of Supervisors create departments and the County Administrator run them, and that this charter authority effectively exempted the county from the general state-law requirement of a citizen managing board.

Attorney General Mark R. Herring rejected the county's reading. The exemption statute, § 42.1-36, exempts only specific localities (cities and towns with a manager, counties with a manager, county executive, urban county manager, or urban county executive form, plus Chesterfield and Shenandoah counties). Roanoke County has a county-administrator form of government and is not named. General charter provisions empowering local government to organize departments cannot quietly override a specific state statute. If they could, every Virginia locality would be exempt and § 42.1-36 would mean nothing.

The opinion mattered for funding. The State Library Board awards grants only to libraries organized "under the appropriate section of the Code of Virginia." Without a managing board appointed by the Board of Supervisors, Roanoke County's library risked having that state aid withheld.

Currency note

This opinion was issued in 2016. 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 library board statutes in Title 42.1 have been periodically amended since this opinion. Before relying on the § 42.1-35 / § 42.1-36 list of exempt localities, or on the state-aid criteria in Title 17 of the Virginia Administrative Code, check the current text. Roanoke County's library governance arrangement may also have changed since 2016.

Background and statutory framework

Section 42.1-35 vests "management and control" of a free public library system in a board of at least five members "appointed by the governing body, chosen from the citizens at large with reference to their fitness for such office." Section 42.1-36 carves out exceptions: it provides that the formation of such boards "shall in nowise be considered or construed in any manner as mandatory" upon any city or town with a manager, any county with a county manager, county executive, urban county manager, or urban county executive, or upon Chesterfield or Shenandoah counties.

At the time of the opinion the AG identified the named-exempt counties as Henrico and Arlington (county manager), Albemarle and Prince William (county executive), Fairfax (urban county executive), plus Chesterfield and Shenandoah by name. There were no counties operating under an "urban county manager" form.

Roanoke County operates under a "county administrator" form. That form is not on the list. The county's 1986 charter (1986 Va. Acts ch. 617), enacted as a special act of the General Assembly, gives the Board of Supervisors power to organize "all departments of government that it deems necessary" and gives the county administrator authority to appoint each department head. The county read those provisions as creating an implicit charter-based exemption from § 42.1-35.

The AG's analysis turned on the doctrine that specific statutes cannot be repealed by implication from general charter language. The Supreme Court of Virginia held in City of Roanoke v. Land, 137 Va. 89, 92-93 (1923), that specific statutory provisions "cannot be regarded as having been repealed or modified by the general provisions of [a] charter." General charter authority to organize departments is the kind of broad authorization that almost every Virginia locality has; treating it as an exemption would gut the specific managing-board requirement in § 42.1-35 and make the carefully drawn list in § 42.1-36 meaningless. The principle, drawn from Jones v. Cornwell, 227 Va. 176, 181 (1984), is that statutes should be read so as to give every word reasonable effect.

The AG also pointed to a legislative-history signal. The General Assembly amended § 42.1-36 in 1978 to add Chesterfield and in 2002 to add Shenandoah. It did not add Roanoke County or "county administrator" form when it enacted the 1986 Roanoke charter, and has not done so since. That silence, the opinion concluded, indicated the legislature never intended to exempt Roanoke County.

The opinion noted but discounted the charter's grandfather clause (§ 18.07). That clause continued the existence of pre-existing boards, including the library board created by a 1980 county resolution, but mere continued existence did not satisfy § 42.1-35's requirement that the board actually be a managing board.

Common questions

Q: What did the AG actually conclude about Roanoke County?
A: That § 42.1-35 applied. The county's general charter language did not exempt it. To comply, the county needed a board of at least five citizens appointed by the Board of Supervisors with actual management and control of the library system.

Q: Why did this matter to library funding?
A: State aid to local libraries was conditioned on the library being organized "under the appropriate section of the Code of Virginia." If Roanoke County's library was not organized under § 42.1-35 (or covered by an exemption in § 42.1-36), the State Library Board could withhold grant funding.

Q: Which counties were exempt from the citizen managing-board requirement at the time of this opinion?
A: Those with county manager, county executive, urban county manager, or urban county executive form (Henrico, Arlington, Albemarle, Prince William, Fairfax), plus Chesterfield and Shenandoah by statutory name. Counties using the more common "county administrator" form, including Roanoke, were not exempt.

Q: Could Roanoke County's charter have exempted it implicitly through its general department-organization powers?
A: The AG said no. Under City of Roanoke v. Land, 137 Va. 89 (1923), a specific state statute cannot be repealed by implication from general charter provisions. Charter authority to "establish departments" is general and would, if treated as an exemption, swallow the rule for almost every Virginia locality.

Q: Did the AG order Roanoke County to do anything?
A: AG opinions are advisory, not self-executing. The opinion identified the legal obligation; whether and how Roanoke County complied, and whether the State Library Board enforced the standard by withholding funds, were separate questions for those entities.

Citations and references

Virginia statutes:
- Va. Code Ann. § 42.1-35 (managing library board requirement)
- Va. Code Ann. § 42.1-36 (exempt localities)
- Va. Code Ann. § 42.1-48 (state aid to local libraries)
- Va. Code Ann. § 15.2-1107 (municipal corporation department organization)
- Va. Code Ann. § 15.2-1500 (locality duty to provide for departments)
- Va. Code Ann. § 15.2-1541 (chief administrative officer responsibility)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)
- 17 Va. Admin. Code §§ 15-90-20; 15-110-10 (state aid standards)

Local enactments and Acts of Assembly:
- 1970 Va. Acts ch. 606 (original § 42.1-36)
- 1978 Va. Acts ch. 6 (added Chesterfield)
- 1986 Va. Acts ch. 617 (Roanoke County charter)
- 2002 Va. Acts ch. 111 (added Shenandoah)

Cases:
- City of Roanoke v. Land, 137 Va. 89 (1923)
- Jones v. Cornwell, 227 Va. 176 (1984)

Prior AG opinions:
- 2001 Op. Va. Att'y Gen. 161
- 1978-1979 Op. Va. Att'y Gen. 192

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-018-Treadway-issued.pdf

Original opinion text

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

September 8, 2016

The Honorable Sandra Gioia Treadway
Librarian of Virginia
800 East Broad Street
Richmond, Virginia 23219

Dear Ms. Treadway:

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 the Roanoke County Public Library (the "County Library") is subject to § 42.1-35 of the Code of Virginia, which requires that a local library board comprised of citizens appointed by the local governing body have management and control of the local library (i.e., that it be a "managing board" of the library).

Background

The Library Board of the Library of Virginia (the "State Library Board") is authorized to award grants to local libraries, provided they qualify under standards set by that body.[1] One such standard is that a local library "must be organized under the appropriate section of the Code of Virginia."[2] If that standard is not met, the State Library Board may withhold funding. Thus, the question of whether the County Library must have a managing board appointed by the local governing body affects its eligibility for this type of state funding.

The question you pose was first raised by state officials in 1991, and the county responded by asserting that the county charter, a special act of the General Assembly enacted in 1986,[3] prevails over the statute in question, which is a general law. The county interpreted the county charter as placing the ability to create a library department with the County Board of Supervisors, and as placing governing responsibility over all county departments, including the library department, with the County Administrator. For that reason, the county concluded that it was in compliance with special state law (its charter) and thus exempt from the general statute requiring a managing library board made up of citizens. The issue was raised again five years later, in 1996, and the county responded in the same way. The State Library has now raised the issue for a third time, and the county's position remains the same.

Applicable Law and Discussion

The statute in question, § 42.1-35 of the Code of Virginia, provides for the creation of local library boards whose members are to be a managing board:

The management and control of a free public library system shall be vested in a board of not less than five members or trustees. They shall be appointed by the governing body, chosen from the citizens at large with reference to their fitness for such office.[4]

Several localities are exempted from the requirement to create a managing board by the following statute, § 42.1-36:

The formation, creation or continued existence of boards shall in nowise be considered or construed in any manner as mandatory upon any city or town with a manager, or upon any county with a county manager, county executive, urban county manager or urban county executive form of government or the Counties of Chesterfield and Shenandoah, by virtue of this chapter.[5]

The exemption statute does not, however, apply to Roanoke County: it is not one of the named exempt localities, and it has a county administrator form of government, which is not one of the named exempt forms of government.[6]

The county takes the position that it need not create a managing library board because of provisions in its charter providing that the Board of Supervisors "shall provide for the performance of all governmental functions of the county and to that end shall provide for and establish all departments of government that it deems necessary,"[7] and that "the county administrator [in general] shall appoint each superintendent or department head of each county department."[8] According to the county, these provisions of the charter effectively create an exemption from § 42.1-35, such that the county is not required to establish a library managing board.

The legal error with this position is that laws empowering local governing bodies to establish departments are common,[9] as are laws giving the administrative head of government power to manage them.[10] The Supreme Court of Virginia has held that "specific provisions of [a] statute ... cannot be regarded as having been repealed or modified by the general provisions of [a] charter."[11] Here, the specific statutory requirement of a local library managing board "cannot be regarded as having been repealed or modified" by charter provisions authorizing the Board of Supervisors to establish departments and the County Administrator to manage them.[12]

I find nothing else in the county charter showing that the General Assembly intended for it to exempt Roanoke County from the statutory requirement of having a governing library board.[13]

I note further that when the charter was enacted in 1986, the General Assembly could easily have amended the exemption statute to include either "Roanoke County" or "any locality having the County Administrator form of government." The General Assembly has added certain localities to this statute since it was first enacted in 1970.[14] Its failure to do so in 1986 or subsequently for Roanoke County is a clear indication that it has never intended to exempt the county from the statutory requirement of having a managing library board.

Conclusion

For the reasons stated, it is my opinion that § 42.1-35 of the Code of Virginia, which requires that a local library board be a managing board whose members are appointed by the local governing body, is applicable to Roanoke County.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General

[1] See VA. CODE ANN. § 42.1-48 (2013) ("In order to encourage the maintenance and development of proper standards, including personnel standards, and the combination of libraries or library systems into larger and more economical units of service, grants of state aid from funds available shall be made by the Board to any free public library or library system which qualifies under the standards set by the Board.").

[2] 17 VA. ADMIN. CODE §§ 15-90-20; 15-110-10; see also LIBRARY OF VA., REQUIREMENTS FOR STATE AID TO VA. PUBLIC LIBRARIES (March 13, 1991), http://www.lva.virginia.gov/lib-edu/LDND/state-aid/requirements.asp.

[3] 1986 Va. Acts ch. 617.

[4] VA. CODE ANN. § 42.1-35 (2013) (emphasis added).

[5] VA. CODE ANN. § 42.1-36 (2013).

[6] As to the various forms of county government referenced in this statute, counties with a "county manager" are Henrico and Arlington; counties with a "county executive" are Albemarle and Prince William; there are no counties with an "urban county manager"; and the sole county with an "urban county executive" is Fairfax County. Thus, Roanoke County, which has a county administrator, is not among the counties made exempt under this statute.

[7] CHARTER FOR THE COUNTY OF ROANOKE, VA., § 3.02.

[8] Id. at § 4.01. While the Roanoke County Code is subordinate to Virginia Code § 42.1-35, and thus could not modify or create an exemption to its requirement of having a managing local library board, I do note that, like the County Charter, the County Code does not address the characteristics of the County Library Board, or even mention it.

[9] "Every locality shall provide for all the governmental functions of the locality, including ... the organization of all departments . . . ." VA. CODE ANN. § 15.2-1500 (2012). "A municipal corporation may provide for the organization, conduct and operation of all departments, offices, boards, commissions and agencies of the municipal corporation, subject to such limitations as may be imposed by the charter or otherwise by law." VA. CODE ANN. § 15.2-1107 (2012).

[10] "Every chief administrative officer shall be the administrative head of the local government in which he is employed. He shall be responsible to the governing body for the proper management of all the affairs of the locality which the governing body has authority to control." VA. CODE ANN. § 15.2-1541 (2012).

[11] City of Roanoke v. Land, 137 Va. 89, 92-93 (1923) ("[W]e are of [the] opinion that the specific provisions of the statute . . . cannot be regarded as having been repealed or modified by the general provisions of the charter . . . .") (holding that local ordinances enacted under general charter powers are void when they conflict with a specific statute); 2001 Op. Va. Att'y Gen. 161, 162-163; 1978-1979 Op. Va. Att'y Gen. 192, 193.

[12] If allowing local governing bodies to establish departments and authorizing the chief administrative officer to manage them were deemed to create an exemption from the governing board statute (Section 42.1-35), then the vast majority, if not all, of Virginia counties, cities, and towns would be exempt from the general requirement of having a managing library board, to the point that the exemption statute (§ 42.1-36) would be virtually meaningless. That is not a reasonable conclusion. "[I]t is well established that every act of the legislature should be read so as to give reasonable effect to every word ...." Jones v. Cornwell, 227 Va. 176, 181 (1984).

[13] The charter does contain a "grandfather clause" that continues the existence of then-existing "boards, committees, commissions, and authorities." CHARTER FOR THE COUNTY OF ROANOKE, VA., § 18.07. While this clause does continue the existence of the library board, which had been previously established by Resolution No. 2474, "Establishing a plan of government for the County of Roanoke from and after January 1, 1980" (Minutes of a Jan. 2, 1980, meeting of the Roanoke County Board of Supervisors), the mere continued existence of the library board does not, without more, make the county exempt from the "managing board" statute in question.

[14] Section 42.1-36, the "exemptions statute," was first enacted in 1970. At that time it applied only to "any city or town with a manager, or upon any county with a county manager, county executive, urban county manager or urban county executive form of government." 1970 Va. Acts ch. 606. In 1978, it was amended to include Chesterfield County. 1978 Va. Acts ch. 6. It was amended again in 2002 by adding Shenandoah County. 2002 Va. Acts ch. 111.