If a Virginia electoral board member takes a part-time town attorney job, are they automatically off the board, and are any decisions they made still valid?

Plain-English summary

The Westmoreland County Commonwealth's Attorney asked three quick questions arising from a small local situation: a member of the county's electoral board had accepted a part-time town attorney position. Could she hold both? If not, did she vacate the electoral board seat automatically? And were decisions the electoral board made between the start of the town attorney job and recognition of the vacancy still valid?

Attorney General Mark R. Herring answered all three.

(1) No, the two positions cannot be held simultaneously. Article II, § 8 of the Virginia Constitution and § 24.2-119 prohibit anyone holding a public "office or post of profit or emolument" under the United States, Commonwealth, or any county, city, or town from being appointed to an electoral board. A town attorney established under § 15.2-1542 is a public office (it is created by statute, filled by election or appointment, has a designated title, and carries duties concerning the public). A paid town attorney is therefore a public officeholder, barred by Article II, § 8 from concurrent service on an electoral board.

(2) Yes, the electoral board seat is vacated automatically upon acceptance of the second incompatible position. Virginia has followed this rule since at least Shell v. Cousins, 77 Va. 328, 331 (1883), which held that "[t]he acceptance of an incompatible office actually vacates any other office which the officer may hold." Prior AG opinions reach the same conclusion (1982-1983 Op. Va. Att'y Gen. 229, 230).

(3) Yes, board decisions during the vacancy remain valid under the de facto officer doctrine. Where the former member continues acting on the board without realizing the seat has been vacated, those acts are valid. The doctrine specifically covers vacancies caused by qualification in a second incompatible office (1981-1982 Op. Va. Att'y Gen. 294, 295).

The opinion also notes a procedural point: the AG was answering pursuant to § 2.2-505, not as counsel to the electoral board (the City Attorney represents the board).

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 constitutional bar in Article II, § 8 is structural and unlikely to change without amendment. Section 24.2-119 has been amended periodically and Title 15.2 (town attorney provisions) is sometimes updated. Anyone analyzing a current dual-office question should check current statutory text.

Background and statutory framework

Article II, § 8 of the Constitution of Virginia provides:

No person, nor the deputy of any person, who is employed or holds any office or post of profit or emolument, or who holds any elective office of profit or trust, under the governments of the United States, the Commonwealth, or any county, city, or town, shall be appointed a member of the electoral board or general registrar.

Section 24.2-119 of the Code restates this prohibition. The text reaches "any office or post of profit or emolument" under any governmental level. Prior AG opinions have consistently barred public officeholders from concurrent service on an electoral board (e.g., 1982-1983 Op. Va. Att'y Gen. 236 (Commissioner in Chancery); 1982-1983 Op. Va. Att'y Gen. 229 (part-time General Assembly position)).

The threshold question is whether the second position is a "public office." A 1982-1983 AG opinion identifies the standard: a "public office" exists where the position (1) is created by the Constitution or statutes, (2) is filled by election or appointment, (3) has a designation or title, and (4) has duties concerning the public assigned by law. A town attorney established under § 15.2-1542 plainly satisfies the test. The town attorney is created by statute, filled by appointment, has the title "town attorney," and has duties concerning the public. A paid town attorney is a public officeholder for Article II, § 8 purposes.

On automatic vacatur, Shell v. Cousins, 77 Va. 328, 331 (1883), is the foundational Virginia case: "The acceptance of an incompatible office actually vacates any other office which the officer may hold. The rule has been stated in broad and unqualified terms that the acceptance of an incompatible office, by whomsoever the appointment or election might be made, absolutely determined the original office, leaving no shadow of title in the possessor, whose successor may be at once elected or appointed ...." The 1982-1983 AG opinion (229, 230) applied this rule to the electoral board context.

On the de facto officer doctrine, a prior AG opinion (1981-1982 Op. Va. Att'y Gen. 294, 295) summarized: "Under the de facto officer doctrine, the official acts of a public officer are valid even though the individual inadvertently vacates the office and continues to perform the duties of the office." The opinion specifically confirmed that "[v]acation of an office by qualification in a second incompatible office is within the de facto officer doctrine." So if the former electoral board member continued to participate in decisions for a period after starting the town attorney job (and before the board recognized the vacancy), those decisions remain valid.

Common questions

Q: Can a Virginia electoral board member also serve as a part-time town attorney?
A: No. Article II, § 8 of the Virginia Constitution and § 24.2-119 prohibit electoral board membership for anyone holding "any office or post of profit or emolument" under any government. A paid town attorney is a public officeholder.

Q: Does the electoral board member have to formally resign first, or is the seat vacated automatically?
A: Automatically, on acceptance of the second incompatible office. Shell v. Cousins, 77 Va. 328 (1883), is the controlling authority.

Q: Are decisions made by the board after the vacancy still valid?
A: Yes, under the de facto officer doctrine. The doctrine specifically covers vacancies caused by acceptance of an incompatible office.

Q: What about an unpaid volunteer position? Does that trigger Article II, § 8?
A: The constitutional language reaches positions "of profit or emolument." Unpaid volunteer positions are generally outside that scope, though specific facts may matter. The town attorney here received "pecuniary gain," so the inquiry was clear.

Q: What if the electoral board member is a deputy of a public officer rather than a public officer herself?
A: Article II, § 8 also reaches deputies. The constitutional bar is broad.

Q: Who decides the vacancy has occurred and acts to fill it?
A: The vacancy occurs by operation of law on acceptance. The appointing authority for the electoral board then acts to fill it. The board's prior decisions are not voided by the late discovery of the vacancy.

Citations and references

Virginia statutes:
- Va. Code Ann. § 15.2-1542 (town attorney)
- Va. Code Ann. § 24.2-119 (electoral board membership prohibition)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Virginia Constitution:
- Va. Const. art. II, § 8 (electoral board / general registrar dual-office bar)

Cases:
- Shell v. Cousins, 77 Va. 328 (1883)

Prior AG opinions:
- 1977-1978 Op. Va. Att'y Gen. 322
- 1981-1982 Op. Va. Att'y Gen. 294 (de facto officer doctrine)
- 1981-1982 Op. Va. Att'y Gen. 305
- 1982-1983 Op. Va. Att'y Gen. 229 (incompatible office vacatur)
- 1982-1983 Op. Va. Att'y Gen. 236 (public office criteria)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-054_Sichol_issued.pdf

Original opinion text

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

September 26, 2016

The Honorable Julia H. Sichol
Commonwealth's Attorney
Westmoreland County
175 Polk Street, Suite 256
Post Office Box 967
Montross, Virginia 22520

Dear Ms. Sichol:

I am in receipt of your letter of September 14, 2016, in which you ask three questions regarding the status of an individual who, while serving on the electoral board of a locality, has accepted a position as a part-time town attorney. In accordance with the Attorney General's authority to issue official opinions as provided by § 2.2-505 of the Code of Virginia, I will respond to these questions in the order in which they are set forth in your September 14 letter.

Question One: Can a member of an electoral board also serve as a part-time town attorney?

Both the Constitution of Virginia and the Code of Virginia establish limitations on membership on an electoral board. Article II, § 8 of the Constitution of Virginia provides, in relevant part:

No person, nor the deputy of any person, who is employed or holds any office or post of profit or emolument, or who holds any elective office of profit or trust, under the governments of the United States, the Commonwealth, or any county, city, or town, shall be appointed a member of the electoral board or general registrar.

The Code of Virginia restates this constitutional prohibition on dual office-holding in § 24.2-119.

Prior opinions of this Office have consistently interpreted this language to proscribe public officeholders from concurrently serving as a member of an electoral board.[1] The office of town attorney, established by § 15.2-1542 of the Code of Virginia, is undoubtedly a public office.[2] As a town attorney receives pecuniary gain in return for service as a public official, a town attorney is barred from simultaneous membership on an electoral board by operation of Article II, § 8 of the Constitution of Virginia and § 24.2-119 of the Code of Virginia.[3] As a result, and in response to your first question, it is my opinion that a member of an electoral board cannot also serve as a part-time town attorney.

Question Two: If a member of the electoral board is not allowed to serve in both capacities, is the position considered vacant upon the acceptance of the conflicting position?

It is a long-held principle of Virginia law that the acceptance of a second incompatible position automatically vacates a prior incompatible position.[4] Accordingly, if a member of an electoral board accepts the position of part-time town attorney, by the acceptance of that position she vacates her membership on the electoral board. Thus, I answer your second question in the affirmative; an individual's seat on an electoral board becomes vacant upon that individual's acceptance of the position of part-time town attorney.

Question Three: Are decisions made during the time of the vacancy valid?

This Office has previously concluded that where a member of a local governmental body vacates his position by acceptance of an incompatible office, the de facto officer doctrine applies to official acts taken by such an individual after he has vacated the first position.[5] As "[v]acation of an office by qualification in a second incompatible office is within the de facto officer doctrine,"[6] the decisions made by an electoral board following a member's vacancy by acceptance of an incompatible office are valid decisions despite this vacancy. Accordingly, it is my opinion that decisions made by an electoral board during the time of a vacancy due to a member's acceptance of the position of part-time town attorney are valid.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See, e.g., 1982-1983 Op. Va. Att'y Gen. 236 (concluding that a member of an electoral board could not simultaneously serve as a Commissioner in Chancery); 1982-1983 Op. Va. Att'y Gen. 229 (concluding that a member of an electoral board could not simultaneously hold a part-time position with the General Assembly).

[2] "The criteria for determining whether a position is a public office have been stated to be that the position is created by the Constitution or statutes, it is filled by election or appointment, with a designation or title, and duties concerning the public, which are assigned by law." 1982-1983 Op. Va. Att'y Gen. 236, 237 (citing 1981-1982 Op. Va. Att'y Gen. 305; 1977-1978 Op. Va. Att'y Gen. 322).

[3] Prior opinions of this Office have also concluded that "[this] proscription applies regardless of the locality in which" a general registrar or electoral board member would be employed. 1982-1983 Op. Va. Att'y Gen. 236, 239.

[4] Shell v. Cousins, 77 Va. 328, 331 (1883) ("The acceptance of an incompatible office actually vacates any other office which the officer may hold. The rule has been stated in broad and unqualified terms that the acceptance of an incompatible office, by whomsoever the appointment or election might be made, absolutely determined the original office, leaving no shadow of title in the possessor, whose successor may be at once elected or appointed ...."). See also 1982-1983 Op. Va. Att'y Gen. 229, 230 ("[T]he very acceptance of the part-time public employment in each instance causes the electoral board position to become vacant.").

[5] See 1981-1982 Op. Va. Att'y Gen. 294, 295 ("Under the de facto officer doctrine, the official acts of a public officer are valid even though the individual inadvertently vacates the office and continues to perform the duties of the office.").

[6] Id.