Can a Virginia county supervisor also work as executive director of a public service authority whose members are appointed by the board of supervisors?

Plain-English summary

Senator Chafin asked whether a member of a county board of supervisors could keep his seat on the board and also accept employment as executive director of the local public service authority, where the supervisors appoint a majority of the authority's members. The State and Local Government Conflict of Interests Act bars certain contractual interests between local officials and their governing bodies.

The Attorney General said the Act does not bar the dual role itself, but the official will run into continuing conflicts that require careful handling. Code § 2.2-3107(A) prohibits a board member from having a "personal interest" in (i) any contract with the governing body, (ii) any contract with a component part of local government subject to ultimate control of the governing body, or (iii) any contract (other than a contract of employment) with another governmental agency where the governing body appoints a majority of the agency's members. A public service authority has separate legal existence from the board of supervisors, so (i) and (ii) do not apply. Clause (iii) would apply but for its express exception for "contract[s] of employment," which is exactly what the supervisor would have with the authority.

The harder issue is Code § 2.2-3112, which requires disclosure and disqualification whenever an officer has a personal interest in a transaction. The supervisor would have personal interests in both governmental agencies, so any transaction by either body that pertains to or affects the other would require formal disclosure and likely disqualification. The most obvious example: a vote by the supervisors on members of the authority who in turn control the supervisor's authority salary. The AG recommended the official seek regular guidance from the Commonwealth's Attorney or the Virginia Conflict of Interest and Ethics Advisory Council.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

The State and Local Government Conflict of Interests Act (Code §§ 2.2-3100 through 2.2-3131) lays out ethical rules for state and local government officers and employees. The Act prohibits gifts from interested parties, certain contractual interests, and participation in transactions where the officer has a personal interest. Code § 2.2-3107(A) is the contractual-interest rule for elected and appointed members of a county, city, or town governing body. It has three prongs: (i) contracts with the governing body; (ii) contracts with a "component part" of local government; (iii) contracts with another governmental agency where the governing body appoints a majority of its members, except contracts of employment.

The opinion's analysis turned on two structural facts. First, a public service authority created under Code § 15.2-5102(A) is "a public body politic and corporate and a political subdivision of the Commonwealth," not a component part of county government. So contracts between a county supervisor and the authority do not fall under prongs (i) or (ii). Second, prong (iii) does apply to authorities whose majority is appointed by the supervisors, but the exception for contracts of employment removes the supervisor's employment relationship with the authority from the prohibition.

That clears the contractual-interest rule, but it does not clear the transactional-conflict rule. Code § 2.2-3112 requires an officer to make formal disclosures and disqualify himself from participating in transactions when he has a personal interest. The Act defines "personal interest in a transaction" broadly, covering situations where the officer has a personal interest in property, a business, or a governmental agency that is the subject of the transaction or may realize a reasonably foreseeable direct or indirect benefit or detriment as a result. A supervisor employed by the authority has a personal interest in the authority (because of salary), so any transaction affecting the authority requires disclosure and likely disqualification. Disqualification means abstaining from voting, from closed-meeting discussions of the matter, and from informal discussions with other officers or employees.

Common questions

So the supervisor can do both jobs? What's the catch?
The catch is the ongoing disclosure and disqualification burden. The Act does not bar the dual role, but Code § 2.2-3112 will require the supervisor to disclose and disqualify himself from any transaction by the board of supervisors that pertains to or affects the authority, and any transaction by the authority that pertains to or affects the county. That can be a substantial number of transactions if the two bodies interact frequently.

Can the supervisor vote on appointments to the authority?
The AG flagged this as the clearest example of a transaction requiring disclosure and disqualification. If the supervisor participates in appointing members who then have power over his employment and salary, that is a textbook self-dealing conflict. The supervisor must abstain.

Is this opinion a formal "advisory opinion" under the Act?
No. The opinion explicitly notes that it is not an "advisory opinion" within the meaning of Code § 2.2-3121 and does not give the official the safe harbor that section provides. To get the safe harbor, the official must seek an advisory opinion from the local Commonwealth's Attorney or the Virginia Conflict of Interest and Ethics Advisory Council, including a full disclosure of facts.

What is the $5,000 threshold mentioned in the personal-interest definition?
The Act defines "personal interest" in a business or governmental agency to include salary that exceeds, or may reasonably be anticipated to exceed, $5,000 annually. The AG assumed for the opinion that both positions (supervisor's stipend and director's salary) crossed this threshold and triggered the personal-interest analysis.

Does this analysis apply to other dual-role situations?
The analysis is fact-specific. Each dual role has to be tested under Code § 2.2-3107 for the contractual-interest piece and Code § 2.2-3112 for the transactional-conflict piece. Whether the second body is a "component part" of local government (clause ii), a "separate body politic" (clause iii), or something else affects which prong applies. And the employment exception in clause (iii) is what allows this specific dual role to survive.

What happens if the supervisor fails to disclose or disqualify?
The Act has its own penalty regime, plus the possibility of civil suit or removal. The opinion does not address remedies; it focuses on the prospective question of whether the dual role is permissible.

Citations

• Va. Code § 2.2-3107 (contractual-interest rule for governing body members)
• Va. Code § 2.2-3112 (transactional-conflict rule)
• Va. Code § 2.2-3115 (formal disclosure rules)
• Va. Code § 2.2-3121 (advisory opinion safe harbor)
• Va. Code § 15.2-5102(A) (public service authorities as political subdivisions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/18-002-Chafin-COIA-question-issued.pdf

Original opinion text

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

June 15, 2018

The Honorable A. Benton Chafin, Jr.
Member, Senate of Virginia
Post Office Box 1210
Lebanon, Virginia 24266

Dear Senator Chafin:
I am responding to your request for an official advisory opinion pursuant to § 2.2-505 of the Code
of Virginia. Your request relates to § 2.2-3107 of the Code of Virginia, which is part of the State and
Local Government Conflict of Interests Act (the "Act").

Issue Presented

You ask whether § 2.2-3107 prohibits a member of a county board of supervisors (or "board")
from retaining his or her position on the board upon the acceptance of employment as executive director
of a public service authority, where a majority of members of the public service authority are appointed
by the board.

Applicable Law and Discussion

The Act provides mandatory ethical rules for state and local government officers and employees[1]
in areas such as: (1) accepting something of value from a third party;[2] (2) holding a personal interest in a
government contract;[3] and (3) participating in transactions in which they have a personal interest.[4]

Section 2.2-3107(A) provides as follows:

No person elected or appointed as a member of the governing body of a county, city or
town shall have a personal interest in (i) any contract with his governing body, or (ii) any
contract with any governmental agency that is a component part of his local government
and which is subject to the ultimate control of the governing body of which he is a
member, or (iii) any contract other than a contract of employment with any other
governmental agency if such person's governing body appoints a majority of the
members of the governing body of the second governmental agency.[5]

A public service authority has legal existence separate from the board of supervisors,[6] and
therefore it is not a component part of county government. Accordingly, the broad prohibition on
contractual interests set forth in clauses (i) and (ii) above does not apply. While the narrower prohibition
on contractual interests set forth in clause (iii) categorically applies, it contains an exception for contracts
of employment. Accordingly, I conclude that § 2.2-3107 of the Act does not prohibit a member of a
county board of supervisors from also holding a position of employment with a public service authority,
including the position of executive director.

Although a contract of employment by itself would not violate the Act, there is the potential for
conflicts of interest to arise if an individual remains a county supervisor while employed as executive
director of the authority. Section 2.2-3112 of the Act requires an officer or employee to make formal
disclosures and disqualify himself from participating in a transaction before his agency if it applies only
to a business or governmental agency in which he has a personal interest or if he is unable to participate
pursuant to certain exceptions for matters that apply to multiple parties.[7]

Because an individual in the position you describe would have a personal interest in both[8]
governmental agencies, he would have to remain alert at all times to conflicts that may require formal
disclosures or disqualification and other actions under § 2.2-3112.[9] For example, conflicts of this sort
could arise from decisions by the board of supervisors pertaining to or having a financial effect on the
authority, or from transactions of the authority pertaining to or affecting the county. The result could be
the individual having a personal interest in multiple transactions, requiring formal disclosures,
disqualifications, and other compliance as noted above.

A transaction where a county supervisor participates in the board's appointment of members of
the authority, who in turn would have power over his employment and salary as executive director of the
authority, is a clear example of one requiring formal disclosure and disqualification under § 2.2-3112 of
the Act.

To avoid violating the Act, an individual in the position you describe should, as a local
government officer and employee, seek advice on a regular basis from either the Commonwealth's
Attorney or the Virginia Conflict of Interest and Ethics Advisory Council. Also, because the Act's formal
disclosure and disqualification requirements must be fulfilled promptly when conflicts of this sort arise,[10]
an individual in the position you describe would need to obtain necessary guidance well in advance.

Conclusion
For the reasons stated, it is my opinion that the Conflict of Interests Act does not prohibit a
member of a county board of supervisors from remaining on the board while employed as the executive
director of a public service authority. However, such service likely creates a continuing risk of
transactional conflicts of interest that might require a person who holds both positions to make prompt
formal disclosures of personal interests and often disqualify himself from participating in transactions for
either public body that pertain to the other public body, or that may have a reasonably foreseeable direct
or indirect benefit or detriment for the other public body.
With kindest regards, I am,

Mark R. Herring
Attorney General

1. VA. CODE ANN. §§ 2.2-3100 through 2.2-3131 (2017). This opinion is not an "advisory opinion" within the meaning of § 2.2-3121 and does not provide the protection described in that section. A local government officer or employee desiring the protection of that section may seek an advisory opinion either from the Commonwealth's Attorney in his jurisdiction or from the Virginia Conflict of Interest and Ethics Advisory Council, and the local officer or employee must include with his request a full disclosure of facts. See § 2.2-3121(B).
2. See, e.g., §§ 2.2-3103 and -3103.1.
3. See §§ 2.2-3105 through -3110.
4. See §§ 2.2-3111 and -3112.
5. Section 2.2-3107(A) (emphasis added).
6. See § 15.2-5102(A) (2012) (stating that an authority "shall be a public body politic and corporate and a political subdivision of the Commonwealth").
7. See § 2.2-3112(A) and (B) (specifying when officers or employees who have a personal interest in a transaction must disqualify themselves, and specifying formal disclosures that must be made); see also § 2.2-3101 (defining "personal interest in a transaction" to "exist[] when an officer or employee ... has a personal interest in property or a business or governmental agency, or represents or provides services to any individual or business and such property, business or represented or served individual or business (i) is the subject of the transaction or (ii) may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction.").
8. See § 2.2-3101 (defining "personal interest" in a business or governmental agency to include "salary ... paid or provided by a business or governmental agency that exceeds, or may reasonably be anticipated to exceed, $5,000 annually"). I assume, for purposes of this opinion, that the individual's salary as executive director of the authority, and as a member of the board of supervisors, each would meet this monetary threshold and therefore give rise to a "personal interest" in both governmental agencies.
9. Other actions required by the Act include abstention of the disqualified officer or employee from "(i) attending any portion of a closed meeting authorized by the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) when the matter in which he has a personal interest is discussed, and (ii) discussing the matter in which he has a personal interest with other governmental officers or employees at any time." Section 2.2-3112(A).
10. See § 2.2-3115(F) (local officer or employee who is disqualified from participating in a transaction due to a personal interest must make disclosures "forthwith"). The Act also requires that required declarations be made promptly, in the event the individual is able to participate in a transaction under one of the exceptions noted in § 2.2-3112(B)(1) & (2). See § 2.2-3115(H) and (I) (requiring declarations to be made either "prior to participation in the transaction" or "by the end of the next business day").