Can a Virginia Commonwealth's Attorney revert his office to part-time status after a predecessor elected full-time status?

Plain-English summary

The Greene County Commonwealth's Attorney asked whether he could reverse a predecessor's election to convert the office from part-time to full-time status under Code § 15.2-1629 and return to part-time. The statute provides that in counties with 35,000 or fewer inhabitants, Commonwealth's Attorneys serve part-time by default but may elect, with Compensation Board consent, to go full-time. Going full-time bumps up the salary to the level for a county over 35,000 inhabitants and bars private law practice.

The Attorney General said no, the predecessor's election is binding on the office. The statutory text states that "[s]uch an election and consent by the Compensation Board shall be binding on the attorney for the Commonwealth and on successors in the office." The AG read this plain language as unambiguous: once the office goes full-time, it stays full-time. The Code contains no provision allowing the reverse election. The General Assembly's legislative history reinforces the conclusion: starting in 1976 and continuing through 1977, 1993, and 1996 amendments, the General Assembly progressively expanded full-time Commonwealth's Attorney coverage in pursuit of a system-wide goal of full-time prosecutors. Allowing reversal would frustrate that goal. The Compensation Board's longstanding interpretation reads the statute the same way: "Such election to serve on a full-time basis, once funded, is binding on that office from hence forward."

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

Virginia Commonwealth's Attorneys are elected county and city prosecutors. By Code § 15.2-1628, those in counties with populations of 35,000 or fewer may serve part-time, meaning they can maintain private law practice alongside their prosecutorial duties. Code § 15.2-1629 lets a part-time CA elect to go full-time, subject to Compensation Board consent. Full-time status comes with a higher salary (set at the level for a county over 35,000) and a corresponding ban on private practice.

The statute's binding language is the hinge: "[s]uch an election and consent by the Compensation Board shall be binding on the attorney for the Commonwealth and on successors in the office." This is unusually emphatic for a Code provision. Most statutes leave open the possibility of later legislative change; this one expressly says the election binds successors. The AG read that language at face value, applying the standard rule that the legislature is presumed to have chosen its words carefully.

The legislative history adds weight to the textual reading. The General Assembly's progression toward full-time CAs has been steady: in 1976, the General Assembly required CAs in cities with populations greater than 90,000 to serve full-time. In 1977, after a study by the Virginia Advisory Legislative Council, the General Assembly extended the requirement to counties and cities greater than 35,000. In 1993, Code § 15.1-50.3 (the predecessor to § 15.2-1629) allowed part-time CAs in counties under 35,000 to elect full-time. A 1996 amendment removed an earlier limitation that the county population had to exceed 10,000. The clear trajectory: expand full-time CA coverage. The AG concluded that allowing a reversion to part-time would frustrate this clear legislative goal.

The Compensation Board's interpretive practice provides additional support. The Board has administered the statute since the 1993 enactment and has consistently treated full-time elections as binding on the office going forward. Under Virginia administrative-deference doctrine (Forst v. Rockingham Poultry Mktg. Coop.; Commonwealth v. Am. Radiator), an agency's longstanding interpretation of a statute it administers is entitled to great weight, especially when the General Assembly has not acted to change it. The General Assembly is presumed to be aware of the Board's interpretation and to have acquiesced in it.

Common questions

What does it mean for a Commonwealth's Attorney to be full-time?
The CA must devote full time to the duties of the office. Full-time CAs may not engage in the private practice of law (Code § 15.2-1629(C)). The salary is set at the level for a CA in a county over 35,000 inhabitants. The office gets corresponding Compensation Board funding for staff and operations.

Why does the election require Compensation Board consent?
Because full-time status requires state funding that goes up to the higher salary level and supports the office's operations. The Compensation Board is the state body that sets and funds CA salaries, so it has to consent before the office moves to the higher-cost full-time tier.

Why can't a newly elected CA reverse the predecessor's election?
The statute says the election "shall be binding ... on successors in the office." That language ties the choice to the office, not the individual. The AG concluded the General Assembly knew how to allow reversal if it wanted to (by saying "subject to revocation by a successor" or similar) and chose not to.

What policy goal does the binding-on-successors rule serve?
A stable, professional, full-time prosecutorial office. If each new CA could reverse the prior decision, the office could oscillate between part-time and full-time every election cycle, undermining staff hiring, operational continuity, and public confidence. The legislative history shows the General Assembly's deliberate push toward more full-time CAs.

Is there any way for the office to go back to part-time?
Not through unilateral action by a successor CA. The General Assembly could amend the statute to allow reversal, but that is a legislative question. The CA cannot make the change administratively.

Does the Compensation Board's interpretation carry legal weight?
Yes. The Supreme Court of Virginia has long recognized that the interpretation of a statute by the agency charged with administering it is entitled to great weight, especially when the interpretation has been consistent over time and the General Assembly has not acted to change it. The Board's interpretation here aligns with the statutory text and the AG's reading.

Does this affect part-time CAs whose offices never elected full-time status?
No. The statute and this opinion deal only with the consequences of a prior election. If a CA's office has never been converted to full-time, the office remains part-time, and the CA may or may not elect to convert. The binding rule only kicks in after an election has been made and funded.

Citations

• Va. Code § 15.2-1628 (part-time CA default in counties under 35,000)
• Va. Code § 15.2-1629 (full-time election, binding on successors)
• 1974 Va. Acts ch. 470 (first full-time requirement for cities over 90,000)
• 1977 Va. Acts ch. 623 (extension to localities over 35,000)
• 1993 Va. Acts ch. 826 (predecessor to § 15.2-1629)
• 1996 Va. Acts ch. 561 (removal of 10,000-population floor)
• Forst v. Rockingham Poultry Mktg. Coop., 222 Va. 270 (1981) (administrative deference)
• Commonwealth v. Am. Radiator & Standard Sanitary Corp., 202 Va. 13 (1960)
• 1989 JLARC Report on Part-Time Commonwealth's Attorneys
• Virginia Compensation Board, Commonwealth's Attorneys Policy and Procedure Manual (2011)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/18-016_Hardin-issued.pdf

Original opinion text

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

September 7, 2018

The Honorable Matthew D. Hardin
Greene County Commonwealth's Attorney
38 Stanard Street
Post Office Box 1028
Stanardsville, Virginia 22973

Dear Mr. Hardin:
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 a Commonwealth's Attorney can reverse the election of his predecessor-in-office made under § 15.2-1629 to become a full-time Commonwealth's Attorney, and thereby revert to
part-time status.

Applicable Law and Discussion
The Code of Virginia provides generally that attorneys for the Commonwealth in counties with a
population of 35,000 or fewer inhabitants may serve on a part-time basis. Section 15.2-1629 of the Code,
however, permits such part-time attorneys for the Commonwealth to elect, with the consent of the
Compensation Board, to become full-time. Upon electing full-time status and receiving funding from the
Compensation Board, the Commonwealth's Attorney is prohibited from engaging in the private practice
of law.

Section 15.2-1629(A) of the Code states, in relevant part, as follows:

[A]ny attorney for the Commonwealth for a county may, with the consent of the
Compensation Board, elect to devote full time to the duties of attorney for the
Commonwealth at a salary equal to that for an attorney for the Commonwealth in a
county with a population of more than 35,000. Such an election and consent by the
Compensation Board shall be binding on the attorney for the Commonwealth and on
successors in the office.

"The primary objective in statutory construction is to determine and give effect to the intent of the
legislature as expressed in the language of the statute." We "must presume that the General Assembly
chose, with care, the words that appear in a statute ...." Those words must be given "their ordinary
meaning, unless it is apparent that the legislative intent is otherwise." Likewise, the "plain, obvious, and
rational meaning of a statute is to be preferred over any curious, narrow, or strained construction."

In enacting § 15.2-1629, the General Assembly intended to allow part-time attorneys for the
Commonwealth to devote full-time to the duties of the office. The Code contains no explicit statutory
language that allows full-time Commonwealth's Attorneys to revert to part-time status once an election is
made. Given the absence of language allowing a reversal of an election and the statute's plain language
that the election "shall be binding ... on successors in the office," I conclude that successors in office
cannot reverse the election and revert to part-time status.

Legislative history reinforces this interpretation. Traditionally, "Commonwealth's Attorneys [in
Virginia] ... served on a part-time basis." In 1976, however, the General Assembly took the first step
towards attaining a system of full-time attorneys for the Commonwealth by implementing a requirement
"that Commonwealth's Attorneys in cities with populations greater than 90,000 serve on a full-time
basis." At the same time, it directed the Virginia Advisory Legislative Council (the "Council") to "study
further the need for full-time Commonwealth's Attorneys." The Council's report, which was published
in 1977, concluded that attorneys for the Commonwealth and their assistants should serve on a full-time
basis. The Council recommended "that Commonwealth's Attorneys devote full time to their duties in
cities and counties with populations greater than 35,000" as the next step in "achieving a system of full-time Commonwealth's Attorneys." The General Assembly enacted the Council's recommendation in
1977.

In 1990, the Joint Legislative Audit and Review Commission (JLARC) released a study on the
issue, concluding that "more Commonwealth's Attorneys should have full-time status." JLARC
recommended full-time status for several localities. In 1993, the General Assembly enacted § 15.1-50.3,
the predecessor statute to § 15.2-1629, allowing part-time Commonwealth's Attorneys in certain counties
with a population of 35,000 or fewer inhabitants to obtain full-time status. The history of statutory
enactments suggests that the General Assembly intended to remedy the concerns expressed by the
Council and JLARC, and enacted the statutory language in § 15.2-1629 with the ultimate goal of
providing more jurisdictions with full-time attorneys for the Commonwealth. Given that an exception to
the binding nature of a predecessor's election would frustrate this goal, I conclude that the General
Assembly intended to prevent full-time Commonwealth's Attorneys from reverting to part-time status.

Finally, the Compensation Board has interpreted § 15.2-1629 to mean that "[s]uch election to
serve on a full-time basis, once funded, is binding on that office from hence forward." Under the
Compensation Board's interpretation, election binds a given office, as opposed to any individual
Commonwealth's Attorney, "from hence forward." The interpretation given to a statute by the agency
charged with its administration is entitled to great weight. "The General Assembly is presumed to be
cognizant of the agency's construction of a particular statute and when such construction continues
without legislative alteration, the legislature will be presumed to have acquiesced in it."

Conclusion
Accordingly, it is my opinion that once a part-time Commonwealth's Attorney elects full-time
status under the provisions of § 15.2-1629, the election is binding, and his successors in office cannot
revert to part-time status.
With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General