Can a Virginia school board member vote on a budget that affects their spouse's salary along with thousands of other school employees?
Plain-English summary
A Virginia school board member whose spouse works for the school division wanted to know two things. First, can the member vote on division-wide budget decisions that set salaries and benefits for thousands of employees, without declaring a personal interest, because the decision is so broad that it "affects the public generally"? Second, if a written conflict declaration has already been filed, does the member also have to make oral disclosure at every meeting where the topic comes up?
The AG's answer: no on the first question, yes on the second.
On Question 1, a board action that touches the spouse's paycheck is not a transaction that affects the public generally under § 2.2-3112(B)(3). The Virginia Supreme Court's 1984 decision in West v. Jones read "affects the public generally" narrowly: the officer's interest has to be one shared in common with the public at large. A spouse's wages from a public employer is not. The size of the affected group (here, roughly 12,000 employees) does not change that.
On Question 2, the board member can still participate under § 2.2-3112(B)(1), which allows participation by an officer who is "a member of a business, profession, occupation, or group of three or more persons" affected by the transaction. But participation under that subsection requires both a written declaration on file and an oral declaration at every meeting where the matter is discussed. The opinion reads the word "also" in § 2.2-3115(H) as imposing a separate, recurring oral-disclosure duty.
Currency note
This opinion was issued in 2020. 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 Virginia State and Local Government Conflicts of Interests Act (COIA), Va. Code §§ 2.2-3100 to -3132, restricts officers (including school board members) from participating in transactions in which they have a "personal interest." A "personal interest" includes a financial benefit to a member of the officer's immediate family that exceeds, or may reasonably be anticipated to exceed, $5,000 annually.
Three carveouts under § 2.2-3112(B) let an officer with a personal interest participate anyway:
- (B)(1) Member of a business, profession, occupation, or group of three or more persons affected by the transaction. Requires written and oral disclosure.
- (B)(2) (Not at issue here.)
- (B)(3) The transaction affects the public generally. No declaration required.
The two 1983 AG opinions referenced in the request (issued under earlier versions of the COIA) had concluded that a school board member married to a teacher could vote on the school budget because the budget had "general application." The 2020 opinion explains that the statutory text has changed twice since 1983, and the Supreme Court's 1984 decision in West v. Jones superseded the older reasoning.
Under West, an officer's interest is one shared with the public at large only if it is the same kind of interest any citizen would have. A spouse's job at the school division is not that. The opinion stops short of saying old AG opinions are formally overruled, but it explains why they no longer reflect controlling law on this question.
Common questions
Q: My spouse is a teacher in our district. Can I vote on the school budget without telling anyone about the conflict?
A: Per this 2020 opinion, no. The budget vote does not fall under the "affects the public generally" exception, because your interest (your spouse's salary) is not shared by the general public. You may still participate, but only after declaring your conflict in writing and orally at each meeting.
Q: How big does the affected group have to be for it to "affect the public generally"?
A: Size alone does not matter. The opinion reads West v. Jones as requiring that the officer's interest be the same kind of interest everyone in the public has. A 12,000-person school workforce is large, but the spouse's interest in that group is still different from a regular taxpayer's interest in the district's budget.
Q: I already filed a written conflict declaration. Do I really have to mention it again at every meeting?
A: Per this opinion, yes. Section 2.2-3115(H) uses the word "also" to layer an oral-disclosure duty on top of the written one. Each meeting at which the conflicted matter is discussed requires its own oral statement, recorded in the minutes.
Q: What exactly do I have to say when I disclose orally?
A: Track the four items in § 2.2-3115(H): the transaction, the nature of your personal interest, that you are a member of a group affected by it, and that you can participate fairly, objectively, and in the public interest.
Q: What happens if I just stay silent and vote?
A: COIA is enforceable and creates civil and, in some cases, criminal penalties for knowing violations. Beyond legal exposure, an undisclosed conflict undermines the board's credibility. A clean disclosure costs nothing and protects you.
Currency note
This opinion was issued in 2020. 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.
Citations and references
Statutes:
- Va. Code §§ 2.2-3100 to -3132 (State and Local Government Conflicts of Interests Act)
- Va. Code § 2.2-3101 (Definitions)
- Va. Code § 2.2-3112 (Prohibited conduct concerning personal interests)
- Va. Code § 2.2-3115 (Disclosure by local government officers)
Cases:
- West v. Jones, 228 Va. 409, 323 S.E.2d 96 (1984) (Virginia Supreme Court; controlling on the meaning of "affects the public generally")
- Wilson v. Hix, 136 W. Va. 59, 65 S.E.2d 717 (1951) (West Virginia Supreme Court of Appeals; cited for statutory-construction principle)
Prior AG opinions discussed:
- 1982-1983 Op. Va. Att'y Gen. 689
- 1983-1984 Op. Va. Att'y Gen. 49
- 1984-1985 Op. Va. Att'y Gen. 51
- 1985-1986 Op. Va. Att'y Gen. 11
- 2007 Op. Va. Att'y Gen. COI:07-A03
- 2008 Op. Va. Att'y Gen. COI:08-A07
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2020/19-063-Reid-issued.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General
September 18, 2020
The Honorable David A. Reid
Member, Virginia House of Delegates
Post Office Box 4132
Ashburn, Virginia 20148
Dear Delegate Reid:
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 ask two questions about the duties of a school board member under the Virginia State and Local Government Conflicts of Interests Act (the "Act"). A school board member is an "officer" of a governmental agency who is subject to the Act.
You describe a scenario involving a school board member who is married to one of the approximately 12,000 employees of the local school division. The school board member is called upon to participate in deliberations on a transaction that will impact the salaries and benefits of a large group of employees, including the school board member's spouse. Specific employees are not readily identifiable in these deliberations. You relate that, although the school board member has a "personal interest" in the transaction due to their spouse's employment with the local school division, the member desires to participate in deliberations on the basis the transaction in question is broadly applicable.
Given these facts, you ask the following:
- Does the transaction described above "affect the public generally," such that the school board member would be permitted to participate under § 2.2-3112(B)(3) of the Act without declaring his or her personal interest?
- If the school board member may not participate under § 2.2-3112(B)(3) but is permitted to participate under § 2.2-3112(B)(1), is the member required to make oral disclosure of the interest at every meeting where the transaction is discussed, if the school board member has filed a written declaration pursuant to § 2.2-3115(H)?
Applicable Law and Discussion
Question One
The Act restricts participation of officers in transactions of their governmental agencies in which they have a personal interest. Participation, however, is permitted in the circumstances set forth in § 2.2-3112(B)(1)-(3). Under § 2.2-3112(B)(3), an officer with a personal interest may participate in a transaction that "affects the public generally." If participation under this provision is permitted, the officer is not required to make a declaration of his or her personal interest in the transaction.
You inquire whether two opinions issued by a prior Attorney General in 1983 indicate that a school board transaction that relates to the salaries and benefits of a large group of school employees is a transaction that "affects the public generally," such that a school board member could participate in the transaction under § 2.2-3112(B)(3) without declaring his or her personal interest.
In the first opinion, issued in February 1983, the Attorney General considered whether a member of the Virginia Beach school board who was married to a teacher employed by the local school division could vote on the school's budget. Under the law in place at that time (the 1970 Conflict of Interests Act), an officer with an interest in a transaction could participate if the transaction was one "of general application." The Attorney General concluded that because the school board member's spouse was part of a sizable group of employees who were treated equally for purposes of salary and because the budget related to the entire group of employees rather than to any specific employee, the school board's consideration of the budget was a transaction "of general application" in which the officer could participate.
In the second opinion, issued in August 1983, the Attorney General provided guidance to a school board member who was married to an employee of the local school division regarding the member's ability to participate in certain matters coming before the board. By that time, the 1970 Conflict of Interests Act had been replaced with the 1983 Comprehensive Conflict of Interests Act. Rather than stating that an officer with an interest could participate in a transaction if it had "general application," that law provided that an officer was barred from participating in a transaction if the transaction had "specific application" to the officer's interest, which it described as a transaction "which affects the personal interest of the officer ... specifically, as opposed to a transaction which affects the public generally ...." Despite this change in the text of the law, the opinion interpreted the 1983 law as having the same effect as the 1970 law, and concluded that a school board transaction that affected the salaries or benefits of a large group of employees, where none of the employees were readily identifiable, was not a transaction that had "specific application" to the interest of the school board member married to a member of the affected group.
The first opinion you reference does not indicate that a school board transaction that impacts the salaries and benefits of a large group of school employees is also one that "affects the public generally" under existing law. The 1970 law did not state that a transaction "of general application" was equivalent to a transaction that "affects the public generally." Nor did the opinion, in finding that the transaction in question was one "of general application," further conclude that the transaction "affected the public generally."
The second opinion also does not indicate that a school board transaction that impacts the salaries and benefits of a large group of school employees is a transaction that "affects the public generally." Because the opinion interpreted the 1983 law as having the same effect as the 1970 law, it presumed that an officer with an interest could participate in a transaction that was deemed to have "general application," even if the transaction did not "affect the public generally." The opinion therefore focused on whether the transaction had "general" or "specific" application within the context of the officer's agency, and did not discuss whether the transaction "affected the public generally."
The conclusions in the second opinion, moreover, were superseded by the Virginia Supreme Court's decision in West v. Jones in 1984. In West, the Court specifically concluded that, under the 1983 law, an officer with an interest could not participate in a transaction unless it "affected the public generally." Stated differently, the Court held that a transaction would have "specific application" to the officer's interest unless the officer's interest was "limited to that which he shares in common with other members of the public at large." Therefore, under West, regardless of the size of the group of employees who are affected by the transaction within an officer's agency, a transaction does not "affect the public generally" if the officer's interest in it is not shared in common with other members of the public at large.
The language of the current Act, which was enacted in 1987, is consistent with the Court's decision in West and does not disturb it. The Act uses the phrase "affects the public generally" to describe a transaction that falls within the scope of § 2.2-3112(B)(3). It does not include the earlier language of the 1970 law and the 1983 law describing transactions of "general application" and "specific application." The Act provides that an officer with an interest may participate in a transaction if it "affects the public generally, even though his personal interest, as a member of the public, may also be affected by that transaction." The Act therefore provides that an officer may not participate in a transaction under § 2.2-3112(B)(3) on the basis that it "affects the public generally" unless his or her interest is one shared in common with other members of the public at large.
In the transaction you describe, the officer's interest differs from the interests of the public at large, because the salary and benefits of the officer's spouse are directly impacted by the transactions. Consequently, it is not a transaction that "affects the public generally" within the meaning of the Act. Therefore, participation under § 2.2-3112(B)(3), which would not require declaration of the officer's personal interest, is not permitted.
Question Two
Although the school board member cannot participate in the transaction you describe under § 2.2-3112(B)(3), he or she may do so under § 2.2-3112(B)(1), which permits an officer to participate in a transaction despite having a personal interest so long as the officer "is a member of a ... group of three or more persons the members of which are affected by the transaction." This provision was not found in the 1970 law or the 1983 law, and was enacted in 1987. Unlike § 2.2-3112(B)(3), declaration of the officer's personal interest in the transaction is required under this provision.
Because the transaction you describe applies to a large group of school employees, it necessarily affects "a group of three or more persons," including the school board member's spouse and, by direct extension, the school board member. Therefore, the school board member may participate in the transaction under § 2.2-3112(B)(1) as a "member of ... a group of three or more persons [who are] affected by the transaction," provided he or she makes the required declaration of personal interest.
The manner of disclosure of the school board member's personal interest is governed by § 2.2-3115(H), which provides:
An officer or employee of local government who is required to declare his interest pursuant to subdivision B 1 of § 2.2-3112 shall declare his interest by stating (i) the transaction involved, (ii) the nature of the officer's or employee's personal interest affected by the transaction, (iii) that he is a member of a business, profession, occupation, or group the members of which are affected by the transaction, and (iv) that he is able to participate in the transaction fairly, objectively, and in the public interest. The officer or employee shall either make his declaration orally to be recorded in written minutes for his agency or file a signed written declaration with the clerk or administrative head of his governmental or advisory agency, as appropriate, who shall, in either case, retain and make available for public inspection such declaration for a period of five years from the date of recording or receipt. If reasonable time is not available to comply with the provisions of this subsection prior to participation in the transaction, the officer or employee shall prepare and file the required declaration by the end of the next business day. The officer or employee shall also orally disclose the existence of the interest during each meeting of the governmental or advisory agency at which the transaction is discussed and such disclosure shall be recorded in the minutes of the meeting.
You ask whether this provision requires that, after the school board member has filed a written declaration, the school board member must also make oral disclosure of the existence of the interest during every meeting where a covered transaction is discussed. In my opinion, the legislature's use of the word "also" in the last sentence requires the member to make an oral disclosure at every such meeting in addition to the single written declaration they have submitted. This would include making oral disclosure at the first meeting where the transaction is discussed, as well as at all such subsequent meetings, regardless of the fact that a written declaration has been submitted. This is in keeping with the purpose of the Act to maintain the highest trust of citizens by requiring that government officers and employees disclose their economic interests when conducting public business.
Conclusion
It is my opinion that a transaction of a school board that impacts the salary and benefits of a large group of school employees, in which specific employees are not directly identifiable, is not a transaction that "affects the public generally" under § 2.2-3112(B)(3). Accordingly, a school board member who is married to a member of the group may not participate in the transaction under the provisions of § 2.2-3112(B)(3).
The school board member may, however, participate in the transaction under § 2.2-3112(B)(1), and declaration of the member's personal interest is required. Even if the school board member has filed a written declaration of the personal interest, he or she must also orally disclose the existence of the interest during every meeting where the transaction is discussed.
With kindest regards, I am,
Very Truly Yours,
Mark R. Herring
Attorney General