Are Virginia's community policy management teams and family assessment teams required to include a parent representative?

Plain-English summary

Delegate Cliff Hayes asked whether Virginia's Children's Services Act actually requires a parent representative on the local governance teams that decide how to spend at-risk-youth services dollars. The relevant statutes (§§ 2.2-5205 and 2.2-5207) list a number of members each Community Policy and Management Team (CPMT) and each Family Assessment and Planning Team (FAPT) is to have, and they list some members as ones the team "shall" include and others as ones the local body "may" include.

The AG worked through the standard "shall" vs. "may" canon: when the General Assembly uses both words in the same statute, "shall" is mandatory and "may" is permissive, and the difference is presumed deliberate. The Virginia Supreme Court applied that rule in Wal-Mart Stores East, LP v. State Corp. Comm'n, 844 S.E.2d 676 (2020), and Jordan v. Commonwealth, 295 Va. 70 (2018). Because § 2.2-5205 says CPMTs "shall also include" a parent representative, and § 2.2-5207 says each FAPT "shall include" a parent representative, those membership requirements are mandatory. A locality cannot constitute a CPMT or FAPT without filling the parent-representative seat.

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 Children's Services Act is the framework for coordinating services to at-risk youth and families. Section 2.2-5204 requires the establishment of CPMTs in each locality. Section 2.2-5205 spells out the membership of those CPMTs, mixing required and optional positions:

• "Shall include, at a minimum," at least one elected or appointed official from the governing body and local agency heads (or designees) from the community services board, juvenile court services unit, department of health, department of social services, and the local school division.
• "Shall also include [...] a parent representative."
• "The local governing body may appoint other members to the team," including a local government official, local law-enforcement official, and other public agency representatives.

Section 2.2-5207 requires each CPMT to establish one or more FAPTs. Each FAPT "shall include a parent representative" and "may include a representative of the department of health at the request of the chair" of the CPMT.

The AG applies the standard interpretive canons. Words in a statute are given their usual meaning. "Shall" generally creates a duty, while "may" connotes discretion (citing Andrews v. Shepherd, 201 Va. 412 (1959); 2018 Op. Va. Att'y Gen. 133, n.15). Where a statute uses both, the difference is presumed deliberate (Wal-Mart Stores East, 844 S.E.2d at 683). And the legislature is presumed to choose its words carefully (Jordan, 295 Va. at 75).

Applying those canons, the parent-representative seat on each CPMT and FAPT is a mandatory member, not optional. The localities have discretion under the "may" language to add other members, but no discretion to drop the parent representative.

Common questions

Q: I'm a parent who wants to serve on the local CPMT. How does that work?
A: CPMTs are appointed by the local governing body (board of supervisors or city council, depending on jurisdiction). Contact the local CPMT coordinator or the governing body's clerk to express interest. There must be at least one parent representative.

Q: My locality's CPMT meets but doesn't have a parent rep. Is that legal?
A: Per this 2020 opinion, no. Section 2.2-5205 makes parent representation mandatory. If your CPMT is operating without one, raise it with the locality and the Office of Children's Services (which administers the state-level program).

Q: Who counts as a "parent representative"?
A: The statute does not define the term in detail. Generally, this is a parent or guardian of a child receiving (or eligible to receive) Children's Services Act-funded services, or someone with that lived experience who can speak for affected families.

Q: What's the difference between a CPMT and a FAPT?
A: A CPMT is the local governance body that oversees the Children's Services Act program in a locality. A FAPT (one or more per CPMT) is a multidisciplinary team that assesses individual families and develops service plans. Both must include parent representation under this opinion.

Q: Can a CPMT just say a vacancy makes the parent-rep requirement impossible?
A: The mandate is to include a parent representative. A vacancy needs to be filled, and the locality has the duty to recruit and appoint one. The mandate cannot be waived by inaction.

Q: Does this require multiple parent representatives if a CPMT has multiple FAPTs?
A: Section 2.2-5207 says each FAPT "shall include a parent representative." So if a CPMT has three FAPTs, each FAPT needs its own parent rep (which can be the same person serving on multiple teams if practical, or different parents as the locality prefers).

Citations and references

Statutes:

• Va. Code § 2.2-5204 (CPMT establishment)
• Va. Code § 2.2-5205 (CPMT membership)
• Va. Code § 2.2-5207 (FAPT membership)
• Va. Code § 37.2-501 (Community services board)

Cases:

• Wal-Mart Stores East, LP v. State Corp. Comm'n, 844 S.E.2d 676 (Va. 2020) (Virginia Supreme Court)
• Jordan v. Commonwealth, 295 Va. 70, 809 S.E.2d 622 (2018) (Virginia Supreme Court)
• Andrews v. Shepherd, 201 Va. 412, 111 S.E.2d 279 (1959) (Virginia Supreme Court)
• United States v. Graham and Irvine, 250 F. 499 (W.D. Va. 1917) (federal district court)
• General Trading Corp. v. Motor Vehicle Dealer Bd., 28 Va. App. 264, 503 S.E.2d 809 (1998) (Virginia Court of Appeals)

Prior AG opinions:

• 2018 Op. Va. Att'y Gen. 133
• 2003 Op. Va. Att'y Gen. 124
• 2002 Op. Va. Att'y Gen. 138
• 1996 Op. Va. Att'y Gen. 154
• 1989 Op. Va. Att'y Gen. 250
• 1984-1985 Op. Va. Att'y Gen. 153
• 1984-1985 Op. Va. Att'y Gen. 175

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-040-Hayes-issued.pdf

Original opinion text

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

November 13, 2020

The Honorable C.E. Cliff Hayes Jr.
Member, Virginia House of Delegates
Post Office Box 5142
Chesapeake, Virginia 23324

Dear Delegate Hayes:

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 Code of Virginia requires that community policy and management teams (CPMTs) and family assessment and planning teams (FAPTs) include a parent representative.

Applicable Law and Discussion

Section 2.2-5204 of the Virginia Children's Services Act requires the establishment of community policy and management teams (CPMTs).[1] Members of CPMTs are appointed in accordance with § 2.2-5205, which states that

[t]he community policy and management team to be appointed by the local governing body shall include, at a minimum, at least one elected official or appointed official or his designee from the governing body of a locality that is a member of the team, and the local agency heads or their designees of the following community agencies: community services board established pursuant to § 37.2-501, juvenile court services unit, department of health, department of social services and the local school division. The team shall also include [...] a parent representative [....][2]

The same provision also states: "The local governing body may appoint other members to the team including, but not limited to, a local government official, a local law-enforcement official and representatives of other public agencies."[3]

Section 2.2-5207 of the same Act requires each CPMT to establish one or more FAPTs in the community and states that each FAPT "shall include a parent representative and may include a representative of the department of health at the request of the chair of the local community policy and management team."[4]

"As a general rule, words in a statute are ... given their usual and commonly understood meaning."[5] Ordinarily, "shall" is used as a command and leaves no choice, whereas "may" connotes discretion.[6] In discerning legislative intent where a statute uses both "shall" and "may," the Supreme Court of Virginia has stated that "'[w]hen the General Assembly employs a specific word [shall] in one section of a statute, and chooses a different term [may] in another section of the statute, we must presume the difference in language was intentional.'"[7] Further, "'[w]here a legislature uses both mandatory and directory verbs in the same statute, section, paragraph, or sentence, it is fair to assume it was aware of the difference and intended each verb to carry its ordinary meaning.'"[8]

In the Virginia Children's Services Act, the General Assembly used both "shall" and "may" in addressing the membership composition of CPMTs and FAPTs. Among others, a parent representative is included on the list of persons that "shall" be a member of each CPMT or FAPT, whereas other specified persons "may" be included on such teams. It is presumed the legislature chose its words carefully[9] when enacting these statutes and that it used "shall" to express that some members of CPMTs and FAPTs are mandatory and used "may" to indicate that others are optional. Accordingly, the Act mandates a parent representative on each CPMT and FAPT.

Conclusion

It is my opinion that the use of the word "shall" in Virginia Code Sections 2.2-5205 and 2.2-5207 requires that each community policy and management team and family assessment and planning team include a parent representative.

With kindest regards I am,
Very truly yours,

Mark R. Herring
Attorney General

1. Va. Code Ann. § 2.2-5204. This and all other citations to the Code of Virginia herein are from the electronic version of the Code on LexisNexis and are current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly.

2. Va. Code Ann. § 2.2-5205 (emphasis added).

3. Id. (emphasis added).

4. Va. Code Ann. § 2.2-5207 (emphasis added). Other types of members, moreover, are set forth in the statute as either required or permissible on a FAPT. See id.

5. 2018 Op. Va. Att'y Gen. 133, 136 (citing United States v. Graham and Irvine, 250 F. 499, 501 (W.D. Va. 1917); General Trading Corp. v. Motor Vehicle Dealer Bd., 28 Va. App. 264, 268, 503 S.E.2d 809, 811 (1998); 2003 Op. Va. Att'y Gen. 124, 127; 2002 Op. Va. Att'y Gen. 138, 139; 1984-1985 Op. Va. Att'y Gen. 153, 153; 1984-1985 Op. Va. Att'y Gen. 175, 176)).

6. See Andrews v. Shepherd, 201 Va. 412, 414-15, 111 S.E.2d 279, 281-82 (1959); see also 2018 Va. Att'y Gen. 133, 138 n.15 ("Use of the word 'shall' in a statute generally indicates that its procedures are intended to be mandatory, rather than permissive or directive.") (citing 1996 Op. Va. Att'y Gen. 154, 158 n.3; 1989 Op. Va. Att'y Gen. 250, 251-52).

7. Wal-Mart Stores East, LP v. State Corp. Comm'n, ___ Va. , , 844 S.E.2d 676, 683 (2020) (quoting Jordan v. Commonwealth, 295 Va. 70, 75, 809 S.E.2d 622, 624 (2018)) (brackets around "shall" and "may" in original).

8. Id. at ___, 844 S.E.2d at 683 (quoting 3 Norman J. Singer & J.D. Shambie Singer, Sutherland's Statutes and Statutory Construction § 57:11, at 77 (8th ed. 2020)).

9. Id.; Jordan, 295 Va. at 75, 809 S.E.2d at 624.