When a Virginia town charter is silent on whether the mayor can vote, can the mayor vote on council matters?

Plain-English summary

Urbanna's town attorney asked the AG whether the town's mayor is part of the town council and can vote in council proceedings. The Urbanna Town Charter is silent on the question. Its § 4 ("Mayor") and § 5 ("Council") establish two officer categories without saying whether the mayor is a council member.

The AG concluded the mayor is a council member with full voting rights. The reasoning: a mayor's powers come from constitutional, statutory, and charter sources (Hammer v. Commonwealth, 169 Va. 355 (1937)). The structure of a charter (separate sections for mayor and council) does not tell you whether the mayor is on the council, that is a common drafting convention regardless of how a charter treats membership. When the charter is silent, general law fills the gap. Section 15.2-1423 provides that "the ... mayor ... shall be the head of the local government for all official functions and ceremonial purposes. He shall have a vote but no veto." That is the default.

The AG noted that some town charters do treat the mayor as a council member without full voting rights (e.g., Elkton, where the charter restricts the mayor to tie-breaker votes), but those are exceptions that the charter must specify. Urbanna's silence puts it in the default regime.

What this means for you

Town council members and town attorneys

The opinion holds that when a charter expressly addresses the mayor's voting rights, the charter controls, and when it is silent, § 15.2-1423 supplies the default: the mayor is a member of the council with a vote but no veto, and is the head of the local government for official and ceremonial purposes. It adds that separate "mayor" and "council" charter sections, and a clause letting the council fix the mayor's compensation, do not by themselves show the mayor is outside the council.

Mayors in towns whose charter is silent

The opinion holds that the mayor votes in council proceedings on the same basis as any other member, without veto authority, and serves as the head of the local government for official and ceremonial purposes under § 15.2-1423.

Citizens

The opinion holds that a town whose charter is silent on the mayor's vote (like Urbanna's) falls under the § 15.2-1423 default, where the mayor's vote counts like any council member's. Where a charter specifically addresses the mayor's vote (like Elkton's tie-breaker rule), that provision governs instead. Virginia town and city charters are compiled at law.lis.virginia.gov/charters.

Common questions

Q: My town charter doesn't mention the mayor voting. Does the mayor get a vote anyway?
A: Per this 2021 opinion, yes. Section 15.2-1423 supplies the default: "[t]he ... mayor ... shall have a vote but no veto."

Q: Can the mayor veto a council resolution?
A: Not under the default. Section 15.2-1423 says no veto. If your charter specifically grants veto authority (some city charters do for cities, not towns), follow the charter.

Q: My mayor only votes when there's a tie. Is that legal?
A: Yes, if the charter says so. The Elkton charter explicitly restricts the mayor to tie-breaking votes. The default in § 15.2-1423 is a full vote, but a charter can vary that.

Q: Does the separate "Mayor" section in the charter mean the mayor is not on the council?
A: Not necessarily. The opinion treats this as a common drafting convention. A separate section reflects the mayor's distinct ceremonial role, not necessarily separation from council membership.

Q: How do I find my Virginia town's charter?
A: Virginia town and city charters are compiled at law.lis.virginia.gov/charters. Search by jurisdiction name.

Citations and references

Statutes:

• Va. Code § 15.2-1414.7 (Council compensation)
• Va. Code § 15.2-1423 (Default mayor role)

Cases:

• Hammer v. Commonwealth, 169 Va. 355 (1937) (Virginia Supreme Court; mayor's powers source)
• Haley v. Haley, 272 Va. 703 (2006) (Virginia Supreme Court; plain-language statutory interpretation)
• Hutton v. Town of Elkton, 57 Va. Cir. 278 (Rockingham Cty. Cir. Ct. 2002) (Elkton tie-breaker rule example)

Prior AG opinions:

• 1962-1963 Op. Va. Att'y Gen. 9 (default applies where charter is silent)
• 1983-1984 Op. Va. Att'y Gen. 102 (Woodstock vacancy in mayor's office, general law applies)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-011-Bury-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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

July 9, 2021

Andrew G. Bury Jr., Esquire
Urbanna Town Attorney
40 Cross Street, 3rd Floor
Post Office Box 386
Urbanna, Virginia 23175

Dear Mr. Bury:

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 mayor of the Town of Urbanna is authorized to vote in proceedings of the Urbanna Town Council.

Applicable Law and Discussion

Under Virginia law, the "functions, powers and duties of [a] mayor ... are derived from and are dependent upon constitutional, statutory, and charter provisions." Municipal charters in Virginia commonly contain provisions specifying whether the mayor is a member of the council, and whether he or she may vote in proceedings of the council. The Urbanna Town Charter, however, is silent on these issues.

Sections 4 and 5 of the Town Charter provide as follows:

§ 4. Mayor.
The mayor shall be elected for a term of two years, on the November general election date, 2012 and every two years thereafter. The mayor so elected shall enter upon the duties of his/her office on the first day of January succeeding his/her election and remain in office until his/her successor has qualified. The mayor's compensation shall be fixed by the council.

§ 5. Council.
Six electors of the town of Urbanna shall be elected as Council members of the town on the November general election date, 2012 and every two years thereafter. The Council members so elected shall enter upon the duties of their offices on the first day of January succeeding their election, and remain in office until their successors have qualified.

Although you posit that the creation of separate sections for the "mayor" and "council" in the Charter means that the mayor is not a member of the council, and therefore is not authorized to routinely vote in proceedings of the council, in my opinion the structure of the Charter is not sufficient to establish this conclusion. Municipal charters in Virginia frequently contain separate sections for "mayor" and "council," regardless of whether the mayor is designated in those acts as a member of the council. This reflects the fact that a mayor carries out special functions and exercises a unique role in municipal government, regardless of whether he or she is also a member of the council. Accordingly, in the absence of additional language in the Charter, the mere separation of the provisions for the "mayor" and "council" does not establish that the mayor is not a member of the council.

Nor does the fact that § 4 of the Charter states that the "mayor's compensation shall be fixed by the council" indicate that the mayor is not a member of the council. Municipal charters often contain provisions directing or authorizing a town council to determine the compensation of the mayor, both in circumstances in which the mayor is, and is not, a member of the council. Such provisions do not indicate that the council is an "outside body" that fixes the salary of the mayor as a separate officer, rather, they merely provide the means of determining the mayor's salary or other compensation.

In the absence of any provisions in the Urbanna Town Charter establishing the role and voting rights of the mayor, in my opinion the provisions of general law should apply. Section 15.2-1423 of the Code of Virginia provides, in relevant part, that "the ... mayor ... shall be the head of the local government for all official functions and ceremonial purposes. He shall have a vote but no veto." This provision clearly provides that in situations such as this, where the charter is silent, the mayor is a member of the council who has the same voting rights as other members of the council.

Conclusion

Accordingly, it is my opinion that the mayor of the Town of Urbanna is a member of the Town Council and is authorized to vote in proceedings of the Council in the same fashion as other members of the Council.

With kindest regards, I am,
Very Truly Yours,

Mark R. Herring
Attorney General