Does the 90% pay cap on Virginia deputy sheriff salaries apply when my county adds local supplemental pay on top of the state salary?

Subject

Whether the cap in Va. Code § 15.2-1609.2(F) limiting deputy sheriff salaries to 90% of the sheriff's salary applies only to Compensation Board salaries, or also to a deputy's combined pay when a county or city adds a local supplement.

Plain-English summary

Virginia funds the salaries of sheriffs and their deputies through the State Compensation Board. Section 15.2-1609.2(F) caps deputy salaries at 90% of the sheriff's salary, which has historically been a Compensation Board administrative rule designed to preserve the sheriff's pay position as the lead officer.

Chesterfield Sheriff Karl Leonard asked the AG a question that has long bothered Virginia sheriffs and deputies: when a county or city uses its own funds to supplement deputy pay, does the 90% cap apply to the total, effectively crippling local supplementation programs? AG Miyares said no. Section 15.2-1605.1 expressly allows a locality to supplement constitutional officer and deputy compensation "notwithstanding any other provision of law" and "in such amounts as it may deem expedient." The "notwithstanding" language is sweeping; it tells courts that other statutory limits, including the 90% cap in § 15.2-1609.2(F), do not apply to locally funded supplements.

The practical effect is significant. A deputy whose Compensation Board base salary is at the 90% cap can still receive a county or city supplement that pushes the total above 90% of the sheriff's salary. The Compensation Board's allocation is a floor for minimum pay, not a ceiling for total pay. The cap regulates state-funded pay; the locality is free with its own funds.

The AG also cited a 2011 AG opinion that had reached the same general conclusion about local supplementation authority for constitutional officers, applied here to the specific 90% question.

What this means for you

If you are a Virginia sheriff or chief deputy

You can advocate for local supplements without worrying that the 90% statutory cap will limit them. Total pay (Compensation Board salary + local supplement) can exceed 90% of the sheriff's salary. This matters most for senior deputies and chief deputies, whose Compensation Board allocations often press against the cap.

The opinion is also useful for retention. In high cost-of-living areas, Virginia sheriffs have struggled to compete with municipal police departments and federal law enforcement on pay. Local supplementation can close the gap, and this opinion confirms there is no statutory ceiling on supplements.

When making the budget case to your county board or city council, the opinion is direct authority that the supplement is permitted. Pair it with retention data and benchmarking to peer departments to make the funding case.

If you are a county administrator, city manager, or budget officer

The opinion clarifies the legal framework for sheriff deputy supplementation. You can fund any amount of supplement you "deem expedient" using your own funds, and the 90% cap does not constrain you. Internal pay equity, fiscal capacity, and policy preferences (not the statutory cap) are the constraints.

Many localities supplement constitutional officers and their deputies through a standardized scale that mirrors the Compensation Board structure with a percentage adjustment. That approach remains valid; the opinion just confirms that the total can exceed 90% of the sheriff's salary.

Document the supplementation policy in writing (board resolution, ordinance, or human resources policy manual). A clear written policy supports consistent application, FOIA transparency, and audit defense.

If you are a deputy sheriff considering a Virginia position

When evaluating a Virginia sheriff's office job offer, ask separately about the Compensation Board base salary and any local supplement. The two come from different sources and are governed by different rules. Knowing both gives you a clearer picture of total compensation.

If you are a state legislator or Compensation Board member

The opinion does not affect the Compensation Board's authority to set state-funded deputy salaries (Section 15.2-1609.2(D) gives the sheriff some discretion to allocate compensation among deputies based on aggregate amounts the Board sets). It does clarify that the 90% rule is a state-pay rule, not a total-pay rule, which has been an area of confusion.

If the policy goal is to constrain total deputy pay across state and local sources, that would require new legislation. Section 15.2-1605.1's "notwithstanding" language is broad enough that the current 90% cap simply does not reach local supplements.

Common questions

Q: Does this apply to deputies of other constitutional officers, like Commonwealth's Attorneys or Treasurers?
A: The opinion specifically addresses sheriff deputies under § 15.2-1609.2(F), but § 15.2-1605.1 is the general local supplementation statute and uses parallel language for other constitutional officers. The same analysis would likely apply. Counsel should verify for each specific constitutional office.

Q: Can a county also supplement the sheriff's pay above the Compensation Board level?
A: Yes, under § 15.2-1605.1. The statute lets a locality supplement "the compensation of the sheriff . . . or any of their deputies or employees, above the salary of any such officer, deputy or employee." Both sheriff and deputy supplementation are authorized.

Q: Does the supplement count toward retirement benefits?
A: Probably yes, but the specifics depend on the locality's pay structure and the Virginia Retirement System (VRS) treatment of supplemental compensation. Counsel should review the locality's VRS reporting and the supplement's classification.

Q: Can the locality supplement only some deputies, like senior deputies or specialty unit members?
A: The statute lets a locality supplement "in such amounts as it may deem expedient," which suggests discretion to differentiate by position or rank. Differentiation should be tied to objective criteria (rank, longevity, certifications) to avoid claims of arbitrary or discriminatory pay.

Q: Is the supplement subject to Compensation Board approval?
A: No. The Compensation Board governs state-funded compensation; the supplement is locally funded and operates under § 15.2-1605.1 separately. The Board may track total compensation for reporting purposes, but it does not approve or veto local supplements.

Q: What if the locality runs out of money for the supplement?
A: The supplement is wholly payable from locality funds. If the locality cannot afford it in a given year, it can reduce or eliminate the supplement. The Compensation Board salary continues regardless. Reducing or eliminating an expected supplement may have employee morale and retention consequences, even if it is legally permitted.

Background and statutory framework

Virginia's compensation system for constitutional officers reflects the unique status of those officers under the state Constitution. They are not employees of their localities; they are state constitutional officers, with state funding for base pay set by the Compensation Board, and locally elected. The Compensation Board's allocation establishes baseline state-funded compensation.

Section 15.2-1605.1 is the locally funded supplementation authority. It dates from the modern recodification of Title 15.2 and consolidates prior, more piecemeal provisions for various constitutional offices. The "notwithstanding any other provision of law" clause was deliberately broad: it ensures that the local supplementation authority is not narrowly cabined by particular statutory caps elsewhere in the Code.

Section 15.2-1609.2(F) is a Compensation Board rule for state-funded deputy pay. It prevents the Board from allocating deputy compensation that would exceed 90% of the sheriff's allocation. The policy rationale is to maintain the sheriff's lead pay position within state-funded compensation. The rule was never designed to constrain local funding, because local funding is governed by the separate § 15.2-1605.1 framework.

This opinion is consistent with the 2011 AG opinion cited (2011 Op. Va. Att'y Gen. 82), which addressed local supplementation authority more generally. The 2022 opinion applies the same principle specifically to the 90% cap question.

Citations and references

Statutes:
- Va. Code Ann. § 15.2-1605.1 (local supplementation authority)
- Va. Code Ann. § 15.2-1609.2 (deputy sheriff compensation, including 90% cap)
- Va. Code Ann. § 15.2-1609.7 (state funding for sheriff and deputy salaries)
- Va. Code Ann. § 15.2-1636.8 (sheriff allocation of compensation among deputies)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-037-Leonard-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

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services

September 7, 2022

The Honorable Karl S. Leonard
Sheriff, Chesterfield County
Post Office Box 940
Chesterfield, Virginia 23832-0001

Dear Sheriff Leonard:

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 limit on deputy salaries set forth in Virginia Code § 15.2-1609.2(F) applies only to salaries set by the Compensation Board or whether the law also applies to a deputy's combined pay when a county or city elects to provide its sheriff's deputies supplemental pay. Code § 2.2-505 authorizes this Office to opine on a question presented by a sheriff only when "the question dealt with is directly related to the discharge of [his] duties . . . ." Accordingly, this opinion does not address any questions you present to the extent they relate to other constitutional officers or their staffs.

Applicable Law and Discussion

The Commonwealth generally funds the salaries of sheriffs and their deputies. The annual salaries are established by the Compensation Board, subject to appropriation by the General Assembly. Depending on a particular deputy's duties, that deputy's pay is set by the sheriff. The sheriff nonetheless allocates compensation among the deputies based on an aggregate amount determined by the Board. Code § 15.2-1609.2(F) limits the amount that can be paid to deputy sheriffs: it directs that "[t]he salary of any deputy sheriff shall not exceed ninety percent of the salary of the sheriff by whom he is employed."

Nevertheless, as this Office previously has concluded, local governing bodies of counties and cities are permitted to use their own funds to supplement the salaries of constitutional officers and their deputies. Code § 15.2-1605.1 expressly provides that

Notwithstanding any other provision of law, the governing body of any county or city, in its discretion, may supplement the compensation of the sheriff . . . or any of the[] deputies or employees, above the salary of any such officer, deputy or employee, in such amounts as it may deem expedient. Such additional compensation shall be wholly payable from the funds of any such county or city.

As such, the Compensation Board's salary allocation serves to establish the minimum amounts that sheriffs' deputies can be paid. Contrary to the restriction imposed on the Board by Code § 15.2-1609.2(F), Code § 15.2-1605.1 broadly allows a county or city to supplement a deputy's pay in an amount it "deems expedient." The plain language of Code § 15.2-1605.1, which applies "notwithstanding any other provision of law," thus does not limit what supplemental compensation a county or city may provide a deputy sheriff. Accordingly, Code § 15.2-1609.2(F) does not preclude cities and counties from providing deputies supplemental pay that would result in combined pay that exceeds ninety percent of the sheriff's salary.

Conclusion

It is my opinion that the limit on deputy salaries set forth in Code § 15.2-1609.2(F) does not apply to a deputy's total pay when a county or city elects to provide its sheriff's deputies supplemental pay.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General