VA 23-043 September 22, 2023

Can a Virginia deputy sheriff also sit on the county board of supervisors at the same time?

Short answer: Yes. Virginia's dual office-holding rules in Article VII, § 6 of the state constitution and Va. Code § 15.2-1534(A) only forbid simultaneous service in offices that are expressly listed in Article VII (sheriff, treasurer, clerk, commonwealth's attorney, commissioner of revenue, and members of local governing bodies). Deputy sheriff is not on that list, and the Virginia Supreme Court already ruled in Bray v. Brown that the ban does not reach deputies. Older AG opinions saying otherwise are formally overruled.

Disclaimer: This is an official Virginia Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Virginia attorney for advice on your specific situation.

Plain-English summary

The Sheriff of Dinwiddie County asked whether one of his deputies could also serve as a member of the county board of supervisors. The short answer is yes. Article VII of the Virginia Constitution names a closed list of local offices that cannot be held simultaneously, and "deputy sheriff" is not on that list. Section 15.2-1534(A) of the Code parallels the constitutional ban and likewise does not list deputies.

Attorney General Jason Miyares grounds the conclusion in Bray v. Brown, 258 Va. 618 (1999), where the Supreme Court of Virginia held that the dual-office prohibition is "clearly and unambiguously limited to persons who hold more than one of the various offices expressly mentioned in Article VII." A deputy sheriff is appointed by the elected sheriff, not by the voters, and is not one of the constitutional officers named in §§ 4 or 5. The textual canon expressio unius est exclusio alterius (mention one thing, exclude others) does the rest of the work.

The opinion expressly overrules earlier AG opinions (going back to 1986-87 Op. Va. Att'y Gen. 100 and the prior opinions cited there) that had concluded the ban did extend to deputies. Those predated Bray v. Brown and are no longer good guidance.

The opinion's last footnote flags a remaining concern: the State and Local Government Conflict of Interests Act, §§ 2.2-3100 to -3132, does cover both deputies and supervisors. So while there is no automatic dual-office bar, the deputy may still face transactional conflict-of-interest issues on individual board votes (think contracts the county has with the sheriff's office, or budget votes affecting the sheriff's department).

What this means for you

If you are a deputy sheriff considering a run for the board of supervisors

You are eligible to serve in both roles at the same time. Nothing in Article VII or § 15.2-1534(A) forces you to resign your deputy commission to run or to take the board seat. Before you file, talk to your sheriff: deputies serve at the sheriff's pleasure under § 15.2-1603, so the sheriff's support is a practical, not legal, prerequisite. Once seated, plan to consult a county attorney about which budget votes, procurement votes, and personnel votes you may need to abstain from under the Conflict of Interests Act.

If you are a sheriff supervising a deputy who is or might become a supervisor

You retain hire-and-fire authority over the deputy regardless of their political role. You also retain assignment, training, and discipline authority. The opinion does not curtail those. Watch for the practical conflict: your deputy will be voting on the budget that funds the sheriff's office, on capital projects that affect law enforcement, and on personnel ordinances that touch deputies' pay. Ask your county attorney to map the votes that should trigger abstention.

If you are a county attorney or town attorney

Walk the deputy through the COIA disclosure requirements (§§ 2.2-3115, 2.2-3117) and identify ahead of time the categories of votes that trigger personal interest disclosure or required abstention. The opinion only addresses the threshold dual-office question; it leaves COIA analysis fully alive. The deputy's salary and benefits are paid through county appropriations or state Compensation Board funds; either path can create a personal interest in budget items the supervisor must vote on.

If you are a registrar or election official processing the candidacy paperwork

Do not reject the candidate's filing on dual-office-holding grounds. The candidate is constitutionally and statutorily eligible. Older AG opinions to the contrary (1986-87 Op. Va. Att'y Gen. 100, etc.) are overruled.

If you are a citizen evaluating the candidate

Eligibility is settled. Your judgment can focus on the policy questions a board of supervisors vote on, not on a technical disqualification claim.

Common questions

Q: Can a deputy sheriff also serve on a town council, not just a board of supervisors?
A: Yes. Bray v. Brown itself involved a deputy sheriff serving on a town council. The same reasoning applies to any "member of a governing body" listed in Article VII, § 5 (county board of supervisors, city council, town council).

Q: What about a deputy sheriff serving as treasurer or commonwealth's attorney?
A: Those are also constitutional offices listed in Article VII, § 4. Bray v. Brown's logic still says the deputy is not in Article VII, so the dual-office ban does not formally apply. But practically, those are full-time roles and a deputy is unlikely to combine them.

Q: Can a sheriff (not a deputy) also serve on the board of supervisors?
A: No. Both sheriff and member of a governing body are expressly listed in Article VII; the dual-office ban directly applies. The 2000 AG opinion 47 cited in this opinion makes that explicit.

Q: Does this affect deputies of other constitutional officers, like a deputy treasurer or a deputy clerk of court?
A: The Bray reasoning extends to any deputy, because the constitutional language picks out the offices, not the deputies. A deputy treasurer or deputy clerk could similarly serve on a governing body. As always, COIA still applies.

Q: My uncle was told in 1995 that a deputy could not serve on the school board. Was that wrong?
A: At the time, AG opinions read the dual-office prohibition broadly, and your uncle's advisor was citing the prevailing AG view. Bray v. Brown (1999) reversed that direction, and this 2023 opinion formally overrules the older AG opinions. School boards are not listed in Article VII, § 4 anyway, so a deputy serving on a school board is even further outside any dual-office bar.

Background and statutory framework

Article VII, § 4 of the Virginia Constitution requires that voters of each county and city elect five "constitutional officers": treasurer, sheriff, attorney for the Commonwealth, clerk of the circuit court, and commissioner of revenue. Article VII, § 5 directs the election of governing bodies (boards of supervisors, city councils, town councils). Article VII, § 6 then says no person may simultaneously hold "more than one office mentioned in this Article." That is the closed list the AG anchors his analysis to.

The General Assembly enacted § 15.2-1534 to mirror § 6 in statute. Both reach only the offices named in Article VII. Deputy positions are creatures of separate statutes (§§ 15.2-1600, 15.2-1603 for sheriff's deputies); they are appointed, not elected, and exist outside the constitutional list.

Bray v. Brown, 258 Va. 618 (1999), settled the deputy-versus-officer question. The Supreme Court found that "the prohibition against holding multiple offices contained in Article VII, § 6 is clearly and unambiguously limited to persons who hold more than one of the various offices expressly mentioned in Article VII, §§ 4 and 5," and accordingly that a deputy sheriff "is entitled to serve as a member of the Town Council even though he is a deputy sheriff in the same county."

Earlier AG opinions read the prohibition more expansively. The 2023 opinion expressly overrules 1986-87 Op. Va. Att'y Gen. 100 and the opinions cited there to the extent they conflict.

The remaining live constraint on the deputy who serves on a governing body is the State and Local Government Conflict of Interests Act, §§ 2.2-3100 to -3132. That Act applies to both deputies and supervisors and governs personal-interest disclosure, transactional disqualifications, and prohibited contracts.

Citations

Va. Const. art. VII, §§ 4, 5, 6
Va. Code Ann. § 15.2-1534(A)
Va. Code Ann. §§ 15.2-1600, 15.2-1603
Va. Code Ann. §§ 2.2-3100 to -3132 (State and Local Government Conflict of Interests Act)
Bray v. Brown, 258 Va. 618 (1999)
2000 Op. Va. Att'y Gen. 47
1986-87 Op. Va. Att'y Gen. 100 (overruled to the extent inconsistent)

Source

Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-043-Adams-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 202 North Ninth Street
Attorney General Richmond, Virginia 23219
804-786-2071
September 22, 2023 Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Donald T. Adams
Sheriff, Dinwiddie County
Post Office Box 120
Dinwiddie, Virginia 23841

Dear Sheriff Adams:

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 Virginia law prohibits, as impermissible dual office-holding, a deputy sheriff in your office from serving simultaneously as a deputy sheriff and as a member of the county board of supervisors.

Response

It is my opinion that Virginia law does not prohibit a deputy sheriff from simultaneously serving as both a deputy sheriff and as a member of the county board of supervisors.

Applicable Law and Discussion

Article VII of the Constitution of Virginia establishes the general foundations of local government in Virginia. With respect to local offices, Article VII, § 4 directs "the qualified voters of each county and city [to elect] a treasurer, a sheriff, an attorney for the Commonwealth, a clerk [of the circuit court], and a commissioner of revenue[,]" while Article VII, § 5 separately provides for the election of "[t]he governing body of each county, city, or town . . . ." Although the General Assembly is authorized to create additional offices, these are the only offices established in Article VII.

Section 6 of Article VII contains specific restrictions on dual office-holding at the local level. It establishes that "no person shall at the same time hold more than one office mentioned in this Article." Accordingly, because Article VII "mention[s]" the offices of both sheriff and member of a local governing body, a sheriff may not simultaneously serve as a member of a board of supervisors. Article VII, § 6 further instructs that "[n]o member of a governing body shall be eligible, during the term of office for which he was elected or appointed, to hold any office filled by the governing body by election or appointment . . . ."

Also pertinent to your inquiry is § 15.2-1534(A) of the Code of Virginia, which parallels Article VII, § 6. It restricts the holding of multiple offices by certain elected officials, including the sheriff or a member of a local governing body. This statute similarly thus serves to prohibit an individual from serving as both a sheriff and a member of a local governing body at the same time.

Neither Article VII nor § 15.2-1534(A), however, contain a reference to the position of deputy sheriff. In addition, it is the independent responsibility of the sheriff, not the governing body, to appoint deputy sheriffs. "When the 'words [and] terms' of a provision of the Constitution are not 'doubtful or ambiguous,' 'we are limited to the language of the section itself and are not at liberty to search for meaning, intent or purpose beyond the instrument.'" Similarly, "[w]hen a statute, as written, is clear on its face, [we] will look no further than the plain meaning of the statute's words." "'[W]e are bound by the plain meaning of that language,' unless 'applying the plain language would lead to an absurd result.'" The applicable provisions do not include a deputy sheriff among the listed offices, and thus, the maxim expressio unius est exclusio alterius applies. Because both Article VII and § 15.2-1534(A) address discrete offices yet fail to name the position of "deputy sheriff," it is my opinion that the proscription against local dual office-holding does not encompass sheriffs' deputies.

The Supreme Court of Virginia reached this conclusion in Bray v. Brown, 258 Va. 618 (1999). In this case, the Court held that the above prohibitions against holding multiple offices does not extend to the deputies of a constitutional officer. The Court reasoned, "[T]he prohibition against holding multiple offices contained in Article VII, § 6 is clearly and unambiguously limited to persons who hold more than one of the various offices expressly mentioned in Article VII, §§ 4 and 5 . . . ." The Court further ruled that Code § 15.2-1534 could not be extended beyond the scope of Article VII, § 6. As a result, because a "deputy sheriff" is not one of the offices expressly mentioned in Article VII, §§ 4 and 5, neither Article VII, § 6 nor Code § 15.2-1534(A) preclude a deputy sheriff from serving as a member of a local governing body.

Conclusion

Accordingly, it is my opinion that a deputy sheriff may serve as both a deputy sheriff and as a member of the county board of supervisors.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General

[Footnote: Although previous opinions issued by this Office have concluded that the restriction on holding multiple offices extends to the deputies of sheriffs and other constitutional officers (see, e.g., 1986-87 Op. Va. Att'y Gen. 100 and opinions cited therein), those opinions predate the Supreme Court's decision in Bray. In light of this intervening binding precedent, those prior opinions are hereby overruled to the extent they are in conflict with this Opinion.]

[Footnote: The State and Local Government Conflict of Interests Act, Va. Code Ann. §§ 2.2-3100 to -3132, also does not prohibit concurrent service, but does apply to both sheriff's deputies and members of local governing bodies. This Opinion does not address any potential issues that may arise under the Act as a result of such simultaneous service.]