Must a Chesapeake City Council member resign by June 30 to run for mayor in November under the 2021 election change?

Plain-English summary

Chesapeake's city attorney asked the AG how to handle a stranded clause in the city charter. The Charter, in § 3.02(c), allows a sitting council member to run for mayor while still on council, but requires the candidate to "tender a resignation as a member of council . . . to be effective June 30 of such election year." That language was written in 1987, when council and mayoral terms began on July 1 because Virginia held municipal elections in May. The June 30 resignation date lined up with the natural end of the council member's term.

In 2021, the General Assembly moved all municipal elections to November (Va. Code § 15.2-1400(E)), with terms commencing January 1. Chesapeake amended its city code to reflect the new schedule but expressly preserved "all other provisions of the city charter" relating to the election of council members and mayor. The question for the AG: does the now-stranded June 30 resignation date still apply, even though it no longer matches the term-expiration date?

Yes, said AG Miyares. The Charter's plain text governs. § 3.02(c) requires a resignation "to be effective June 30 of such election year," and the General Assembly did not amend the charter when it changed the election date. A statute (or charter) is read for its plain meaning when unambiguous, and "such election year" is now the calendar year of the November election. A sitting council member who wants to run for mayor in November must resign effective June 30 of that year, even though doing so means they leave the council for the last six months of what would have been a fully served term (their successor on council is filled by the November election under the new schedule).

What this means for you

If you are a sitting Chesapeake City Council member considering a mayoral run

You must tender your resignation effective June 30 of the election year. You can begin and run a mayoral campaign while in office, but you cannot serve on council past June 30 once you decide to be a mayoral candidate. The decision to run is what triggers the resignation timer; the November election date does not delay it.

If you are the Chesapeake city attorney or city clerk

Treat § 3.02(c) as fully operative. Process a council resignation effective June 30 once a sitting member files for mayor. Coordinate with the registrar to fill the resulting vacancy under standard charter and Code procedures. Do not assume the General Assembly's 2021 elections shift implicitly amended the charter's resign-to-run rule; the AG read the charter literally.

If you are a Chesapeake voter

Know that a sitting council member running for mayor leaves the council on June 30, regardless of what their council term was supposed to look like. The seat is filled per the standard vacancy procedure, and the council operates without that seat in the meantime if no interim appointment is made.

If you are a charter-drafting committee in another Virginia locality

This opinion is a clean signal that election-date statutes do not retroactively rewrite charter provisions. If your locality has a similar resign-to-run provision tied to a now-stale date, you need to amend the charter directly through the General Assembly to bring it into line, the locality cannot fix it by ordinance.

Common questions

Q: Did the General Assembly's 2021 elections-date change actually amend the charter?
A: No. The 2021 act, Va. Code § 15.2-1400(E), commanded a change to election dates and term-commencement dates statewide, but it did not edit any city charter's text. Chesapeake's response was to amend its own City Code, and that amendment kept "all other provisions of the city charter" in force.

Q: Why does June 30 still matter when the council term ends December 31?
A: Because the charter language is a deadline, not a term-end mirror. § 3.02(c) sets a date certain by which a mayoral-candidate council member must depart the council. The legislative purpose, which the AG did not explicitly identify but which the structure suggests, is to ensure that a sitting council member is not voting on city business after entering the mayoral race.

Q: What if a council member files for mayor and then changes their mind before June 30?
A: The opinion does not address withdrawal. The plain language of § 3.02(c) keys the resignation to the decision to "be a candidate for the office of mayor." A bona fide withdrawal before June 30 might be argued to lift the resignation requirement, but the city attorney would need to evaluate that under the charter and any applicable Virginia election-law withdrawal procedures.

Q: Does this affect council members running for re-election to council?
A: No. § 3.02(c) is specific to candidacies for the office of mayor. A council member running for council does not trigger the resign-to-run provision.

Q: Is the June 30 date arbitrary now?
A: Functionally yes, since it no longer aligns with anything happening in November. The June 30 date is preserved out of textual fidelity. If the City wants to update it, the City Council can ask the General Assembly for a charter amendment.

Background and statutory framework

City charters in Virginia are creatures of the General Assembly. Section 3.02(c) of the Chesapeake charter, adopted in 1987 Va. Acts ch. 76, sat in a system where May elections led to July-1 term commencements; resigning by June 30 fit that calendar. The 2021 change to a November election cycle (2021 Va. Acts ch. 103, Sp. Sess. I, codified at § 15.2-1400(E)) shifted terms to begin January 1 and contained a savings clause: "[n]o term of a mayor [or] member of council . . . shall be shortened in implementing the change to the November election date."

The City Council adapted by amending the City Code's election section, City Code § 2-1, which explicitly provided that "[e]xcept for the changes to the date of elections and corresponding changes in the terms of office," all other charter election provisions "remain in effect." That language preserved § 3.02(c) without modification.

The AG applied two settled rules of construction. First, charters are interpreted using the same methods as statutes. Second, when a statute is unambiguous, it is given its plain meaning. § 3.02(c)'s text is unambiguous: a sitting council member candidate for mayor "shall tender a resignation . . . to be effective June 30 of such election year." The reference to "such election year" rolls forward with the new election cycle. The text does not say "June 30 of the year in which terms end" or "the last day of the term"; it says June 30. The opinion declines to read out the deadline merely because it has become inconvenient.

Citations

• Charter for the City of Chesapeake, Va., § 3.02(c) (resign-to-run by June 30)
• 1987 Va. Acts ch. 76 (original Chesapeake charter language)
• 2021 Va. Acts ch. 103, Sp. Sess. I (statewide November elections; § 15.2-1400(E))
• City of Chesapeake, Va., Code § 2-1 (preserves charter election provisions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-011-Lindley-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA

Office of the Attorney General

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

May 30, 2024 Fax 804-786-1991

Virginia Relay Services
800-828-1120
Catherine H. Lindley, Esquire mm
City Attorney, City of Chesapeake
306 Cedar Road
Chesapeake, Virginia 23322

Dear Ms. Lindley:

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 a sitting member of the Chesapeake City Council, whose term otherwise expires
on December 31, 2024, but who desires to seek election as mayor at this year’s November general election
must resign from the City Council by June 30 pursuant to a provision of the city charter.

Response

It is my opinion that a council member who desires to seek election as mayor at this year’s
November general election must resign from the City Council by June 30 pursuant to § 3.02(c) of the city
charter.

Applicable Law and Discussion

The Charter for the City of Chesapeake provides, in § 3.02(c), that sitting council members may be
candidates for mayor while they are serving as council members.' The same provision further directs that a
member who decides to be a candidate for mayor “shall tender a resignation as a member of council .. . to
be effective June 30 of such election year.”? In light of recent legislation enacted by the General Assembly
that altered the timing of municipal elections in Virginia, you seek guidance on the applicability of this
provision to a current Chesapeake council member who is a mayoral candidate in November’s election,
asking whether the member must resign his council position effective June 30, even though his term as
councilman now otherwise expires December 31.

' CHARTER FOR THE CITY OF CHESAPEAKE, VA., § 3.02(c). (“In the event any member of council during his or her
term of office shall decide to be a candidate for the office of mayor, he or she may be eligible to do so....”).

2 Id.

Catherine H. Lindley, Esq.
May 30, 2024
Page 2

When § 3.02(c) of the Charter provision was adopted in 1987,° the law provided that “[a]ll terms
for mayor and council members [of the City of Chesapeake] shall begin on the first day of July” following
their election’ and that municipal elections statewide were held in May.° During its 2021 session, however,
the General Assembly directed that “beginning with any election held after January 1, 2022”—and
“lnjotwithstanding . . . any other provision of law”—elections for mayor or members of a local governing
body “shall be held at the time of the November general election for terms to commence January 1. la
mandating this change, the General Assembly further provided that “[n]o term of a mayor [or] member of
council... shall be shortened in implementing the change to the November election date” and directed that
those officers “who were elected at a May general election and whose terms are to expire as of June 30
shall continue in office until their successors have been elected at the November general election and have
been qualified to serve.”

In the wake of this legislation, the Chesapeake City Council amended its Code of Ordinances to
comport with the new law by moving the affected elections from May to November and setting new terms
of office accordingly.’ In amending the pertinent section of the City Code, the City Council further provided
that, “[e]xcept for the changes to the date of elections and corresponding changes in the terms of office[,] .
_. all other provisions of the city charter relating to the election of council members [and] the mayor . . .
shall remain in effect.”

In essence, you ask what effect, if any, these legislative changes had on the resignation requirement
imposed by § 3.02(c) of the City Charter.

Charters are subject to the same principles of interpretation as statutes generally,!? whereby “[the]
primary objective is ‘to ascertain and give effect to legislative intent[.]’”'’ Legislative intent, in turn, must
be gathered from the words used in the statute,'? and “[w]hen a statute is unambiguous, we must apply the

3 See 1987 Va. Acts ch. 76.

4 See id. Chesapeake council members serve staggered four-year terms. See id.; CHARTER FOR THE CITY OF
CHESAPEAKE, VA., § 3.02(C); CITY OF CHESAPEAKE, VA., Code § 2-1(c).

5 See former VA. CODE ANN. § 24.1-90; 2000 Va. Acts ch. 1045 (amending Code § 24.2-222 and adopting
§ 24,.2-222.1).

6 2021 Va. Acts ch. 103 (Sp. Sess. I) (codified at VA. CODE ANN. § 15.2-1400(E)). From 2000 to 2022, cities were
authorized to choose whether they conducted their municipal elections in May or November. See 2000 Va. Acts ch.
1045 (amending § 24.2-222 and adopting § 24.2-222.1 to allow cities to shift their elections from May to November.).

72021 Va. Acts ch. 103 (Sp. Sess. I) (enactment cl. 2).

8 CITY OF CHESAPEAKE, VA., Code § 2-1. See 2021 Va. Acts ch. 103 (Sp. Sess. I) (enactment cl. 2) (directing cities
with May elections to adopt an ordinance “provid[ing] for the transition of such elections to the November general

election date”).

° CITY OF CHESAPEAKE, VA., Code § 2-1(f).

10 See 2014 Op. Va. Att’y Gen. 70, 71 (“[A] municipal charter is an act of the General Assembly[.]”); Uhrin v.
Nygaard, 101 Va. Cir. 252, 253 (Va. Beach Cir. Ct. 2019) (“[A] charter may also be construed as an amendment of the
Code.” (citing Davis v. Dusch, 205 Va. 676, 683 (1964))).

!! Morris v. Fed. Express Corp., 70 Va. App. 571, 578 (2019) (quoting Prophet v. Bullock Corp., 59 Va. App. 313,
316 (2011)).

'2 Id.; 2006 Op. Va. Att’y Gen. 101, 102.

Catherine H. Lindley, Esq.
May 30, 2024
Page 3

plain meaning of that language.”!? Statutes, including charters, are to be considered in their entirety,' and
“courts may not ‘add . . . or delet[e] language from a statute’ in the guise of interpreting that statute[;]”!
rather, courts “disfavor a construction . . . that renders any part of the statute useless or superfluous.
Moreover, “whenever ‘a given controversy involves a number of related statutes, they should be read and
construed together in order to give full meaning, force, and effect to each.’”!” It is assumed that the General
Assembly, “when enacting new legislation, was aware of existing laws pertaining to the same subject matter
and intended to leave them undisturbed.”!® Accordingly, repeal of a statute by implication is not favored,
and “[t]here is a presumption against a legislative intent to repeal where the later statute does not amend
the former or refer expressly to it.”’'? Taken together, the settled, overarching rule is that “we presume that
the legislature says what it means and means what it says.”?°

2916

The General Assembly, in amending the Code of Virginia in 2021, clearly established, statewide,
January 1 as the date upon which newly elected municipal officers were to assume office, so that a
predecessor’s term thus would end on the last day of the preceding year. In so doing, the legislature further
made clear that the transition from May to November elections was not to shorten an incumbent’s term.
Accordingly, in the normal course, the term of current Chesapeake council members now expires on
December 31.

Although a sitting council member’s compliance with the charter provision has the effect of
shortening his term (June rather than December), that shortening is due to his voluntary decision to seek
election to the office of mayor, as was the case prior to the 2021 amendments for council members seeking
to become mayor in middle of their otherwise four-year term. The June resignation thus is not an
unavoidable, automatic term reduction resulting from “implementing the change to the November election
date,” i.e., seating winners of newly established November elections prior to the regularly scheduled end of
a sitting representative’s term, thus prematurely ending that term. Because the shortening, instead, is one
caused by the council member’s own independent action, the recently mandated transition to November
elections does not negate the effect of the resignation requirement contained in § 3.02(c) of the city charter.”

'3 Appalachian Power Co. v. State Corp. Comm’n, 284 Va. 695, 706 (2012).

'4 Dep’t of Med. Assistance Servs. v. Beverly Healthcare of Fredericksburg, 268 Va. 278, 285 (2004) (“[A] statute
should be read and considered as a whole, and the language of a statute should be examined in its entirety to determine
the intent of the General Assembly from the words contained in the statute.”).

'S Berry v. Bd. of Supvrs. of Fairfax Cnty., 302 Va. 114, 133 (2023) (alteration in original) (quoting Appalachian
Power Co. v. State Corp. Comm’n, 284 Va. 695, 706 (2012)).

'6 Shoemaker v. Funkhouser, 299 Va. 471, 487 (2021). It is a “well-settled principle that ‘[iJ]t is not to be presumed
that the legislature intended any part of [a] statute to be without meaning.”” /d. at 488 (alteration in original) (quoting
Postal Tel. Cable Co. v. Norfolk & W. R.R. Co., 88 Va. 920, 926 (1892)).

'7 Boynton v, Kilgore, 271 Va. 220, 229 (2006) (quoting Ainslie v. Inman, 265 Va. 347, 353 (2003)).

'8 Sexton v. Cornett, 271 Va. 251, 257 (2006).

'S Ogunde v. Commonwealth, 271 Va. 639, 644 (2006).

20 Prease v. Clarke, 302 Va. 376, 383 (2023) (quoting Tvardek v. Powhatan Vill. Homeowners Ass’n, Inc., 291 Va.
269, 277 (2016) (internal punctual omitted)).

2! In ascertaining legislative intent, courts “consider ‘the evil sought to be corrected by the legislature’ when it
adopted the pertinent language.” GEICO Advantage Ins. Co. v. Miles, 301 Va. 448, 455 (2022) (quoting So. Ry. Co.
y. Commonwealth, 205 Va. 114, 117 (1964)).

Catherine H. Lindley, Esq.
May 30, 2024
Page 4

Rather, because the General Assembly in no way addressed resignation requirements or any other charter
provisions in enacting the legislation, Charter § 3.02(c) remains applicable law.”

I therefore conclude that the charter provision requiring resignation can stand and be given effect
irrespective of the recent Code amendments. In reaching this conclusion, I apply the rule that “where there
are two statutes, the earlier special and the later general, and the terms of the general are broad enough to
include the subject matter provided for in the special, a presumption arises that the earlier special act is to
be considered as remaining in effect .. . .””? Because the charter here is the earlier, special act, the effect of
its plain language cannot be rendered superfluous and § 3.02(c) is not superseded by the later, general act
adopted in 2021.74 In other words, laws applicable to a particular city “ordinarily are not repealed by general
laws relating to the same subject-matter.”*° The unambiguous, plain language of § 3.02(c) of Chesapeake’s
city charter therefore controls, and a council member seeking election to the office of mayor must resign
his council position effective June 30.76

Conclusion

Accordingly, it is my opinion that a City of Chesapeake council member, whose term otherwise
expires on December 31, 2024, but who desires to seek election as mayor at this year’s November general
election, must resign from the City Council by June 30 pursuant to § 3.02(c) of the city charter.”’

With kindest regards, I am,

Very truly yours,

2

Jason S. Miyares
Attorney General

22 Indeed, the General Assembly, since 2021, has chosen to amend the charter, but in so doing left § 3.02(c)
untouched, further evincing its intent that the resignation requirement remain in effect. See 2022 Va. Acts ch. 280
(striking a provision of § 5.04 of the city charter).

3 Sexton, 271 Va. at 257.

24 As previously explained by this Office, “[t]he guiding principle governing the construction of charter provisions
and general statutes is that conflicts between the two should be avoided if reasonably possible. The conflict between
the two statutes must be clear and the provisions of the two so inconsistent with each other that both cannot prevail,
before the prior statute will be held to be repealed or inoperative.” 2010 Op. Va. Att’y Gen. 137, 139 (footnotes
omitted).

25 Scott v. Lichford, 164 Va. 419, 423 (1935).

26 “When the language of a statute is unambiguous, courts are bound by the plain meaning of that language and
may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has
stated.” Williams v. Commonwealth, 265 Va. 268, 271 (2003). A court “can only administer the law as it is written.”
Prease, 302 Va. at 385 (quoting In re Woodley, 290 Va. 482, 490 (2015)).

271 note that Virginia law affords localities a process by which they can seek charter amendments by the General
Assembly. See VA. CODE ANN. § 15.2-201 (2018).