Can a Virginia city require its employees and elected officials to resign before running for office or seeking city employment?

Plain-English summary

Hopewell tried to adopt an ordinance with three rules: (a) any city employee who wins election to local office must resign or be released from city employment if the office's responsibilities would interfere with the job; (b) any sitting council member who applies for city employment must resign and wait one year before being eligible; and (c) any constitutional officer (sheriff, treasurer, commissioner of revenue, etc.) who applies for city employment must resign and wait one year. Delegate Carrie Coyner asked the AG whether the city could enact those provisions.

AG Miyares said no on all three. The Dillon Rule reserves to the General Assembly the power to add to constitutional qualifications for office, and Article II, § 5 of the Virginia Constitution makes that point twice: the only qualification to hold office is one-year Virginia residency and voter eligibility, but "nothing in this Constitution shall limit the power of the General Assembly to prevent conflict of interests, dual officeholding, or other incompatible activities." That second clause runs only to the General Assembly. The General Assembly has used that power statewide through the Conflict of Interests Act (§§ 2.2-3100 to 2.2-3131), but it has not authorized localities to impose their own additional eligibility-to-hold-office rules.

Without a state-law grant, the Hopewell provisions are ultra vires (beyond the city's powers) and "void and of no effect." This applies even to the constitutional-officer provision, since constitutional officers are state-level offices created by the Virginia Constitution; a city ordinance cannot regulate eligibility for them.

What this means for you

If you sit on the Hopewell City Council

Pull the ordinance off the books. Going forward, do not adopt resign-to-run, post-service cooling-off, or constitutional-officer restrictions through ordinance. Conflict-of-interest restrictions for city employees come from the statewide Conflict of Interests Act and from the city's at-will employment relationship, not from a separate ordinance imposing eligibility rules.

If you are a Hopewell city attorney or human-resources director

Treat the disputed provisions as unenforceable. If a city employee wins local office and the dual roles create an actual conflict of interest, address it through the State and Local Government Conflict of Interests Act, employment-conditions enforcement, or normal supervisory adjustment, not the invalid ordinance. The AG opinion does not prevent the city from enforcing actual conflicts; it only prevents pre-emptive eligibility rules layered onto state qualifications.

If you are a Hopewell city employee considering running for local office

The ordinance cannot be used against you. Whatever the city's current personnel rules say about outside political activity, the threshold question is whether those rules come from a state-authorized source (e.g., the State and Local Government Conflict of Interests Act, the Hatch Act for federally funded employees, or your at-will employment terms). The municipal ordinance addressed by this AG opinion is not such a source.

If you are a constitutional officer interested in city employment

The cooling-off requirement aimed at constitutional officers is a particularly clear nullity. Constitutional officers hold offices created by the Virginia Constitution, and a city ordinance cannot change the qualifications or post-service restrictions for those offices. State law in the Conflict of Interests Act and other statutes governs.

If you are drafting a similar ordinance in another Virginia locality

Stop and look for the General Assembly's authorization first. Some Virginia localities have charter provisions adopted by act of the General Assembly that add eligibility or post-service rules; those are valid. An ordinance passed by city council without a backing charter amendment or general-law authorization is exposed to a Dillon Rule challenge.

Common questions

Q: What is "ultra vires"?
A: Latin for "beyond the powers." A locality acts ultra vires when it tries to do something the General Assembly has not authorized it to do. Ultra vires acts are "void and of no effect" under Virginia case law and produce no enforceable legal consequences.

Q: Article II, § 5 says the General Assembly can add conflict-of-interest rules. Why can't the city?
A: Because the constitutional clause is specific: it preserves the power "of the General Assembly," not of localities. The Dillon Rule then prevents a locality from exercising power the General Assembly retained for itself. The General Assembly could authorize localities to add such rules; it has not.

Q: Does a city charter provision count as "General Assembly authorization"?
A: Yes, if the charter was adopted as a Virginia Act. Charters are state laws, and a charter provision authorizing a locality to enact eligibility rules would supply the missing authority. The Hopewell charter does not contain such a provision.

Q: What about resign-to-run rules in other states like Florida, Texas, or Georgia?
A: Each state's framework differs. Virginia's Dillon Rule is among the strictest in the country. A municipal resign-to-run ordinance valid in Florida or Georgia is not necessarily valid here, and a question of "may we do this" must always start with whether the General Assembly has authorized it.

Q: Is the State and Local Government Conflict of Interests Act enough to address the underlying concern?
A: It addresses many of the conflict-of-interest scenarios the Hopewell ordinance seemed aimed at. The Act applies to officers and employees of state and local governments (§§ 2.2-3100 to 2.2-3131), regulates personal interests in transactions and contracts, and enforces disclosure and recusal requirements. A locality troubled by a specific overlap should look there first.

Background and statutory framework

Article II, § 5 of the Virginia Constitution is the residency-and-voter-qualification clause for elective office, with a reservation of power to the General Assembly to legislate on conflicts and incompatibilities. The Virginia Supreme Court has consistently treated that reservation as exclusive to the General Assembly, and the Dillon Rule reinforces the result.

The General Assembly has used its conflict-of-interest authority to enact the State and Local Government Conflict of Interests Act, codified at §§ 2.2-3100 through 2.2-3131. That Act creates a uniform statewide framework for officer and employee disclosures, prohibited transactions, recusal requirements, and enforcement. It is the principal channel for the kind of regulation Hopewell was attempting.

The AG's analysis follows the standard Dillon Rule three-step from City of Richmond v. Confrere Club, 239 Va. 77 (1990), and Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010): is there an express grant; if not, is there an implied grant; either way, does state law conflict? The opinion finds no express grant in any general law or in the Hopewell charter, no implied grant from any other expressly granted power, and a clear conflict with Article II, § 5's reservation to the General Assembly. With all three steps cutting against the locality, the ordinance is invalid.

Citations

• Va. Const. art. II, § 5 (qualifications and conflict-of-interest reservation)
• Va. Code Ann. § 1-248 (locality action must be consistent with state law)
• Va. Code Ann. §§ 2.2-3100 to 2.2-3131 (State and Local Government Conflict of Interests Act)
• City of Richmond v. Confrere Club of Richmond, Va., Inc., 239 Va. 77 (1990) (Dillon Rule)
• Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010) (three-step inquiry)
• Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397 (1995) (doubt resolved against locality)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-014-Coyner-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

Fax 804-786-1991

J uly 1, 2024 Virginia Relay Services

800-828-1120

7-1-1

The Honorable Carrie E. Coyner
Member, Virginia House of Delegates
9910 Wagners Way

Post Office Box 58

Chesterfield, Virginia 23832

Dear Delegate Coyner:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issues Presented

You ask whether the City of Hopewell may adopt an ordinance containing certain provisions related
to city employment and public office holding. You specifically inquire regarding provisions that direct as
follows:

(a) Any employee . . . may be a candidate for political office but shall resign, or shall be
released, from employment with the City upon successful election to political office within
the City, or other political office due to the responsibilities of that office [sic] will interfere
with the employee’s ability to perform the duties of his/her City position.

(b) Any member of the governing body who seeks employment with the City shall resign
from their elected office and may be eligible for such employment one year from their date
of resignation in order to avoid the appearance of impropriety and any potential conflicts
of interest.

(c) Any Constitutional Officer who seeks employment with the City shall resign from their
elected office and may become eligible for such employment one year from the date of their
resignation in order to avoid the appearance of impropriety and any potential conflicts of

interest."
Applicable Law and Discussion

In Virginia, the powers of local governing bodies are governed by the Dillon Rule, which
establishes that local governments may exercise “only those powers expressly granted by the General

! CITY OF HOPEWELL, VA., Ordinance No. 0424(B)(4). The analysis contained herein is limited to these provisions.

Honorable Carrie E. Coyner

July 1, 2024

Page 2

Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable.””
When “there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the
local governing body.” “The Dillon Rule is applicable to determine in the first instance, from express words
or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end.”
Moreover, local action, when authorized, must be exercised in a manner consistent with state law.° Actions
taken by a locality that are ultra vires, i.e., beyond the powers of the locality, are void and of no effect.°

The provision terms about which you inquire, in effect, impose restrictions on who may hold local
office. Article II, § 5 of the Virginia Constitution provides that “[t]he only qualification to hold any office
of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have
been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for
that office[.]”” Nevertheless, “nothing in this Constitution shall limit the power of the General Assembly to
prevent conflict of interests, dual officeholding, or other incompatible activities by elective or appointive
officials of the Commonwealth or of any political subdivision.”* Recognizing the salutary purposes such
laws may serve in certain circumstances, the Constitution thus contemplates that laws defining
impermissible conflicts of interests or incompatible activities by officials will be enacted.’ The power to do
so directly lies with the General Assembly.'° While the General Assembly has clear authority to enact laws
governing conflicts of interests and incompatible activities by local officials, under the Dillon Rule, a
locality may adopt such measures only if the General Assembly first has enacted legislation empowering it
to do so, whether by general law or special act.

I find no act of the General Assembly that establishes directly restrictions like those you present.'!
I also find neither a statute that generally grants localities authority to adopt such rules nor a provision of
the Hopewell City Charter that expressly or impliedly authorizes the Hopewell City Council to adopt

2 City of Richmond v. Confrere Club of Richmond, Va., Inc., 239 Va. 77, 78 (1990). See also, e.g., Marble Techs.,
Inc. v. City of Hampton, 279 Va. 409, 417 (2010); City of Va. Beach v. Hay, 258 Va. 217, 221 (1999).

3 Marble Techs., Inc.,279 Va. at 417 (quoting Bd. of Supvrs. v. Reed’s Landing Corp., 250 Va. 397, 400 (1995)).

4 Id. at 416-17 (quoting Commonwealth v. Arlington Cnty. Bd., 217 Va. 558, 575 (1977)); see also Commonwealth
v. Rivera, 18 Va. App. 103, 107 (1994).

5 See VA. CODE ANN. § 1-248 (2022); Blanton v. Amelia Cnty., 261 Va. 55, 63 (2001).

6 See City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243, 246 (1997); Rivera, 18 Va. App. at 107; see also
2008 Op. Va. Att’y Gen. 73, 76; 1986-87 Op. Va. Att’y Gen. 315, 316; 1975-76 Op. Va. Att’y Gen. 156, 158.

7 Va. CONST. art. II, § 5 (emphasis added).

8 Jd. art. II, § 5(c).

° See id.

10 7d; see also VA. CONST. art. IV, § 1 (establishing that “[t]he legislative power of the Commonwealth shall be
vested in a General Assembly”); VA. CONST. art. VII, § 2 (providing that the General Assembly shall provide for “the

organization, government, [and] powers . . . of counties, cities, towns, and regional governments”); Confrere Club of
Richmond, Va., Inc., 239 Va. at 78 (setting forth the Dillon Rule of strict construction).

'! I note that the State and Local Government Conflict of Interests Act (the “Conflicts Act’) does not prohibit a
member of a city council from retaining a personal interest in a contract of employment with the city if that member’s
“employment first began prior to the member becoming a member of the [city council].” See VA. CODE ANN.
§ 2.2-3107 (2022). The Conflicts Act, however, does not address “matters related to dual officeholding or to
incompatibility of offices or positions.” 1996 Op. Va. Att’y Gen. 33, 35 (citing 1974-75 Op. Va. Att’y Gen. 561, 562).
Although the General Assembly has enacted statutes barring certain types of dual officeholding by constitutional
officers and members of local governing bodies, see §§ 15.2-1534 and 15.2-1535, these provisions do not implicate
the types of restrictions you describe.

Honorable Carrie E. Coyner
July 1, 2024
Page 3

them.'2 While the charters for several other municipalities contain provisions similar to those you present,’
the Hopewell City Charter is silent on such issues.'* In the absence of any enabling legislation, I must
conclude that the Hopewell City Council lacks authority to adopt the provisions you describe and they are
ultra vires.

Conclusion

Accordingly, it is my opinion that the City of Hopewell lacks the authority to adopt the specific
ordinance provisions presented. The authority to enact such measures, or to authorize the Hopewell City
Council to do so, lies with the General Assembly.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General

!2 Although the Conflicts Act generally bars a city council member from acquiring a personal interest in a contract
of employment with the city subsequent to taking office, see § 2.2-3107, it does not require that the member resign
his position on the city council and wait one year in order to become eligible for such employment. Nevertheless, as
indicated above, the Act does not address matters related to incompatibility of offices or positions. Moreover, the
Conflicts Act does not contain any provisions that authorize a local government to adopt its own conflict-of-interests
ordinances; rather, the state law “establish[es] a single body of law applicable to all state and local government officers
and employees on the subject of conflict of interests . . . so that the standards of conduct for such officers and
employees may be uniform throughout the Commonwealth.” Section 2.2-3100 (2022).

'3 See, e.g, CHARTER FOR THE CITY OF FRANKLIN, VA., § 3.10; CHARTER FOR THE TOWN OF RICH CREEK, VA.,
§ 7; CHARTER FOR THE TOWN OF WISE, VA., § 3.9. See also generally 1996 Op. Va. Att’y Gen. 33, 34 (noting that the
General Assembly was authorized under Article II, § 5 of the Constitution to pass a charter provision barring a town
employee from serving as a member of the town council); 1979-80 Op. Va. Att’y Gen. 94, 95 (detailing the authority
of the General Assembly under Article II, § 5 to pass a charter provision “prevent[ing] local employees from holding
local office” (citing 1975-76 Op. Va. Att’y Gen. 35, 35)).

'4 I note that localities have been afforded a process by which they can seek charter amendments by the General
Assembly. See § 15.2-201 (2018). Whether such amendments are warranted is a policy question reserved to the
General Assembly and one that is beyond the scope of an Opinion of this Office. See, e.g., 2013 Op. Va. Att’y Gen.
82, 87; 2015 Op. Va. Att’y Gen. 87, 90; 1982-83 Op. Va. Att’y Gen, 220, 221; 1973-74 Op. Va. Att’y Gen. 142, 143.