Could Drakes Branch appoint a town sergeant under its amended charter and share that officer with Charlotte Court House?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that the Town of Drakes Branch could appoint a town sergeant under charter language allowing the council to appoint "such other officers as the council may deem proper and necessary." The 1998 charter amendment had made the office discretionary rather than mandatory, but it had not removed the council's power to fill it.

The AG also concluded that Drakes Branch and Charlotte Court House could enter a reciprocal agreement for the services of the Drakes Branch town sergeant. The decisive fact was that both town charters authorized appointment of a town sergeant, allowing the arrangement to fit § 15.2-1726's requirement of reciprocal cooperation in police services.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Drakes Branch's original charter listed a town sergeant as a town office. In 1997, the council asked the General Assembly to make that position discretionary. The 1998 amendment listed the mayor, six council members, and "such other officers as the council may deem proper and necessary." Drakes Branch continued to employ a town sergeant under that language.

Charlotte Court House had contracted in 2006 to use the Drakes Branch town sergeant for enforcement of Commonwealth law within Charlotte Court House. Its own charter specifically included "a town sergeant, who shall be the conservator of the peace."

Section 15.2-1701 provided that a town's chief law-enforcement officer could be called the town sergeant. Section 15.2-1726 authorized reciprocal agreements for cooperation in furnishing police services and gave participating officers the agreement-defined powers in each subscribing jurisdiction.

What the AG concluded

The charter made the office optional, not unauthorized. The word "may" and the phrase "proper and necessary" left appointment to the Drakes Branch council's judgment.

An appointed town sergeant would be the town's chief law-enforcement officer. The opinion tied that office to § 15.2-1701's treatment of a town sergeant.

The two towns could make a reciprocal services agreement. Because both charters authorized a town sergeant, the AG concluded that their agreement could satisfy § 15.2-1726.

The result differed from an agreement involving a locality with no police authority. The opinion distinguished AG Opinion 08-028, where one municipality had no police charter, police force, or authority to establish one.

Common questions

Did the 1998 charter amendment abolish the Drakes Branch town-sergeant office?
No. It removed the mandatory office but authorized the council to appoint additional officers it considered proper and necessary.

Why could Charlotte Court House participate in the agreement?
Its charter also authorized a town sergeant. The AG treated that shared charter authority as sufficient for the reciprocal police-services arrangement described.

What did § 15.2-1726 add to the arrangement?
The statute authorized reciprocal agreements for cooperation in police services and allowed covered officers to exercise the powers specified for participating jurisdictions under the agreement.

Was the town council required to appoint a town sergeant?
No. The opinion read the charter's "may" language as permissive and left the appointment to the council's determination of what was proper and necessary.

Citations

• Va. Code Ann. §§ 15.2-1102, 15.2-1701, 15.2-1726
• 1998 Va. Acts ch. 275 (Drakes Branch charter amendment)
• 1989 Va. Acts ch. 117, § 4.1 (Charlotte Court House charter)
• Norton v. City of Danville, 268 Va. 402, 602 S.E.2d 126 (2004)
• Twietmeyer v. City of Hampton, 255 Va. 387, 497 S.E.2d 858 (1998)
• Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 300 S.E.2d 603 (1983)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-071-Jones.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

October 9, 2008
Jennifer LeLacheur Jones, Esq.
Town Attorney for Drakes Branch
P.O. Box 75
Keysville, Virginia 23947
Dear Ms. Jones:
I am responding to your request for an official advisory opinion in accordance with the provisions
of § 2.2-505 of the Code of Virginia.
Issue Presented
You ask whether the Charter (the “Charter”) for the Town of Drakes Branch authorizes the town
council to appoint a town sergeant when the council deems such appointment to be proper and necessary.
You also ask whether the towns of Drakes Branch and Charlotte Court House may enter into a valid
agreement to contract for the services of a town sergeant when the town charters of both towns authorize
the appointment of a town sergeant.
Response
It is my opinion that the Charter for the Town of Drakes Branch authorizes the appointment of a
town sergeant when the town council deems such appointment to be proper and necessary. It further is
my opinion that the towns of Drakes Branch and Charlotte Court House may enter into a valid, reciprocal
agreement to contract for the services of a town sergeant provided the town charters of both towns
authorize the appointment of a town sergeant.
Background
You advise that the Charter previously identified the office of town sergeant as one of the town’s
1
offices. You relate that on November 17, 1997, the Town Council of Drakes Branch (the “Council”)
passed a resolution of intent to amend the Charter to make the position of town sergeant discretionary as
2
opposed to mandatory. You also note that the Council resolved to amend “Section 3” of the Charter to
provide for a mayor, six council members, and “such other offices as the Council may deem proper and
3
necessary.”
1

See 1902-3-4 Va. Acts ch. 150, at 229, 229 (incorporating Drakes Branch (§ 1) and establishing mandatory
office of sergeant (§ 3)).
2
See Resolution of Intent to Amend the Charter of the Town of Drakes Branch (Nov. 17, 1997) (providing that
“the Town Council has determined that the position of Town Sergeant should be discretionary rather than
mandatory”) (copy provided to this Office).
3
See Resolution to Amend the Charter of the Town of Drakes Branch, Section 3 (Dec. 1, 1997) (copy provided to
this Office).

Ms Jennifer LeLacheur Jones
October 9, 2008
Page 2
You state that on December 1, 1997, the Council passed a Resolution to Amend the Charter
containing the proposed amendment to section 3. The 1998 Session of the General Assembly amended
4
the Charter as requested by the Council. You relate that Drakes Branch has continued to employ a town
sergeant as an officer based upon the Council’s determination that such position is necessary and proper.
You advise that in 2006 the town of Charlotte Court House contracted with Drakes Branch for the
use of the Drake’s Branch town sergeant to enforce the laws of the Commonwealth within Charlotte Court
House. Finally, you note that Charlotte Court House has a town charter that specifically includes the
5
office of “a town sergeant, who shall be the conservator of the peace.”
Applicable Law and Discussion
Under the Dillon Rule of strict construction, municipal corporations possess and may exercise
only those powers expressly granted by the General Assembly, powers necessarily or fairly implied from
6
such express powers, and those powers that are essential and indispensable. Section 15.2-1102 confers
general police powers on cities and towns which are not:
expressly prohibited by the Constitution and the general laws of the Commonwealth, and
which are necessary or desirable to secure and promote the general welfare of the
inhabitants of the municipality and the safety, health, peace, good order, comfort,
convenience, morals, trade, commerce and industry of the municipality and the
inhabitants thereof[.]
[7]

Section 15.2-1701 requires that, “[w]hen a locality provides for a police department, the chief
of police shall be the chief law enforcement officer of that locality. However, in towns, the chief lawenforcement officer may be called the town sergeant.”
8

Statutes using the word “may” are permissive rather than mandatory. The Charter authorizes,
but does not require, the Council to appoint “such other officers as the council may deem proper and
9
necessary for the government of the town and the conduct of its business.” The town sergeant, if
10
appointed, would be the chief law-enforcement officer of Drakes Branch.
The applicable rule of
4

1998 Va. Acts ch. 275, at 405, 405 (amending § 3 to remove mandatory office of sergeant and providing that
town officers include mayor, six council members, “and such other officers as the council may deem proper and
necessary”) (emphasis in original).
5
1989 Va. Acts ch. 117, § 4.1, at 162, 163-64. Section 4.2 of the Charter provides that appointees serve at the
pleasure of the council. Id. at 164.
6
Norton v. City of Danville, 268 Va. 402, 408 n.3, 602 S.E.2d 126, 129 n.3 (2004); Arlington Co. v. White,
259 Va. 708, 712, 528 S.E.2d 706, 708 (2000); Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d
610, 613 (1999); County of Fairfax v. S. Iron Works, Inc., 242 Va. 435, 448, 410 S.E.2d 674, 682 (1991).
7
The term “locality,” as used in Title 15.2, “shall be construed to mean a county, city, or town as the context may
require.” VA. CODE ANN. § 15.2-102 (2008).
8
See Op. Va. Att’y Gen.: 1992 at 133, 135; 1991 at 225, 226.
9
1998 Va. Acts, supra note 4, at 405 (emphasis in original).
10
See § 15.2-1701 (2008) (providing that chief law-enforcement officer of town may be called town sergeant).

Ms Jennifer LeLacheur Jones
October 9, 2008
Page 3
statutory construction requires that words be given their ordinary meaning, given the context in which
11
they are used. The plain and unambiguous meaning of the words used in the Charter clearly authorizes
the Council to appoint a town sergeant when the Council deems such an appointment to be necessary and
proper.
Section 15.2-1726 authorizes localities to enter into reciprocal agreements concerning
consolidation of police departments or for cooperation in furnishing police services and provides that:
Any locality may, in its discretion, enter into a reciprocal agreement with any other
locality, …, for such periods and under such conditions as the contracting parties deem
advisable, for cooperation in the furnishing of police services.… The governing body of
any locality also may, in its discretion, enter into a reciprocal agreement with any other
locality, or combination thereof, for the consolidation of police departments or divisions
or departments thereof. Subject to the conditions of the agreement, all police officers,
officers, agents and other employees of such consolidated or cooperating police
departments shall have the same powers, rights, benefits, privileges and immunities in
every jurisdiction subscribing to such agreement, including the authority to make arrests
in every such jurisdiction subscribing to the agreement …. [Emphasis added.]
12

In interpreting a specific inquiry related to § 15.2-1726, a 2008 opinion (the “2008 Opinion”)
concluded that a municipality that does not have a police charter or a police force may not enter into a
reciprocal agreement with another municipality that has a police charter and police force. For purposes of
the 2008 Opinion only, “a municipality with ‘no police charter’ means a municipality that has not enacted
an ordinance authorizing a police force pursuant to § 15.2-1701 or one that does not have a charter
13
providing for the establishment of a police force.” Furthermore, the 2008 Opinion relied upon a 1986
opinion (the “1986 Opinion”) interpreting portions of § 15.1-131.3, predecessor to § 15.2-1726, as being
14
“‘uniquely applicable to the consolidation of police departments.’” Because the requesting county did
not have a police force at the time of the proposed reciprocal agreement, the predecessor statute to
§ 15.2-1726 did not authorize two towns to contract with that county to have the county sheriff serve as
chief of police for the towns and to provide law-enforcement services for the three localities.
The General Assembly has not substantially amended or changed the portion of § 15.2-1726
providing for “consolidation of police departments” considered by the Attorney General in the 1986
Opinion. While an opinion of the Attorney General is not binding on the courts of the Commonwealth, it
15
is entitled to due consideration. “‘The legislature is presumed to have had knowledge of the Attorney
General’s interpretation of the statutes, and its failure to make corrective amendments evinces legislative

11

Va. Beach v. Bd. of Supvrs., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993).
2008 Op. Va. Att’y Gen. No. 08-028, available at http://www.vaag.com/OPINIONS/2008opns/08-028Jones.pdf.
13
Id. at n.1.
14
Id. (quoting 1986-1987 Op. Va. Att’y Gen. 130, 132 n.1) (emphasis in original).
15
See Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d 858, 861 (1998) (quoting Va. Beach v. Va.
Rest. Ass’n, 231 Va. 130, 135, 341 S.E.2d 198, 201 (1986)).
12

Ms Jennifer LeLacheur Jones
October 9, 2008
Page 4
16

acquiescence in the Attorney General’s view.’” Therefore, § 15.2-1726 does not permit localities to
contract for the consolidation of the police departments of separate localities when one of the contracting
localities does not have a police department.
Section 15.2-1726 also permits localities to enter into reciprocal agreements “for cooperation in
17
18
the furnishing of police services.” Based upon the definitions of “reciprocal” and “reciprocity,” the
19
2008 Opinion concluded that there must be mutual or bilateral action. Consequently, all contracting
localities must have a police department before they may enter into reciprocal agreements “for
20
cooperation in the furnishing of police services.”
You advise that Charlotte Court House has contracted with Drakes Branch to use the Drakes
Branch town sergeant to enforce the laws of the Commonwealth within Charlotte Court House. You also
advise that the town charters of both Drakes Branch and Charlotte Court House have provisions
21
authorizing the appointment of a town sergeant. Therefore, I conclude that the reciprocal agreement
between the Drakes Branch and Charlotte Court House is a valid agreement to contract for the services of
a town sergeant when the town charters of both towns authorize the appointment of a town sergeant.
Conclusion
Accordingly, it is my opinion that the Charter for the Town of Drakes Branch authorizes the
appointment of a town sergeant when the town council deems such appointment to be proper and
necessary. It further is my opinion that the towns of Drakes Branch and Charlotte Court House may enter
into a valid, reciprocal agreement to contract for the services of a town sergeant provided the town
charters of both towns authorize the appointment of a town sergeant.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell
1:213; 1:941/08-071

16

Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161, 300 S.E.2d 603, 605-06 (1983) (quoting Richard L.
Deal & Assocs. v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983)).
17
See BLACK’S LAW DICTIONARY 1297 (8th ed. 2004) (defining “reciprocal” to mean “[d]irected by each toward
the other or others; MUTUAL” or “BILATERAL”).
18
See id. at 1298 (defining “reciprocity” to mean “[t]he mutual concession of advantages or privileges for
purposes of commercial or diplomatic relations”).
19
See 2008 Op. Va. Att’y Gen., supra note 12.
20
Section 15.2-1726 (2008).
21
See supra notes 1, 4-5 and accompanying text.