Can a Virginia school board hire its own lawyer instead of relying on the city attorney?

Plain-English summary

Delegate Glenn Oder asked AG Cuccinelli to resolve a chartering dispute. The 1978 Newport News City Charter (§ 10.03) names the city attorney as "the legal advisor of the council … and all … boards … and agencies of the city, including the school board, in all matters affecting the interest of the city." On its face, that language seems to lock the Newport News School Board into using the city attorney exclusively. But Va. Code § 22.1-82(A) starts with the phrase "Notwithstanding any other provision of law" and authorizes school boards to "employ" the attorney for the Commonwealth or "other counsel" to advise the board or represent it in legal proceedings.

The AG resolved the conflict in favor of the statute. Ordinarily, when a city charter and a state statute conflict, the charter controls (it is a special act of the General Assembly). But that canon yields when the General Assembly clearly signals that the statute is meant to win out. The "Notwithstanding any other provision of law" lead-in is exactly that kind of signal. The AG cited Chambers v. Roanoke (1913) and several prior AG opinions reaching the same conclusion.

The AG also gave the answer a constitutional foundation. Article VIII, § 7 of the Virginia Constitution vests supervision of schools in school boards. A school board's ability to retain independent counsel is closely tied to its ability to actually supervise schools, especially when its interests might diverge from the city's (for example, in disputes between the school board and city council over budget allocation). The General Assembly's choice to use overriding language in § 22.1-82(A) reflected that constitutional architecture: the state did not want city charters bottling up school-board legal independence.

So while Newport News's city attorney remains the school board's default legal advisor under § 10.03, the school board may hire its own attorney whenever it judges that necessary.

Currency note

This opinion was issued in 2010. 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 the current version of § 22.1-82 and the Newport News City Charter before relying on any specific rule.

Common questions

Q: Why does a charter usually beat a statute?
A: Because a Virginia city charter is itself an act of the General Assembly, treated as a special law that prevails over general statutory law for that specific locality. The canon protects locally bargained-for governance choices.

Q: When does the canon flip?
A: When the General Assembly tells courts it should flip. The phrase "Notwithstanding any other provision of law" is the standard legislative cue that this statute overrides whatever else might say otherwise, including a charter provision.

Q: Does this mean the city attorney has no role anymore?
A: No. The charter still makes the city attorney the default advisor. The opinion just means the school board is not locked into that arrangement. It can hire its own counsel when it judges that necessary.

Q: What kinds of situations would prompt a school board to hire its own counsel?
A: Disputes with the city council over funding, school-board-specific litigation, complex employment matters, or other situations where the city's and school board's interests may diverge.

Q: What does Article VIII, § 7 of the Virginia Constitution say?
A: That "[t]he supervision of schools in each school division shall be vested in a school board." That constitutional vesting is the policy backdrop for letting school boards retain legal autonomy.

Background and statutory framework

Virginia charters are state-law special acts. Section 22.1-82(A) was enacted to give school boards the flexibility to retain independent legal counsel. The "notwithstanding" lead-in is a deliberate legislative drafting choice that overrides conflicting provisions in city charters and general statutes alike. Article VIII, § 7 of the Virginia Constitution provides the structural backdrop: school boards are independent constitutional entities, and the legislature is presumed to be respecting that.

The opinion's contribution is mostly applicational: identifying the "notwithstanding" cue and applying it to the apparent charter-statute clash.

Citations

• Va. Code Ann. § 22.1-82(A) (school board's authority to employ outside counsel)
• Newport News City Charter § 10.03 (city attorney as default legal advisor)
• Va. Const. art. VIII, § 7 (supervision of schools vested in school boards)
• Chambers v. Roanoke, 114 Va. 766 (1913) (amendment to charter not repealed by reenactment of prior general statute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-001-Oder.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

February 2, 2010

The Honorable G. Glenn Oder
Member, House of Delegates
213 Robin Drive
Newport News, Virginia 23606

Dear Delegate Oder:

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 Charter of the City of Newport News requires that the Newport News School Board exclusively rely on the legal advice of the attorney for the City or whether the Board may engage alternate legal counsel.

Response

It is my opinion that the Charter of the City of Newport News does not require that the Newport News School Board rely on the sole legal advice of the attorney for the City, and the Board may retain its own counsel.

Applicable Law and Discussion

The Charter of the City of Newport News (the "Charter") provides that "[t]he city attorney shall … be the legal advisor of the council … and all … boards … and agencies of the city, including the school board, in all matters affecting the interest of the city and shall upon request furnish a written opinion on any question of law."[1] Section 22.1-82(A) provides, however, that:

Notwithstanding any other provision of law, the attorney for the Commonwealth or other counsel may be employed by a school board to advise it concerning any legal matter or to represent it, any member thereof or any school official in any legal proceeding to which the school board, member or official may be a party, when such proceeding is instituted by or against it or against the member or official by virtue of his actions in connection with his duties as such member or official.

Thus, there is an apparent conflict between the provisions of the Charter relating to the duties of the City attorney and § 22.1-82(A). Ordinarily, where a charter and a statute conflict, the charter controls.[2] However, this canon of construction does not apply where the statute clearly indicates that the General Assembly intended it to control conflicts.[3] The language in § 22.1-82(A), "[n]otwithstanding any other provision of law,"[4] manifests just such an intent.

Article VIII, § 7 of the Constitution of Virginia provides that "[t]he supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law." In this analysis, it is important to consider the constitutional requirement that the supervision of schools is vested with the school boards. The ability to retain legal counsel can be important to the school board in fulfilling its mission. Further, the General Assembly, through its chosen language, ensured the flexibility of the school board to retain its own counsel.[5]

Conclusion

Accordingly, it is my opinion that the Charter of the City of Newport News does not require that the Newport News School Board rely on the sole legal advice of the attorney for the City, and the Board may retain its own counsel.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli
Attorney General

1. Section 10.03(A) (1978), available at http://library1.municode.com/default-test/home.htm?infobase=14013&doc_action=whatsnew; see also 1978 Va. Acts ch. 576, at 886, 907-08 (enacting "Charter of City of Newport News," including § 10.03 of Chapter 10).
2. See Op. Va. Att'y Gen.: 1997 at 46, 46; 1995 at 155, 157; 1978-1979 at 35, 35; see also 1976-1977 at 42, 44 (noting charter provision generally prevails over statute).
3. See Op. Va. Att'y Gen.: 1997, supra note 2, at 46; 1995, supra note 2, at 157; 1978-1979, supra note 2, at 36.
4. See 1978-1979 Op. Va. Att'y Gen., supra note 2, at 36 (concluding that statutory phrase "[n]otwithstanding any other provision of law" is evidence of legislative intent that statute must be interpreted to prevail over provision in charter); see also Chambers v. Roanoke, 114 Va. 766, 768, 78 S.E. 407, 408 (1913) (holding that amendment to specific charter provision is not repealed by reenactment of prior general statute when statute declares that nothing "in conflict with any provision of the charter of any city or town shall be construed to repeal such provision" unless expressly stated). The phrase "[n]othwithstanding any other provision of law" indicates a clear legislative intent to override potential conflicts with all earlier legislation. See Op. Va. Att'y Gen.: 1996 at 197, 198; 1987-1988 at 1, 2; see also 1998 Op. Va. Att'y Gen. 19, 21 (interpreting statute beginning with phrase, "[n]othwithstanding any other provision of this chapter").
5. See 1981-1982 Op. Va. Att'y Gen. 326, 327 (discussing change to § 22-56.1, predecessor to § 22.1-82, regarding authority of school board to hire counsel).