If a Virginia commissioner of revenue or treasurer serves as a DMV license agent, can the county take the DMV money to cover the existing local share of their budget?

Plain-English summary

Item 441(C) of the 2010 and 2011 Appropriations Acts let the DMV contract with a county treasurer or commissioner of the revenue to act as a "license agent" handling DMV transactions. DMV would remit the resulting compensation monthly to the county. The statute required the county to appropriate at least 80 percent of that money to the constitutional officer's office, and it expressly banned using those funds to supplant existing local funding or to reduce the local share of the Compensation Board-approved budget below the level set by general law.

Mathews County's commissioner of the revenue asked whether a board of supervisors could pass a resolution that used DMV revenue to offset salaries already being paid by the locality, in effect using the state revenue to cut the county's contribution. Cuccinelli concluded no. The Appropriations Acts were "the most recent expression of legislative intent" and overrode any conflicting general statute. Using DMV money to absorb existing salaries was, by definition, "supplanting" the local funds, and if the board had not appealed the Compensation Board's budget under § 15.2-1636.9, the move also amounted to an impermissible reduction of the locality's share.

Currency note

This opinion was issued in 2011. 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.

Common questions

What was a "license agent" arrangement?
The DMV was authorized to contract with a constitutional officer (a treasurer or commissioner of the revenue) and their staff to handle DMV transactions locally, with the consent of the locality's chief administrator. The negotiated compensation could be on a separate schedule from § 46.2-205.

Why did the AG read the Appropriations Acts to override other statutes?
Section 4-12.00 of the budget bill provides that, until the act's expiration date, the provisions of the act prevail over any conflicting provision of any other law. Combined with the principle that the Appropriations Act is "the most recent expression of legislative intent," that made the budget acts control.

What does "supplant" mean here?
Cuccinelli used Webster's: "to supersede (another); to take the place of and serve as a substitute for." Using DMV revenue to absorb salary costs that the locality had already been paying took the place of the local funding rather than supplementing it.

Could the local share simply be cut if the board disagreed with the Compensation Board budget?
Not unilaterally. The board's mechanism was an appeal to the Compensation Board under § 15.2-1636.9. Without that appeal, the Compensation Board-approved budget defined the local floor, and DMV revenue could not be used to push the local contribution below it.

Background and statutory framework

Item 441(C) of both the 2010 Appropriations Act and the 2011 Appropriations Act directed DMV to enter into license-agent agreements with constitutional officers and to remit compensation monthly to the locality. "[N]ot less than 80 percent of the sums so remitted shall be appropriated by such county or city to the office of the constitutional officer to compensate such officer for the additional work involved with processing transactions for the department." The clause closes by forbidding the local share to be supplanted or pushed below the Compensation Board floor.

The positions of Commissioner of the Revenue and Treasurer are constitutional offices under Va. Const. art. VII, § 4. As the opinion describes the general-law budget process, the officer prepares a budget and submits it to the Compensation Board, which reviews, possibly modifies, and approves it; a copy goes concurrently to the locality, and the locality and the Commonwealth then share funding. In the event of disagreement, the officer, the locality, or the Commonwealth may appeal the Compensation Board's decision under § 15.2-1636.9.

Section 4-12.00 of the Appropriations Acts is the cross-statute primacy clause: its provisions prevail over any conflicting general law unless a later law expressly singles out the appropriation provision for override.

Citations

• Item 441(C), 2010 Appropriations Act
• Item 441(C), 2011 Appropriations Act
• § 4-12.00 of the Appropriations Acts (primacy clause)
• Va. Code § 15.2-1636.9 (Compensation Board budget appeals)
• Va. Code § 46.2-205 (DMV compensation schedule)
• Va. Const. art. VII, § 4 (constitutional officers)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-047-Hunley.pdf

Original opinion text

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

August 19, 2011

The Honorable Raymond A. Hunley, MCR
Commissioner of the Revenue, Mathews County
10644 Buckley Hall Road, Liberty Square
Post Office Box 896
Mathews, Virginia 23109-0896

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

Dear Commissioner Hunley:
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 local Board of Supervisors may use the monies received by employees of constitutional officers for services provided to the Department of Motor Vehicles to supplant existing local funding or to reduce the local share of the Compensation Board-approved budget.

Response
It is my opinion, based on language in Item 441, subsection C of both the 2010 Appropriations Act and the 2011 Appropriations Act, that a county Board of Supervisors is required to appropriate to the office of a constitutional officer such as a Treasurer or Commissioner of the Revenue who is serving as a license agent for DMV, 80 percent of the funds remitted by DMV to the county for DMV transactions processed by the office of the constitutional officer, and that the monies so appropriated may not be used to supplant existing local funding for such office, nor to reduce the local share of the Compensation Board-approved budget for such office below the level established pursuant to general law.

Applicable Law and Discussion
Item 441, subsection C of both the 2010 Appropriations Act and the 2011 Appropriations Act ("Appropriations Acts") provides:

In order to provide citizens of the Commonwealth greater access to the Department of Motor Vehicles, the agency is authorized to enter into an agreement with any local constitutional officer or combination of officers to act as a license agent for the department, with the consent of the chief administrative officer of the constitutional officer's county or city, and to negotiate a separate compensation schedule for such office other than the schedule set out in § 46.2-205, Code of Virginia. Notwithstanding any other provision of law, any compensation due to a constitutional officer serving as a license agent shall be remitted by the department to the officer's county or city on a monthly basis, and not less than 80 percent of the sums so remitted shall be appropriated by such county or city to the office of the constitutional officer to compensate such officer for the additional work involved with processing transactions for the department. Funds appropriated to the constitutional office for such work shall not be used to supplant existing local funding for such office, nor to reduce the local share of the Compensation Board-approved budget for such office below the level established pursuant to general law. (Emphasis added)

The positions of Commissioner of the Revenue and County Treasurer are constitutional offices created pursuant to Article VII, § 4 of the Constitution of Virginia. The process for establishing the budget of a constitutional officer, including a County Commissioner of the Revenue or County Treasurer, is provided by general law. Generally, the officer prepares the budget for his office and submits it to the Compensation Board for review, possible modification, and approval. Such budget includes salaries, permitted expenses, and other allowances necessary for operating the office of the Commissioner of the Revenue or Treasurer. A copy of the proposed budget is submitted concurrently to the governing body of the locality. Once the budget is set, and subject to appropriated funds, the Commonwealth and locality participate in funding the approved budget, with certain exceptions. In the event of disagreement, the constitutional officer, the locality, or the Commonwealth may appeal the decision of the Compensation Board.

"In the event of any inconsistency between [a] statutory authorization and the appropriation, the Appropriations Act, which has the effect of law and which is the most recent expression of legislative intent, controls." Section 4-12.00 of the appropriations acts provides:

Notwithstanding any other provision of law, and until June 30, 2012, the provisions of this act shall prevail over any conflicting provision of any other law, without regard to whether such other law is enacted before or after this act; however, a conflicting provision of another law enacted after this act shall prevail over a conflicting provision of this act if the General Assembly has clearly evidenced its intent that the conflicting provision of such other law shall prevail, which intent shall be evident only if such other law (i) identifies the specific provision(s) of this act over which the conflicting provision of such other law is intended to prevail and (ii) specifically states that the terms of this section are not applicable with respect to the conflict between the provision(s) of this act and the provision of such other law.

The General Assembly does not define the term "supplant" as it is used in the Appropriations Acts. Consequently, the term must be given its ordinary meaning within the statutory context. "Supplant" generally means "to supersede (another)"; "to take the place of and serve as a substitute for esp. by reason of superior excellence or power." The term "supersede" generally means "to cause to be set aside"; "to take the place, room or position of."

The intent of the Appropriations Act is clear. Based on the plain language of Item 441, subsection C, I conclude that any compensation due to a constitutional officer serving as a license agent for DMV shall be remitted by DMV to the officer's county or city on a monthly basis, and not less than 80 percent of the sums so remitted shall be appropriated by such county or city to the office of the constitutional officer to compensate the officer for the additional work performed in processing transactions for DMV. The language clearly provides that compensation from DMV is intended to serve as compensation for additional work performed for processing DMV transactions. This principle is further clarified and supported by the language of the 2010 and 2011 Appropriations Acts mandating that the funds appropriated to the constitutional office for such work shall not be used to supplant existing local funding for such office, nor to reduce the local share of the Compensation Board-approved budget for such office below the level established pursuant to general law.

Adopting a resolution that provides for the use of DMV funds to offset the salaries of the employees of the offices of the Treasurer and Commissioner of the Revenue, as a result of the state budget cuts, is not only contrary to the principle that constitutional offices receive compensation for the additional work their employees have performed in processing transactions as DMV license agents, but is contrary to the clear dictates of the Appropriations Acts. Using DMV funds to offset salaries of employees of the Treasurer and Commissioner of the Revenue constitutes an action that uses the funds to supplant or replace the existing local funding for such offices, in direct contravention of the Appropriations Act. Furthermore, assuming the Board has not appealed pursuant to § 15.2-1636.9 the budget for the offices of the County Treasurer and Commissioner of the Revenue established by the Compensation Board, the use of DMV compensation to offset the salaries of employees of those offices results in an impermissible reduction of the local share of the Compensation Board-approved budget for such offices.

Conclusion
Accordingly, it is my opinion, Board of Supervisors is required to appropriate to the office of a constitutional officer such as a Treasurer or Commissioner of the Revenue, serving as a license agent for DMV, 80 percent of the funds remitted by DMV to the county for DMV transactions processed by the office of the constitutional officer, and that the monies so appropriated may not be used to supplant existing local funding for such office, nor to reduce the local share of the Compensation Board-approved budget for such office below the level established pursuant to general law.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General