Can a Virginia planning commission member also serve on a school board to which they were elected?

Plain-English summary

King George County's Commonwealth's Attorney asked whether a sitting planning commission member could simultaneously serve on an elected school board. Section 22.1-30(A) restricts certain local officers from school board membership, but only when they are "appointed." A planning commission member is an "officer" for these purposes, the AG concluded, because an office is a position created by the Constitution or by statute with the importance, independence, and supervisory authority that distinguish an officer from an employee. So the question turned on whether the statute also covered election.

Cuccinelli read the statute's plain language as drawing a sharp line between "appointed" and "elected." The 1993 amendment to § 22.1-30 deleted the words "or serve," meaning the statute now only bars listed officers from being appointed. Compare § 22.1-29, which uses the phrase "appointed or elected" when setting eligibility requirements. The General Assembly knew how to capture both methods when it wanted to. Its deliberate use of just "appointed" in § 22.1-30(A) controls. The AG also confirmed that no other Code or constitutional provision, including Article VII, § 6, barred a sitting planning commissioner from also serving on a school board if elected.

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

Why is a planning commission member an "officer" for this purpose?
The opinion explained that an officer is distinguished from an employee by the greater importance and independence of the position and the authority to direct and supervise; a public office is a position created by the Constitution or by statute, often with a fixed term. Applying that standard, the AG concluded a planning commissioner is an officer.

Why didn't Article VII, § 6 (no dual office) bar this?
That provision prohibits holding "more than one office mentioned in this Article." A planning commission seat is not one of those Article VII offices, and the prohibition on holding two elected offices does not apply because planning commission members are appointed, not elected.

What was the significance of the 1993 amendment?
Before 1993, the statute prohibited certain officers from being appointed "or serve" as a member of the school board. The 1993 amendment deleted "or serve." With that language gone, only an appointment is barred. An elected seat is permissible.

Does this mean any local officer can run for the school board?
The statute lists categories (state, county, city, or town officers; deputies of those officers; members of the governing body of a county, city, or town; in counties with more than the relevant population, certain relatives of a member of the county governing body). Those individuals cannot be appointed to the school board. But the statute is silent on election. The question of whether some other provision (a city charter, for example) might separately bar dual service depends on the specific local framework.

Background and statutory framework

Section 22.1-30(A) states: "[n]o county ... officer ... may, during his term of office, be appointed as a member of the school board for each county." The statute covers a list of officers (and certain relatives), but the operative limit is "appointed."

Plain-language statutory interpretation controls: "[w]hen statutory language is plain and unambiguous, the legislature is presumed to have intended what it plainly has expressed, and statutory construction is unnecessary." Section 22.1-29, the eligibility section, uses "appointed or elected" when reaching both methods. The legislature's deliberate omission of "elected" from § 22.1-30(A) signals that only appointment is barred.

The 1993 amendment reinforced the textual point by deleting "or serve" from the prohibition. Had that language remained, the listed officers would have been barred from serving (whether by appointment or election); deleting it leaves only the appointment limit in place.

The opinion noted that no other Code or constitutional provision barred the dual service. Article VII, § 6 prohibits holding more than one office mentioned in that Article, but a planning commission seat is not such an office; and the bar on holding two elected offices does not reach an appointed planning commissioner.

Citations

• Va. Code § 2.2-505 (authority for the advisory opinion)
• Va. Code § 22.1-30(A) (post-1993 prohibition on appointment only)
• Va. Code § 22.1-29 (eligibility uses "appointed or elected")
• Va. Const. art. VII, § 6 (no holding more than one Article VII office)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-071-Britton.pdf

Original opinion text

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

July 8, 2011

The Honorable Matthew J. Britton
Commonwealth's Attorney
9483 Kings Highway #4
King George, Virginia 22485

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

Dear Mr. Britton:
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 inquire whether, under § 22.1-30(A), a person may simultaneously serve both as a county planning commission member and as an elected school board member.

Response
It is my opinion that under the plain language of § 22.1-30(A), a planning commission member is not precluded from being elected to, and serving on, a school board.

Applicable Law and Discussion
Section 22.1-30(A) of the Code of Virginia states in relevant part that "[n]o county ... officer ... may, during his term of office, be appointed as a member of the school board for each county." As you note, this language raises two questions for a person who currently serves as a county planning commissioner but who also wishes to serve as the member of an elected school board. First, is a planning commissioner an "officer" for purposes of § 22.1-30(A) and, second, does this statute bar his service on the school board if he is elected rather than appointed?

The term "officer" is used in these statutes "to distinguish between an officer of government and an employee of government in applying the prohibition against public officers serving on school boards, with employees being allowed to serve if they are otherwise qualified." For purposes of § 22.1-30,

[a]n officer is distinguished from an employee in the greater importance and independence of the position and the authority to direct and supervise; a public office is a position created by the Constitution or by statute, with a fixed term ... being a frequent characteristic; and, where the position is created by administrative action, it does not rise to the level of an office.

Applying this criteria, I conclude that a planning commissioner is an "officer."

With respect to your second question, the plain language of the statute provides the answer. "When statutory language is plain and unambiguous, the legislature is presumed to have intended what it plainly has expressed, and statutory construction is unnecessary." The statute prohibits certain individuals from being "appointed" to the school board. It does not prohibit these same individuals from being "elected" to the school board. Had the General Assembly intended to prohibit certain officers for the locality from being elected to the school board it knew how to do so. For example, § 22.1-29 requires "[e]ach person appointed or elected to a school board" to meet certain criteria, including a requirement that the person "be a qualified voter and a bona fide resident of the district." In § 22.1-30(A), the General Assembly did not use the "appointed or elected" phrasing, it limited the phrasing to persons who are "appointed" to the School Board.

I also find it significant that the statute was amended in 1993. That year, the General Assembly made the following change to § 22.1-30:

No state, county, city or town officer, no deputy of any such officer, no member of the governing body of a county, city or town and, in counties having a population of more than 49,999 persons, no father, mother, brother, sister, spouse, son, daughter, son-in-law, daughter-in-law, sister-in-law or brother-in-law of a member of the county governing body may, during his term of office, be appointed or serve as a member of the school board for such county, city or town or as tie breaker such school board ....

The deletion of the words "or serve" is significant. Had that language been left in the Code, the listed persons would have been prohibited from serving on the school board, whether elected or appointed. As the statute presently stands, only persons who are appointed to the school board are precluded from also serving as a local officer in the forbidden categories. The language of § 22.1-30(A) is plain: it only prohibits certain officers from being appointed to the school board, it does not prohibit officers from being elected.

Finally, I can find no other Code or Constitutional provision that would prohibit a planning commission member from being elected to the school board and simultaneously serving in both capacities.

Article VII, § 6 of the Virginia Constitution prohibits persons from holding "more than one office mentioned in this Article." That provision does not apply here by its plain terms. The prohibition on serving simultaneously in two elected offices does not apply, because planning commission members are not elected. Other statutes prohibit dual office-holding with respect to certain specified offices, but these prohibitions do not apply in this particular situation.

Conclusion

Accordingly, it is my opinion that under the plain language of § 22.1-30(A), a planning commission member is not precluded from being elected to, and serving on, a school board.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General