Does a Virginia locality have to commission an annual audit of its clerk of court, and can the Auditor of Public Accounts (APA) only step in under limited conditions?

Plain-English summary

Lunenburg's circuit court clerk asked two questions: (1) whether § 15.2-2511 requires the local governing body to provide for the audit of the clerk's office; and (2) whether the Auditor of Public Accounts (APA) may audit constitutional officers only in the limited circumstances listed in § 15.2-2511(B). Cuccinelli's answer reads the relevant statutes together to give a layered picture.

Section 15.2-2511(A) requires localities to audit annually (as of June 30) all accounts and records, including those of constitutional officers, by an independent certified public accountant. The "shall" makes the duty mandatory. The optional county-government forms (§§ 15.2-417, 15.2-538, 15.2-636, 15.2-844) reiterate the duty and, importantly, allow an audit by the APA to satisfy the requirement. So when the APA performs an audit, the locality need not commission a duplicate audit.

The APA's authority is broader than § 15.2-2511(B) alone suggests. Section 15.2-2511(B) requires the APA to audit when special circumstances exist or there is suspected fraud or inappropriate handling of funds. Section 30-134 also requires the APA to audit at least every other year all accounts and records of every city and county official and agency handling state funds. Constitutional officers are "officials" in that context. Section 15.2-2511(A) further permits, but does not require, the APA to step in when the locality fails to obtain the required annual audit. So the APA's audit authority covers (a) routine biennial audits under § 30-134; (b) gap-fill audits when the locality fails to commission its annual audit; and (c) mandatory audits under § 15.2-2511(B) for special circumstances or suspected fraud.

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

Who is responsible for the annual audit?
The locality, under § 15.2-2511(A). The locality must contract for the performance of the annual audit not later than April 1 of each fiscal year. The audit must follow the Auditor of Public Accounts' specifications.

Does the APA's audit satisfy the locality's duty?
Yes. The optional-county-form statutes (§§ 15.2-417, 15.2-538, 15.2-636, 15.2-844) provide that an APA audit "may be considered as having satisfied" the locality's audit requirement. The locality does not need to commission a duplicate.

Is the APA limited to special circumstances or fraud cases?
No. Section 30-134 requires the APA to audit every other year all city and county officials and agencies handling state funds. The opinion reads "official" in that statute to include constitutional officers such as clerks of court.

Background and statutory framework

Section 15.2-2511(A) provides: "Localities shall have all their accounts and records, including all accounts and records of their constitutional officers, audited annually as of June 30 by an independent certified public accountant in accordance with the specifications furnished by the Auditor of Public Accounts ... Every locality shall contract for the performance of the annual audit not later than April 1 of each fiscal year[.]" The provision expressly captures Article VII, § 4 constitutional officers.

The plain-meaning rule and the mandatory force of "shall" drive the construction; "shall" is given its ordinary meaning of a command unless a different intention is fairly manifest. The optional-form statutes (§§ 15.2-417, 15.2-538, 15.2-636, 15.2-844) reiterate the audit requirement and allow APA audits to satisfy it.

Section 15.2-2511(B) restricts when the APA shall audit (special circumstances, suspected fraud) and requires Joint Legislative Audit and Review Commission approval. Section 30-134 separately requires the APA to audit, at least once every two years, all accounts and records of every city and county official and agency handling state funds. The two provisions operate together: § 30-134 sets the routine baseline, § 15.2-2511(A) requires the locality's annual audit (which the APA's work can satisfy), and § 15.2-2511(B) mandates additional APA audits in defined circumstances.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code § 15.2-2511 (annual audit of locality including constitutional officers)
• Va. Code § 30-134 (biennial APA audit of city/county officials handling state funds)
• Va. Code §§ 15.2-417, 15.2-538, 15.2-636, 15.2-844 (optional county forms; APA audit satisfies)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-094-Erby.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
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

August 5, 2011

The Honorable Gordon F. Erby
Clerk of Court
Lunenburg Circuit Court
Lunenburg, Virginia 23952
Dear Mr. Erby:
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 inquire regarding the audit of the office of Clerk of Court. Specifically, you ask whether § 15.2-2511 requires the governing body to provide for the audit of such offices and whether § 15.2-2511 authorizes the Auditor of Public Accounts to perform such audits of constitutional officers in instances other than those listed in § 15.2-2511(B).

Response
It is my opinion that, although § 15.2-2511 requires a locality to provide for the annual audit of its constitutional officers, an audit performed by the Auditor of Public Accounts can satisfy that requirement. It is further my opinion that the authority of the APA to perform an audit of constitutional officers is not limited to those instances provided in § 15.2-2511(B).

Applicable Law and Discussion
While your inquiry focuses on the application of § 15.2-2511, I note that a variety of statutes address audits for local government officials, including clerks of court. Statutes are not to be read in isolation; rather the principles of statutory construction require that statutes related to a similar subject be construed together in order to achieve a harmonious result.

Section 15.2-2511(A) provides, in relevant part:

Localities shall have all their accounts and records, including all accounts and records of their constitutional officers, audited annually as of June 30 by an independent certified public accountant in accordance with the specifications furnished by the Auditor of Public Accounts.... Every locality shall contract for the performance of the annual audit not later than April 1 of each fiscal year[.] ... The accounts and records of any county or city officer listed in Article VII, Section 4 of the Constitution of Virginia, hereinafter referred to "constitutional officers," shall be subject to the provisions of this section.

When a statute is unambiguous, it is to be interpreted according to its plain language. The use of word "shall" "should be given its ordinary and usually accepted meaning of a command and should be construed as mandatory unless a different intention is fairly manifest." Furthermore, the text explicitly includes "constitutional officers." Accordingly, I conclude § 15.2-2511 requires localities to provide for the annual auditing of constitutional offices.

This duty is reiterated in §§ 15.2-417, 15.2-538, 15.2-636 and 15.2-844, which provide that county boards "shall require an annual audit of the books of every county officer who handles public funds[.]" These sections further provide, however, that "[a]n audit made by the Auditor of Public Accounts ... may be considered as having satisfied [this requirement.]"

Section 15.2-2511(B) provides that

The Auditor of Public Accounts shall audit the accounts of local governments and constitutional officers only when (i) special circumstances require an audit, or (ii) there is suspected fraud or inappropriate handling of funds which may affect the financial interests of the Commonwealth. In all instances, such audits shall be carried out with the approval of the Joint Legislative Audit and Review Commission.

This statute could be read to mean that the APA's ability to audit local officers is limited to the instances the subsection specifically mentions. Notwithstanding the duty imposed on localities in Title 15.2, however, the General Assembly also has provided that "[a]t least once in every two years, and at other times as the Governor directs, the Auditor of Public Accounts ... shall audit all accounts and records of every city and county official and agency in the Commonwealth handling state funds ...." The legislature's use of the term "official" in this context includes constitutional officers. Additionally, § 15.2-2511(A) expressly provides that "[i]n the event a locality fails to obtain the annual audit prescribed in this subsection, the Auditor of Accounts may undertake the audit[.]" Clearly, the Code contemplates that the APA would be conducting audits of constitutional officers, including clerks of court.

The effect of these statutes, when read together, is that under § 15.2-2511, the APA is not charged with performing an annual audit of local government officers, including clerks of court, who receive funds from state government, but that under § 30-134, the APA must perform an audit at least every other year. When the APA does perform an audit, the locality need not engage the services of an accountant to perform a redundant audit. When the locality fails to have an annual audit performed, § 15.2-2511(A) permits, but does not require, the APA to conduct the audit. Under § 15.2-2511(B), however, the APA is required to perform an audit when special circumstances are present or there is suspected fraud or inappropriate handling of funds.

Conclusion

Accordingly, it is my opinion that, although § 15.2-2511 requires a locality to provide for the annual audit of its constitutional officers, an audit performed by the Auditor of Public Accounts can satisfy that requirement. It is further my opinion that the authority of the APA to perform an audit of constitutional officers is not limited to those instances provided in § 15.2-2511(B).

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General