If a Virginia county board of supervisors bypasses purchasing rules, can the board members themselves be charged with a misdemeanor under § 15.2-1239?

Plain-English summary

The Fluvanna County Commonwealth's Attorney was investigating allegedly improper procurement conduct by members of a county board of supervisors in a county that had a county purchasing agent. He asked the AG a narrow legal question: do §§ 15.2-1239 and 15.2-1240 of the Code of Virginia apply to board members?

The two statutes work together. Section 15.2-1239 says that if "any department or agency of the county government" buys or contracts for goods or services in violation of the procurement article (or rules under it), the resulting order or contract is void, and the head of that department or agency is personally liable for the cost. Section 15.2-1240 makes any violation of § 15.2-1239 a misdemeanor punishable under § 18.2-12. Because § 15.2-1240 does not specify the class, that defaults to a Class 1 misdemeanor.

The AG concluded the board itself was not in either statute's reach.

The structural argument: a Virginia county board of supervisors is the county's "governing body" (§ 15.2-102), the entity in which the county's powers and duties are vested (§ 15.2-402), and the entity empowered to organize "all departments, offices, boards, commissions and agencies" of the county and to hire their staff (§ 15.2-1500(A)). The departments and agencies are what the board organizes; the board is not itself one of them. The General Assembly is presumed to choose its words with care, so when it wrote "department or agency" rather than "governing body" or "board of supervisors," it meant to leave the board out.

Two interpretive rules sharpened the conclusion. First, criminal statutes are construed strictly against the Commonwealth and in favor of the defendant; any ambiguity goes the defendant's way (Thompson v. Commonwealth; Morris v. Commonwealth). Second, the maxim expressio unius est exclusio alterius: when a statute lists specific things, items not listed are presumed excluded (Virginian-Pilot v. Dow Jones).

The opinion's narrow legal scope is worth noting. The Commonwealth's Attorney had laid out a specific factual scenario involving alleged misconduct, and the AG expressly limited the response to the statutory-construction question, declining to comment on the propriety of any particular action by individual board members. That left the door open for other remedies (recall, removal under separate statutes, other criminal statutes, civil suit, electoral accountability), just not the specific § 15.2-1239 / § 15.2-1240 criminal route.

Currency note

This opinion was issued in 2014. 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.

The County Procurement Act sections cited here (§§ 15.2-1233, 15.2-1239, 15.2-1240, 15.2-1500, 15.2-1543) have remained on the books, but specific amendments since 2014 should be checked. The strict-construction-of-criminal-statutes principle and the expressio unius canon are well-settled rules of statutory interpretation and have not changed.

Common questions

Which statute creates the procurement misdemeanor?
Section 15.2-1240. It makes any violation of § 15.2-1239 a misdemeanor punishable under § 18.2-12. Because § 15.2-1240 does not specify the class, the violation defaults to a Class 1 misdemeanor under § 18.2-12.

Who can be charged under § 15.2-1239?
At the time of this opinion, the head of a county "department or agency" who entered into a procurement order or contract contrary to the procurement article or its rules. The contract was void and the official was personally liable for the cost.

Why is the board not a "department" or "agency"?
The AG's structural reading: the board is the governing body of the county, an entity that creates and supervises departments and agencies. It is qualitatively distinct from the departments and agencies it organizes. The Code of Virginia did not define "department" or "agency" for these sections, but other Code provisions (§§ 15.2-102, 15.2-402, 15.2-1500) and the expressio unius canon both pointed away from sweeping the board into the term.

Does this immunity apply in counties that don't have a purchasing agent?
The opinion noted in a footnote that §§ 15.2-1239 and 15.2-1240 do not apply at all until there is a "county purchasing agent" or someone designated to perform that office's duties (under § 15.2-1233). So in counties without a purchasing agent, those specific sections are not in play for anyone.

If the board can't be charged under this section, what else could happen?
The opinion did not address other remedies. Possible avenues outside this opinion's scope include the general statutes for removal of local elected officers (§§ 24.2-230 to 24.2-238), other criminal statutes (such as conflict-of-interest or fraud statutes that don't have a "department or agency" limit), civil challenges to the contracts themselves under standard procurement law, or political accountability.

Why are criminal statutes construed strictly?
A long-standing rule: people are entitled to fair warning of what conduct will subject them to criminal punishment, and ambiguities in criminal statutes are resolved in the defendant's favor (Morris v. Commonwealth). Strict construction "confine[s] the statute to those offenses clearly proscribed by its plain terms" (Thompson v. Commonwealth).

Does this opinion apply to cities and towns?
The opinion specifically addressed §§ 15.2-1239 and 15.2-1240, which are in the county procurement article. Cities and towns have parallel but separate procurement structures, and the answer in those settings would depend on the specific charter and code provisions that apply.

Background and statutory framework

• Va. Code § 15.2-102: defines the county board of supervisors as the governing body of the county.
• Va. Code § 15.2-402: vests the county's powers and duties in the board.
• Va. Code § 15.2-1233: authorizes counties to designate a county purchasing agent and is the gateway for §§ 15.2-1239 and 15.2-1240 to apply.
• Va. Code § 15.2-1239: makes void any procurement order or contract entered into by a department or agency of the county in violation of the procurement article or its rules, and imposes personal liability on the head of that department or agency.
• Va. Code § 15.2-1240: makes a violation of § 15.2-1239 a misdemeanor.
• Va. Code § 15.2-1500(A): empowers the board to organize "all departments, offices, boards, commissions and agencies of government" and to employ the officers and employees needed.
• Va. Code § 18.2-12: provides that a misdemeanor with no class specified is a Class 1 misdemeanor.

The interpretive moves:

• The plain meaning of "department or agency" excludes the governing body that organizes those entities.
• Strict construction of criminal statutes resolves any ambiguity against the Commonwealth.
• Expressio unius implies that the General Assembly's choice not to include the board was deliberate.
• The legislative purpose of the procurement article was to ensure that mid-level department heads followed policies and procedures established by the board and the purchasing agent, not to police the board itself.

Citations

• Va. Code § 15.2-102
• Va. Code § 15.2-402
• Va. Code § 15.2-1233
• Va. Code § 15.2-1239
• Va. Code § 15.2-1240
• Va. Code § 15.2-1500(A)
• Va. Code § 15.2-1543
• Va. Code § 18.2-12
• Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 574 S.E.2d 253 (2003)
• City of Falls Church v. Protestant Episcopal Church in the United States, 285 Va. 651, 740 S.E.2d 530 (2013)
• Thompson v. Commonwealth, 277 Va. 280, 673 S.E.2d 473 (2009)
• Morris v. Commonwealth, 269 Va. 127, 607 S.E.2d 110 (2005)
• Barr v. Town & Country Props., Inc., 240 Va. 292, 396 S.E.2d 672 (1990)
• Virginian-Pilot v. Dow Jones & Co., 280 Va. 464, 698 S.E.2d 900 (2010)
• Covington Virginia, Inc. v. Woods, 182 Va. 538, 29 S.E.2d 406 (1944)
• First Nat'l Bank of Richmond v. Holland, 99 Va. 495, 39 S.E. 126 (1901)
• 2010 Op. Va. Att'y Gen. 7

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-107_Haislip.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219
March 14, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
804-371-8946 TDD

The Honorable Jeffrey W. Haislip
Commonwealth's Attorney
County of Fluvanna
Post Office Box 116
Palmyra, Virginia 22963

Dear Mr. Haislip:

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 members of a county board of supervisors are subject to the provisions of §§ 15.2-1239 and 15.2-1240 of the Code of Virginia, which pertain to improper conduct in county procurement procedures.[1]

Response

It is my opinion that, because a county board of supervisors constitutes neither a "department" nor an "agency" within the scope of the relevant statutory provisions, its members are not subject to the provisions of §§ 15.2-1239 and 15.2-1240.

Applicable Law and Discussion

Section 15.2-1240 provides that a "violation of ... § 15.2-1239 shall be a misdemeanor and shall be punishable as provided by § 18.2-12."[2] Section 15.2-1239 provides that

If any department or agency of the county government purchases or contracts for any supplies or contractual services contrary to the provisions of this article or the rules and regulations made thereunder, such order or contract shall be void and the head of such department or agency shall be personally liable for the costs of such order or contract.[3]

Statutes are to be interpreted according to their plain language.[4] The plain meaning of words in a statute is "binding," when the language of the statute "is clear and unambiguous."[5] Moreover, a criminal statute is construed "strictly against the Commonwealth" in order to "confine the statute to those offenses clearly proscribed by its plain terms."[6] "Any ambiguity or doubt as to [a criminal statute's] meaning must be resolved in [the defendant's] favor."[7]

By its plain language, § 15.2-1239 applies only to a "department" or "agency" of the county government. Accordingly, the answer to your inquiry turns on whether the county board is a "department" or "agency" of the county government. The Code of Virginia does not define "department" or "agency" for purposes of these sections; I therefore look to other provisions[8] and principles of statutory construction for guidance.

Under Virginia law, a county board of supervisors is the "governing body" of a county.[9] The "powers and duties of a county as a body politic and corporate [are] vested in [the] board of county supervisors."[10] The board is empowered to "provide for all the governmental functions of the [county], including, without limitation, the organization of all departments, offices, boards, commissions and agencies of government, and the organizational structure thereof, which are necessary and the employment of the officers and other employees needed to carry out the functions of government."[11] I find no provision stating, or otherwise supporting a conclusion, that the board of supervisors itself is either a "department" or "agency" of the county. The legislature is presumed to have chosen its words with care;[12] therefore, the governing body is an entity qualitatively distinct from a department or agency of the county government. Additionally, because the General Assembly did not insert "governing body" or "board of supervisors" into § 15.2-1239, the maxim expressio unius est exclusio alterius is applicable, and I conclude that the General Assembly did not intend to include the board of supervisors within the scope of the statute.[13]

Conclusion

Accordingly, it is my opinion that, because a county board of supervisors constitutes neither a "department" nor an "agency" within the scope of the relevant statutory provisions, its members are not subject to the provisions of §§ 15.2-1239 and 15.2-1240.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

[1] Your inquiry arises from a specific factual scenario involving certain particular allegedly improper procurement activities of the board of supervisors of a county that employs a "county purchasing agent." See Va. Code Ann. §§ 15.2-1233 (2012) and 15.2-1543 (2012). This opinion is limited to the purely legal question presented, and the correct construction of the statutes about which you inquire. I make no comment regarding the propriety or wisdom of any action taken by a board member, individually or in conjunction with other board members.

[2] Because this section does not specify the class of misdemeanor, the offense is a Class 1 misdemeanor. See Va. Code Ann. § 18.2-12 (2009).

[3] Emphasis added. I note that the provisions of §§ 15.2-1239 and 15.2-1240 do not apply until there is a "county purchasing agent," or someone designated to perform the duties of that office. See § 15.2-1233.

[4] Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 47, 574 S.E.2d 253, 257 (2003).

[5] See Falls Church v. Protestant Episcopal Church in the United States, 285 Va. 651, 665, 740 S.E.2d 530, 538 (2013).

[6] See Thompson v. Commonwealth, 277 Va. 280, 291, 673 S.E.2d 473, 474 (2009) (citations omitted).

[7] See Morris v. Commonwealth, 269 Va. 127, 130-31, 607 S.E.2d 110, 112 (2005).

[8] Because the Code of Virginia constitutes a single body of law, the practice of referring to other Code sections as interpretive guides is well established. See First Nat'l Bank of Richmond v. Holland, 99 Va. 495, 504-05, 39 S.E. 126, 129-30 (1901).

[9] Section § 15.2-102 (2012).

[10] Section 15.2-402 (2012).

[11] Section 15.2-1500(A) (2012) (emphasis added).

[12] See Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).

[13] The maxim "expressio unius est exclusio alterius" provides that the mention of specific items in a statute implies that the General Assembly did not intend to include omitted items within the scope of that statute. See Virginian-Pilot v. Dow Jones & Co., 280 Va. 464, 468-69, 698 S.E.2d 900, 902 (2010). Rather, the intent of §§ 15.2-1233 through 15.2-1240 is to ensure that department and agency heads who are the mid-level managers of a county follow policies and procedures established by the board of supervisors and the county purchasing agent. See 2010 Op. Va. Att'y Gen. 7, 9 (quoting Covington Virginia, Inc. v. Woods, 182 Va. 538, 548-49, 29 S.E.2d 406, 411 (1944)) ("In the construction of statutes, the courts have but one object, to which all rules of construction are subservient, and that is to ascertain the will of the legislature, the true intent and meaning of the statute ...").