If a Virginia county supervisor takes a temporary out-of-district job for several years but plans to come back, does he automatically lose his seat?

Plain-English summary

The Montgomery County Attorney was facing a real personnel question. A sitting member of the Board of Supervisors was considering a job that would require him to live, for about nine months a year, at a work site outside his electoral district (but still within Montgomery County). The initial term was three years, with annual reviews, and could potentially renew for another three. He would keep ownership of his legal residence in the district, did not intend to change his domicile, and planned to return home when the job ended. Did he automatically lose his seat?

The AG worked through the statutory and constitutional framework.

Eligibility to hold office. A person qualified to vote is generally qualified to hold elective office (Va. Const. art. II, §§ 1, 5; Va. Code § 24.2-500). Qualifying as a voter requires being of legal age, being a registered voter, and residing in the Commonwealth and in the precinct where the person votes (Va. Code § 24.2-101). For county offices specifically, § 15.2-1525 requires every county officer at the time of election or appointment to have resided in the locality for 30 days. Board of supervisors members are county officers under § 15.2-1400(A).

Vacation upon removal of residence. Section 15.2-1526 provides that when an officer subject to the residency requirement "removes himself from the county, city, town or district for which he was elected during his elective term, his office shall be deemed vacant." A 2003 AG opinion (2003 Op. Va. Att'y Gen. 104) summarized the rule that a non-resident "is not eligible to hold an office within the locality."

The meaning of "residence" and "domicile." Section 24.2-101 defines "residence" and "resident" to require both domicile and a place of abode. To establish domicile, the person "must live in a particular locality with the intention to remain." A "place of abode" requires a physical dwelling. When the person maintains several abodes, "domicile will control what constitutes residence for purposes of voting and holding elective office."

Domicile is governed by intent. The Virginia Supreme Court has long held that an individual who leaves an original residence "with the intention of returning" continues legally to reside there, "notwithstanding the temporary absence of himself and family" (Dotson v. Commonwealth; Williams v. Commonwealth). Mere absence, however long, does not change domicile. A college student living in Virginia for years without intent to abandon Florida residency was held not to have acquired Virginia residency (Kegley v. Johnson). A citizen with extensive ties to Virginia (home, businesses, board memberships, church, children in school) was held not to have changed his West Virginia domicile because he did not intend to abandon it (Cooper's Adm'r v. Commonwealth).

Place of abode under these facts. The supervisor would be required to live outside the district nine months a year, but would keep his home in the district and intend to return. The home in the district was a physical dwelling place; he therefore had a "place of abode" within the district.

Conclusion as a general rule. Whether a particular person fulfills the residency requirements is a fact-specific inquiry into intent, beyond the scope of an AG opinion. But as a general rule, the AG concluded: when a board member relocates within the county for a temporary nine-months-a-year job, with the intent to continue owning his home and maintaining his domicile within the district, and with the intent to return home after the temporary job ends, he has not automatically taken up a new residence for purposes of § 15.2-1526 and has not vacated his elected office.

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 statutory framework cited here (Va. Code §§ 24.2-101, 24.2-500, 15.2-1400, 15.2-1522 et seq., 15.2-1525, 15.2-1526) remains in place but should be verified for amendments. The domicile/abode case law from the Supreme Court of Virginia (Kegley, Dotson, Williams, Cooper's Adm'r) is well-settled and continues to be cited. The fact-specific nature of any individual residency determination has not changed; anyone facing a particular fact pattern should consult counsel and may need to make a record before a circuit court if challenged.

Common questions

Does this mean I can hold local office while living somewhere else?
Not exactly. The opinion turns on the difference between domicile (your legal home, the place you intend to remain) and a temporary place where you are physically living for work or other reasons. If your domicile is in the district and you keep a place of abode there, a temporary absence does not vacate your seat. If you actually move (intend to make the new place your permanent home), that is a change of domicile and you would lose your seat under § 15.2-1526.

What kinds of facts show intent to change domicile?
The case law is fact-intensive. Factors include selling the old home, registering to vote in the new place, changing your driver's license and vehicle registration, sending children to school in the new place, moving banking and church affiliations, paying taxes as a resident of the new place, and just stating your intent to relocate. A combination of those moves, taken together, can show an intent to abandon the old domicile.

What if the temporary job becomes permanent?
Then intent has changed, and § 15.2-1526 likely applies. The AG opinion noted that length of absence "likely is a factor in determining intent" even though it is not by itself dispositive. A move that started as temporary can become a change of domicile if the person decides to stay.

Who decides whether a supervisor has vacated office?
The opinion did not address the procedural mechanism. In practice, a challenge could come up via petition under §§ 24.2-230 to 24.2-238 (the general-law removal procedure), via an election contest, or via litigation over a particular vote the supervisor cast.

Does this rule apply to other local officers?
Yes, the residency framework in §§ 15.2-1525 and 15.2-1526 applies generally to county officers, and parallel provisions apply to city and town officers. The same domicile/abode analysis under § 24.2-101 governs whether a person is a "resident" for voting and office-holding.

What about a supervisor who travels constantly for work but keeps a home in the district?
The same analysis. If domicile remains in the district and a physical abode is maintained, frequent travel does not vacate the office. The opinion's analysis of "place of abode" focused on the existence of a physical dwelling, not on time spent in it.

Can the board challenge a colleague's residency on its own?
The opinion did not address this. The general framework involves court proceedings under §§ 24.2-230 et seq., and political accountability through elections. Specific local charters may provide additional remedies.

Does the answer depend on whether the temporary work site is in the same county?
The opinion noted in the facts that the new work site was still within Montgomery County (just outside the supervisor's electoral district). The structural analysis (domicile + abode, intent governs) does not turn on that fact; the same rule would apply to a temporary out-of-state assignment as long as the supervisor kept his domicile and abode in the district.

Background and statutory framework

• Va. Const. art. II, §§ 1, 5: voter and office-holder qualifications.
• Va. Code § 24.2-101: defines "residence" and "resident" as requiring both domicile and a place of abode.
• Va. Code § 24.2-500: qualifications for elective office (includes qualification to vote for the office).
• Va. Code § 15.2-1400(A): qualifications for members of a local governing body governed by §§ 15.2-1522 et seq.
• Va. Code § 15.2-1525: requires county officers to have resided in the locality for 30 days at the time of election or appointment.
• Va. Code § 15.2-1526: provides that an officer who removes himself from the county, city, town, or district during his term vacates his office.

The interpretive moves:

• Residency for voting and office-holding requires both domicile (intent to remain) and place of abode (physical dwelling).
• Domicile, once established, persists until an intent to change is shown.
• Temporary absence does not change domicile, however long it lasts, absent intent to abandon.
• Each individual determination is fact-specific and falls outside the scope of AG opinions.

Citations

• Va. Const. art. II, §§ 1, 5
• Va. Code § 24.2-101
• Va. Code § 24.2-500
• Va. Code § 15.2-1400(A)
• Va. Code § 15.2-1525
• Va. Code § 15.2-1526
• Kegley v. Johnson, 207 Va. 54, 147 S.E.2d 735 (1966)
• Dotson v. Commonwealth, 192 Va. 565, 66 S.E.2d 490 (1951)
• Williams v. Commonwealth, 116 Va. 272, 81 S.E. 61 (1914)
• Cooper's Adm'r v. Commonwealth, 121 Va. 338, 93 S.E. 680 (1917)
• Lindsay v. Murphy, 76 Va. 428 (1882)
• Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905 (2011)
• 1992 Op. Va. Att'y Gen. 108
• 1993 Op. Va. Att'y Gen. 33
• 2003 Op. Va. Att'y Gen. 104
• 2006 Op. Va. Att'y Gen. 12
• 2009 Op. Va. Att'y Gen. 80
• A.E. Dick Howard, Commentaries on the Constitution of Virginia 352 (1974)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-003_McMahon.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219

May 23, 2014

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

Martin M. McMahon, Esquire
County Attorney for the County of Montgomery
755 Roanoke Street, Suite 2F
Christiansburg, Virginia 24073-3182

Dear Mr. McMahon:

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 a member of a county board of supervisors vacates his position on the board by accepting temporary employment that will require him, while so employed, to live outside the district he represents, but where his intent is to retain his domicile within that district.

Response

It is my opinion that a member of a county board of supervisors does not vacate his elected office as a county supervisor solely due to an absence from his electoral district to engage in temporary employment, provided that he maintains his domicile within his electoral district and intends to return there upon the termination of the temporary employment.

Background

You relate that a member of the Board of Supervisors of Montgomery County is considering seeking an employment position that would require him to live for approximately nine months per year at a work site outside the district he was elected to represent, but still within Montgomery County. He has represented to you that he will continue to own his legal residence within the district, does not intend to change his domicile, and will return to his home within the district once the new employment ends. The initial term will be for three years, subject to annual performance reviews, and it may also be renewed for a second three-year term.

Applicable Law and Discussion

Both constitutional and statutory provisions govern the qualifications to hold elective office in Virginia.[1] These provisions require that, to hold elective office, an individual must be qualified to vote for that office.[2] To be recognized as a "qualified voter," an individual must meet three qualifications: he must (i) be of legal age to vote, (ii) reside both within the Commonwealth and within the precinct in which he will vote, and (iii) be a registered voter.[3] Further, with respect to holding local office specifically, § 15.2-1525 of the Code of Virginia requires every county officer, at the time of his election or appointment, to have resided in the locality for 30 days preceding his election.[4] Such county officers include members of a county board of supervisors.[5] Section 15.2-1526 further provides that when an officer subject to this requirement removes himself from the county, city, town or district for which he was elected during his elective term, "his office shall be deemed vacant."[6] A "nonresident of a locality is not eligible to hold an office within the locality."[7]

For purposes of voting, and thus holding elective office, Virginia law provides that "residence" and "resident" require "both domicile and a place of abode."[8] To establish domicile, a voter or candidate "must live in a particular locality with the intention to remain."[9] To satisfy the "place of abode" requirement, an individual must have a physical dwelling place within the relevant jurisdiction.[10] When one maintains several abodes, domicile will control what constitutes residence for purposes of voting and holding elective office.[11] As established in the cases discussed below, residence and domicile, terms that are sometimes used interchangeably, are both governed by intent.

In determining residence pursuant to those provisions, the Supreme Court of Virginia has given significant weight to the intent accompanying an officer's presence in a particular district.[12] The Court has explained that, where an individual "[leaves] his original residence with the intention of returning, such original residence continues in law, notwithstanding the temporary absence of himself and family."[13] Mere absence from a fixed home, however long continued, cannot work the change. Indeed, the Supreme Court of Virginia has held that a college student who lives in Virginia for several years has not established residency here, despite the length of time spent here, in the absence of evidence that he intends to abandon his prior residence in Florida.[14] It has also held that a citizen who established extensive, wide-ranging, and meaningful ties to a Virginia community over a period of several years was not a Virginia resident because he did not intend to give up his legal domicile in West Virginia.[15]

As to domicile, "[t]here must be the animus to change the prior domicil[e] for another."[16] Moreover, "[w]here a man has two places of living, which is his legal residence is to be determined largely, where the right to vote or hold office is involved, by his intention."[17] There is a presumption that a domicile once acquired subsists until a change is proved, and the burden of proving the change is on the party alleging it.[18] Accordingly, I conclude that an officer will not be deemed to have vacated his elected office unless he also demonstrates an intention to establish a permanent residence outside of his original district.[19]

Finally, as to "place of abode," the facts under consideration entail the supervisor being required to live outside his district for only nine months per year and retaining ownership of his home within his district, with the intent to return to it. Under these facts, he has a physical dwelling place[20] within the district and thus satisfies the requirement of having a "place of abode" within the district.

Conclusion

The question of intent is a fact-specific inquiry, and domicile is "determined by considering relevant factors establishing a person's intent to remain in the jurisdiction."[21] As a result, whether a particular person fulfills the residency requirements for holding an elective office is a question beyond the scope of this Opinion.[22] Nevertheless, it is my opinion that, as a general rule, when a member of a county board of supervisors relocates to another district within the county for a temporary job for nine months a year, with the intent to continue owning his home and maintaining his domicile within the district from which he was elected, and with the intent to return home after completion of his temporary employment, he has not taken up automatically, or as a matter of law, a new residence for purposes of § 15.2-1526.[23] Thus, he has not vacated his elected office.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

1. See, e.g., Va. Const. art. II, §§ 1, 5; Va. Code Ann. § 24.2-500 (2011).
2. Va. Const. art. II, § 5.
3. Va. Code Ann. § 24.2-101 (Supp. 2013); see also Va. Const. art. II, § 1.
4. Va. Code Ann. § 15.2-1525 (2012).
5. See § 15.2-1400(A) (2012) (providing that the qualification for office as a member of local governing body is governed by § 15.2-1522 et seq.).
6. Section 15.2-1526 (2012).
7. 2003 Op. Va. Att'y Gen. 104, 107.
8. Va. Const. art. II, § 1; Va. Code Ann. § 24.2-101.
9. Section 24.2-101.
10. Id.; see 1993 Op. Va. Att'y Gen. 33, 40.
11. 1992 Op. Va. Att'y Gen. 108, 110 (citing 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 352 (1974)).
12. See, e.g., Kegley v. Johnson, 207 Va. 54, 58, 59, 147 S.E.2d 735, 737, 738 (1966) ("The crucial factor, then, in the case before us, is [the prospective voter's] intention with respect to his stay in Albemarle County .... We simply say that [his] presence in [the] County, without the requisite domiciliary intent, was not sufficient to qualify him as a resident for voting purposes.").
13. Dotson v. Commonwealth, 192 Va. 565, 571, 66 S.E.2d 490, 493 (1951) (discussing whether a member of the board of supervisors of Dickenson County who relocated to Wise County vacated his office). See Williams v. Commonwealth, 116 Va. 272, 277, 81 S.E. 61, 63 (1914) (holding that "[a] legal residence, once acquired by birth or habitancy, is not lost by temporary absence for pleasure, health, or business, or while attending to the duties of a public office.").
14. Kegley, 207 Va. at 54, 147 S.E.2d at 735.
15. Cooper's Adm'r v. Commonwealth, 121 Va. 338, 93 S.E. 680 (1917). The community ties included building and owning a home there, becoming an officer and stockholder of several Virginia corporations, serving as president of the local board of trade, transferring his church membership there, sending his children to public schools there as residents, and re-interring his two deceased children there.
16. Id. at 347, 93 S.E. at 682 (italics in original) (quoting Lindsay v. Murphy, 76 Va. 428 (1882)), accord Harrison v. Harrison, 58 Va. App. 90, 103, 706 S.E.2d 905, 912 (2011). I note that, although not necessarily conclusive, the length of the absence likely is a factor in determining intent.
17. Dotson, 192 Va. at 571, 66 S.E.2d at 493.
18. Williams, 116 Va. at 278, 81 S.E. at 63.
19. Dotson, 192 Va. at 573, 66 S.E.2d at 494 (An individual "does not acquire a domicile where he is if he has no intention of staying there and had no intention of abandoning his former home when he left there."); Williams, 116 Va. at 277-78, 81 S.E. at 63 ("a man's legal residence is not changed when he leaves it for temporary purposes and transient objects, meaning to return when those purposes are answered and objects attained.") (citation omitted). See Dixon, 83 Va. Cir. at 372 (quoting Ruling of the Tax Comm'r, No. 10-32 at 2 (Apr. 8, 2010) ("In order to change from one legal domicile to another legal domicile, there must be (1) an actual abandonment of the old domicile, coupled with an intent not to return to it, and (2) an acquisition of a new domicile at another place, which must be formed by personal presence and an intent to remain there permanently or indefinitely.")).
20. Va. Code Ann. § 24.2-101.
21. 1993 Op. Va. Att'y Gen. at 39.
22. The Attorney General refrains from issuing opinions on matters requiring a determination of fact rather than law. See, e.g., 2006 Op. Va. Att'y Gen. 12 and citations therein. See also 2009 Op. Va. Att'y Gen. 80, 81 and n.17 ("Attorneys General consistently have declined to render official opinions on specific factual matters ....").
23. "'Once a person has established domicile, establishing a new domicile requires that he intentionally abandon his old domicile.'" Dixon, 83 Va. Cir. at 373 (quoting State Board of Elections Policy 2009-005).