Can a Virginia city council expel one of its own members under its city charter, or does the state court-removal statute take over?

Plain-English summary

The Petersburg City Attorney was working through a council discipline question that has come up across Virginia. The Petersburg City Charter (§ 2-5) said the council "may adopt such rules ... to compel the attendance of absent members, to expel a member for malfeasance, misfeasance or nonfeasance in office." The Council adopted a written Disciplinary Procedure under that authority. State law also offers a separate route: § 24.2-233 lets a circuit court, on petition, remove from office any elected officer for neglect of duty, misuse of office, or incompetence. The City Attorney wanted to know whether the charter expulsion power was constitutional and whether § 24.2-233 displaced it.

The AG concluded both pieces of the charter setup were valid and that they coexisted with § 24.2-233.

Constitutionality. Article VII, § 2 of the Virginia Constitution gives the General Assembly authority to enact, by special act, charters that confer on localities "rights and powers different from, and in addition to, those conferred by general statutes." Acts of the General Assembly carry a presumption of constitutionality (Whitlock v. Hawkins; Marshall v. N. Va. Transp. Auth.). The Virginia Supreme Court "will not invalidate a statute unless that statute clearly violates" the federal or state constitution. Nothing in either constitution forbids the General Assembly from granting a local legislative body the power to expel one of its own members. The Fourth Circuit in Whitener v. McWatters described a legislative body's discipline of its members as a "core legislative act." The Disciplinary Procedure adopted under the charter is constitutional for the same reason; a locality may exercise powers "necessarily or fairly implied" from express grants (Richmond v. Confrere Club; Bd. of Supvrs. v. Horne).

Coexistence with § 24.2-233. Section 24.2-233 says a circuit court "may" remove an elected officer on petition. Nothing in the text makes that procedure exclusive. The plain-meaning rule (Davenport v. Little-Bowser) and the rule against adding language to statutes (Appalachian Power Co. v. State Corp. Comm'n) both forecloses reading exclusivity in. Statutes should be construed to "harmonize and give effect to each" (Liberty Mutual v. Fisher). The charter expulsion path and the court-petition path are therefore additional procedures. Even if they conflicted, the charter would control because it is a special act and the general-law removal statutes do not supersede earlier special acts (Powers v. County School Board).

Note on companion opinion. This opinion was issued the same day as Opinion 13-112 (Haymarket Town Charter), which reached the same answer for a town-charter expulsion provision. The two together give a uniform framework: Virginia charter expulsion authority is constitutional, exists in parallel with § 24.2-233, and is governed by the charter's specific terms.

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 Petersburg City Charter remains in effect and was last amended (as of the opinion's footnote) in 2009. Sections 24.2-230 to 24.2-238 of the Code remain in place but should be verified for amendments. The constitutional framework (Article VII, § 2 of the Virginia Constitution; Whitener v. McWatters on core legislative discipline; special-act-controls-over-general-law doctrine) is well-settled. Each Virginia city's charter is different, and a different city's expulsion question would need to start with that city's specific charter text.

Common questions

What can the council remove a member for?
Under Petersburg's § 2-5, the grounds are "malfeasance, misfeasance or nonfeasance in office." The Council's adopted Disciplinary Procedure fleshed out the process and grounds. Other cities' charters use different terms (some say "for cause," others list specific grounds). A council considering expulsion should read its specific charter text.

Does the council need a particular vote percentage?
The opinion did not address vote-counting for Petersburg specifically. The companion Opinion 13-112 (Haymarket) analyzed how to count a "two-thirds" expulsion vote. Each charter sets its own threshold; readers should consult the actual charter text.

Can the member ask a court to review the expulsion?
The opinion did not address judicial review. Whitener v. McWatters held local legislators have absolute immunity from federal damages suits for procedural due process violations in disciplinary proceedings. Whether and how state-law remedies (writ of mandamus, declaratory judgment, election contest in narrow cases) are available depends on the specific facts.

What is the § 24.2-233 court route?
A petition filed in the circuit court of the locality where the officer serves, alleging neglect of duty, misuse of office, or incompetence in the performance of duties that has had a material adverse effect on the office. The court then conducts a judicial proceeding to decide whether to remove. The petition process has standing and procedural rules outside the scope of this opinion.

Does this apply to county supervisors?
The opinion was specifically about a city council under a city charter. The framework (constitutional grant of expulsion authority by special act, coexistence with general-law court removal) would apply to other localities if and to the extent they have similar charter provisions. Counties typically do not have analogous charter expulsion provisions; their elected officials are usually subject to the § 24.2-233 route and the procedures in §§ 24.2-230 to 24.2-238.

Can the council expel someone and the court also remove them?
The opinion did not address parallel or sequential proceedings. The two routes are described as additional, not alternative. In practice, once a council has expelled someone, the council seat is vacant; a court proceeding under § 24.2-233 against the same person after expulsion would likely be moot.

Does this affect mayors, treasurers, or other constitutional officers?
The opinion addressed expulsion of a member of the City Council. Mayors, sheriffs, treasurers, commissioners of revenue, and commonwealth's attorneys are constitutional officers under Article VII, § 4 of the Virginia Constitution, with their own removal frameworks. The general rule (§ 24.2-230) is that the court-removal procedure applies "so long as removal is not provided for by the Constitution of Virginia." A separate analysis would be needed for those officers.

What is a "special act"?
A statute enacted by the General Assembly that applies to a single locality (or a small, defined group), as opposed to a "general law" that applies statewide. Virginia city and town charters are typically special acts. The rule that a later general law does not supersede an earlier special act is well established (Powers).

Background and statutory framework

• Va. Const. art. VII, § 2: General Assembly's special-act authority over cities, towns, counties, and regional governments.
• Petersburg City Charter § 2-5: authorizes the City Council to adopt rules, compel attendance, and expel a member for malfeasance, misfeasance, or nonfeasance in office.
• City Council Disciplinary Procedure (Resolution No. 13-R-29, 2013): the policy adopted by the Council under § 2-5.
• Va. Code § 15.2-1103: confirms that the General Assembly may confer additional powers by municipal charter.
• Va. Code § 24.2-230: applies the court-removal procedure to local officers whose removal is not provided for by the Virginia Constitution.
• Va. Code § 24.2-233: authorizes a circuit court, on petition, to remove an elected officer for neglect of duty, misuse of office, or incompetence.

The interpretive moves:

• The Virginia Constitution does not prohibit grants of expulsion authority to local legislative bodies.
• Charters are special acts; they control over later general-law removal procedures.
• The court-removal and charter-expulsion procedures are additional and parallel, not mutually exclusive.

Citations

• Va. Const. art. VII, § 2
• Va. Code § 15.2-1103
• Va. Code § 24.2-230
• Va. Code § 24.2-233
• Petersburg City Charter § 2-5
• City of Colonial Heights v. Loper, 208 Va. 580, 159 S.E.2d 843 (1968)
• Ransone v. Craft, 161 Va. 332, 170 S.E. 610 (1933)
• Pierce v. Dennis, 205 Va. 478, 138 S.E.2d 6 (1964)
• Whitlock v. Hawkins, 105 Va. 242, 53 S.E. 401 (1906)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
• Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997)
• Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652 (1917)
• Liberty Mut. Ins. Co. v. Fisher, 263 Va. 78, 557 S.E.2d 209 (2002)
• Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005)
• Powers v. Cnty. Sch. Board, 148 Va. 661, 139 S.E. 262 (1927)
• Fallon Florist, Inc. v. City of Roanoke, 190 Va. 564, 58 S.E.2d 316 (1950)
• City of Portsmouth v. Weiss, 145 Va. 94, 133 S.E. 781 (1926)
• Bd. of Supvrs. v. Horne, 216 Va. 113, 215 S.E.2d 453 (1975)
• Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77, 387 S.E.2d 471 (1990)
• Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 733 S.E.2d 250 (2012)
• 1980-81 Op. Va. Att'y Gen. 186

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-005_Telfair.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219

Mark R. Herring
Attorney General

July 18, 2014

804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Brian K. Telfair, Esquire
City Attorney for the City of Petersburg
Office of the City Attorney, City Hall
135 North Union Street
Petersburg, Virginia 23803

Dear Mr. Telfair:

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 § 2-5 of the Petersburg City Charter (the "City Charter"), which allows for the expulsion of City Council members, and the City Council's adoption of a Disciplinary Procedure pursuant thereto, are constitutional in light of § 24.2-233 of the Code of Virginia, which provides for a method by which a circuit court may remove city officials.

Response

It is my opinion that § 2-5 of the City Charter, and the Disciplinary Procedure adopted by the City Council pursuant thereto, are valid exercises of constitutional authority. The constitutionality of the City Charter and the Disciplinary Procedure are not affected by § 24.2-233 of the Code of Virginia.

Applicable Law and Discussion

Article VII, § 2 of the Constitution of Virginia authorizes the General Assembly to "provide by special act for the organization, government, and powers of any county, city, town, or regional government, including such powers of legislation, taxation, and assessment as the General Assembly may determine ...." Pursuant to this provision, the legislature may enact municipal charters that confer upon localities "rights and powers different from, and in addition to, those conferred by general statutes."[1] In addition, the legislature may enact municipal charters that establish "laws for the organization and government of one city which differ from those enacted for another city."[2]

In accordance with this constitutional authority, the General Assembly granted to the Petersburg City Council, through § 2-5 of the City Charter, the express authority "to adopt such rules and to appoint such officers and clerks as it may deem proper for the regulation of its proceedings, and for the convenient transaction of business, to compel the attendance of absent members, to expel a member for malfeasance, misfeasance or nonfeasance in office."[3] The City Council has exercised this authority by adopting a City Council Disciplinary Procedure, which allows the Council to take disciplinary action against a member for official misconduct.[4]

Generally, all acts of the General Assembly are presumed constitutional.[5] Because a municipal charter is an act of the General Assembly, "there is a prima facie presumption that [it] was enacted in the manner required by the Constitution, and that the rights and powers conferred are within the legislative power to grant."[6] The Supreme Court of Virginia "will not invalidate a statute unless that statute clearly violates a provision of the United States or Virginia Constitutions."[7] I find no federal or state constitutional provision that would preclude the General Assembly from granting a local legislative body the power to expel one of its members.[8] I therefore conclude that § 2-5 of the City Charter, which allows for the expulsion of City Council members, is a constitutional exercise of the General Assembly's legislative power. It follows that the Council's Disciplinary Policy and Procedure, adopted in pursuance to this express grant of authority, also is constitutional.[9]

This conclusion is not altered by § 24.2-233 of the Code of Virginia. This statute provides that, "[u]pon petition, a circuit court may remove from office any elected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court ...."[10] There is no direct conflict between the provisions of this statute and § 2-5 of the City Charter.[11] Although § 24.2-233 provides one means for the removal of an elected local official, there is no language to indicate it is intended to be the sole means. "A principal rule of statutory interpretation is that courts will give statutory language its plain meaning."[12] In addition, "[r]ules of statutory construction prohibit adding language to or deleting language from a statute."[13] Accordingly, exclusivity cannot be read into the provisions of § 24.2-233. The City Charter's grant of disciplinary authority and the removal authority granted to circuit courts by § 24.2-233 therefore must be read as additional procedures available for the discipline of local officials.

Conclusion

Accordingly, it is my opinion that § 2-5 of the City Charter, and the Disciplinary Procedure adopted by the City Council pursuant thereto, are valid exercises of constitutional authority. The constitutionality of the Charter and the Disciplinary Procedure are not affected by § 24.2-233 of the Code of Virginia.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

1. City of Colonial Heights v. Loper, 208 Va. 580, 585-86, 159 S.E.2d 843, 847 (1968) (quoting Ransone v. Craft, 161 Va. 332, 340, 170 S.E. 610, 613 (1933) (citing to the predecessor provision of Va. Const. art. VII, § 2, as found in the 1902 Constitution of Virginia)); see also Va. Code Ann. § 15.2-1103 (2012) (providing that the legislature may confer, by municipal charter, powers in addition to those conferred by general statute); Fallon Florist, Inc. v. City of Roanoke, 190 Va. 564, 574, 58 S.E.2d 316, 321 (1950); City of Portsmouth v. Weiss, 145 Va. 94, 107, 133 S.E. 781, 785 (1926).
2. Pierce v. Dennis, 205 Va. 478, 485, 138 S.E.2d 6, 12 (1964) (citing to the predecessor provision of Va. Const. art. VII, § 2, as found in the 1902 Constitution of Virginia).
3. Charter for the City of Petersburg, Va., § 2-5 (emphasis added), available at http://dls.virginia.gov/charters/Petersburg.pdf. This Charter was last amended in 2009, with no change to this authority. See 2009 Va. Acts cc. 659 & 724.
4. City of Petersburg, Va., Resolution No. 13-R-29 (2013) ("A Resolution Adopting a Policy and Procedure that Governs the Exercise of City Council's Disciplinary Authority").
5. Indeed, "[t]here is no stronger presumption known to the law than that which is made by the courts with respect to the constitutionality of an act of Legislature." Whitlock v. Hawkins, 105 Va. 242, 248, 53 S.E. 401, 403 (1906).
6. City of Colonial Heights, 208 Va. at 586, 159 S.E.2d at 847 (quoting Ransone, 161 Va. at 341, 170 S.E. at 613).
7. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008).
8. I note in this regard that "a legislative body's discipline of one of its members is a core legislative act." Whitener v. McWatters, 112 F.3d 740, 741 (4th Cir. 1997); see also Pine v. Commonwealth, 121 Va. 812, 825, 93 S.E. 652, 655-56 (1917); 1980-81 Op. Va. Att'y Gen. 186, 187.
9. It is well-established in Virginia that a locality may exercise all powers that are necessarily or fairly implied from powers expressly granted by the General Assembly. See, e.g., Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990); Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975).
10. This statute applies to local officers, so long as their removal is not provided for by the Constitution of Virginia. See Va. Code Ann. § 24.2-230 (2011).
11. Statutes should be construed "in a manner that harmonizes and gives effect to each statute." Liberty Mut. Ins. Co. v. Fisher, 263 Va. 78, 84, 557 S.E.2d 209, 212 (2002). I note that, even if § 24.2-233 and § 2-5 of the City Charter directly conflicted, § 2-5 of the City Charter would govern, as this provision is part of a special act. See Powers v. Cnty. Sch. Board, 148 Va. 661, 669, 139 S.E. 262, 264 (1927) (stating that "[w]hen there is a conflict in the provisions of a special or local act and the general law on the subject[,] the special act is controlling").
12. Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 904 (2005)).
13. Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706, 733 S.E.2d 250, 256 (2012) (citing BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469 (2007)).