Can a Fairfax County retirement board member also serve on an advisory committee of the Virginia Retirement System Board?

Plain-English summary

Virginia Retirement System Director Patricia Bishop asked the AG a narrow but consequential question about who can serve on VRS Board advisory committees. In particular: can a Fairfax County Employees' Retirement System (FCERS) trustee, appointed by the Fairfax County Board of Supervisors, sit on a VRS Board advisory committee?

The question arose because the relevant statute, § 51.1-124.26(C), bars "elected or appointed official[s]" from serving on VRS advisory committees, and the question was whether "appointed official" is limited to state executive branch appointed officials (the kind the 1994 JLARC report on VRS governance was focused on) or whether it sweeps in all appointed officials, including local-government appointees.

AG Mark Herring read the statute strictly:

• "The General Assembly chose not to include any qualifying terms such as 'executive branch' or 'state executive branch' before the term 'appointed official.'"
• Applying the plain language: "no appointed official of any entity, branch, or level of government can be selected to serve on an advisory committee of the VRS Board."
• A FCERS trustee appointed by the Fairfax County Board of Supervisors is an appointed official. So the trustee cannot serve.

The 1994 JLARC report had recommended insulating VRS governance from political influence by barring "elected officials and executive branch appointed officials" from serving on the VRS Board. Following the report, the General Assembly enacted § 51.1-124.20(F) (banning elected or appointed officials from the VRS Board) and § 51.1-124.26(C) (extending the same ban to advisory committees). The statutes use "appointed official" with no qualifier. The AG took that literally.

A footnote noted one carveout: the statute itself says "Except for any Board member who serves on an advisory committee." So a VRS Board member appointed to serve on an advisory committee isn't barred by the appointed-official rule for that purpose.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

The Virginia Retirement System (VRS) manages defined benefit pensions for state and many local public employees. In 1994, the Joint Legislative Audit and Review Commission (JLARC) issued House Doc. No. 52, REVIEW OF THE VIRGINIA RETIREMENT SYSTEM, recommending governance reforms to insulate VRS from political influence. At the time, an elected constitutional officer sat on the VRS Board, along with two gubernatorial appointees from the executive branch.

Following the JLARC report, the General Assembly enacted:

• Section 51.1-124.20(F): "elected or appointed official[s]" are prohibited from serving on the VRS Board of Trustees.
• Section 51.1-124.26(C): "Except for any Board member who serves on an advisory committee, no elected or appointed official shall serve on an advisory committee" of the VRS Board.

The interpretive question: did the General Assembly intend "appointed official" to mean only state-executive-branch appointed officials (the kind the JLARC report criticized) or all appointed officials?

The AG's canons of construction (from Blake v. Commonwealth (2014); Glens Falls Insurance Co. v. Stephenson (1988); Coles v. Commonwealth (2004); Posey v. Commonwealth (1918); Chavez v. Commonwealth (2018)) all push the same way: plain language controls, courts can't add words the legislature chose not to use, and the legislature is presumed to have chosen its words with care.

FCERS is Fairfax County's locally-administered defined benefit plan, distinct from VRS. Its Board of Trustees includes members appointed by the Fairfax County Board of Supervisors. A trustee in that capacity is an "appointed official" by any ordinary meaning of the term.

Common questions

Q: Why does this matter for VRS advisory committees?
A: VRS advisory committees inform big decisions about pension investments and policy. The General Assembly chose to keep them politically independent by excluding "elected or appointed officials." Pulling in local-government appointees would risk the same political-influence dynamic the JLARC report flagged.

Q: Couldn't the same person serve in a personal capacity?
A: No. The opinion treats "appointed official" as a status, not a hat. As long as the person occupies the FCERS trustee role by Board of Supervisors appointment, they are an "appointed official" and are barred from VRS advisory service.

Q: Does the bar apply if the person resigns the FCERS seat first?
A: The opinion did not address that scenario directly, but logically yes: if the person is no longer an appointed official, they are no longer barred. The bar is tied to current status.

Q: What about elected officials of a local body?
A: The same statute bars them too. § 51.1-124.26(C) covers "elected or appointed official[s]," with no level-of-government qualifier.

Q: What if the local appointee has special expertise the VRS Board could use?
A: The opinion does not provide an exception for expertise. The General Assembly could amend the statute to create one, but the current language is categorical.

Q: Does the rule apply to VRS Board members serving on advisory committees themselves?
A: No. The statute carves out "any Board member who serves on an advisory committee" from the bar. A VRS trustee can serve on an advisory committee even though, by virtue of being a trustee, they are technically an appointed official.

Q: What's the relationship between the VRS Board and its advisory committees?
A: The Board makes governance and investment policy decisions; advisory committees provide subject-matter input (often on investment strategy, real estate, alternative investments, etc.) but don't have decisional authority. Still, the General Assembly chose to extend the same political-independence rule to the advisory layer.

Q: How is this enforced?
A: The opinion addresses statutory eligibility, not enforcement mechanism. As a practical matter, the Director of VRS or the VRS Board's appointing process would screen candidates against the § 51.1-124.26(C) eligibility rule.

Citations

The opinion rests on § 51.1-124.20(F) and § 51.1-124.26(C), the 1994 JLARC Report (House Doc. No. 52), and the plain-language cases Blake v. Commonwealth (288 Va. 375 (2014)), Glens Falls Insurance Co. v. Stephenson (235 Va. 420 (1988)), Coles v. Commonwealth (44 Va. App. 549 (2004)), Posey v. Commonwealth (123 Va. 551 (1918)), and Chavez v. Commonwealth (69 Va. App. 149 (2018)).

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/19-033-Bishop-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 12, 2020

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Ms. Patricia S. Bishop
Director, Virginia Retirement System
Post Office Box 2500
Richmond, Virginia 23218-2500

Dear Ms. Bishop:
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 a member of the Board of Trustees of the Fairfax County Employees' Retirement System ("FCERS Board") who is appointed to that position by the Fairfax County Board of Supervisors may be selected to serve on an advisory committee of the Virginia Retirement System's Board of Trustees.

Background

As you relate, in 1994 the Joint Legislative Audit and Review Commission (JLARC) issued a comprehensive report on the Virginia Retirement System (VRS).[1] This report, made at the request of the General Assembly, set out several findings regarding the governance structure of VRS and made recommendations aimed at strengthening the independence of the retirement system. Relevant to your request, the report noted that at the time of its publication, one member of the VRS Board of Trustees (the "VRS Board") was an elected constitutional officer, and two members were gubernatorial appointees serving in the executive branch of state government. In order to eliminate any perception of undue political influence and gubernatorial control created by the service of these individuals, the JLARC report recommended that the General Assembly amend the Code of Virginia to prohibit "elected officials and executive branch appointed officials" from serving on the VRS Board.[2]

Following publication of the Report, the General Assembly enacted § 51.1-124.20(F), which prohibits "elected or appointed official[s]" from serving on the VRS Board.[3] The General Assembly also enacted § 51.1-124.26(C) of the Code, which extends this prohibition to advisory committees of the VRS Board. Specifically, § 51.1-124.26(C) provides that "no elected or appointed official shall serve on an advisory committee" of the VRS Board.[4]

You ask whether the recommendation in the 1994 JLARC Report limits the meaning of the term "appointed official" in § 51.1-124.26(C) to state executive branch appointed officials, such that an individual serving on the FCERS Board as an appointee of the Fairfax County Board of Supervisors would not be prohibited from serving on an advisory committee of the VRS Board.

Discussion
In answering your inquiry I am guided by the following well established principles. "'When construing a statute, [the] primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute."[5] If the language used in the statute is plain and unambiguous, the statute must be applied as written,[6] and courts "are not permitted 'to add or to subtract from the words used in the statute.'"[7] "This guidance flows from the principle that [courts] must assume the legislature chose, with care, the words it used when it enacted the relevant statute."[8]

In my opinion, the language of § 51.1-124.26(C) is plain and unambiguous and the scope of its prohibition is clear. The General Assembly chose not to include any qualifying terms such as "executive branch" or "state executive branch" before the term "appointed official." Thus, applying the plain language of the statute as it is written, no appointed official of any entity, branch, or level of government can be selected to serve on an advisory committee of the VRS Board.[9] It follows that a member of the FCERS Board who is appointed to that position by the Fairfax County Board of Supervisors may not be selected to serve on an advisory committee of the VRS Board.

Conclusion
Accordingly, it is my opinion that a member of the Board of Trustees of the Fairfax County Employees' Retirement System who is appointed to that position by the Fairfax County Board of Supervisors is prohibited under § 51.1-124.26(C) from also serving on an advisory committee of the Board of Trustees of the Virginia Retirement System.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION (JLARC), REVIEW OF THE VIRGINIA RETIREMENT SYSTEM (House Doc. No. 52) (1994), available at https://rga.lis.virginia.gov/Published/1994/HD52.

2. Id. at III & 24; but see id. at 35 (stating that "[e]lected and appointed State and local governmental officials should be prohibited from serving on the [VRS] Board as trustees").

3. VA. CODE ANN. § 51.1-124.20(F) (Supp. 2019).

4. VA. CODE ANN. § 51.1-124.26(C) (2013) (The full text of the provision states, "Except for any Board member who serves on an advisory committee, no elected or appointed official shall serve on an advisory committee.").

5. Blake v. Commonwealth, 288 Va. 375, 381, 764 S.E.2d 105, 107 (2014) (internal quotation marks and further citations omitted).

6. Glens Falls Ins. Co. v. Stephenson, 235 Va. 420, 422, 367 S.E.2d 722, 724 (1988).

7. Coles v. Commonwealth, 44 Va. App. 549, 557, 605 S.E.2d 784, 788 (2004) (quoting Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918)).

8. Chavez v. Commonwealth, 69 Va. App. 149, 157, 817 S.E.2d 330, 334 (2018) (internal quotation marks, ellipses, and further citation omitted).

9. But see supra, note 4 (noting that the prohibition does not apply to VRS Board members who are appointed to serve on an advisory committee; their status as "appointed officials" by virtue of their service on the VRS Board does not preclude their service on an advisory committee of the VRS Board).