When a Virginia city or town council appoints school board members and a board seat opens up mid-term, can the council just appoint a successor, or must it first hold a public hearing under § 22.1-29.1?

Subject

The governing body of a municipality served by a school board it appoints must hold at least one hearing pursuant to Code § 22.1-29.1 prior to making an appointment to fill a vacancy for an unexpired term.

Plain-English summary

Delegate Cordoza asked whether a Virginia city or town council that appoints its school board must hold a public hearing under § 22.1-29.1 when filling a school board vacancy mid-term. § 22.1-29.1 requires "[a]t least seven days prior to the appointment of any school board member . . . , the appointing authority shall hold one or more public hearings to receive the views of citizens." § 22.1-50 separately addresses vacancy appointments but says nothing about hearings.

The AG concluded yes. The plain language of § 22.1-29.1 covers "any" school board appointment, with no carve-out for unexpired terms. The statute also says "[n]o nominee or applicant whose name has not been considered at a public hearing shall be appointed as a school board member." Reading the two statutes together (§§ 22.1-29.1 and 22.1-50), the AG concluded both full-term and mid-term appointments require the public hearing.

An additional note: if the council appoints someone without a § 22.1-29.1 hearing, that person serves only as a "de facto officer." Their official actions while serving are still valid (to protect the public's reliance), but once the appointment defect is established, they cannot continue to act, and any future actions would be invalid.

What this means for you

For city and town councils that appoint school boards

When a school board vacancy opens (resignation, death, etc.), do not skip the public hearing. Schedule it at least seven days before the appointment vote. Publish notice in a newspaper of general circulation in the school division at least seven days before the hearing. Take public testimony on the proposed nominee(s). Then vote. Names not considered at the hearing cannot be appointed.

This applies to cities and towns that appoint their school boards (most do not anymore, since most Virginia school boards are now popularly elected). Examples cited in the opinion: Galax, Hopewell, Lynchburg, Martinsville, Poquoson, Roanoke.

For council members

Resist any push to make a quick vacancy appointment "to keep the board functioning." A hasty appointment without a hearing creates a de facto officer whose appointment can be undone. That destabilizes the school board more than a brief vacancy would.

For school board candidates / nominees

If you are being considered to fill a school board vacancy, ask whether the council has held the § 22.1-29.1 public hearing. If not, your appointment may be vulnerable to challenge later.

For parents and citizens

You have a statutory right to comment on prospective school board appointees, even for mid-term vacancies, before the council votes. Watch for notice in your local newspaper.

Common questions

Which jurisdictions does this apply to?

Cities and towns "constituting a school division" (most municipalities that are independent school divisions) where the local governing body appoints the school board under § 22.1-50. Per the opinion, this includes (as of the time of the opinion): Galax, Hopewell, Lynchburg, Martinsville, Poquoson, and Roanoke. Most other Virginia school boards are popularly elected.

What if there's an urgent need to fill a seat?

The seven-day notice and one hearing are not heavy lifts. A council can adopt a fast-track process: identify a candidate, publish notice the next day, hold the hearing eight days later, vote at the next meeting. The constraint is a public process, not a calendar issue.

What is a "de facto officer"?

Someone appointed to office through a defective process who acts under the color of authority until the defect is established. Their official actions during that time are valid (so the public can rely on them), but once the defect is established, they cannot continue to function.

Can the appointment be challenged in court?

Yes, typically through quo warranto or a declaratory judgment. The AG's office cannot resolve a specific contested appointment in an advisory opinion.

Does the same rule apply to elected school boards?

Different framework. For elected school boards, vacancies are usually filled by special election. For appointed boards, this opinion applies.

What about a recess vacancy created right before an organizational meeting?

The § 22.1-29.1 hearing requirement does not bend for timing. If the vacancy is filled by the council, the hearing must come first.

Background and statutory framework

The framework:

• Va. Const. art. VIII, § 7: school boards composed as provided by law.
• § 22.1-28: school division supervision vested in school board.
• §§ 22.1-34 to 22.1-57.5: various school-board selection methods.
• § 22.1-48: cities and towns constituting school divisions.
• § 22.1-50: default appointment by local governing body; vacancy filling.
• § 22.1-29.1: public hearing requirement, with mandatory language ("shall").

Most Virginia school boards are popularly elected today (per the Virginia Department of Elections schedules). The opinion notes that those that are appointed are the focus here.

The de facto officer doctrine traces to Griffin's ex'or v. Cunningham (Va. 1870) and is reflected in earlier AG opinions (1974-75, 1980-81, 1989).

Citations

• Va. Const. art. VIII, § 7 (school board supervision)
• Va. Code Ann. § 2.2-505 (advisory opinion authority)
• Va. Code Ann. § 22.1-28 (school division supervision)
• Va. Code Ann. § 22.1-29.1 (public hearing requirement)
• Va. Code Ann. § 22.1-48 (cities and towns constituting school divisions)
• Va. Code Ann. § 22.1-50 (default appointment; vacancy filling)
• Va. Code Ann. §§ 15.2-531, 15.2-627, 15.2-837 (county forms of government)
• White v. Dotson, 903 S.E.2d 511 (Va. 2024)
• Shepherd v. Conde, 293 Va. 274 (2017)
• Ogunde v. Commonwealth, 271 Va. 639 (2006)
• Sussex Cmty. Servs. Ass'n, 251 Va. 240 (1996)
• White v. Commonwealth, 203 Va. 816 (1962)
• Griffin's ex'or v. Cunningham, 61 Va. 31 (1870)
• 1974-75, 1980-81, 1989, 2014, 2023 Op. Va. Att'y Gen.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2025/25-007-Cordoza-Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
Attorney General
July 25, 2025

The Honorable A.C. Cordoza
Member, Virginia House of Delegates
102 Pratt Street
Fort Monroe, Virginia 23651

Dear Delegate Cordoza:

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 the local governing body of a municipality served by a school board it appoints must hold a hearing pursuant to Code § 22.1-29.1 when appointing a school board member to fill a vacancy for an unexpired term.

Applicable Law and Discussion

The Constitution of Virginia establishes that "[t]he supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law."[1] Chapter 5 of Title 22.1 contains provisions governing the selection of school board members.[2] Depending on the school division, school board members may be elected directly by the voters of the division or appointed by the local governing body or a school board selection commission.[3]

Pertinent here, Chapter 5 includes specific provisions that apply "in each city and town which constitutes a school division."[4] Per Code § 22.1-50, absent a charter provision to the contrary, the local governing body appoints the school board serving such divisions.[5] Members of these school boards are appointed for staggered three-year terms commencing July 1, and successors are appointed thirty days prior to the expiration of a term.[6] Code § 22.1-50 further provides that any "vacancy occurring on the school board at any time other than by expiration of term shall be filled by the governing body for the unexpired term."[7]

Chapter 5 also contains the statute about which you inquire, Code § 22.1-29.1. It directs that, "[a]t least seven days prior to the appointment of any school board member pursuant to the provisions of this chapter . . . or of any municipal charter, the appointing authority shall hold one or more public hearings to receive the views of citizens within the school division."[8] When a town or city council is the appointing authority, it must provide public notice "at least seven days prior to any hearing by publication in a newspaper having a general circulation within the school division."[9] Code § 22.1-29.1 further establishes that "[n]o nominee or applicant whose name has not been considered at a public hearing shall be appointed as a school board member."[10]

When analyzing a statute, the "primary objective is to determine and effectuate the General Assembly's intent as it is expressed through the language of the operative statute."[11] The General Assembly knows how to express its intent,[12] and courts "assume that the General Assembly chose, with care, the words it used in enacting [a] statute[.]"[13] "In determining [legislative] intent, the plain language of an unambiguous statute will be applied[,]"[14] and statutes addressing the same subject "should be read, construed and applied together so that the legislature's intention can be gathered from the whole of the enactments.[15]"

The terms of § 22.1-29.1 are clear and unambiguous. The statute makes no distinction between full-term and interim vacancy appointments, and it contains no language limiting its application to school board members who are appointed to full terms. Rather, it requires at least one hearing prior "to the appointment of any school board member" made under Chapter 5 or any municipal charter, which encompasses vacancy appointments made by municipal governments.[16] Neither Code § 22.1-29.1 nor Code § 22.1-50 exempts any appointing authority from "receiv[ing] the views of citizens within the school division" prior to appointing school board members to fill unexpired terms. Instead, although Code § 22.1-50 makes no reference to public hearings, Code § 22.1-29.1 unequivocally provides that "[n]o nominee or applicant whose name has not been considered at a public hearing shall be appointed as a school board member."[17]

I therefore conclude that the General Assembly intended that an appointing authority receive the views of citizens within a school division prior to appointing school board members to any term of office, full or unexpired, and intended to prohibit the appointing authority from appointing a school board member whose name has not been considered at a public hearing.[18]

Conclusion

Accordingly, it is my opinion that the local governing body of a municipality served by a school board it appoints must hold at least one public hearing pursuant to Code § 22.1-29.1 prior to making an appointment to fill a vacancy for an unexpired term.

With kindest regards, I am,
Very truly yours,

Jason S. Miyares
Attorney General

1. VA. CONST. art. VIII, § 7.

2. See VA. CODE ANN. § 22.1-28 (2021) (providing generally that the "supervision of schools in each school division shall be vested in a school board selected as provided by this chapter"). Chapter 5 includes Code §§ 22.1-28 through 22.1-57.5.

3. See §§ 22.1-57.1 to 22.1-57.5 (2021), 22.1-47.1 to 22.1-47.4 (2021 & Supp. 2024) (authority for covered local jurisdictions to choose popularly elected school boards); §§ 22.1-34 to 22.1-46 (2021 & Supp. 2024) (default and alternate selection methods in school divisions composed of a single county); § 22.1-47 (school divisions comprising counties having a county manager plan or county board form of government); §§ 22.1-48 to 22.1-50 (2021 & Supp. 2024) (default method for selecting school boards in cities and towns constituting school divisions); §§ 22.1-52 to 22.1-57 (2021) (school divisions composed of less than one county or city or part or all of more than one county or city). §§ 22.1-57.3:1 to 22.1-57.3:1.2 (Supp. 2024) (providing for popular election of the schools boards of Bath, Loudoun, Pittsylvania, Pulaski, and Rockbridge counties). See also VA. CODE ANN. § 15.2-531 (2018) (counties with the county executive form of government); § 15.2-627 (2018) (counties with a county manager form of government); § 15.2-837 (2018) (counties with an urban county executive form of government). The vast majority of school boards in Virginia currently are selected via popular election. See VA. DEP'T OF ELECTIONS, Calendars & Schedules, https://www.elections.virginia.gov/casting-a-ballot/calendars-schedules/ (last accessed on March 21, 2025) (setting for the schedule of elections for school boards).

4. Section 22.1-48 (2021).

5. Section 22.1-50 (Supp. 2024). This provision applies to municipalities that have not passed a referendum to directly elect their school boards. It is my understanding that the school boards serving the Cities of Galax, Hopewell, Lynchburg, Martinsville, Poquoson, and Roanoke, for example, are appointed by their respective city councils.

6. Id.

7. Id.

8. Section 22.1-29.1 (Supp. 2024).

9. Id.

10. Id.

11. White v. Dotson, _ Va. , , 903 S.E.2d 511, 512 (2024).

12. 2023 Op. Va. Att'y Gen. 78, 84 n.29 (citing 2014 Op. Va. Att'y Gen. 95, 97).

13. Shepherd v. Conde, 293 Va. 274, 285 (2017) (quoting Kiser v. A.W. Chesterton Co., 285 Va. 12, 19 n.2 (2013)).

14. Ogunde v. Commonwealth, 271 Va. 639, 644 (2006). See also Glens Falls Ins. Co. v. Stephenson, 235 Va. 420, 422 (1988).

15. See Alger v. Commonwealth, 19 Va. App. 252, 256 (1994) (quoting BLACK'S LAW DICTIONARY 791 ("in pari materia") (6th ed. 1990)).

16. Section 22.1-29.1 (emphasis added). "The word 'any,' like other unrestrictive modifiers such as 'an' and 'all,' is generally considered to apply without limitation." Sussex Cmty. Servs. Ass'n v. Va. Soc'y for Mentally Retarded Children, 251 Va. 240, 243 (1996).

17. Section 22.1-29.1 (emphasis added). "Statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another." White v. Commonwealth, 203 Va. 816, 819 (1962).

18. Although not directly asked, entwined by your request is the effect of an appointment made without satisfying Code § 22.1-29.1. I therefore further advise that a person improperly appointed to the school board serves as a "de facto officer" until it is established that the appointment was improper. "A de facto officer is one who assumes office by the power of an election or appointment, but in consequence of some informality, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his position when called upon by the government to show by what title he holds his office." 1989 Op. Va. Att'y Gen. 69, 71 n.1 (citing Griffin's ex'or v. Cunningham, 61 Va. (20 Gratt.) 31, 43 (1870)). Official actions taken while serving as a de facto officer are considered valid, but once it is determined that the appointment was improper, the appointee can no longer function as a de facto officer, and any of his future official acts are invalid. Id. at 71; 1980-81 Op. Va. Att'y Gen. 126, 127 ("[A]ny occupant of an office who was improperly appointed would nevertheless be a de facto officer; and thus, any actions performed by him under color of office, until such time as he may be removed, must be considered valid."); 1974-75 Op. Va. Att'y Gen. 418, 420.