Attorney General's Opinion 1979-80 #302



October 4, 1979

The Honorable George P. Beard, Jr.
Member, House of Delegates

79-80 302

You inquire as to the legality of the circumstances surrounding the appointment of a new member to the School Board of Rappahanock County. You ask several questions, and I will answer them in order:

1. May the members of the School Trustee Electoral Board eliminate an "at large" position on the school board?

Section 22-61 of the Code of Virginia (1950), as amended, provides in pertinent part as follows:

"Except as otherwise provided by law, the county school board shall consist of tIle same number of members from each district in the county as there are members of the board of Supervisors from each district in the county, each school board member to be appointed by the school trustee electoral board. In addition to the mambers selected by districts, the governing body may authorize the school trustee electoral board to appoint no more than two members from the county at large."

The time-honored "Dillon Rule" requires a narrow construction of the powers and authority granted to local units of government. Thus, as §22-61 permits the appointment of at-large members only with the permission of the board of Supervisors, it would be improper to assume that the School Trustee Electoral Board possessed a removal power separate from and greater than its appointive power. See Walker v. Massie, 202 Va. 886, 121 S.E.2d 448 (1961[?]); Bd. of Supervisors v. Corbett, 206 Va. 167, 142 S.E.2d 504 (1965); Reports of the Attorney General (1971-1972) at 104 and (1974-1975) at 57, respectively,

2. What qualifications must a candidate for the county school board possess?

The statutory requirement for eligibility to serve as a county school board member is found in §22-68. This section stipulates that a candidate "shall be a bona fide resident of the magisterial district or town from which he is elected...." In addition, §22-69 prohibits a county or State officer, and supervisors and their relatives from sitting on the county school board in certain circumstances Finally, §2.1-33 permits certain enumerated classes of federal employees to serve in county positions.

3. May the School Trustee Electoral Board promulgate other criteria for county school board membership?

The powers of local units of goverment can be no greater than those conferred upon them by the General Assembly. Commonwealth v. Arlington County Board, 217 Va. 558, 232 S.E.2d 30 (1977); Gordon v. Fairfax County, 207 Va. 827, 153 S.E.2d 270 (1967). Any doubts as to the existence of a power must be resolved against the locality. See T. J. Dillon Law of Municipal Corporations (1911). As noted above, the General Assembly has expressly established the criteria which must be met by candidates for county school board membership. Therefore, the School Trustee Electoral Board lacks legislative authority to publish additional eligibility requirements and this question must be answered in the negative. See Report of the Attorney General (1977-1978) at 189, 190 and 298.

4. What procedures must the School Trustee Electoral Board follow when considering an appointment to the county school board?

The School Trustee Electoral Board must follow the procedures set forth in the Virginia Freedom of Information Act (the "Act"). See §§2.1-344(b) and 2.1-344(c). These sections generally require the following actions to be taken in order to properly convene in closed session: 1) in open session an affirmative vote to go into closed session, specifically stating the purpose of the closed meeting and the applicable Code section; 2) during closed session, only the items mentioned in the affirrnative vote may be discussed; 3) upon reconvening, any action taken during closed session must be affirmatively voted on again in public session.

Section 2.1-346 provides that any person denied the rights and privileges conferred by this Act may petition an appropriate court for relief. A newly, but improperly, appointed school board member would serve as a de facto officer. His own actions and those of the school board are valid until such time as he receives notice of his defective appointment. See Report of the Attorney General (1975-1976) at 417, a copy of which I enclose for your assistance.

5. Is the Virginia Conflict of Interests Act violated by a situation where in a new school board member has a brother on the School Trustee Electoral Board which appointed him?

Section 2.1-349 prohibits a govermental officer from certain contractual and financial relationships with his own agency. In addition, contractual relationships with other agencies are forbidden in the absence of written disclosure of the officer's interest in such a transaction. Section 2.1-348(f) defines a material financial interest as "personal and pecuniary interest accruing to an officer or employee or to his spouse or to any other relative who resides in the same household." Finally, §2.1-352 requires an officer who knows or should know that he has a material financial interest in his agency's transaction to disclose his interest to his agency's governing board and disqualify himself from voting on or participating in any consideration thereof.

On the facts as your constituents relate them, there appears to be no violation of the Virginia Conflict of Interests Act. First, the School Trustee Electoral Board and the school board are separate entities: the School Trustee Electoral Board exists solely to appoint the membership of the school board. Since the agencies are separate, there can be no violation of §2.1-349 prohibition against dealing with one's own agency. Second, you have stated no facts which suggest that there exist any financial dealings between either of the brothers and either of the two entities. Thus, there is no violation of the §2.1-352 requirement of disclosure and abstention from voting. Finally, you have relayed the information that the brothers maintain separate households. Therefore, there is no violation of §2.1-348(f). Thus, this question is answered in the negative.