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HomeMy WebLinkAboutABCC Opinion - '. '. . (~Jl'JJ'~J_. tllfr.nib . ~~a4~s-.. ' W'L.aURN C. O'SLING. JR. . . CITY ATTORNEY OFFICE; OF THE. CITY ATi"ORNEY 464 MUNICIPAL. BUIL.DING ROANOKE, VIRGINIA 24011 703-981"2431 WILL'""M X PARSONS', WII...LIAM M', HACKWoFi.'r-H MARK A. WiLLIAMS.... ASSISTANT CITY ArioA~,EYS Octo,ber 28, 1983 Mary F. Parker, City Clerk City of Roanoke 456. Municipal Building Roanoke, Virginia 24011 Re: Boards, authorities, 'commissions, 'and cOminLtt1i~~~~. " .~D'ear t1rs. Parker: ,~ ,By ~emorandum of October 26, 1983, you' have requested mYi~~4,:- vice as to d,etermining wh~ch of the City's boards, authoritfes.::~,:\ connn,issionsand committeel:! are permanent and which are .&9. hoc. c' <r am~ple~sed to respqnd to your request with thj~s 'opirtion,~' ';; ,;jO' QUESTION PRESENTED What is the ~ifference between a permanent board, autl101;''~.ty.;, commission or cOI!JI!littee .bf the City and an ad, hoc 'board, .auFJi9"t~t:,y, commission or committee or the City? ' , ,.ANSWER ._~ f 'Permanent DO.ards, authorities, commissions or' 'committees,; (entities) are sdinding entities ~hich have acortt.illUing. ~xis):t~4e. .Ad hoc entities are special entiti'es which go out',o:E '~xls'tenq'e ,:tr9:~ s~qn as they have completed 9- specified task. ", fACTS By Ordin.anc,~ NQ. 2.6~'O5" adopted December 2 7, 1982, Cj.~y (go~tnci+ ?-dopted new ~2-281.l ,Code o;;E ;theCity of Roanoke (1979) J "'a,$~;ame1),ded, which. provides' that ".'~.no1I1ember of a pe;rman.ent bo~rd,', au~hdr~ty;:' , ~ . ". . _ _ _.' _ _ ~ <,t. . <-' ,<. commission or committee shall be eligibl.e for t~a.pp.o~ntment .1rq "tlje', same office. for, the term next succeeding'.: ~ . "~ers()p.~ ti9~4i,.t;.gm~!l).f per~ll~p<?n a permanent comint:ttee on the, .<:late of, ad9ptio.:q.gf' O~,~ifi.i'P:c~ ;.. -... . . Ie Mary F. Parker, City Clerk October 28, 1983 ~ Page 2 No. 26305 are provided a partial "grandfather clause" so that they are eligible to serve'threeadditional complete'terms of office. 'In making a.determination as to those entities to which ~2-281.1'hasapplication, you have' raised the question as to the distinction between '''permanerit'' and "ad hoc." DISCUSSION OF LAW Certain entities appointed by City ,Council are specified by the City Code to be permanent connnitte.es.' ~ong these 'are the Audit Committee, the Budget and Planning Committee, the Water Resourc,es Committee, the Human 'Resources Committee, the City Investment Committee and the Personnel Committee. See '~2-297, Code of the City of Roanoke '(1979) ~ asam.ended. These, however, are not the only permanent bodies appointed by the Council. According to Robert's Rules of Order, Newly Revised, ~49, committees are 'ordinarily divided into two types: standing and special. According to Robert's, standing coIIimittees are those which have a continuing existence. The division of all committees by Robert's into two types seems analogous to the City Code's division of Council-appointed bodies into perma- nent or ad hoc. Black's Law Dictionary 1297 ,(4th Ed. 1957) defines "permanerit" as follows: "Fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally op- posed in law to 'temporary,' but not always meari- ing 'perpetual.'" Based on the foregoing definition, it would appear to me that a permanent committee is synonymous with a standing committee. Permanerit or standing entities created by City Council are ordinarily unlimited in duration and are intended by Council to have a continuing existence. As a rule o'f thumb ,. entities created by the State Code, City Charter or City Cod~ are. permanent or standing. For example, the Roanoke City Planning Commission is required by both the State Code' and City ,Charter. See ~15.l-427.l, Code of Virginia (1950), as amended; and Roanoke City Charter ~62(6). The Roanoke City School Board is another permanent body, and this one is created by City Charter with the procedure 'for appointment prescribed by City Code. See , Roanoke City Charter ~~54 through 56; and ~19-19 through-z3, Code of the City of Roanoke (1979), as amended.' Other permanent committees owe their existence solely to City Code. See, for example, the Air Pollution ,Control Advisory and Appeal Board (~3-31); the Advisory Board of Human Resources (~17-14,et IJtr ".-" , , . ;. Mary F. Parker, City Clerk .October 28, 1983 Page 3 ~.); the Architectural Review Board (~36-373); the Board of Trustees of the Employees' Retirement System (~22-86); the Fair Housing Board (~16-l67); the Library Board (~18-13); the Youth Services Citizen Board (~17-3l et~.); the Airport Ad- visory Commission (~4-2l et ~.); ana-tne-Personne1 and Employ- mentPractices Commission-r~2=-83et seq.). -- The ad hoc bodies created by Council seem to be those re- ferred to by Robert's Rules of Order NewT Revised, as "special" committees. ccor 1ng to 0 ert s, special committees go out of existence as soon as they have completed a specified task. See Robert's Rules of Order. Newly Revised, ~49. -The characteriza- tion by Robert's of certain committees as "special" is consistent with the definition of "ad hoc" set out in Black's Law Dictionary 56 (4th Ed. 1957) which is as follows: "For this; for this special purpose." The ad hoc entities created by Council are established for a nar- row and limited purpose with the intention that the entity auto- matically be terminated upon completion of its work. Although the rule may not be without exception, for the most part, ad hoc committees are created by resolution or some- times merely by motion of Council. The most common ad hoc com- mittee created by Council is a bid committee which is charged with the responsibility of tabulating and reviewing certain bids and reporting to Council; upon rendering its report and action of Council, the committee automatically goes out of existence. Other ad hoc committees have been charged with very important responsi- bilities, such as the Mayor's Advisory Committee to Study the City's Retirement System and the Citizens Blue Ribbon Long-Range Planning and Goal-Setting Committee. I trust that with the benefit of the information contained in this opinion, you will be assisted in designating the boards, authorities, commissions and committees established by Council as either "permanent" or "ad hoc." Should you need assistance in particular cases, please do not hesitate to call upon me. With kindest personal regards, I am Sincerely yours, WCDJr:c ./ Wilburn C. Dib inc- Jr. City Attorney .~ ~JJ.Wtg4 . "~"',,,', .' RECEIVED C IT '~1'~C'l Ef(~-\.~j OFFiCE '88 ,lilliSi' P t:.r: WIL.;'j;::JRN c:,. OII!lL.ING. JR, . .:.~. Cl;(. ~~o"N&Y. . OFFICE OF THE CITY ATTORNEY 484 MUNICIPAL. BUlL-DING, ROANOKE, VIRGINIA 24011 703-&81-2431 WIL.LIAM X .....,,8QN& ' WIL.LIAM M. HACKWORTH MA"K A. WIL.LIAM8 , ' A....TANT CITY ATTOIIN&V. july 13" .1988 Honorable Mayor and Members of Ci ty , Coun-ci I Roanoke, Virginia Re :,,' Appointment of former Council members to bo.ards, commissions, and authorities Dea'r Mrs. Bowles and GentlemEm ~ . Yotihave requested that I render an 6~fl~ial o~inion with regaid to the ippointment of forme~ members of , City Council to, 'boards, commissions or authoritie,s, QUESTION PRESENTED . /. . '~, Maya i8rmer mernber of City Council be appointed by Council, to serve as 'a. member of a City 'boar~, commission., or authority? ANSWER , Yes, unless' the appointment is to 2.n "office" as defined by this oPinion, _, DISCUSSION OF LAW Article VI I, ~6, of the ' Constitution of Virginla (1971) prohi-, bits appointment to an office of 'a .member' of a gOverning body by' Such bQdy ~xceptas authorized: by ~aw, ,Article-VII, S6 o~ the Const~tutiori.st~tes ~n pertinent p~rt that~ ' , , ' Nomeinber of a governing body shalf be 'el~gible, during the term of office for which he was elected,or ~ppointed, to hold ~ny'offi6efilled. bythe'gov~rning' bod1 bi elec~ion 6r appoint~ent, .except that~a.member .' of ~ governing body may be named a membe~'ofsuch other' ,boards, ,commissions~ and bodies as may be permitted by gener~l law and except, that a member of a governing, body may be. elected:or~pp6inted to fill ~ vacancy 1n, th~ office 9f mayor or board chairman'if permitted by ~eneral laW"or special act. ' '.,", . . . ,~ Honorable Mayor and Members of City Council July 13, 1988 " Page,2 Section 15, .1""800 of the Code of Virginia' (1950), as, amended ( State, ' ' Code), ~hichis' ap~licable to both cities and towris, expands ort the Constitutiorial provision. This statute provides in relevant' part that "[n]o member of any council shall be eligible d~ring his tenure of offi~e as such member~ or for one year thereafter, to any office to be filled by the council, by election or by appoin~ment. . . . ". , (Emphasis added.) . , The foregoing con~titutional and statutory provisions pre- , elude a member of a city council from being appointed, during the . period of time he holds his position to arty office to be filled' by a city ~ouncilunless such appointm~nt is exp~es~ly authorized by law. See Report of the Attorney General. (1976-1977) at 215. Addi tioIially, the aforementioned statute, $15.1-800 of the St'a te' Code, prohibits. a member of cit~ council from holding any offic~' filled by council for a.year after termination of his service on the' counci 1. The~e 'restric,tions placed on Counci 1 members or former Council members are to prevent dual office holding either elective or appointive. However, it must be determined that the ,position on a board, commission, or authority to be filled by City Council is an "office" within'the meaning of the'provisions of Article VII, $6, of the Constitution of Virginia (1971) aQd $15.1-800 of the State Code. The Attorney General has previously enunciated the criteria for determining whether a position on a board, a~thority or commission is a public office. .To constitute a public office~ the position is created by the Constitution or statutes. It is filled by electiono~appointment, with a designation or title, and duties'concerning the public, which are assigned by 'law. A frequent characteristic of such office is a fixed term of office. See Report of ,the Attorney General, (1983-1984) at 293. See also Report of the Attorney General ',(1976-1977) a t215 and(1982-1983) at 398. , , , , , The authority for City Council to provide for the'appointment of citizens to boards or commissionsis'found in $63 of the Charter of the City of Roanoke. . Under ~2-280 of the Code of the 'City of Roanoke (1979), 'as amended, City Council may establish- certain authorities,boards, and commissions. Furthermore, $2-281(a) of the City Code provides'in pertinent part that: Members of boards, authorities, commission and com- mittees established by the council shall be selected by nomination by the mayor or a member of the council, or upon the application of the,nominee hi~self" and by election by the ,council upon an affirmative vote by. at least four (4) members of council. . .'. . t Honorable Mayor and Members of City Counc~l July ,'13, 1988 Page 3 The above desc~iptiori of the origins and limitations of City' , Council's selective/elective authority shows a grant to the ,City 'Council of the power to appoint members to boards, authorities, ,commissions and committees. Significantly, the City Council's power of appointment is constrained fnregard to its members during their period of service and for oney~a~ thereafter wher~ the position involved' ,falls within the express parameters of a public office. " Most relevant to this op1n10n is the fact that a position on a board, commission or authority must be closely examined to determine its status as an "office." The determination of the status-of the position under' consideratio~ shall result in a decision,as'towhether a retiring member of council' is eligible forappoiritment, thereto during the one year restrictive' period. . For ,example, the City of Roanoke Planning Commission ($15.1- 427~1, State Code), Board of Zoning Appeals ($62, City Charter), School Board ($$22.1-28, 22.1-29.1, State Code; 1$54, 55 and 56; City ~harter), Industrial, Development Authority ($15.1-1376, State Code), Advisory, Board of Human Resources ($63.1~43.1, State Code), and City of Roanoke RedevelOpment and Housing Auth6rity , ($36-4, State Code) are all statutorily created with appointment of members to be made by the governing body. Therefore, a posi- tion on any of the aforementioned boards,commissions,and authorities is a public office which may not be held,by a former member of Council for one year after termination of his service 'on CounciL See Report of Attorney General (1976-1977) at 214-217. However, positions on the Civic Center Committee, , Personnel and Employment Practices Commission, Youth Services Citizens Board, and Landfill Board are not created by the , ,Constitutioh,or ~tatutes, and are filled by the goverriing body; moreover, they are not public offices and Article VII,$6, of the Constitution, and $15.1-800 of the State Code would not prohibit a retiring Council member from immediate appointment thereto., See Sections 24-45, 24-46,2-83, 2~84 and 17:-31 of the'City Code and $10.1-1411,and $15.1-21 of the State Code. CONCLUSION Accordingly, I am of the opinion that unless the position on' a board, commission, or authority to be held 'by a retiring member of Council isa public office as has been defined in this opinion, a retiring member of Council'is not prohibited from ,serving' on 'such a board, commissio~orauthority. . ." . ~ / Honorable M~yor and Member~ of City Council July 13, 1988 Page 4 " , , I trust that this opinionhasbe~n fully resporisive tQ your inquiry. ShouldCounci I have anyaddi tional questions, I shall" ,'be pleased to address them., ' With kindest pers6nal regards,lam ,WCDj /KHJ: sm , , , cc: W ~ Robert Herbert, City Manager ~,F.parker, City Clerk CITY OF ROANOKE Office of the City Clerk Mary F. Parker, CMC City Clerk Stephanie M. Moon Deputy City Clerk April 4, 2001 File #110-132 William M. Hackworth' City Attorney Roanoke, Virginia~ / Dear Mr. Hackworth:' " I / I ! I am attaching. copy" of a report, of the: committee appointed by; Council to study restructuring of Council-Appointed boards and commissions~ which report was before the Council of the City of Roanoke at a regular meeting on Monday, April. 2, 2pOt-. t' ,e On' motion~ duly.. seconded!' and! unanimously adopted':" Council: cdncurred in the' recommendations and referred, the report to the City Attorney for prepar~tion of the proper measure(s)~, ' MFP:smil: fh':', J'rL-.. Mary. F. Parker; CMC: ' City Clerk' Attachment4.",,' ',', . pc:~ ,Darlene L. Burcham~ City Manager:: N:\CKSH1\Asandaa 200 1 \April 2 CClITespondence,wpd'