Article submitted by Andrew Gore, Associate(Greehan, Taves, Pandak & Stoner)
April 20, 2012
It is an honor to serve one’s community as a local government official. Regardless of the capacity in which one serves, the administration of the official’s duties will have a significant effect on the official’s locality. In recognition of the significance of the responsibility bestowed on those who serve their community, § 15.2-1512 of the Code of Virginia requires that all local government officials, upon entering office, take the following oath:
"I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as .......... according to the best of my ability, (so help me God)."
Not a mere formality, the oath is a public pledge that the official understands the requirements of the position, and will work to meet or exceed those requirements. Those taking the oath must fully consider the meaning of the oath and all of its important implications.
An oath is a formal promise which, traditionally invokes God, or something else which the taker of the oath considers sacred, to act as a witness to the oath taker’s sincere intention to fulfill that promise. In this way, the oath was historically thought not only to bind the oath taker to the laws of man, but to a higher moral authority as well. Oath takers can “affirm,” rather than “swear,” and omit reference to God.
Oaths of office date back at least to the time of ancient Rome, and, since then oaths have become a staple of representative government. Oaths have been a requirement for public office from the nation’s inception. The Constitution sets out the Presidential Oath in full, and expressly provides that Congress “shall be bound by Oath or Affirmation to support this constitution.” State and local governments adopted oaths modeled after the federal oath, and the taking of an oath has become a requisite for holding nearly any public office.
Virginia’s oath first sets forth general requirements applicable to those in all offices. Oath takers swear or affirm to uphold both the United States and Virginia Constitutions. Implicit in the oath is the pledge to abide by all applicable laws. Elected officials may be removed from office upon conviction of a felony, a drug related misdemeanor, or a hate crime. Va. Code §§ 24.2-231 and 24.2-233.
Secondly, oath takers pledge to “faithfully and impartially discharge all duties” required of them by their office. In 1987, the General Assembly codified the impartiality aspect of the oath in the Virginia State and Local Government Conflict of Interests Act (“COIA”). Va. Code § 2.2-3100 et seq. COIA imposes on all local officials an affirmative duty to avoid all conflicts and ensure impartiality in the execution of all of the official’s duties. Generally, COIA prohibits the taking of bribes, requires the disclosure of any personal interests the official may have in transactions involving the locality which he or she serves, and requires disqualification in cases where a personal interest makes impartiality impossible. Id. The official is solely responsible for complying with COIA, and a violation of COIA will result not only in breaking the oath, but is also punishable as a criminal offense.
Lastly, the oath requires officials to “discharge all duties incumbent upon” them, as holders of their particular office, “to the best of [their] ability.” The specifics of these duties will, of course, vary depending on the office. For instance, Boards of Supervisors, City and Town Councils, Boards of Zoning Appeals, and Planning Commissions each have distinct requirements by which they must abide, in addition to the general requirements which govern them all. Further, each governing body is charged with adopting its own rules, procedures and policy, and abiding by them. Each official is personally responsible to both learn and follow all legal requirements to which the public body is subject. Failure to do so, depending on the specific circumstances, may result in consequences ranging from the invalidation of the public body’s actions to prosecution of the body’s members.
An example of an entity subject to strict provisions is the BZA. Virginia law sets forth substantive and procedural requirements for their consideration of those matters within their purview. Thus, it is important both that the BZA thoughtfully and impartially consider each matter, and that the BZA carefully follow the applicable procedures. For instance, the BZA must make particular findings before granting a variance, properly consider the contested actions of administrative officers, and provide all required public notice for meetings and board actions. Va. Code § 15.2-2309. Failure to comply with laws and adopted rules may subject the matter decided to an appeal but also BZA members should be mindful of Va. Code § 15.2-2308(D), which provides that: “Any board member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court that appointed him, after a hearing held after at least fifteen days' notice.”
Members of local Planning Commissions must abide by certain rules as well. The Virginia Code, in addition to requiring Planning Commissions to adopt specific rules, sets out some broad rules to which all Planning Commissions must adhere. Further, Planning Commission members can face removal from office for “malfeasance” or failure to regularly attend commission meetings. Va. Code § 15.2-2212.
In additional to the above requirements, any elected official may be removed from office “for neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office.” Va. Code § 24.2-233. Officials, therefore, have a duty to avoid both negligence and willful misconduct in the commission of their official duties, all of which is in encompassed by the oath.
Obviously, disagreement with a decision of a BZA, Planning Commission or governing body is not a basis for misconduct allegations. The standard is a high one but an indication that the General Assembly wants public officials to take their responsibilities very seriously. Today public officials have access to resources, both legal and administrative, to assist them in learning about and complying with their official duties.
The oath is an important ceremonial gesture signifying the official start to one’s term in office. Importantly, it is a means for the official to make a public commitment to the duties, responsibilities and obligations associated with holding public office. The extent to which an official is able to honor that commitment will profoundly impact the efficacy of that official’s service.