Tazewell County School Board v. Brown

Present: Hassell, C.J., Keenan, Kinser, Lemons, and Agee,
JJ., Carrico, S.J., and Whiting, R.J.

TAZEWELL COUNTY SCHOOL BOARD

v. Record No. 030109 OPINION BY JUSTICE CYNTHIA D. KINSER
January 16, 2004
GEORGE BROWN

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Henry A. Vanover, Judge

This appeal involves two grievance procedures that are

mandated by different sections of Title 22.1 of the Code.

The provisions of Code § 22.1-308 require the Board of

Education to prescribe one of the grievance procedures,

which we shall call the “State Grievance Procedure.”

Another statute, Code § 22.1-79(6), directs a school board

to establish the other grievance procedure, which we shall

call the “Local Grievance Procedure.”

The dispositive question is which one of these

grievance procedures applies to a school principal who is

suspended. Because we conclude that a principal is covered

by the State Grievance Procedure even though a dispute

involving a suspension is not a grievable matter under that

procedure, we will reverse the judgment of the circuit

court finding that the principal in this case was covered

by the Local Grievance Procedure and that he presented a

grievable matter under that procedure.

I. MATERIAL FACTS AND PROCEEDINGS
 George Brown was employed as the principal of

Richlands High School located in Tazewell County. By a

letter dated November 16, 2001, the division

superintendent, Donald W. Hodock, suspended Brown with pay

from his position as principal. 1 In a subsequent letter

dated November 28, 2001, Hodock informed Brown of his right

to a hearing before the Tazewell County School Board

(“School Board”) and suggested that the hearing could be

arranged for the December 3, 2001, meeting of the School

Board if Brown so requested.

Brown did not ask for that hearing before the School

Board but instead requested a hearing before an advisory

fact-finding panel pursuant to Step 4 of Part II of the

State Grievance Procedure. He was subsequently told that

he needed to file the appropriate grievance form in

accordance with Step 2 of Part II of the State Grievance

Procedure. On December 7, 2001, Brown filed a statement of

his grievance on the specified form. He identified the

action being grieved as his “[s]uspension from job duties”

and requested “[i]mmediate reinstatement to position as

[p]rincipal of Richlands High School.”

1
It is not necessary to summarize the stated reasons
for Brown’s suspension in order to resolve the issues
presented on appeal.

2
 After a series of letters between the parties and

their respective counsel, exchange of information, and a

meeting between Hodock and Brown, Hodock advised Brown by

letter dated February 7, 2002, that he was adjusting the

grievance and would recommend to the School Board that

Brown be reassigned to another administrative position. In

two subsequent letters, Hodock also notified Brown of his

intention to recommend to the School Board that Brown be

reassigned to a classroom teaching position for the 2002-03

school year. In two other letters, both dated February 8,

2002, Hodock ruled that Brown’s December 7 grievance did

not state a grievable matter because suspension with pay

could not be the subject of a grievance. In one of the

letters, Hodock again informed Brown that he would

recommend to the School Board at its next meeting that

Brown be reassigned as principal at a different school in

the Tazewell County school system.

Hodock subsequently requested the School Board to

determine whether Brown’s December 7 statement of grievance

presented a grievable matter. After requesting written

arguments from both parties on the issue, the School Board

ruled at its meeting on March 11, 2002, that suspension

with pay is not a grievable matter. The School Board also

accepted Hodock’s recommendation to reassign Brown to a

3
classroom teaching position and to reduce his salary

accordingly.

Brown then filed with the School Board a notice of

appeal to circuit court, challenging the School Board’s

determination that his suspension with pay was not a

grievable matter. In accordance with the provisions of

Code § 22.1-314, the School Board transmitted the notice of

appeal, exhibits, and other relevant documents to the

circuit court. Upon considering argument of counsel, the

parties’ memoranda, and the record from the School Board,

the court issued a letter opinion, finding that Brown’s

suspension presented a grievable issue.

The circuit court reasoned in a letter opinion and

subsequent order that Code § 22.1-79(6) requires a school

board to establish a grievance procedure for all its

employees except a division superintendent and those

employees covered under Articles 2 and 3 of Chapter 15,

Title 22.1 of the Code. Interpreting the reference to

employees covered under Articles 2 and 3 to mean “coverage

under a grievance procedure specifically provided under

either Article 2 or Article 3,” the court concluded that

Brown was not such an employee. Instead, the court found

that the only class of employees, other than

superintendents, that falls within the coverage exception

4
provided in Code § 22.1-79(6) consists of teachers. Stated

differently, the court concluded that neither Article 2 nor

Article 3 of Chapter 15, Title 22.1 creates a grievance

procedure for principals and that, therefore, Brown did not

come within the coverage exception set out in Code § 22.1-

79(6).

The court also found that this section requires the

grievance procedure to include a method to resolve disputes

between a school board and covered employees regarding,

among other things, a “suspension.” Therefore, the court

decided that Brown could pursue his grievance under the

procedure established by the School Board pursuant to Code

§ 22.1-79(6) and that he had presented a grievable matter.

Finally, the court rejected the School Board’s argument

that Brown’s grievance was moot because he had been

reinstated as a principal and then reassigned to a

classroom. In a final order, the court directed the School

Board to afford Brown “a timely and fair method of

resolution of [his] grievance.” 2 The School Board appeals

from the circuit court’s judgment.

II. ANALYSIS

2
The circuit court vacated its final order pending
resolution of the School Board’s motion to reconsider. The
court subsequently denied the motion and reinstated its
final order.

5
 In this appeal, the School Board presents several

assignments of error that challenge the circuit court’s

findings and its interpretation of the relevant statutory

provisions. Specifically, the School Board asserts that

the court erred by holding that Brown is covered by the

grievance procedure mandated by Code § 22.1-79(6) and that

Brown’s grievance was grievable under that procedure, by

refusing to affirm the School Board’s determination that

Brown’s grievance was not a grievable matter, and by

refusing to dismiss Brown’s appeal for lack of subject

matter jurisdiction. The School Board also assigns error

to the court’s refusal to dismiss Brown’s appeal as moot.

Since this last assignment of error presents a threshold

question, we will address it first.

(A) MOOTNESS

The School Board argues that, once Brown’s suspension

was lifted and he was reinstated to the position of

principal at an elementary school, his grievance concerning

his suspension became moot. While this appeal was pending,

the School Board also filed a motion to remand the case to

the circuit court with instructions that it be dismissed as

moot because Brown resigned his position as an employee of

the School Board and the Tazewell County public school

6
system effective August 7, 2003. We do not agree that the

issues presented are moot.

As the circuit court noted in addressing the question

of mootness, Brown has been “adversely affected in his

professional reputation by the actions of the Tazewell

County School Board, and those actions are not undone by

his later reinstatement and reassignment.” Nor are they

“undone” by his subsequent resignation. The fact of and

reasons for his suspension are contained in his personnel

file and will remain there unless removed based upon a

determination that the information therein was unfounded.

See Code § 22.1-295.1. Thus, the question whether Brown

presented a grievable issue that he could pursue through a

grievance procedure to establish that information in his

personnel file was unfounded is not moot. See Story v.

Commonwealth, 175 Va. 615, 616-17, 9 S.E.2d 344, 345 (1940)

(because nature of evidence admitted bore upon appellant’s

fitness to be granted a certificate of registration, issues

were not moot merely because certificates of registration

had expired). In other words, if Brown prevailed in this

appeal, there is relief, other than reinstatement to his

former position, that could be afforded to him under the

circuit court’s judgment directing the School Board to

resolve his grievance. See RF & P Corp. v. Little, 247 Va.

7
309, 315, 440 S.E.2d 908, 912 (1994) (where relief can be

provided, issue is not moot); Hankins v. Town of Virginia

Beach, 182 Va. 642, 643-44, 29 S.E.2d 831, 832 (1944)

(same). Thus, this appeal and the issues presented are not

moot. 3

(B) BROWN’S GRIEVANCE

The remaining issues raised in this appeal require the

Court to address the statutory provisions regarding

grievance procedures for public school employees and

suspensions of those employees. We begin by surveying the

two grievance procedures that are mandated by the

provisions of Code §§ 22.1-308 and –79(6). Our examination

of those statutory provisions and the grievance procedures

created thereunder will illustrate certain inconsistencies

that give rise to the issues before us. We also include in

our analysis the separate statutory provision dealing with

suspension of public school employees, Code § 22.1-315.

We turn first to the State Grievance Procedure

mandated by the provisions of Code § 22.1-308. That

statute requires the Board of Education to prescribe a

grievance procedure, which shall include certain elements

enumerated in the statute. Pursuant to that mandate and

3
Accordingly, we will deny the School Board’s motion
to remand and dismiss this case.

8
its authority in Code § 22.1-16 to “promulgate such

regulations as may be necessary to carry out its powers and

duties and the provisions of” Title 22.1, the Board of

Education established a “Procedure For Adjusting

Grievances,” 8 VAC 20-90-10 et seq. (the State Grievance

Procedure). The School Board adopted this grievance

procedure “in accordance with the Standards of Quality for

the statutory mandate of Chapters 13.2 and 15, Article 3,

Title 22.1” of the Code. 4

The State Grievance Procedure contains three parts.

Part I consists of definitions, Part II governs employment

disputes other than dismissals or probation, and Part III

controls disputes involving dismissals or probation. Each

of these parts has some bearing on the resolution of the

issues presented in this appeal.

The relevant definitions in Part I are for the terms

“ ‘[g]rievance,’ ” “ ‘[t]eacher,’ ” and “ ‘[s]upervisory

employee.’ ” In pertinent part, the term “ ‘[g]rievance’

means, for the purpose of Part III, a complaint or dispute

by a teacher relating to his or her employment involving

4
The version adopted by the School Board is identical
to the version promulgated by the Board of Education,
except in some aspects that do not have any bearing on the
issues presented here. Thus, when we refer to the State
Grievance Procedure, we mean the version adopted by the

9
dismissal or placing on probation. The term ‘grievance’

shall not include a complaint or dispute by a teacher

relating to . . . suspension of a teacher . . . .” The

exclusion of a dispute involving a suspension is consistent

with the statutory definition of the term

“ ‘[g]rievance.’ ” The definition of that term in Code

§ 22.1-306 expressly excludes “a complaint or dispute by a

teacher relating to . . . suspension of a teacher . . . .”

Next, the term

“[t]eacher” or “teachers” means, for the purpose of
Part II, all employees of the school division involved
in classroom instruction and all other full-time
employees of the school division except those
employees classified as supervising employees.
“Teacher” means, for the purpose of Part III, all
regularly certified/licensed professional public
school personnel employed under a written contract as
provided by § 22.1-302 of the Code of Virginia by any
school division as a teacher or supervisor of
classroom teachers but excluding all superintendents.

Finally, in pertinent part, the term “ ‘[s]upervisory

employee’ means any person having authority in the interest

of the board . . . (ii) to direct other employees; or (iii)

to adjust the grievance of other employees . . . .”

Based on these definitions, the parties agree on two

points, and we concur. First, if a principal such as Brown

is covered by the State Grievance Procedure, such coverage

School Board unless we specifically cite 8 VAC 20-90-10 et
seq.

10
is created only in Part III since he is a supervisory

employee. Second, for the purposes of Part III, a dispute

involving a suspension is not included within the

definition of the term “ ‘[g]rievance.’ ” Thus, if the

State Grievance Procedure applies to Brown, a point he

disputes, his suspension was not a grievable matter and the

circuit court erred in finding otherwise.

The other grievance procedure at issue, the Local

Grievance Procedure, is mandated by Code § 22.1-79(6).

That statute requires a school board

[i]n instances in which no grievance procedure
has been adopted prior to January 1, 1991, [to]
establish and administer by July 1, 1992, a grievance
procedure for all school board employees, except the
division superintendent and those employees covered
under the provisions of Article 2 (§ 22.1-293 et seq.)
and Article 3 (§ 22.1-306 et seq.) of Chapter 15 of
this title, who have completed such probationary
period as may be required by the school board, not to
exceed eighteen months. The grievance procedure shall
afford a timely and fair method of the resolution of
disputes arising between the school board and such
employees regarding dismissal, suspension, or other
disciplinary actions and shall be consistent with the
provisions of the Board of Education’s procedures for
adjusting grievances except that there shall be no
right to a hearing before a fact-finding panel[.]

Code § 22.1-79(6).

In 1993, the School Board adopted the Local Grievance

Procedure for “[s]upervisory and [c]lassified [e]mployees”

in accordance with this statutory mandate. That grievance

procedure defines the term “[s]upervisory employees” to

11
include “principals.” However, it also provides that the

dismissal or probation of a supervisory employee is

governed by Part III of the State Grievance Procedure. The

term “ ‘[c]lassified employees’ is defined as that group of

those school board’s employees whose members do not hold

certificates as promulgated by the Virginia Board of

Education.” According to its express terms, the Local

Grievance Procedure provides that “[a]ll full-time

classified employees, including those assigned to the

administrative salary schedule, who have successfully

completed a probationary period, shall have access to the

. . . grievance procedures [created therein] for matters

specified as grievable.” (Emphasis added.) In other

words, the procedures created in the Local Grievance

Procedure do not cover “[s]upervisory employees,” such as

“principals.” 5 The grievable matters enumerated in the

Local Grievance Procedure do, however, include a dispute

involving a suspension.

5
In finding that Brown could utilize the Local
Grievance Procedure required by Code § 22.1-79(6), the
circuit court never explained how Brown fell within the
definition of the term “[c]lassified employees.” Nor does
Brown address that issue or the anomaly created by saying
that he could utilize a grievance procedure that, by
definition, does not apply to him.

12
 This summary of the two grievance procedures brings us

to the question whether the circuit court erred in finding

that Brown was covered by the Local Grievance Procedure

mandated by Code § 22.1-79(6) and not the State Grievance

Procedure. Brown argues, and the circuit court concluded,

that the exception in Code § 22.1-79(6) for “employees

covered under the provisions of Article 2 . . . and

Article 3 . . . of Chapter 15 of this title [22.1]” excepts

employees covered “under a grievance procedure specified

under either Article 2 or Article 3.” (Emphasis added.)

To hold otherwise, argues Brown, would render the

provisions of Code § 22.1-79(6) and the grievance procedure

mandated therein meaningless because all school board

employees, not just teachers and principals, are covered by

some of the Code sections in Article 2 and would therefore

fall in that statute’s coverage exception.

Brown is correct in that certain sections of Article 2

are applicable to most, if not all, public school

employees. See e.g., Code §§ 22.1-295.1 (unfounded

information shall not be maintained in any employee

personnel file); -296(B) (providing reimbursement for

private transportation to all school board employees); -

296.1 (requiring as a condition of employment certification

that an applicant has not been convicted of a felony or

13
other specified crimes); -296.2 (requiring all applicants

for employment to submit to fingerprinting). However,

Brown’s position, as well as the circuit court’s

conclusion, ignores the word “and” in Code § 22.1-79(6).

The grievance procedure required by that statute applies to

all school board employees except “those employees covered

under the provisions of Article 2 . . . and Article 3.” 6

Code § 22.1-79(6). (Emphasis added.) Brown and the

circuit court interpret this phrase as though it excepted

those employees covered under the provisions of Article 2

or Article 3. While many public school employees are

covered in some respects by certain sections in Article 2,

the same cannot be said about Article 3. For the exception

in Code § 22.1-79(6) to apply, a public school employee

must be covered by both articles.

Thus, we hold that the language of Code § 22.1-79(6)

is plain and unambiguous. It is not necessary to add

language to the statute as the circuit court did in order

to ascertain its meaning and applicability. “Where the

legislature has used words of a plain and definite import

the courts cannot put upon them a construction which

amounts to holding the legislature did not mean what it has

6
Although not relevant to our discussion, Code § 22.1-
79(6) also excepts a division superintendent.

14
actually expressed.” City of Winchester v. American

Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152

(1995). A court “cannot change or amend a statute under

the guise of construing it.” Coca-Cola Bottling Co. of

Roanoke, Inc. v. County of Botetourt, 259 Va. 559, 565, 526

S.E.2d 746, 750 (2000). We also note that to insert the

phrase covered by a grievance procedure under Article 2 or

Article 3 is illogical because there is no grievance

procedure established in Article 2.

Nevertheless, Brown asserts that he was not a school

board employee covered under Article 3 and that, therefore,

he does not fall within the exception set forth in Code

§ 22.1-79(6). He argues that Article 3 applies only to

teachers and not to principals because the term “principal”

is not mentioned in that article. Relying on this Court’s

decision in Lee-Warren v. School Bd. of Cumberland County,

241 Va. 442, 445, 403 S.E.2d 691, 692 (1991), Brown

contends that principals and teachers are not the same and

that the term “teacher” as used in Article 3 cannot be

interpreted to include the position of principal. We do

not agree.

As already explained, the Board of Education

promulgated the State Grievance Procedure pursuant to the

directive set forth in Code § 22.1-308. It is true that

15
the term “[g]rievance” is defined in Code § 22.1-306 to

mean “a complaint or dispute by a teacher” and that the

term “principal” is not used in the various provisions

pertaining to the State Grievance Procedure set out in

Article 3. However, the term “teacher” is not defined for

the purposes of Article 3. Consequently, under its rule-

making authority, see Code § 22.1-16, the Board of

Education defined that term in Part I of the State

Grievance Procedure. 8 VAC 20-90-10.

The definition of the term “teacher” for purposes of

Part III of the State Grievance Procedure includes “all

regularly certified/licensed professional public school

personnel employed under a written contract . . . as a

teacher or supervisor of classroom teachers.” A principal

is required to “hold licenses as prescribed by the Board of

Education,” Code § 22.1-293, and to have a written

contract, see 8 VAC 20-440-10 and 8 VAC 20-440-30. And, a

principal is clearly a supervisor of classroom teachers.

Thus, a principal such as Brown fell within the definition

of the term “teacher” for purposes of Part III of the State

Grievance Procedure. Accordingly, he was an employee

covered by both Article 2, see Code § 22.1-293, and Article

3 of Chapter 15, Title 22.1.

16
 The fact that a suspension is specifically excluded as

a grievable matter under the State Grievance Procedure does

not change that result. The provisions of Code § 22.1-

79(6) creating the coverage exception at issue require only

that the employee be covered under both articles, not that

any specific type of employee dispute be covered. Nor does

the fact that the authority for the Board of Education to

define the term “teacher” derives from Code § 22.1-16

rather than Article 3 change our conclusion. In other

words, Brown was covered by Articles 2 and 3 and therefore

was not entitled to utilize the Local Grievance Procedure

established pursuant to Code § 22.1-79(6). Thus, we hold

that the circuit court erred in finding that Brown did not

come within the exception carved out in Code § 22.1-79(6).

This conclusion is consistent with an opinion of the

Attorney General. Noting the definition of the term

“teacher” adopted by the Board of Education for purposes of

Part III of the State Grievance Procedure, the Attorney

General opined “that principals and supervisors who meet

the State Board’s . . . definition of ‘teacher,’ have the

same grievance procedure rights with regard to disciplinary

probation, dismissal or suspension as outlined for teachers

in [Code] § 22.1-308.” 1983-84 Op. Atty. Gen. 309. “[W]e

have repeatedly held that the General Assembly is presumed

17
to have knowledge of the Attorney General’s interpretation

of statutes, and the General Assembly’s failure to make

corrective amendments evinces legislative acquiescence in

the Attorney General’s interpretation.” American Woodmark,

250 Va. at 458, 464 S.E.2d at 153. The General Assembly

has taken no legislative action to change the statutory

interpretation set forth in this opinion of the Attorney

General.

Additionally, the Board of Education promulgated the

definition of the term “teacher” in order to implement the

grievance procedure mandated by Code § 22.1-308. An

“elementary rule of statutory interpretation is that the

construction accorded a statute by public officials charged

with its administration and enforcement is entitled to be

given weight by the court.” Commonwealth v. American

Radiator & Standard Sanitary Corp., 202 Va. 13, 19, 116

S.E.2d 44, 48 (1960). We presume that the General Assembly

is cognizant of the construction of the term “teacher”

adopted by the Board of Education and, since that

construction has continued for a long period without any

change by the General Assembly, we further presume that it

has acquiesced in the particular construction of that term.

See id.

18
 Contrary to Brown’s argument, our decision in Lee-

Warren does not compel a different result. There, the

issue was “ ‘[w]hether under Virginia law, a school

principal with continuing contract status retains that

status upon accepting a job as principal in another school

division within Virginia[.]’ ” 241 Va. at 443, 403 S.E.2d

at 691. To resolve that question, we had to compare two

statutory provisions, Code § 22.1-294 dealing with

continuing contract status for a principal, assistant

principal or supervisor, and Code § 22.1-303 addressing

continuing contract status for a teacher. Because the

former provision dealt only with principals, assistant

principals, and supervisors while the latter statute

addressed only teachers, we concluded that certain transfer

provisions found only in Code § 22.1-303 applied solely to

teachers. 241 Va. at 446, 403 S.E.2d at 693. In the

present case, we do not have statutory provisions dealing

with teachers and principals in separate and distinct ways.

And, the definition of the term “teacher” promulgated by

the Board of Education does not conflict with any statutory

definition of that term since the General Assembly did not

include one.

This brings us to the last step of our analysis. The

circuit court found that Brown had presented a grievable

19
issue and remanded his grievance to the School Board for

resolution. The court’s jurisdiction to review a school

board’s determination of grievability is found in Code

§ 22.1-314, which is part of Article 3 and the State

Grievance Procedure. 7 That statute allows a decision of a

school board regarding grievability to be appealed to the

circuit court “having jurisdiction in the school division

for a hearing on the issue of grievability.” However, the

definition of the term “grievance” in Code § 22.1-306 and

in the Part I of the State Grievance Procedure specifically

excludes a dispute involving a suspension as a grievable

matter. Thus, the circuit court erred in finding that

Brown had presented a grievable issue.

This result does not mean that Brown had no remedy.

The provisions of Code § 22.1-315, which are contained in

7
In light of our holding that Brown was covered by
Part III of the State Grievance Procedure, it is not
necessary to decide whether the right to appeal a school
board’s determination of grievability to the circuit court
is also part of the Local Grievance Procedure. Brown
argues that it is because of the language in Code § 22.1-
79(6), providing that “[t]he grievance procedure shall
. . . be consistent with the provisions of the Board of
Education’s procedures for adjusting grievances except that
there shall be no right to a hearing before a fact-finding
panel.” The School Board disagrees with that position. If
the right to appeal a school board’s determination
regarding grievability is not required by Code § 22.1-79(6)
and thus not part of the Local Grievance Procedure, then a
circuit court would not have subject matter jurisdiction to

20
Article 4 of Chapter 15, Title 22.1, afford “[a] teacher or

other public school employee” who has been suspended “an

opportunity for a hearing before the school board in

accordance with [Code] §§ 22.1-311 and 22.1-313, if

applicable.” In fact, Hodock advised Brown of his right to

such a hearing by letter dated November 28, 2001, but Brown

never requested that hearing. 8

CONCLUSION

For these reasons, we hold that the circuit court

erred in finding that Brown’s December 7, 2001, grievance

regarding his “[s]uspension from job duties” presented a

grievable matter. Thus, we will reverse the judgment of

the circuit court and enter final judgment here for the

School Board. We will also deny the School Board’s motion

to remand this case with directions to dismiss it as moot.

hear a grievability issue on appeal when the grievant was
proceeding under the Local Grievance Procedure.
8
Given our holding that Brown was covered by Part III
of the State Grievance Procedure which excludes a dispute
involving a suspension, it also is not necessary to decide
whether Code § 22.1-315 provides the exclusive remedy for a
public school employee who has been suspended, irrespective
of which grievance procedure would otherwise cover the
employee. Brown argues that it does not because of the
provision in Code § 22.1-79(6) stating that the grievance
procedure shall afford a method of resolving disputes
concerning, among other things, a suspension. The School
Board, however, claims that the 1996 amendment of Code
§ 22.1-315 adding the phrase “other public school employee”
implicitly repealed that portion of Code § 22.1-79(6)
dealing with a suspension.

21
 Reversed and final judgment.

22