Present: All the Justices
CITY OF VIRGINIA BEACH
v. Record No. 981936 OPINION BY JUSTICE ELIZABETH B. LACY
September 17, 1999
DAVID S. HAY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
J. Warren Stephens, Judge Designate
David S. Hay filed a grievance with the City of Virginia
Beach (the City) protesting the termination of his employment as
an assistant city attorney. When the City refused to process
Hay's grievance, claiming that he was an appointed, non-merit
employee ineligible to participate in the grievance process, Hay
filed this proceeding. The trial court, citing Dillon's Rule,
held that the City did not have the statutory authority to hire
Hay as an appointed employee, and, therefore, that Hay was a
merit employee eligible to participate in the City's grievance
process. We granted the City an appeal, and we now conclude
that § 2-166 of the Virginia Beach City Code (City Code),
providing that assistant city attorneys be appointed, non-merit
employees, is a reasonable implementation of the City's charter
authority. Accordingly, we will reverse the judgment of the
trial court.
The General Assembly authorized the City to create a
department of law and to provide for assistant city attorneys.
Charter, City of Virginia Beach (City Charter), §§ 7.01, 9.01. 1
Pursuant to this authority, the City enacted § 2-166 of the City
Code which states that the city council may "appoint such deputy
and assistant city attorneys as it may deem necessary to serve
at the pleasure of the city attorney."
The General Assembly also requires every city with over
fifteen employees to provide all of its non-probationary
employees, with certain listed exceptions, access to an employee
grievance procedure. Code §§ 15.2-1506, -1507. One of the
permitted exceptions is "[a]ppointees of elected groups or
individuals." Code § 15.2-1507(A)(3)(a)(1).
The personnel grievance procedure adopted by the City
provides that only merit employees are entitled to grieve
employment decisions. City Code § 2-132. As defined in the
City Code, merit employees do not include "appointees of the
city council." Such appointees are considered non-merit
employees and are not eligible to file grievances under the
City's grievance procedure. City Code §§ 2-75, -76. 2
1
Section 9.01 of the City Charter states:
DEPARTMENT OF LAW. The department of law shall
consist of the city attorney and such assistant city
attorneys and other employees as may be provided by
the council.
2
As the parties agree, City Code §§ 2-75 and -76 are the
successor ordinances to City Code §§ 2-43 and –44, in effect at
2
There is no dispute that Hay was hired by appointment of
the city council, an elected body, to serve at the pleasure of
the city attorney. The dispute arises over whether the city
council had the authority to enact City Code § 2-166 authorizing
it to "appoint" assistant city attorneys, thereby bringing such
employees within a statutory exception to the otherwise
mandatory eligibility for access to the employee grievance
procedure. Code § 15.2-1507(A)(3)(a)(1).
Hay argues that, under Dillon's Rule, the City may not
designate assistant city attorneys as appointees ineligible to
grieve employment decisions absent specific charter or statutory
authorization from the General Assembly. The City responds that
Dillon's Rule does not require specific authorization under
these circumstances but only requires that the method chosen by
the City to implement its conferred power to hire assistant city
attorneys be reasonable. We agree with the City.
Under Dillon's Rule, municipal governments have only those
powers which are expressly granted by the state legislature,
those powers fairly or necessarily implied from expressly
granted powers, and those powers which are essential and
indispensable. Commonwealth v. County Board of Arlington
County, 217 Va. 558, 574, 232 S.E.2d 30, 40 (1977). Where the
the time Hay was hired. The material aspects of the ordinances
have not changed.
3
state legislature grants a local government the power to do
something but does not specifically direct the method of
implementing that power, the choice made by the local government
as to how to implement the conferred power will be upheld as
long as the method selected is reasonable. Id. at 574-75, 232
S.E.2d at 40-41. Any doubt in the reasonableness of the method
selected is resolved in favor of the locality. Id. at 577, 232
S.E.2d at 42.
In this case, the General Assembly created the department
of law and expressly authorized the city council to provide for
assistant city attorneys and other employees of the department.
City Charter §§ 7.01, 9.01. While the power to hire the
employees for the department of law is not expressly granted, it
is fairly and necessarily implied from these charter provisions.
We do not think that the legislature would authorize the city to
"provid[e]" for certain positions within a department of the
government and at the same time withhold the power to fill those
positions.
While the power to hire assistant city attorneys is fairly
and necessarily implied from the express language of § 9.01 of
the City Charter, there is no further express or implied
direction in the charter regarding the method by which the City
is to hire assistant city attorneys. Thus, our inquiry is
whether the City's choice to appoint such employees to serve at
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the will of the city attorney is a reasonable implementation of
its power to hire implied by § 9.01 of the City Charter.
Whether a method chosen to implement an express or implied
power is reasonable will depend upon the circumstances of each
case. However, the chosen method is unreasonable if it is
contrary to legislative intent or inappropriate for the ends
sought to be accomplished by the grant of the power. Arlington,
217 Va. at 577, 232 S.E.2d at 42. Furthermore, like the test
employed when considering whether a power is implied, if the
implementation expands the power beyond rational limits
necessary to promote the public interest, it is unreasonable.
Id. Applying these standards, we conclude that the method
chosen by the City to hire assistant city attorneys set out in
§ 2-166 of the City Code was reasonable.
First, § 2-166 does not conflict with any other state or
local legislative provision and is not contrary to legislative
intent. The General Assembly has not only recognized that
appointment of employees by elected bodies is a method of
filling positions which can be used by local governments, but it
has also identified appointees of elected bodies as a category
of employees which can legitimately be excluded from eligibility
for access to a personnel grievance procedure. Code § 15.2-
1507(A)(3)(a)(1). Furthermore, as reflected in the exemptions,
the types of employees which the General Assembly contemplated
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could be excluded from access to the employee grievance
procedure include deputy and executive assistants to a
locality's chief administrator. Code § 15.2-1507(A)(3)(a)(3).
There is a close analogy between such positions and those of
deputy city attorney and assistant city attorney. For these
reasons, we conclude that exempting assistant city attorneys
from access to the employee grievance procedure is not
inconsistent with legislative intent.
Equally important, § 2-166 authorizes use of this
appointment method for hiring members of the law department only
in limited circumstances. Not every employee hired pursuant to
§ 9.01 of the City Charter is appointed by city council, only
deputy and assistant city attorneys. Given the nature of the
services performed by assistant city attorneys and their
relationship to the city attorney and city council, the
employment method established in § 2-166 is not inappropriate
and does not expand the implied power to hire beyond that which
is needed to implement the authority to provide for a department
of law given in § 9.01 of the City Charter.
We reject Hay's argument that because § 9.02 of the City
Charter specifically states that the city attorney is appointed
by and serves at the pleasure of the city council 3 , while § 9.01
3
Section 9.02 of the City Charter states:
6
does not contain the same specific directive regarding assistant
city attorneys, the City does not have the power to hire
assistant city attorneys by appointment. Whether we consider
this argument as challenging the power of the City to appoint
these employees or as a challenge to the reasonableness of the
method chosen by the City to implement its power to hire them,
the difference between the two provisions does not support the
conclusion drawn by Hay.
City Code § 9.02 merely reflects Code § 15.2-1542, which
allows a city to create the office of city attorney but requires
that "[s]uch attorney shall be appointed by the governing body
to serve at the pleasure of the governing body." Thus, even if
§ 9.02 did not appear in the City Charter, the city attorney
would be appointed by and serve at the pleasure of the city
council.
The difference in the two provisions represents, in our
opinion, the General Assembly's choice to limit the City's
discretion in determining how to employ the city attorney, while
allowing the City discretion as to the method of employing
assistant city attorneys. Of course, this discretion is not
CITY ATTORNEY. The head of the department of law
shall be the city attorney. He shall be an attorney
at law licensed to practice law in the Commonwealth of
Virginia. He shall be appointed by the council and
shall serve at its pleasure.
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open-ended; as we stated above, under Dillon's Rule, the City's
methods of implementation must be reasonable.
In summary, the power to hire assistant city attorneys
must be implied from the express power given to "provid[e]" for
such employees in § 9.01 of the City Charter. Because the
specific method of hiring such employees is not set out in the
Charter, the method adopted by the City to implement the power
to hire must be reasonable. The City's choice of hiring
assistant city attorneys by appointment of the city council to
serve at the pleasure of the city attorney, City Code § 2-166,
is a reasonable method of implementing the power to hire.
Because Hay was appointed by the city council, he is a non-
merit employee and, therefore, is not entitled to grieve his
termination decision under the City's personnel grievance
procedures. City Code §§ 2-75, -76, -132.
Accordingly, the judgment of the trial court will be
reversed and final judgment entered here in favor of the City.
Reversed and final judgment.
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