COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED
DANIEL ARCEO
MEMORANDUM OPINION*
v. Record No. 0083-16-2 PER CURIAM
JULY 5, 2016
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Herbert Gill, Jr., Judge Designate
(Richard F. Hawkins, III; The Hawkins Law Firm, PC, on brief), for
appellant.
(Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy
Attorney General; G. William Norris, Jr., Assistant Attorney
General; Liza S. Simmons, Assistant Attorney General, on brief), for
appellee.
Daniel Arceo (appellant) appeals from the decision of the Circuit Court of the City of
Richmond (circuit court) affirming the decision of a hearing officer of the Office of Employment
Dispute Resolution (EDR) at the Department of Human Resource Management (DHRM). For
the reasons that follow, we summarily affirm the decision of the circuit court. See Rule 5A:27.
Appellant was removed from his employment at the Virginia Department of Social
Services (DSS) after he received two “Group II Written Notices” of disciplinary action.
Appellant filed grievances of the actions of DSS. Following a hearing, an EDR hearing officer
made findings of fact and upheld the issuance of the two disciplinary actions and appellant’s
removal from employment. Upon administrative review conducted at appellant’s request, EDR
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and DHRM upheld the hearing officer’s decision, finding it was not inconsistent with agency
policy.
Pursuant to Code § 2.2-3006(B), appellant filed a petition for review in the circuit court
from the hearing officer’s decision. Appellant argued that the hearing officer had misclassified
his conduct as a “Group II” disciplinary action, the classification by the hearing officer was
unreasonable and, thus, his termination was contrary to DHRS policy. The circuit court found
appellant failed to demonstrate the hearing officer’s decision was “contradictory to law,” as
required by Code § 2.2-3006(B), affirmed the hearing officer’s decision, and dismissed the
matter with prejudice.1
On appeal to this Court, appellant contends the hearing officer’s decision was
contradictory to law. He asserts that one of the “Group II” disciplinary actions was issued
improperly because he “inadvertently missed a 30 minute meeting.” He also claims the hearing
officer erroneously interpreted DHRM Standards of Conduct and examined the issue of
mitigation.2
1
In the final order, the circuit court found appellant had “failed to reference, cite and/or
otherwise identify any statute (and/or other legislation), judicial precedent and/or accepted legal
principle in support of his claim that the decision of the hearing officer was ‘contradictory to
law’ -- as required by Virginia Code § 2.23006(B) for the reversal of that decision.”
2
Appellant also contends the hearing officer’s decision violated constitutional due
process protections. Appellant did not raise this issue in the circuit court. “No ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals
to attain the ends of justice.” Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of
this aspect of appellant’s argument on appeal.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
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In Virginia Tech. v. Quesenberry, 277 Va. 420, 428-29, 674 S.E.2d 854, 858 (2009), the
Supreme Court of Virginia explained the procedure and applicable standard of review in
grievance proceedings for state employees:
In a plainly stated statutory framework, the Code of
Virginia provides grievance procedures applicable to state agency
employees, granting an employee a right to a hearing before a
designated hearing officer when that employee has been formally
disciplined. See Code §§ 2.2-3001 and 2.2-3004(A)(i). . . .
As provided by statute, a hearing officer appointed by the
Department of Employment Dispute Resolution has certain powers
and duties with regard to a grievance hearing, including the
consideration of evidence and the determination of appropriate
remedies. Code §§ 2.2-3005 and 2.2-3005.1. The hearing
officer’s decision, which must be in writing, shall contain findings
of fact and the hearing officer’s basis for making those factual
findings. Code § 2.2-3005.1(C)(i) and (ii). The hearing officer’s
decision is final and binding “if consistent with law and policy.”
Code § 2.2-3005.1(C)(iii).
If a grievant contends that the hearing officer’s decision is
contrary to the “policy” of the state agency employing the grievant,
the grievant may request that the decision be reviewed by the
Director of the Department of Human Resources Management,
who shall determine whether the hearing officer’s decision “is
consistent with [agency] policy.” Code § 2.2-3006(A). . . .
. . . [A]s permitted by Code § 2.2-3006(B), [a grievant may]
appeal[] to the circuit court from the hearing officer’s decision on
the ground that the hearing officer’s decision was “contradictory to
law.” Under that statutory provision, if an unsuccessful grievant
establishes that the hearing officer’s decision is “contradictory to
law,” the circuit court may reverse or modify the hearing officer’s
decision. See Code § 2.2-3006(B).
The Court of Appeals previously has held that a party
appealing from a hearing officer’s decision to a circuit court is
required to “specify how that decision [was] ‘contradictory’ to law
and what ‘law’ [was] thereby being contradicted.” Tatum v.
Virginia Dept. of Agric., 41 Va. App. 110, 122, 582 S.E.2d 452,
458 (2003) (quoting Virginia Dept. of State Police v. Barton, 39
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
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Va. App. 439, 445-46, 573 S.E.2d 319, 322 (2002)). The
appealing party must “identify [a] constitutional provision, statute,
regulation or judicial decision which the [hearing officer’s]
decision contradicted.” Tatum, 39 Va. App. at 122, 582 S.E.2d at
458 (quoting Barton, 39 Va. App. at 446, 573 S.E.2d at 323).
We agree with this analysis of the burden of a litigant who
appeals a hearing officer’s decision to a circuit court. The General
Assembly has articulated a very narrow standard of review to be
applied by the circuit court in such appeals. Because this standard
focuses solely on the question whether the hearing officer’s
decision is contradictory to any applicable law, the party appealing
the hearing officer’s decision properly bears the burden of
identifying the law thereby contradicted.
Moreover, “[i]nterpretation of state agency policy is itself a matter of policy, absent a statutory
enactment to the contrary, and not a matter of law.” Barton, 39 Va. App. at 446, 573 S.E.2d at
323.
In the circuit court, appellant challenged the factual findings of the hearing officer and
contended those findings did not comply with agency policy. Appellant thus failed to
demonstrate that the hearing officer’s decision was contradictory to law. See Quesenberry, 277
Va. at 429, 674 S.E.2d at 858.
On appeal in a grievance proceeding, this Court’s review likewise is limited to whether
the hearing officer’s decision is “contradictory to law.” See Virginia Dep’t of Corrections v.
Compton, 47 Va. App. 202, 219, 623 S.E.2d 397, 405 (2005). Having reviewed the record, the
circuit court’s order, and the hearing officer’s decision, we find no basis to conclude the hearing
officer’s decision was “contradictory to law.” Accordingly, the appeal is without merit. We
affirm for the reasons stated by the hearing officer in his decision, see In re Case No.
10172/10173 (Oct. 3, 2013), as affirmed by the circuit court, see Arceo v. Dep’t of Soc. Servs.,
Case No. 760CL14000218-00 (Dec. 15, 2015). We dispense with oral argument and summarily
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affirm because the facts and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.
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Daniel Arceo v. Department of Social Services
Combined Opinion