Boynton v. Kilgore

PRESENT: All the Justices

FRANCES BOYNTON, ET AL.
OPINION BY
v. Record No. 051041 JUSTICE G. STEVEN AGEE
January 13, 2006
JERRY W. KILGORE, ATTORNEY
GENERAL OF THE COMMONWEALTH OF
VIRGINIA, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

Frances Boynton and eleven other former employees of the

Office of the Attorney General (collectively “the former

employees”) appeal from the judgment of the Circuit Court of the

City of Richmond, which sustained a demurrer to their amended

motion for judgment. At issue in this appeal is whether the

Virginia Personnel Act, Code § 2.2-2900 et seq. (“VPA”), applies

to employees of the Office of the Attorney General so that the

twelve involuntarily separated employees qualify for severance

benefits under the Workforce Transition Act of 1995, Code § 2.2-

3201 et seq. (“WTA”). Because we find that the Virginia

Personnel Act does not cover employees of the Office of the

Attorney General, we will affirm the trial court’s judgment.

I. BACKGROUND AND PROCEEDINGS BELOW

The former employees were full-time employees of the Office

of the Attorney General until October 18, 2002, when they were

involuntarily separated from employment due to budget

1
constraints. Upon termination of employment, the former

employees sought severance benefits provided under the WTA.

The Attorney General and the Comptroller of the

Commonwealth denied their request, contending the former

employees were ineligible for WTA severance benefits because

they are not included in the list of employees eligible for

benefits as set forth in Code § 2.2-3202.1

After exhausting their administrative remedies, the former

employees filed a motion for judgment against the Attorney

General and the Comptroller in the Circuit Court of the City of

Richmond, seeking WTA severance benefits. The trial court

sustained the demurrer of the Attorney General and the

Comptroller, but permitted the former employees to file an

amended motion for judgment. In the amended motion for

judgment, the former employees allege they are eligible for WTA

severance benefits under Code § 2.2-3202(A)(i) because they were

full-time Commonwealth employees “covered by the Virginia

Personnel Act.”

The Attorney General and the Comptroller again demurred,

arguing that the former employees are exempt from the VPA under

1
The former employees were awarded five weeks of severance
pay under other provisions of state law, but were denied all
benefits under the WTA.

2
Code § 2.2-2905(1) and therefore cannot be included within Code

§ 2.2-3202(A)(i).

The trial court sustained the demurrer in a letter opinion

dated January 28, 2005, which was incorporated into an order

dated February 24, 2005 that dismissed the amended motion for

judgment with prejudice. The trial court’s letter opinion held

that “the autonomy of the Attorney General in personnel matters”

would be disrupted if the VPA covered employees of the Office of

the Attorney General and “that without coverage of the VPA

extending to them, plaintiffs are not eligible to the severance

benefits allowed by the WTA.”

We awarded the former employees this appeal.

II. ANALYSIS

The former employees raise six assignments of error, which

all center on a single dispositive issue: whether the provisions

of Code § 2.2-2905(1), which exempt from the VPA all “[o]fficers

and employees for whom the Constitution specifically directs the

manner of selection,” includes employees of the Office of the

Attorney General.2 The parties agree that if the foregoing

statute includes employees of the Office of the Attorney

2
Code § 2.2-2905 states, in relevant part: “The provisions
of this chapter shall not apply to: . . . Officers and employees
for whom the Constitution specifically directs the manner of
selection.”

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General, then the former employees are not covered by the VPA

and are thus ineligible for the WTA benefits claimed.

The WTA provides that certain employees of the Commonwealth

who are involuntarily separated from employment are eligible for

transitional severance benefits. Code § 2.2-3201. Code § 2.2-

3202 then lists those employees entitled to the WTA severance

benefits. Employees of the Office of the Attorney General are

not specifically named in the statutory list.3 The former

employees contend, however, that Code § 2.2-3202(A)(i) includes

them because each was a “full-time employee of the Commonwealth

(i) whose position is covered by the Virginia Personnel Act

(§ 2.2-2900 et seq.).”

The former employees argue they are covered by the VPA

because the plain language of Code § 2.2-2905(1) lists those

employees of the Commonwealth who are exempt from the VPA, and

they are not among those exempted; therefore, they must be

included within the VPA’s coverage. In particular, the former

3
Code § 2.2-3202(A) states, in relevant part:

Any full-time employee of the Commonwealth (i) whose
position is covered by the Virginia Personnel Act
(§ 2.2-2900 et seq.) . . . and (a) who, on or after
January 1, 1995, is involuntarily separated . . . and
(b) for whom reemployment with the Commonwealth is not
possible because there is no available position for
which the employee is qualified or the position
offered to the employee requires relocation or a
reduction in salary, shall be eligible, under the

4
employees contend they are not within the exemption group

asserted by the Attorney General in Code § 2.2-2905(1) because

they are neither officers nor employees “for whom the

Constitution specifically directs the manner of selection” under

the plain language of the statute.

The former employees note that the Constitution of Virginia

makes no reference to employees of the Office of the Attorney

General and the Attorney General cites to none. Because courts

are obliged to apply the plain meaning of a statute unless doing

so results in a “manifest absurdity” or irreconcilable statutory

conflict, they argue that the trial court erred in failing to

follow the plain language of the statute when it sustained the

demurrer. The former employees aver that as the plain language

of Code § 2.2-2905(1) does not exempt them from the VPA, and no

manifest absurdity or statutory conflict exists to require an

alternate construction of the statute’s text, they must be

covered by the VPA and therefore entitled to WTA severance

benefits under Code § 2.2-3202(A)(i).

Anticipating the argument of the Attorney General and the

Comptroller, the former employees further posit that VPA

coverage of employees of the Office of the Attorney General for

purposes of receiving WTA severance benefits does not create a

conditions specified, for the transitional severance
benefit conferred by this chapter.

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conflict between the statutory authority given to the Governor

and the Attorney General as to employees of the Office of the

Attorney General. This is so, they contend, because

involuntarily severed employees are no longer employees and

therefore no longer subject to the Attorney General’s control.

Consequently, they argue that the facts of this case do not

create a conflict in the respective authority of the Governor

and the Attorney General; therefore, that issue need not be

addressed in the case at bar. If a conflict between the

Governor’s authority and the Attorney General’s were to arise in

another context of VPA coverage, the former employees contend

the courts could then determine how to harmonize the statutes in

that future case.

In response, the Attorney General4 argues that employees of

the Office of the Attorney General, including the former

employees, are not covered by the VPA because the exemption

under Code § 2.2-2905(1) for officers “for whom the Constitution

specifically directs the manner of selection” includes

individuals working under such an officer’s control. Thus,

because the Attorney General is exempt from the VPA under Code

4
On appeal, the Attorney General represents not only the
Attorney General, but also the Comptroller of the Commonwealth;
reference to the “Attorney General” thus encompasses both
parties where the context would so indicate.

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§ 2.2-2905(1), individuals whose positions are controlled by the

Attorney General are necessarily exempt as well.5

The Attorney General contends that to hold otherwise would

establish conflicting authority over personnel decisions between

the Governor and the Attorney General, and a direct and

irreconcilable conflict between several statutes. Under Code

§ 2.2-103(B), the Governor is the “Chief Personnel Officer of

the Commonwealth,” and is charged with “direct[ing] the

execution of” the VPA. The VPA establishes a “system of

personnel administration” for Commonwealth employees.6 Code

§ 2.2-2900. It states, inter alia, that “[n]o establishment of

a position or rate of pay, and no change in rate of pay shall

become effective except on order of the appointing authority and

approval by the Governor.” Code § 2.2-2901(C).

While the Governor has final authority over personnel under

the foregoing provisions of the VPA, Code §§ 2.2-501 and –502

give the Attorney General final authority over the personnel of

the Office of the Attorney General.7 The Attorney General thus

5
The Constitution of Virginia sets out the manner of
selecting the Attorney General in Article V, § 15.
6
The VPA contains various provisions on a wide range of
subjects, including protecting the right of Commonwealth
employees to use tobacco products, Code § 2.2-2902, and creating
employment preferences for veterans. Code § 2.2-2903.
7
Code § 2.2-501 states, in relevant part: “The Attorney
General shall appoint a chief deputy Attorney General and may
appoint the necessary deputy Attorneys General and assistant
Attorneys General and fix their salaries within the limitation

7
contends that if the VPA applies to employees of that Office, as

asserted by the former employees, both the Governor and the

Attorney General would have the same and contemporaneous

authority over employees of the Office of the Attorney General.

To avoid this conflict, the Attorney General argues that the

proper construction of the VPA exemption in Code § 2.2-2905(1)

includes not only the Attorney General, but also the employees

under his control.

We find the Attorney General’s arguments persuasive.

There is no statutory basis to support the contention that

the former employees could be covered by the VPA solely for the

purpose of qualifying for WTA severance benefits under Code

§ 2.2-3202(A)(i) as former employees, but not covered as VPA

employees for other purposes. Consequently, contrary to the

former employees’ position, the VPA’s applicability to all

employees of the Office of the Attorney General must be examined

in the case at bar. Although this case ultimately addresses

eligibility for WTA severance benefits, our decision on that

issue necessarily derives from resolving the predicate issue of

of the funds provided for the purpose in the general
appropriation act.”
Code § 2.2-502 states: “The Attorney General may appoint
such persons as he deems necessary for the efficient conduct of
his office, and apportion, out of the appropriation for his
office, such salaries among such persons as he deems proper
. . . .”

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whether employees of the Office of the Attorney General are

exempt from the VPA under Code § 2.2-2905(1).

Because statutory interpretation presents a pure question

of law, it is subject to de novo review by this Court. Ainslie

v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003). When

interpreting statutes, courts “ascertain and give effect to the

intention of the legislature.” Chase v. DaimlerChrysler Corp.,

266 Va. 544, 547, 587 S.E.2d 521, 522 (2003). That intent is

usually self-evident from the words used in the statute. Id.

Consequently, courts apply the plain language of a statute

unless the terms are ambiguous,8 Tiller v. Commonwealth, 193 Va.

418, 420, 69 S.E.2d 441, 442 (1952), or applying the plain

language would lead to an absurd result.9 Cummings v. Fulghum,

261 Va. 73, 77, 540 S.E.2d 494, 496 (2001). Courts also employ

the rules of statutory construction when the plain language of

two or more statutes conflict. See, e.g., Wertz v. Grubbs, 245

Va. 67, 70, 425 S.E.2d 500, 501 (1993) (using principles of

8
Ambiguity exists if the text can be “understood in more
than one way or refers to two or more things simultaneously [or]
when the language is difficult to comprehend, is of doubtful
import, or lacks clearness or definiteness.” Brown v. Lukhard,
229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (citation omitted).
We find that the text of Code § 2.2-2905(1) is unambiguous, so
this exception to the general rule is inapplicable to the case
at bar.
9
The phrase “absurd result” is used “to describe situations
in which the law would be internally inconsistent or otherwise
incapable of operation.” Cook v. Commonwealth, 268 Va. 111,
116, 597 S.E.2d 84, 87 (2004).

9
statutory construction to resolve an apparent conflict between

the unambiguous language of two statutes).

When Code § 2.2-2905(1) is examined in light of the

authority granted to the Governor (in the VPA) and the Attorney

General (in Code § 2.2-501 et seq.), the reading advocated by

the former employees presents an irreconcilable conflict between

the statutory authority of the Governor and that of the Attorney

General. The Governor is “Chief Personnel Officer” charged with

executing the VPA. Code § 2.2-103. Under the VPA’s provisions,

“[n]o establishment of a position or rate of pay, and no change

in rate of pay shall become effective except on order of the

appointing authority and approval by the Governor.” Code § 2.2-

2901(C). Employees covered by the VPA are thus subject to the

Governor’s direct authority regarding such personnel decisions.

That gubernatorial authority, if the former employees’

viewpoint is sustained, is directly contrary to the Attorney

General’s statutory authority to make personnel decisions

relating to the employees of his or her office. This is self-

evident from the clear appointment power in Code §§ 2.2-501 and

–502, coupled with the Attorney General’s authority to set “such

salaries among such persons as he deems proper.” Code § 2.2-

502. Apart from the legislature’s funding prerogatives, there

10
are no statutory restrictions on these powers granted to the

Attorney General.

Thus, the former employees’ proffered reading of the

pertinent statutes would give the Governor and the Attorney

General simultaneous, unrestricted authority to create

positions, determine salaries, and appoint personnel for the

Office of the Attorney General. This construction creates an

unworkable and irreconcilable conflict between the authority of

the Governor and that of the Attorney General. Because such a

literal construction of Code § 2.2-3202(A)(i) creates a conflict

between statutory provisions, we must turn to the rules of

statutory construction to determine the General Assembly’s

intent and resolve the conflict. See Moore v. Commonwealth, 155

Va. 1, 11-12, 155 S.E. 635, 638-39 (1930) (using principles of

statutory construction to resolve conflict between two code

provisions);10 see also Wertz v. Grubbs, 245 Va. at 70, 425

10
In approaching how to resolve a conflict between two
statutes, the Court in Moore cited this language from Golden
Valley County v. Lundin, 203 N.W. 317, 319 (N.D. 1925):

The legislative intention must primarily be determined
from the language of the statute. And if the language
is plain, certain and unambiguous, so that no doubt
arises from its own terms as to its meaning, then
there is no room for interpretation, and the statute
must be given effect according to its terms. But the
legislative intention must be sought from the whole
act, and not merely from certain parts of it; and
where certain provisions of an act are inconsistent

11
S.E.2d at 501 (1993) (same).11

When faced with apparently conflicting statutes, this Court

applies “a well-established principle of statutory construction.

If possible, we must harmonize apparently conflicting statutes

to give effect to both.” Phipps v. Liddle, 267 Va. 344, 346,

593 S.E.2d 193, 195 (2004); see also Kirkpatrick v. Board of

Supervisors, 146 Va. 113, 125, 136 S.E. 186, 190 (1926) (“where

two statutes are in apparent conflict they should be construed,

if reasonably possible, so as to allow both to stand and to give

force and effect to each.”). Indeed, whenever “a given

with other provisions of the same act, then it becomes
incumbent upon the courts to determine which must
prevail in order to carry out the legislative purpose
and intention.
Moore, 155 Va. at 11, 155 S.E. at 638.
11
The principles permitting courts to construe statutes
where a literal construction of the statute’s plain language
results in a “manifest absurdity” are arguably applicable here
as well. When applying the plain language of a statute causes
illogical or unworkable conflict either internally or in light
of another statute, the plain language is insufficient to
determining the statute’s meaning. See Frey v. Jefferson
Homebuilders, Inc., 251 Va. 375, 378, 467 S.E.2d 788, 790
(1996). Language giving simultaneous, unrestricted authority to
two elected officials is “absurd” in light of the manifest
difficulties implementing, enforcing, and prioritizing
conflicting employment decisions of either official.
Some cases analyzing apparent conflicts between statutes
rely on the determination of “manifest absurdity” before turning
to the rules of statutory construction to resolve the conflict.
See, e.g., Buzzard v. Commonwealth, 134 Va. 641, 653-54, 114
S.E. 664, 667-68 (1922) (harmonizing statutes to avoid a
statutory conflict that would lead to an absurd result). Our
case law establishes, however, that this intermediary step is
not required where, as in the case at bar, a literal

12
controversy involves a number of related statutes, they should

be read and construed together in order to give full meaning,

force, and effect to each.” Ainslie, 265 Va. at 353, 577 S.E.2d

at 249; see also Ragan v. Woodcroft Village Apts., 255 Va. 322,

325, 497 S.E.2d 740, 742 (1998) (“We accord each statute,

insofar as possible, a meaning that does not conflict with the

other statutes.”).

Here, the conflict only arises if the VPA applies to

employees of the Office of the Attorney General through Code

§ 2.2-2905(1). By reading Code § 2.2-2905(1) to encompass both

the Attorney General – an officer “for whom the Constitution

specifically directs the manner of selection” – and those

employed under the Attorney General’s authority, the statutory

conflict between the powers of the Governor and the Attorney

General is avoided. This construction harmonizes the Code

provisions thereby eliminating an otherwise untenable conflict,

while giving effect to the statutes establishing the Governor’s

authority and that of the Attorney General. The Governor’s

powers under the VPA are unaffected as to any Commonwealth

employees other than employees of the Office of the Attorney

General, and the Attorney General’s powers are limited to those

construction of statutory text creates a direct conflict with
another statute.

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employees and allow recognition of the General Assembly’s intent

as expressed in Code § 2.2-501, et seq.

Furthermore, this construction gives effect to the General

Assembly’s intent without causing the Court to usurp the

legislature’s right to write statutes. Whenever interpreting

and construing a statute, we are mindful that “[c]ourts are not

permitted to rewrite statutes.” Anderson v. Commonwealth, 182

Va. 560, 566, 29 S.E.2d 838, 841 (1944). Our construction of

Code § 2.2-2905(1) is consistent with our well-settled

principles of statutory construction in light of the clear

conflict between statutes that would result from a literal

reading.

Accordingly, we hold that employees of the Office of the

Attorney General, including the former employees, are not

covered by the VPA because they are exempt under Code § 2.2-

2905(1). Because the former employees are not covered by the

VPA, they are ineligible to receive WTA benefits under Code

§ 2.2-3202(A)(i). Consequently, the trial court did not err in

sustaining the Attorney General’s demurrer and dismissing the

amended motion for judgment with prejudice. We will therefore

affirm the trial court’s judgment.

Affirmed.

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