COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
VIRGINIA DEPARTMENT OF STATE POLICE
OPINION BY
v. Record No. 2853-01-4 JUDGE G. STEVEN AGEE
DECEMBER 17, 2002
JAMES C. BARTON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
Ondray T. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General;
Elizabeth McClanahan, Chief Deputy Attorney
General; Judith W. Jagdmann, Deputy Attorney
General; Guy W. Horsley, Jr., Senior
Assistant Attorney General, on briefs), for
appellant.
Manuel A. Capsalis (W. Hunter Old; Cohen
Gettings P.C., on brief), for appellee.
The Virginia Department of State Police ("VDSP") issued
James C. Barton ("Barton"), a sworn state trooper and employee
of the Commonwealth, a written notice of disciplinary action and
suspended him for three days. Barton requested and received a
hearing pursuant to Code § 2.1-116.06 (recodified as amended at
§ 2.2-3004) before an administrative hearing officer. The
hearing officer made findings of fact and reduced the VDSP's
disciplinary action to a lesser sanction. Trooper Barton then
sought review of the hearing officer's decision in the Circuit
Court of Fairfax County pursuant to Code § 2.1-116.07(D)
(recodified as amended at § 2.2-3006(B)). The circuit court
reversed and dismissed the hearing officer's decision, finding
in Barton's favor. For the reasons that follow, we reverse the
circuit court's decision thereby reinstating the hearing
officer's decision.
I. BACKGROUND
The hearing officer found the following facts in his
decision. 1
On January 2, 2001, during the afternoon rush hour, Trooper
Barton responded to three separate motor vehicle accidents in
the same vicinity on a busy interstate in northern Virginia. At
the scene of the second collision he questioned the woman whom
he believed to be responsible for causing the accident. She
told him her driver's license had been suspended. The woman
complained of head and neck injuries, and Barton noticed the
odor of alcohol. As Barton was about to administer a
breathalyzer test, emergency medical technicians arrived to
treat the woman and transport her to the hospital.
After finishing his duties on the scene, Barton went to the
hospital and observed the woman for approximately thirty-eight
minutes while she awaited medical treatment. During this time
she showed signs of intoxication but no signs of aggressiveness.
1
No transcript, or a written statement of facts in lieu
thereof, was filed under Rule 5A:8. Accordingly, the facts
relevant to this appeal are those found in the hearing officer's
decision which was part of the appendix filed in this case.
- 2 -
Barton issued her separate tickets for driving on a suspended
license and reckless driving. He did not arrest her for driving
under the influence of alcohol.
The woman became belligerent after Barton left the hospital
and kicked a technician twice in the ribs. A hospital nurse
called the VDSP and said the hospital was ready to release her
unless Barton needed her for anything else. Though the
dispatcher informed Barton that the woman was drunk, Barton
authorized her release because "I've charged her with everything
that I'm going to." Shortly thereafter, the nurse again called
the VDSP because of the woman's behavior. The VDSP dispatched a
trooper to the hospital who then arrested her for being drunk in
public. The woman's blood alcohol level was determined to be
.21%, almost three times the legal limit in Virginia for the
operation of a motor vehicle. See Code § 18.2-266. Barton was
unaware of the woman's blood alcohol content while at the
hospital.
This incident prompted the VDSP to discipline Barton by
charging him with violation of VDSP General Orders 25(1) and
19(14)(b)(24). 2 General Order 25 states that "[a]ll criminal
2
The VDSP issues General Orders to govern its internal
policies of operation including employee discipline.
Unacceptable behavior is categorized, according to severity,
into three different offenses. Group I offenses "include types
of behavior least severe in nature but which require correction
in the interest of maintaining a productive and well-managed
work force." General Order 19(12)(a). Group II offenses
involve "acts and behavior which are more severe in nature and
- 3 -
cases coming to the attention of a sworn employee shall be given
the necessary attention to be brought to a logical conclusion."
Barton was issued a Group III written notice and suspended for
three days for "shirking official duty" under General Order
19(14)(b)(24) because he did not arrest the woman for driving
under the influence.
The hearing officer found that Barton did not "shirk
official duty" but simply failed to perform his duty in
accordance with the VDSP's written policies as required by
General Order 19(13)(b)(1). The written policy Barton failed to
follow was not bringing the accident incident "to a logical
conclusion," as required by General Order 25. The hearing
officer found VDSP "established by a preponderance of the
evidence that the logical conclusion Grievant should have chosen
was to take all necessary steps to arrest the woman for driving
under the influence." The hearing officer reduced the
disciplinary action to a Group II written notice with no
suspension.
The circuit court reversed the hearing officer's decision
and awarded Barton attorneys' fees under Code § 2.1-116.07:1(D)
(recodified as amended at § 2.2-3006(D)). The circuit court
are such that an additional Group II offense should normally
warrant dismissal." General Order 19(13)(a). Group III
offenses "include acts and behavior of such a serious nature
that a first occurrence should normally warrant removal."
General Order 19(14)(a).
- 4 -
order gave no basis for its ruling. The Commonwealth now
appeals to this Court.
II. STANDARD OF REVIEW
Code § 17.1-405(1)(ii) became effective July 1, 2000, and
places appellate jurisdiction in this Court from "1. Any final
decision of a circuit court on appeal from . . . (ii) a
grievance hearing decision issued pursuant to § 2.2-3005
[formerly § 2.1-116.07]." The case before us is one of first
impression, and we begin by examining the appropriate appellate
standard of review.
Code § 2.1-116.07(D) authorized an employee to petition the
appropriate circuit court "for an order requiring implementation
of the hearing officer's decision" in grievance proceedings. In
Department of Environmental Quality v. Wright, 256 Va. 236, 241,
504 S.E.2d 862, 864 (1998), the Supreme Court of Virginia held
that under this statute a circuit court lacks
authority to consider the grievance de novo,
to modify the hearing officer's decision, to
substitute the court's view of the facts for
those of the hearing officer, or to invoke
the broad equitable powers to arrive at a
decision that the court may think is fair;
the court may only "implement."
Id.
Subsequently, the General Assembly adopted Code
§ 2.1-116.07:1(B) 3 (recodified as amended at § 2.2-3006)
3
Code § 2.1-116.07:1 was the section in effect at the time
of the circuit court's decision in this case.
- 5 -
authorizing the circuit court, based on the record and sitting
without a jury, to affirm, reverse or modify the hearing
officer's decision. See 2000 Va. Acts, ch. 947. However, the
only grounds of appeal of the hearing officer's decision is
"that the determination is contradictory to law." Id. (emphasis
added). Code § 2.1-116.07:1(B) (§ 2.2-3006(B)) represents the
first and only appearance of the phrase "contradictory to law"
in the Code of Virginia as a standard of appellate review.
When the General Assembly enacted Code § 2.1-116.07:1
(recodified as amended at § 2.2-3005(D)) in 2000, it deleted all
of the language in existing Code § 2.1-116.07(C) and (D) except:
"The decision of the hearing officer shall (i) be in writing,
(ii) contain findings of fact as to the material issues in the
case and the basis for those findings, and (iii) be final and
binding if consistent with law and policy." 2000 Va. Acts, ch.
947 (emphasis added). Code § 2.1-116.07:1(A) (recodified as
amended at § 2.2-3006(A)) provided that "[i]n a grievance
initiated by state employees, the Director of the Department of
Personnel and Training [currently the Department of Human
Resource Management] shall determine within sixty days of the
decision whether the decision is consistent with policy."
These contemporaneous acts of the General Assembly
(revising § 2.1-116.07 and adopting § 2.1-116.07:1) reflect the
legislature's intent to create a tripartite review procedure for
state employee grievances. These statutes clearly provide the
- 6 -
hearing officer is to act as fact finder and the Director of the
Department of Human Resource Management is to determine whether
the hearing officer's decision is consistent with policy. In
the grievance process, neither of these determinations is
subject to judicial review, but only that part of the grievance
determination "contradictory to law."
By its plain reading, Code § 2.1-116.07:1 makes it
incumbent upon the party appealing the hearing officer's
decision to specify how that decision is "contradictory" to law
and what "law" is thereby being contradicted.
III. ANALYSIS
Barton contends he gave the highway accident case "the
necessary attention to be brought to a logical conclusion," by
issuing the reckless driving and suspended license citations.
He then argues the hearing officer's determination that "a
logical conclusion" mandates a drunk driving citation
effectively rewrites General Order 25 to mean "the logical
conclusion preferred by VDSP." Barton contends "a logical
conclusion" means there could be more than one conclusion and,
accordingly, the hearing officer's decision misinterprets the
General Order by finding there could only be one such
conclusion. Barton thus argues this determination by the
hearing officer contradicts the "law" of General Order 25. We
disagree that General Order 25 constitutes "law" within the
- 7 -
context of an issue "contradictory to law" under Code
§ 2.1-116.07:1.
In challenging the hearing officer's decision, Barton fails
to identify any constitutional provision, statute, regulation or
judicial decision which the decision contradicts. He thus fails
to identify any "law" to which the hearing officer's decision is
contradictory. "Law" is the "aggregate of legislation, judicial
precedents and accepted legal principles." Black's Law
Dictionary 889 (7th ed. 1999).
Barton only identifies a conflict in interpretation of a
policy established by a state agency (VDSP). Interpretation of
state agency policy is itself a matter of policy, absent a
statutory enactment to the contrary, and not a matter of law.
While Barton contends his conduct brought the investigation to a
logical conclusion under General Order 25, any dispute over the
meaning of that directive is a matter of internal agency policy.
The General Assembly has clearly vested review of policy
issues involved in employee grievances in the Department of
Human Resource Management, and not in the courts. 4 See Code
§ 2.1-116.07:1(A). As the provision of a state grievance
procedure for state employees is a matter of legislative grace,
4
The record is silent as to whether the Director of the
Department of Personnel and Training (now the Department of
Human Resource Management) was asked to make, or did make, a
decision under Code § 2.1-116.07:1(A) (recodified as amended at
§ 2.2-3006(A)) as to whether the hearing officer's decision was
consistent with policy.
- 8 -
the General Assembly has wide latitude in how it chooses to
structure that process, including any right of appeal. See
Murray v. Stokes, 237 Va. 653, 378 S.E.2d 834 (1989) ("The
[Virginia Personnel] Act is replete with instances where the
General Assembly carefully identified circumstances in which
judicial review is available."). There is no constitutional or
statutory prohibition that limits the General Assembly's
discretion to take a determination of policy interpretation out
of the scope of judicial review in the grievance process. See
id. By limiting an appeal to issues "contradictory to law," the
General Assembly underscores a guiding principle of the
grievance procedure as set out in Code § 2.2-3004: "Management
reserves the exclusive right to manage the affairs and
operations of state government."
At oral argument Barton advanced for the first time the
proposition that the hearing officer's decision was "law"
because it was contained under a heading: "conclusions of law."
The record contains no indication Barton made this argument at
any point in the proceedings prior to oral argument in this
Court, and his brief fails to mention it. This Court will not
consider an argument presented for the first time at oral
argument. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1998) ("The Court of Appeals will
not consider an argument on appeal which was not presented to
the trial court."). Moreover, "we review . . . statutory
- 9 -
interpretations and legal conclusions de novo." Rollins v.
Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001). We
are not bound by what the hearing officer may have construed to
be "law," as opposed to agency policy interpretation.
In summary, as Barton fails to identify any "law" which the
hearing officer's decision contradicts, the circuit court's
ruling overturning the hearing officer's decision must be
reversed.
IV. CONCLUSION
For the reasons set forth above, the September 21, 2001
order of the circuit court is hereby reversed. The hearing
officer's decision of July 21, 2001 is therefore reinstated.
Reversed.
- 10 -