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Murphy v. Virginia Department of State Police

Court of Appeals of Virginia

May 8, 2018

J. FOSTER MURPHY
v.
VIRGINIA DEPARTMENT OF STATE POLICE

          FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Anita D. Filson, Judge

          Thomas Neal Jamerson (William F. Etherington; Beale, Davidson, Etherington & Morris PC, on briefs), for appellant.

          E. Lewis Kincer, Jr., Assistant Attorney General (Mark R. Herring, Attorney General; Samuel T. Towell, Deputy Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Petty and AtLee Argued at Lexington, Virginia

          OPINION

          WILLIAM G. PETTY, JUDGE

         On appeal, John Foster Murphy argues that the circuit court erred in refusing to reverse a case decision made by the Director of the Department of Human Resource Management (DHRM) upholding the termination of Murphy's employment with the Virginia Department of State Police. Murphy argues that the policy review done by DHRM as required by statute was contradictory to law because the Director delegated the review rather than complete the review personally.[1]

         Background

         In September 2016, Murphy was discharged by the Virginia Department of State Police. Murphy filed a grievance challenging his dismissal. After a hearing in December 2016, a hearing officer issued a written decision in January 2017 upholding the dismissal. Murphy timely requested review of the hearing officer's decision in a January 12, 2017 letter addressed to both the Director of DHRM and the Director of DHRM's Office of Employment Dispute Resolution (EDR). The Director of EDR responded with a letter, on DHRM letterhead, entitled "Policy Ruling of the Department of Human Resource Management." The letter included a statement that the "agency head of [DHRM] . . . has directed that I conduct this administrative review for appropriate application of policy."[2] The letter upheld Murphy's dismissal. Murphy timely appealed the agency decision to the circuit court, which also upheld his dismissal.

         Murphy now appeals to this Court. Murphy argues that the review performed by the Director of DHRM was contradictory to law because the Director assigned an employee of DHRM to conduct the policy review rather than perform the review herself.

         Standard of Review

         "We first note that in conjunction with the Virginia Personnel Act, Code § 2.2-2900 et seq, the General Assembly established a system for handling state employee complaints arising in the workplace by enacting the State Grievance Procedure. Code § 2.2-3000 et seq." Pound v. Dep't of Game & Inland Fisheries, 40 Va.App. 59, 63-64, 577 S.E.2d 533, 535 (2003).

Pursuant to Code § 2.2-3006 of that statutory scheme, a party may appeal a final decision to the appropriate circuit court "on the grounds that the determination is contradictory to law." After a hearing of the appeal "on the record, " the court may "affirm the decision or may reverse or modify the decision." Code § 2.2-3006. Such determinations of the circuit court may be appealed to this Court, pursuant to Code § 17.1-405(1), granting any aggrieved party the ability to appeal "any final decision of a circuit court on appeal from . . . a grievance hearing decision issued pursuant to § 2.2-3005." Code § 17.1-405(1). Thus, because the General Assembly granted to the circuit courts only the authority to consider whether the final determination of the hearing officer is "contrary to law, " we are likewise limited to such review in considering whether the trial court erred in its determination.

Id. at 65, 577 S.E.2d at 535. In determining whether a grievance decision was "contradictory to law, " "[t]he courts are limited to ascertaining compliance with constitutional provisions, statutes, regulations, and judicial decisions." Passaro v. Va. Dep't of State Police, 67 Va.App. 357, 367, 796 S.E.2d 439, 444 (2017); Va. Polytechnic Inst. v. Quesenberry, 277 Va. 420, 429, 674 S.E.2d 854, 858 (2009) ("The appealing party must 'identify [the] constitutional provision, statute, regulation or judicial decision which the [agency's] decision contradicted.'" (quoting Tatum v.Va. Dep't. of Agric., 41 Va.App. 110, 122, 582 S.E.2d 452, 458 (2003))). "Therefore, any determination that should properly be categorized as an issue of fact, policy, or procedure is outside the scope of judicial review. Because the only issues that are ...


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