                                                                                                        


                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Decker and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              VIRGINIA EMPLOYMENT COMMISSION
                                                                                             MEMORANDUM OPINION* BY
              v.            Record No. 1268-15-2                                             JUDGE RANDOLPH A. BEALES
                                                                                                    APRIL 5, 2016
              BRENDA R. COLE


                                              FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                                       Theodore J. Markow, Judge Designate

                                           Elizabeth B. Peay, Assistant Attorney General-III (Mark R. Herring,
                                           Attorney General; John W. Daniel II, Deputy Attorney General;
                                           Kristina Perry Stoney, Senior Assistant Attorney General and Chief,
                                           on brief) for appellant.

                                           No brief or argument for appellee.


                            The Virginia Employment Commission (“the VEC” or “the Commission”) appeals an order

              from the Circuit Court of the City of Richmond overturning the VEC’s determination that Brenda

              Cole (Ms. Cole) was ineligible for benefits, that the VEC had overpaid Ms. Cole during her period

              of ineligibility, and that Ms. Cole was required to repay the overpaid funds under Code § 60.2-633.

              For the reasons below, we affirm the circuit court.

                                                                             I. BACKGROUND

                            “[T]he Commission’s findings of fact, if supported by the evidence and in the absence of

              fraud, are conclusive.” Lee v. Va. Emp’t Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106

              (1985).

                            Ms. Cole sought unemployment compensation from the VEC after she was let go by her

              employer. On February 10, 2012, a deputy commissioner in the VEC found Ms. Cole qualified
                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to receive unemployment compensation benefits in the amount of $378 per week from January

29, 2012 through July 7, 2012 – a total of twenty-three weeks. When Ms. Cole filed her

application with the VEC, she informed the VEC that she was also seeking Virginia Workers’

Compensation Commission (VWCC) benefits. On June 22, 2012, the VWCC issued a decision

awarding Ms. Cole temporary total disability benefits in the amount of $741.37 per week from

January 26, 2012 until her condition changed. In early July 2012, apparently on the same day

she received the decision from the VWCC, Ms. Cole reported her award to the VEC and

provided the VEC with a copy of her first VWCC check. At that time, the VEC employee who

accepted a copy of the VWCC check told Ms. Cole that she might owe the VEC some money

and that the VEC would be in touch with her if she did. Ms. Cole waited to cash her VWCC

check for a few weeks before finally doing so.

       Over two years later, on July 10, 2014, a deputy commissioner from the VEC issued a

determination declaring Ms. Cole ineligible for unemployment compensation benefits. Ms. Cole

appealed this decision to an Appeals Examiner for the VEC. Appeals Examiner David Jackson –

referring to the two-year delay in the deputy commissioner’s ineligibility determination – said,

“Why it wasn’t addressed until this year, I can’t tell you. I don’t know.” However, Appeals

Examiner Jackson ultimately affirmed the deputy commissioner’s determination finding that

Ms. Cole was ineligible for benefits from January 29, 2012 through July 7, 2012 because she was

also receiving funds from the VWCC.

       In an October 16, 2014 determination, a deputy commissioner from the VEC issued a

second determination finding that the VEC had overpaid unemployment compensation benefits

to Ms. Cole in the amount of $8,316 because “[b]enefits were paid during a period of

disqualification or ineligibility.” Ms. Cole also appealed this decision to Appeals Examiner

Jackson. He affirmed the deputy commissioner’s determination finding that the VEC had
                                                 ‐ 2 - 
overpaid unemployment compensation benefits and that Ms. Cole was required to repay the

funds to the VEC.

              Ms. Cole appealed both of Appeals Examiner Jackson’s determinations to a special

examiner. VEC Special Examiner Timothy Snyder ultimately consolidated both of Ms. Cole’s

appeals into one hearing, and found on February 23, 2015 that Ms. Cole was ineligible for

benefits from January 29, 2012 through July 7, 2012 – and that she would be required to repay

the unemployment compensation funds she had received two years earlier as such payments

constituted overpayment.

              Ms. Cole then appealed to the Circuit Court of the City of Richmond, which held that the

VEC’s delayed determination of ineligibility violated the statutory requirement that the VEC act

“promptly” – and that “the failure to act promptly results in the VEC’s order that petitioner repay

her unemployment benefits is void and unenforceable.”

                                                                  II. ANALYSIS

                                                               A. Standard of Review

              An issue in this case concerns the meaning of the word “promptly” within

Code § 60.2-619(A) and (C). Thus, this appeal presents a matter of statutory construction, which

this Court reviews de novo. See Va. Dep’t of Health v. NRV Real Estate, LLC, 278 Va. 181,

185, 677 S.E.2d 276, 278 (2009); Actuarial Benefits & Design Corp. v. Va. Emp’t Comm’n, 23

Va. App. 640, 478 S.E.2d 735 (1996) (using the principles of statutory interpretation to define

“subsequently” in part of the Virginia Unemployment Compensation Act).1 “[P]ure statutory


                                                            
              1
         The Commission, citing Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 687 S.E.2d 99
(2010), asserts that this case presents review of a matter that has been committed to the agency’s
discretion. Trent, 55 Va. App. at 568, 687 S.E.2d at 103 (holding that “[a] reviewing court
cannot ‘substitute its own judgment for the agency’s on matters committed by statute to the
agency’s discretion’” (quoting Boone v. Harrison, 52 Va. App. 53, 62, 660 S.E.2d 704, 708
(2008))). However, “[a]n agency does not possess specialized competence over the
                                                 ‐ 3 - 
interpretation is the prerogative of the judiciary.” Commonwealth ex rel. State Water Control

Bd. v. Blue Ridge Envtl. Def. League, 56 Va. App. 469, 481, 694 S.E.2d 290, 296 (2010)

(quoting Mattaponi Indian Tribe v. DEQ ex rel State Water Control Bd., 43 Va. App. 690, 707,

601 S.E.2d 667, 676 (2004)).

              The VEC is the factfinder in this case, and it is not disputed that the VEC’s findings of

fact are supported by credible evidence in the record. Accordingly, those facts are conclusive on

appeal. Code § 60.2-625; see also Whitt v. Ervin B. Davis & Co., Inc., 20 Va. App. 432, 436,

457 S.E.2d 779, 781 (1995).

          B. The Lack of Promptness in the July 10, 2014 Decision Finding Ms. Cole Ineligible

              In this case, on February 10, 2012, a deputy commissioner mailed Ms. Cole a

determination finding her eligible for benefits. Ms. Cole notified the VEC in early July 2012 that

she was receiving benefits from the VWCC. On July 10, 2014, just over two years later, the

deputy commissioner issued another determination finding Ms. Cole ineligible for

unemployment compensation benefits already paid to her during the same time period in which

she received funds from the VWCC. Because Ms. Cole was entitled to receive VWCC benefits

from January 26, 2012 until her circumstances changed, the VEC found that Ms. Cole was

ineligible during the entire period she received unemployment benefits from the VEC.2 The

VEC asserts that the deputy commissioner was entitled to find Ms. Cole ineligible at any time

because she, as a matter of fact, was not entitled to receive benefits during that time period. At

oral argument, counsel for the VEC argued that even if a deputy commissioner made a


                                                            
interpretation of a statute merely because it addresses topics within the agency’s delegable
authority.” Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 634, 593 S.E.2d 568, 571 (2004).
              2
         Under Code § 60.2-604, the weekly unemployment compensation benefit amount a
claimant is entitled to receive shall be reduced by the amount a claimant receives from other
qualifying agencies, such as the VWCC.
                                                 ‐ 4 - 
determination that a claimant was ineligible ten years after initially determining that the claimant

was eligible, the VEC would still be entitled to recoup overpaid funds from the claimant.

       Code § 60.2-619(A) and (C) read, “A representative designated by the Commission as a

deputy, shall promptly examine the claim” and notice of the determination “shall be promptly

given to the claimant.” (Emphasis added). Special Examiner Timothy Snyder also

acknowledged in his written opinion that the two-year delay in this simple case was too long,

finding, “The Commission concedes as well that the determination in this case should have been

issued more promptly.” (Emphasis added). Therefore, given the fact that the deputy

commissioner did not issue an opinion for more than two years and given that the VEC gave no

reason for such a delay in its determination of whether a recipient of unemployment

compensation benefits may spend them (without having to be liable for paying them back), we

find that the deputy commissioner did not act promptly under these circumstances.

       “Prompt” means “done without delay.” American Heritage Dictionary 991 (2d ed. 1991).

Based on the facts of this case, this Court need not create a bright line rule to govern whether a

determination of the Commission has been issued promptly. While we find that it is not practical

to create a bright line rule for what the word “promptly” means that can be applied to every

determination of the Commission, we also find, however, that the deputy commissioner’s

determination that Ms. Cole was ineligible for benefits here was not issued promptly under any

rational definition of that term. The deputy commissioner did not issue an opinion ordering

Ms. Cole to repay her benefits for over two years after Ms. Cole provided the VEC with her

documentation from the VWCC, and the Commission gave no reason to explain the delay.

Therefore, while we need not determine exactly what “promptly” means in all cases, it clearly

does not mean more than two years after the claimant has forthrightly and quickly provided all

appropriate information to the VEC, as is the case here.
                                                ‐ 5 - 
                                                        C. Mandatory Promptness Requirement

              Special Examiner Snyder of the VEC conceded in his written opinion that the promptness

requirement for issuing a determination found in Code § 60.2-619 is a mandatory requirement

for the VEC. Brenda R. Cole v. Hill Phoenix, Inc., Commission Decision 115994-C (Feb. 23,

2015) (“It is true that Section 60.2-619 of the Code requires that determinations be issued

promptly . . . . While it is clear the Commission is required to issue determinations promptly, the

Commission does not believe this gives the Commission the authority to ignore other mandatory

language in the statute.”).3

              We agree with Special Examiner Snyder that Code § 60.2-619 includes a mandatory

“promptness requirement.” The statutory framework as it relates to the VEC further supports

this conclusion. “[T]he primary objective of statutory construction is to ascertain and give effect

to legislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 308 S.E.2d 337, 338 (1983).

Indeed, “this Court must always ‘ascertain and give effect to the intention of the legislature.’”

Saffert v. Fairfax Cty. Sch. Bd., 59 Va. App. 458, 465, 720 S.E.2d 139, 143 (2012) (quoting

Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)).

              Code § 60.2-619(A) and (C), which we find require the Commission to examine claims

and render decisions promptly, must be read as part of the overall statutory scheme. The

Supreme Court has noted that the purpose of the Unemployment Compensation Act “is to assure

a measure of security against the hazard of unemployment in our economic life.”

Unemployment Comp. Comm’n of Va. v. L.E. Collins, 182 Va. 426, 438, 29 S.E.2d 388, 393
                                                            
              3
          Generally, the use of the term “shall” is directory and procedural rather than mandatory
and jurisdictional. See Hood v. Commonwealth, 280 Va. 526, 541, 701 S.E.2d 421, 429-30
(2010), and Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). However, if
the statute manifests a different intent, “shall” will be construed as mandatory. See Jamborsky,
247 Va. at 511, 442 S.E.2d at 638. In this case, the statutory scheme supports our conclusion
that “shall” is mandatory on the VEC.

                                                                       ‐ 6 - 
(1944). Likewise, this Court has stated, “The purpose of the [Unemployment Compensation]

Act is to ‘provide temporary financial assistance to workmen who [become] unemployed without

fault on their part. The statute as a whole . . . should be so interpreted as to effectuate that

remedial purpose implicit in its enactment.’”4 Johnson v. Va. Emp’t Comm’n, 8 Va. App. 441,

448-49, 382 S.E.2d 476, 479 (1989) (emphasis added).

              Our interpretation of Code § 60.2-619 is consistent with this clearly defined legislative

purpose underlying the statutory framework that governs the VEC. To adopt the VEC’s

interpretation would allow the VEC not to get around to examining a claim and rendering a

determination on it for two years, five years, or even ten years and still demand repayment when

the claimant had honestly and expeditiously provided all necessary information – a point

conceded by appellant’s counsel at oral argument. Adopting the VEC’s interpretation would

force Ms. Cole to bear the burden of the VEC’s unnecessary and unexplained delay in

determining that she was ineligible for benefits and that she was required to pay the

unemployment compensation funds back as a result. This would not serve the statute’s general

purpose of providing temporary financial assistance to unemployed individuals. It would, in

fact, penalize Ms. Cole for being a model claimant.5 Ms. Cole was scrupulously honest and


                                                            
              4
          Ms. Cole made the argument below that the line of cases stemming from In re Ginger L.
Ardizzone, Commission Decision 10619-C (Aug. 2, 1978), controls our decision. However, the
VEC asserts that the Commission expressly rejected the Ardizzone line of decisions in Sal A.
DeRogatis v. Heard Concrete Construction, Inc., Commission Decision 91969-C (May 19,
2010), and that the Commission is free to overturn its own precedent. VEC also notes that the
Commission’s interpretation in Ardizzone was never specifically adopted by Virginia courts.
We note that no prior decision of the Commission is binding on this Court and that our decision
in this case is based on our interpretation of the relevant statutory law.
              5
         Code § 60.2-618 – also part of the statutory framework for the VEC – provides the VEC
with the authority to issue a determination disqualifying a claimant from unemployment
compensation benefits for a period of fifty-two weeks if a claimant makes a false statement or
misrepresentation in order to obtain or increase his or her benefits. Code § 60.2-618 specifically
allows the VEC to recover benefits that it provided to a claimant for a fraudulent claim, based on
                                                ‐ 7 - 
diligent in her dealings with the VEC. To allow the VEC to collect from Ms. Cole two years

after she was paid unemployment compensation to “tide her over” after becoming unemployed

could have a devastating effect on her finances. Presumably, the General Assembly intentionally

included the “promptness” language as a mandatory requirement to ensure that a claimant could

rely on payments received from the VEC to meet their financial needs without fear that the VEC

could order repayment years later – through no fault of the claimant.6 Thus, we conclude that

the promptness requirement of the statute is mandatory for the VEC. Because the deputy

commissioner failed to meet the promptness requirement with his untimely determination of

ineligibility, his determination under these circumstances cannot be valid.

                         D. No Actual Conflict Between Code § 60.2-619 and Code § 60.2-633

              The VEC argues that there is a conflict between the mandatory provisions of Code

§ 60.2-619 governing prompt determinations of the VEC and Code § 60.2-633. Specifically, the

VEC contends that there is no language in Code § 60.2-619 or anywhere else within the statutory

framework that would authorize the Commission to ignore the mandatory language contained in
                                                            
Code § 60.2-633 (the recoupment statute). However, Code § 60.2-618 only allows the VEC to
make its disqualification determination within thirty-six months of the date of a claimant’s false
statement or misrepresentation. This shows the General Assembly’s intent to provide security to
all claimants that they will not – years after the fact – be told that they have to repay money that
they most likely no longer have. The General Assembly clearly would not have intended to limit
the VEC’s ability to recover unemployment compensation benefits when a claimant has acted
fraudulently – but allow the VEC a totally unlimited time to recover from an honest claimant
who had followed all of the rules.
              6
           As further evidence of the General Assembly’s intent that Code § 60.2-619(A) and (C)
be mandatory on the VEC, in subsection (B), the statute reads, “the Commission shall cause an
informatory notice of such filing to be mailed to [specific employers and related parties].
However, the failure to furnish such notice shall not have any effect upon the claim for benefits.”
Code § 60.2-618(B) (emphasis added). In subsection (B), the General Assembly explicitly noted
that the VEC’s failure to provide notice does not affect a claimant’s claim for benefits. The
General Assembly could have likewise included language in either subsection (A) or (C), making
it clear that the VEC’s failure to promptly examine a claim would not affect the claim – i.e.,
would not preclude the VEC from making a determination even if it was not prompt. However,
the General Assembly did not include such language in Code § 60.2-619(A) or (C).  
                                                ‐ 8 - 
Code § 60.2-633 governing recoupment of benefits to which a claimant is not entitled (“Any

person who has received any sum as benefits under this title to which he was not entitled shall be

liable to repay such sum to the Commission.”). “When faced with apparently conflicting

statutes,” courts must apply “a well-established principle of statutory construction.” Boynton v.

Kilgore, 271 Va. 220, 229, 623 S.E.2d 922, 927 (2006). “If possible, we must harmonize

apparently conflicting statutes to give effect to both.” Id. (quoting Phipps v. Liddle, 267 Va.

344, 346, 593 S.E.2d 193, 195 (2004)). “We accord each statute, insofar as possible, a meaning

that does not conflict with any other statute.” Ragan v. Woodcroft Village Apts., 255 Va. 322,

325, 497 S.E.2d 740, 742 (1998).

       While Code § 60.2-619 and Code § 60.2-633 both contain mandatory provisions, we find

that there is no actual conflict as to which statute applies in this case. While the VEC argues that

Code § 60.2-633 creates a mandatory requirement for a claimant to repay any benefits received

to which he or she was not entitled, its argument ignores the fact that a deputy commissioner’s

determination that a claimant is not entitled to benefits is subject to the mandatory promptness

requirement of Code § 60.2-619. Pursuant to Code § 60.2-619, a deputy commissioner must

“promptly examine” all claims and the determination “shall be promptly given to the claimant.”

As stated supra, this Court finds that the “shall” language in Code § 60.2-619 is mandatory.

Thus, the statutory framework governing the VEC requires the VEC – prior to seeking

repayment of benefits to which a claimant is not entitled – to make a prompt determination that a

claimant is not entitled or ineligible for unemployment benefits.

       Therefore, we find that before the VEC can order a claimant to repay benefits to which

the claimant is not entitled back to the VEC pursuant to Code § 60.2-633, there must first be a

prompt determination that the claimant received benefits to which the claimant was not entitled

pursuant to Code § 60.2-619.
                                                ‐ 9 - 
                E. Code § 60.2-633 Requires a Prompt Determination of Ms. Cole’s Ineligibility

              Because the deputy commissioner’s decision was not prompt, it was a violation of the

mandatory requirement found in Code § 60.2-619(A). Thus, any subsequent determination made

as a result of the deputy commissioner’s untimely ineligibility finding must be invalid. If the

subsequent determination were not rendered invalid, the “promptness requirement” would be

meaningless. Whenever possible, we construe a statute so that each word in the statute has

meaning. Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)

(“[E]very part of a statute is presumed to have some effect and no part will be considered

meaningless unless absolutely necessary.”). Because the deputy commissioner’s second

determination in 2014 (that applied Code § 60.2-633 and found Ms. Cole liable for overpayment

during her period of “ineligibility”) flowed from the deputy commissioner’s first finding in 2014

(that Ms. Cole was ineligible), it too must be invalid.

              Therefore, Ms. Cole cannot be obligated to repay the VEC under Code § 60.2-633 (the

recoupment statute).7 The recoupment statute only requires the VEC to recoup funds to which a

claimant is not entitled, and the deputy commissioner’s determination that Ms. Cole was not

entitled to unemployment compensation is not valid in the situation before us because it was not

promptly given to the claimant, as required by Code § 60.2-619.

                                                               III. CONCLUSION

              In conclusion, we hold that the “promptness requirement” language in

Code § 60.2-619(A) and (C) prevents the VEC from deciding, under the scenario of this case,

that a claimant must repay unemployment compensation more than two years after receiving it.
                                                            
              7
         Today’s decision by this Court should not be generally read to derogate the VEC’s
statutory authority to recoup overpaid funds. Certainly, if the VEC determination here – that
Ms. Cole should not have received unemployment compensation payments and thus was
overpaid such funds – had been promptly made, the VEC would have been entitled to
subsequently recoup those funds from her.
                                              ‐ 10 - 
Because the VEC failed to promptly issue a determination in compliance with Code § 60.2-619

that Ms. Cole was ineligible for unemployment compensation, its untimely determination that

she was ineligible and required to repay the unemployment compensation is incorrect and

unenforceable against Ms. Cole. For all of these reasons, Ms. Cole is not required to pay back

any unemployment compensation benefits provided to her by the VEC during the period the

VEC originally found her eligible in 2012. Accordingly, we affirm the circuit court.

                                                                                       Affirmed.




                                             ‐ 11 - 
