                                         COURT OF APPEALS OF VIRGINIA


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




            J. FOSTER MURPHY
                                                                               OPINION BY
            v.     Record No. 1730-17-3                                   JUDGE WILLIAM G. PETTY
                                                                                MAY 8, 2018
            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.


                   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




                   1
                       Murphy frames his argument as three assignments of error: that the “trial court erred
            when it held that Code § 2.2-3006(A) did not specifically require the Director of DHRM to
            determine whether the hearing decision was consistent with policy,” that the “trial court erred
            when it held that DHRM properly conducted a policy review and that Sgt. Murphy received the
            tripartite review to which he was entitled,” and “that the “trial court erred when it held that the
            policy review conducted was not contradictory to law and affirmed the decision of the hearing
            officer.” Because all three assignments of error relate to the policy review conducted by DHRM,
            we address them together.
                                          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.

       2
          On the same day, the Director of EDR also wrote a letter, on DHRM/EDR letterhead,
entitled “Administrative Review.” In this letter, the Director of EDR found that the findings of
the hearing officer were supported by the evidence and declined to disturb the hearing officer’s
determination.
                                               -2-
               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 actually within the scope of

our review are issues of law, we review these issues de novo.” Passaro, 67 Va. App. at 367, 796

S.E.2d at 444 (internal citation omitted).

                         VIRGINIA’S EMPLOYEE GRIEVANCE PROCEDURE

       An employee of the Commonwealth who is covered by the State Grievance Procedure3

and who is dismissed due to formal discipline or unsatisfactory job performance may request a

formal grievance hearing. Code § 2.2-3003(A). “Upon the request of a party to a grievance

hearing for an administrative review of the hearing decision, the Director of [DHRM] shall

determine . . . whether the hearing decision is consistent with policy.” Code § 2.2-3006(A).



       3
        Certain employees of the Commonwealth are exempted from the State Grievance
Procedure. Code § 2.2-3002.
                                         -3-
Within thirty days of the Director’s final decision, a party has a right to judicial appellate review

of grievance hearing decisions on the grounds that the determinations were “contradictory to

law.” Code § 2.2-3006. Thus,

                the General Assembly has adopted a “tripartite review procedure.”
                Under this procedure, the hearing officer acts as factfinder, DHRM
                determines compliance with state policy, and courts review
                whether the grievance determination is contrary to law. This
                review procedure allows the executive branch latitude to manage
                and discipline executive branch employees and to develop its own
                policy and procedures, subject to limited legal constraints.

Burke v. Catawba Hosp., 59 Va. App. 828, 834, 722 S.E.2d 684, 687 (2012). As the chief

executive officer of the agency, the Director “may delegate or assign to any officer or employee

of his agency any tasks required to be performed by him or the agency,” but “[s]uch delegation

[does] not relieve the chief executive officer . . . of the responsibility to ensure faithful

performance of the duties and tasks.” Code § 2.2-604.

                                               ANALYSIS

        Here, Murphy does not contend that no policy review was performed pursuant to Code

§ 2.2-3006(A). Rather, he argues that Code § 2.2-3006 “specifically requires that the Director of

Department of Human Resource Management” personally conduct the review, which did not

occur in his case. This interpretation conflicts with the plain language of the General Assembly

authorizing the Director to delegate tasks. See Code § 2.2-604; Code § 2.2-1202.1(16). This

Court has previously recognized

                that the legislature intended the [agency head] to designate agents
                for the purpose of aiding him or her in carrying out the duties set
                forth in the [Code]. To hold otherwise would render the statute
                absurd, creating a situation where the [agency head] must act
                personally in many instances, with no ability to delegate authority
                and responsibility in carrying out his or her legislative charge.

Parker v. Commonwealth, 42 Va. App. 358, 386-87, 592 S.E.2d 358, 372 (2004) (analyzing the

duties of the Commissioner of the Virginia Department of Agriculture and Consumer Services).
                                                  -4-
In Code § 2.2-1202.1, the General Assembly enumerates some of the duties of the Director of

DHRM, including the duty to “render final decisions” (subsection 5). Code § 2.2-1201.1 also

directs the Director to establish various programs, procedures, and rules (subsections 1, 2, 3, 6, 7,

8, 9); to provide forms (subsection 4); to publish hearing officer decisions (subsection 7); to

provide information (subsection 10); to maintain a toll-free telephone number (subsection 11); to

collect statistical data (subsection 12); to make recommendations to the Governor and General

Assembly (subsection 13); and to conduct training seminars (subsection 14). To hold that the

Director must personally carry out each of these duties would be an absurd result. See Parker, 42

Va. App. at 387, 592 S.E.2d at 372. The Director of DHRM had statutory discretion to delegate

the policy review required by Code § 2.2-3006(A); such delegation was not contradictory to law.

       Nevertheless, Murphy argues that he was denied a full review of his grievance because

the same DHRM employee completed both an administrative review and a policy review of his

grievance. Murphy relies on the Grievance Procedure Manual to argue that he should have had

separate reviews by DHRM and EDR. However, he “failed to identify to the circuit court any

applicable constitutional provision, statute, regulation, or court precedent of this Commonwealth

that the [agency] contradicted.” Quesenberry, 277 Va. at 429, 674 S.E.2d at 858. The procedure

manual is not a “constitutional provision, statute, regulation, or judicial decision” upon which an

appeal to the circuit court, or to this Court, can be based. “It is simply a manual of procedure.

Failure to abide by an agency’s own policies and procedures does not render that decision

‘contradictory to law.’” Burke, 59 Va. App. at 837, 722 S.E.2d at 689. “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.’” Va. Dep’t of State Police v. Barton, 39

Va. App. 439, 447, 573 S.E.2d 319, 323 (2002).

                                                -5-
       Moreover, the Director has authority to “assign to any officer or employee of his agency

any tasks required to be performed by him or the agency” even while remaining responsible for

the task. Code § 2.2-604 (emphasis added). There is simply nothing in the statute that limits the

Director’s authority to delegate a task to an employee of the agency simply because the

employee also completes a related task.4

                                           CONCLUSION

       The circuit court correctly concluded the Director of the DHRM was permitted to assign

tasks to agency personnel as necessary or convenient to carry out the Director’s duties. See

Code § 2.2-604. The circuit court correctly concluded that

               the tripartite review procedure contemplated in [Code
               §] 2.2-3006(B) has been undisturbed. The appellant received a
               review of the facts by the Hearing Officer, a review of the policy
               by the DHRM and EDR, and a review of the law by this court.
               Since the determination was not contradictory to law, the decision
               of the Hearing Officer is affirmed.

Finding no error of law, we affirm.

                                                                                          Affirmed.




       4
         Moreover, Murphy’s argument that he was entitled to a “fresh set of eyes” by having
separate reviews by both the DHRM and EDR has no statutory support. In 2012, the General
Assembly transferred all duties of the Department of Employment Dispute Resolution to the
Department of Human Resource Management. 2012 Va. Acts chs. 803, 835. The current
codified grievance procedure provides for policy review by DHRM only. See generally Code
§§ 2.2-3000 through 2.2-3008. Further, as noted above, any agency procedures affording
additional review by the Office of Employment Dispute Resolution are not subject to review by
this Court.
                                              -6-
