PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.

JULIETTE PAYNE
                                           OPINION BY
v.   Record No. 140145               JUSTICE WILLIAM C. MIMS
                                        October 31, 2014
FAIRFAX COUNTY SCHOOL BOARD


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         John M. Tran, Judge


     In this appeal, we consider whether Code § 22.1-315(A)

requires a school board to hold a hearing prior to suspending a

non-teaching employee without pay for fewer than five days.

         I.    BACKGROUND AND MATERIAL PROCEEDINGS BELOW

     The Fairfax County School Board employed Juliette Payne as

a Food and Nutrition Services Manager at Twain Middle School.

In December 2011, Payne’s supervisor recommended that she be

suspended without pay for three days for allegedly violating

Fairfax County Public Schools (“FCPS”) regulations.      In January

2012, the Director of Employee Performance and Development

confirmed the supervisor’s recommendation and ordered Payne’s

unpaid suspension.

     Payne filed a grievance challenging the suspension

pursuant to the procedure established in FCPS regulations.     She

asserted that the suspension was improper because Code § 22.1-

315(A) requires school boards to conduct a hearing before
suspending an employee without pay. 1   She sought, among other

things, an award of back pay for all suspension days served and

the cancellation of all pending suspension days.

     Payne’s grievance proceeded through five levels of

administrative review, culminating in a ruling upholding the

suspension on the ground that the grievance procedure was not

the correct vehicle through which to assert that it violated

state law.    She thereafter withdrew her grievance.

     In April 2013, Payne filed an amended complaint in the

circuit court seeking a declaratory judgment that Code § 22.1-

315(A) requires school boards to conduct a hearing prior to

suspending an employee without pay.     The parties stipulated

facts and filed cross-motions for summary judgment.    Following

a hearing, 2 the court ruled that the section applies only to

suspensions based either on threats to the safety or welfare of

the school division or the students, or on charges for

specified crimes.    It concluded that Code § 22.1-315(A) did not

require the school board to conduct a hearing before Payne was

suspended without pay because her suspension was based on


     1
         She subsequently withdrew an additional ground.
     2
       At the hearing, the parties also stipulated that Payne’s
supervisor had recommended a second, five-day suspension
without pay on May 13, 2013. Nothing in the record reveals
whether the Director of Employee Performance and Development
confirmed the recommendation and ordered this second
suspension.

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allegations of poor work performance.        It also concluded that

the section does not require a hearing when a school employee

is suspended without pay for five or fewer days.       It therefore

granted the school board’s motion for summary judgment.

        We awarded Payne this appeal.

                            II.   ANALYSIS

        In her first assignment of error, Payne asserts that the

circuit court erred because the plain language of Code § 22.1-

315(A) requires a school board hearing before any employee is

suspended without pay for any reason.        In her second assignment

of error, she asserts that the court erred by ruling the

section does not require a hearing before an employee is

suspended without pay for five or fewer days.

        We review a lower court’s interpretation of a statute de

novo.    Eberhardt v. Fairfax County Emps. Ret. Sys. Bd. of Trs.,

283 Va. 190, 194, 721, S.E.2d 524, 526 (2012).       Code § 22.1-

315(A) states:

             A teacher or other public school employee,
             whether full-time or part-time, permanent,
             or temporary, may be suspended for good and
             just cause when the safety or welfare of
             the school division or the students therein
             is threatened or when the teacher or school
             employee has been charged by summons,
             warrant, indictment or information with the
             commission of a felony [or a specified
             misdemeanor]. Except when a teacher or
             school employee is suspended because of
             being charged by summons, warrant,


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          indictment or information with the
          commission of one of the above-listed
          criminal offenses, a division
          superintendent or appropriate central
          office designee shall not suspend a teacher
          or school employee for longer than sixty
          days and shall not suspend a teacher or
          school employee for a period in excess of
          five days unless such teacher or school
          employee is advised in writing of the
          reason for the suspension and afforded an
          opportunity for a hearing before the school
          board in accordance with §§ 22.1-311 and
          22.1-313, if applicable. Any teacher or
          other school employee so suspended shall
          continue to receive his or her then
          applicable salary unless and until the
          school board, after a hearing, determines
          otherwise. No teacher or school employee
          shall be suspended solely on the basis of
          his or her refusal to submit to a polygraph
          examination requested by the school board.

     Payne argues that the second and third sentences contain

the language relevant to this case.   She acknowledges that the

phrase “so suspended” makes the third sentence no broader than

the second sentence.   She argues that the second sentence

prohibits the suspension of a “teacher or school employee for a

period in excess of five days unless such teacher or school

employee is . . . afforded an opportunity for a hearing before

the school board,” except when the suspension is based on a

charge for one of the specified crimes.   She concludes that the

third sentence consequently requires any employee suspended on

any ground other than one of the specified criminal charges to

be paid until the school board determines otherwise after a




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hearing.    We need not reach this argument because Payne was not

suspended for more than five days.

     “‘When the language of a statute is unambiguous, we are

bound by the plain meaning of that language.     Furthermore, we

must give effect to the legislature's intention as expressed by

the language used unless a literal interpretation of the

language would result in a manifest absurdity.’”     Lucas v.

Woody, 287 Va. 354, 360, 756 S.E.2d 447, 449 (2014) (quoting

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007)).     Absurdity “describes

‘situations in which the law would be internally inconsistent

or otherwise incapable of operation.’”     Covel v. Town of

Vienna, 280 Va. 151, 158, 694 S.E.2d 609, 614 (2010) (quoting

Boynton v. Kilgore, 271 Va. 220, 227 n.9, 623 S.E.2d 922, 926

n.9 (2006)).

     The phrase “so suspended” in the third sentence of Code §

22.1-315(A) refers to suspensions encompassed by the second

sentence.   The second sentence deals only with suspensions “for

a period in excess of five days.” 3   It prohibits suspensions for

longer than 60 days, and requires a hearing before a suspension


     3
       The second sentence does not apply to suspensions based
on the criminal charges specified in the first sentence.
Consequently, the third sentence does not apply to them either.
Because such suspensions are not within the scope of the
question before us in this appeal, they are not affected by our
holding.

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lasting between six and 60 days.     It does not require a hearing

for a suspension lasting five or fewer days.    Accordingly,

whether the second sentence applies to all suspensions (as

Payne asserts) or only to those based on threats to the safety

or welfare of the school division or the students (as the

circuit court ruled), the phrase “so suspended” in the third

sentence means that a hearing is necessary only when the

teacher or school employee is suspended without pay for more

than five days. 4

     Payne cites an opinion of the Attorney General, 1982-83

Op. Atty. Gen. 417, and a federal district court opinion

adopting its rationale, Wilkinson v. School Bd. of County of

Henrico, 566 F. Supp. 766, 772-73 (1983), to contend that the

third sentence requires a hearing prior to an unpaid suspension

of any duration.    These authorities are not controlling.

Williams v. Augusta County Sch. Bd., 248 Va. 124, 127, 445

S.E.2d 118, 120 (1994) (opinions of the Attorney General);

Gazette, Inc. v. Harris, 229 Va. 1, 20, 325 S.E.2d 713, 728

(1985) (opinions of federal courts on questions of state law).

Virginia courts do not defer to an interpretation of a statute,

such as the one in the Attorney General’s opinion, that


     4
       This conclusion does not affect any hearing rights that
may be provided to teachers and other employees through other
statutes, their contracts, or regulations adopted by the school
board.

                                 6
contradicts the plain language of the statute.      See Davenport

v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005).

     Payne argues this interpretation endangers the due process

rights of teachers.   However, she has no standing to argue the

due process rights of teachers.       Any due process rights she may

have had as a non-teaching employee were fulfilled by the

grievance process.    See Gilbert v. Homar, 520 U.S. 924, 932

(1997) (recognizing that a temporary suspension without pay may

trigger due process rights); Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985) (holding due process

requires notice and an opportunity for a hearing).

     Finally, Payne asserts in her third assignment of error

that school boards have no authority to suspend non-teaching

employees other than Code § 22.1-315 and her suspension

therefore violates the Dillon Rule.      We again disagree.

     “Dillon’s Rule provides that municipal corporations have

only those powers that are expressly granted, those necessarily

or fairly implied from expressly granted powers, and those that

are essential and indispensable.”       Board of Zoning Appeals v.

Board of Supervisors, 276 Va. 550, 553-54, 666 S.E.2d 315, 317

(2008).   A corollary of the rule extends this limitation to

school boards.   Id. at 554, 666 S.E.2d at 317 (citing Kellam v.

School Board, 202 Va. 252, 254, 117 S.E.2d 96, 98 (1960)).




                                  7
     However, Code § 22.1-28 vests school boards with authority

to supervise the schools in their school divisions.   The power

to discipline school employees is not only necessarily and

fairly implied from this provision, such power is essential and

indispensable.   Further, Code § 22.1-79(6) presupposes that

school boards have it.

                         III.   CONCLUSION

     For the foregoing reasons, we hold that Code § 22.1-315(A)

does not require a school board to hold a hearing before

suspending a non-teaching employee without pay for fewer than

five days.   Because Payne was not suspended for more than five

days, we do not reach the question of whether the section

applies to all suspensions or only to those based on threats to

the safety or welfare of the school division or the students.

We will affirm the judgment of the circuit court.

                                                        Affirmed.




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