                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner
Argued at Richmond, Virginia


VIRGINIA DEPARTMENT OF TAXATION
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0972-07-2                                JUDGE RUDOLPH BUMGARDNER, III
                                                                  JANUARY 15, 2008
WILLIS BRAILEY


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

                  Guy W. Horsley, Jr., Special Assistant Attorney General (Robert F.
                  McDonnell, Attorney General; Maureen Riley Matsen, Deputy
                  Attorney General, on briefs), for appellant.

                  Patrick R. Laden for appellee.


       The Department of Taxation appeals a decision that its request for administrative review of a

grievance hearing was untimely. The circuit court reversed and vacated a favorable decision by the

reviewing agency. We conclude the circuit court acted outside the scope of judicial review when it

reversed a procedural ruling of the Department of Employment Dispute Resolution and reverse its

decision.

       Willis Brailey worked as a collection representative for the Department of Taxation. The

tax department issued two notices for violations of the agency’s standards of conduct:

(1) preparing of private tax returns for compensation, and (2) accessing taxpayer accounts for

non-work-related reasons. Both notices were classified as Group III notices that normally

resulted in termination of employment. The department did terminate Brailey, and he filed a

grievance.

       *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The hearing officer ruled that the employee’s acts should have been characterized as a

Group II violation and ordered reinstatement. The tax department requested administrative

review by the hearing officer and by the Department of Employment Dispute Resolution. The

reconsideration decision of the hearing officer affirmed the earlier ruling. The Director of the

Department of Employment Dispute Resolution ruled the request for review must be made to the

Department of Human Resource Management because it asserted the hearing officer improperly

interpreted agency policy. The Director further ruled that a written request for review by the

Department of Human Resource Management must be made within fifteen days of that decision.

       The tax department filed a request for review with the Department of Human Resource

Management. That department ruled the hearing officer erred in interpreting state personnel

policy and directed reconsideration. In response to the order to reconsider, the hearing officer

rescinded his earlier decision and sustained the decision to terminate employment.

       The employee appealed to the circuit court, which ruled the employer’s request for

review by the Department of Human Resource Management was untimely. The circuit court

ruled the Department of Human Resource Management did not have authority to hear the appeal

because the request for review was not filed within the time permitted by the Grievance

Procedure Manual § 7.2(a). Alternatively, it ruled that even if the department had the authority

to hear the appeal, it did not exercise the authority within the time mandated by the Grievance

Procedure Manual § 7.2(c) and by Code § 2.2-3006(A). The circuit court reversed and vacated

the agency’s review decision and reinstated the hearing officer’s initial decision to reinstate the

employee.

       Code § 2.2-1001(2) directs the Director of Employee Dispute Resolution to establish the

grievance procedure program for state employees. Code § 2.2-1001(3) requires him to adopt

rules for grievance hearings, and Code § 2.2-1001(5) authorizes him to render final decisions “on

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all matters related to procedural compliance with the grievance procedure.” The Director of

Employee Dispute Resolution is explicitly charged with establishing and enforcing grievance

procedures. Decisions on the application of the procedures created are subject to limited and

carefully proscribed judicial review.

       The limited role of the judiciary in reviewing the State Grievance Procedure was noted in

Virginia Dep’t of State Police v. Barton, 39 Va. App. 439, 573 S.E.2d 319 (2002). Barton held

that determination of matters of policy was vested with the Department of Human Resource

Management and not in the courts. Id. at 446, 573 S.E.2d at 323. Tatum v. Va. Dept. of Agr. &

Consumer Servs., 41 Va. App. 110, 582 S.E.2d 452 (2003), reiterated the Barton holding on

matters of policy and applied the same reasoning to matters of procedure. Tatum held

determination of matters of procedure was vested with Department of Employee Dispute

Resolution and not in the courts. Id. at 124, 582 S.E.2d at 459. Neither agency determinations

of matters of policy nor of procedure were subject to judicial review.

       Judicial review of administrative grievance hearings for state employees is restricted to

determining whether the decision is “contradictory to law.” Code § 2.2-3006(B). “[T]he only

grounds of appeal of the hearing officer’s decision is ‘that the determination is contradictory to

law.’” Barton, 39 Va. App. at 445, 573 S.E.2d at 322 (quoting Code § 2.2-3006(B)). “‘Law’ is

the ‘aggregate of legislation, judicial precedents and accepted legal principles.’” Id. at 446, 573

S.E.2d at 323 (quoting Black’s Law Dictionary 889 (7th ed. 1999)). The ruling that the

employer had fifteen days to file its appeal with the Department of Human Resource

Management did not involve any constitutional provision, statute, regulation or judicial decision.

Rather, it was an application and interpretation of the grievance procedures that the Director of

Employee Dispute Resolution had created pursuant to Code § 2.2-1001(2).




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       The Grievance Procedure Manual provides that “all requests for review must be made in

writing, and received by the administrative reviewer, within 15 calendar days of the date of the

original hearing decision.” Department of Employment Dispute Resolution, Grievance

Procedure Manual, § 7.2(a). However, there is no procedure allowing review of issues first

raised in the hearing officer’s reconsideration decision or of issues not arising until one of the

departments acted on a request made to it such as happened in this case. Section 7.2(a) does not

address all possible situations that may require review and may arise under the State Grievance

Procedure.

       In this case, the employer filed its request for review with the Department of

Employment Dispute Resolution within the specified time. After deciding it lacked authority to

address the question presented, the Department of Employment Dispute Resolution authorized

the employer to file an appeal with the agency that did have authority within fifteen days. The

request to the Department of Human Resource Management was filed within that period though

it was beyond fifteen days of the hearing officer’s original decision.

       The ruling allowing fifteen days to appeal from the decision of the Department of

Employment Dispute Resolution involved an interpretation of that agency’s procedures rather

than an issue of law. “Interpretation of state agency policy is itself a matter of policy, absent a

statutory enactment to the contrary, and not a matter of law.” Barton, 39 Va. App. at 446, 573

S.E.2d at 323. Just as interpretation of agency policy is itself a matter of policy, so interpretation

of agency procedure is itself a matter of procedure. As such, it is not a matter of law reviewable

by the judiciary. “The circuit court was bound by those decisions because they are final and not

subject to judicial review as a matter of law. See Department of Employment Dispute

Resolution, Grievance Procedure Manual, § 7.2(c); see also Code §§ 2.2-1001(5) and

2.2-3003(G).” Tatum, 41 Va. App. at 124, 582 S.E.2d at 459.

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       The Department of Employment Dispute Resolution interpreted the Grievance Procedure

Manual to permit the employer’s request for review by the Department of Human Resource

Management. The circuit court exceeded the limited scope of its review by treating it as an issue

of law. The agency’s ruling was not subject to judicial review, and the circuit court erred in

deciding the agency lacked the authority to make the ruling. “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.’” Barton, 39 Va. App. at 447, 573 S.E.2d at 323.

       The circuit court also opined that had the request been timely, the decision by the

Department of Human Resource Management was erroneous because the department made it

beyond the time restrictions mandated by the Grievance Procedure Manual and the Code. To the

extent the alternative ruling rested on non-compliance with the time standards established in the

Grievance Procedure Manual, it constituted a review of agency procedure that is not subject to

judicial review. To the extent it rested on non-compliance with the requirements of Code

§ 2.2-3006(A), we hold the time standard of that statute was directive, not mandatory.

       Code § 2.2-3006(A) provides:

                      Upon the request of a party to a grievance hearing for an
               administrative review of the hearing decision, the Director of the
               Department of Human Resource Management shall determine,
               within 60 days of receipt of such request, whether the hearing
               decision is consistent with policy.

       The Director of the Department of Human Resource Management failed to rule on the

appeal within sixty days of receipt of the request for review. Indeed, the decision was not issued

for over seven months, but that delay does not invalidate its decision.

                       We have long held that “[c]ourts, in endeavoring to arrive
               at the meaning of language in a will, contract, or a statute, often are
               compelled to construe ‘shall’ as permissive in accordance with the
               subject matter and content.” Fox v. Custis, 236 Va. 69, 77, 372
                                                -5-
               S.E.2d 373, 377 (1988). Moreover, we have repeatedly stated that
               “the use of the word ‘shall’ in a statute requiring action by a public
               official is directory and not mandatory unless the statute manifests
               a contrary intent.” Jamborsky v. Baskins, 247 Va. 506, 511, 442
               S.E.2d 636, 638 (1994). . . . Additionally, we observed that the
               statute “contains no prohibitory or limiting language that prevents
               the circuit court from entering its order beyond the expiration of
               the 21-day period.” [Id.] at 511, 442 S.E.2d at 638-39.

Tran v. Board of Zoning Appeals, 260 Va. 654, 657-58, 536 S.E.2d 913, 915 (2000).

       Code § 2.2-3006(A) contains no “prohibitory or limiting language” preventing the agency

from ruling after the expiration of sixty days. While failure to adhere to statutory time

requirements may result in dismissal if due process concerns are not met, the employee has

presented no evidence supporting his claim of prejudice or harm as a result of the delay in the

ruling. See Commonwealth v. Wilks, 260 Va. 194, 201, 530 S.E.2d 665, 668 (2000) (finding

that although notice requirements of seizure for forfeiture were procedural rather than

jurisdictional in nature, the Court’s “decision is based on the uncontroverted fact that the putative

owners did not suffer any prejudice as a result of the delay in giving notice”).

       We hold the decision of the Department of Employment Dispute Resolution was not

subject to review by the circuit court and the delay by the Department of Human Resource

Management in rendering its decision on the request for review did not nullify its ruling.

Accordingly, we reverse.

                                                                                            Reversed.




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