                               COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia

COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF CORRECTIONS

v.     Record No. 2703-04-1

ROBERT E. DOYLE                                                 MEMORANDUM OPINION *
                                                               BY JUDGE D. ARTHUR KELSEY
COMMONWEALTH OF VIRGINIA,                                              JULY 5, 2005
 DEPARTMENT OF CORRECTIONS

v.     Record No. 2704-04-1

RONALD A. TEMPLE

                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                              Norman Olitsky, Judge Designate

                     Joel C. Hoppe, Assistant Attorney General (Public Safety
                     & Enforcement Division, on briefs), for appellant.

                     C. Gerard Thompson (Cooper, Spong & Davis, on briefs),
                     for appellees.

       The Virginia Department of Corrections (DOC) appeals circuit court orders reversing an

agency personnel decision adverse to two employees, Robert E. Doyle and Ronald A. Temple.

Finding the circuit court acted outside the boundaries of judicial review authorized by the

Grievance Procedure Act, Code § 2.2-3006(B), we reverse the circuit court’s orders and reinstate

the agency’s personnel decision.

                                                  I.

       DOC employed Doyle and Temple at the Indian Creek Correctional Center, a state

penitentiary in Chesapeake. Doyle worked as a site technician, providing therapeutic treatment

to inmates. Temple worked as a building and grounds superintendent. Instructed by a former


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
assistant warden to do so, Doyle had several years earlier installed hidden microphones in

counseling rooms at the prison. The microphones were never activated, and thus, no counseling

sessions were ever recorded.

       A DOC investigator later discovered the microphones and told Doyle that he had

committed a crime by installing them. Without informing his superiors, Doyle decided he would

remove the microphones and place them in storage. He asked for and received Temple’s

commitment to help him do so. Before accomplishing the task, however, an internal affairs

officer questioned them about the situation. Both Doyle and Temple admitted that they had

agreed among themselves to remove the microphones.

       Upset that Doyle and Temple would agree to take this action without bringing it to her

attention, the warden issued a disciplinary notice to Doyle and Temple. The “Type of Offense”

checkbox on the notice form identified the offense as a “Group II” disciplinary infraction.

Beneath this checkbox appears a larger box, asking that the employer “briefly describe the

offense and give an explanation of the evidence.” The warden provided this summary:

             Unauthorized use of or misuse of state property; Conspiring to
             Remove State Property Without Proper Authorization. On April 19,
             2003, you and a fellow employee conspired to come to the institution
             to remove electronic audio equipment from Smith Hall with no notice
             or approval from supervision. Internal Affairs (IA) investigator
             received information prior to your carrying out the plan and notified
             the Warden. You admitted to the IA Investigator and the Warden that
             you were planning this unauthorized action. This was a serious
             violation of Employee Standards of Conduct and Performance; [sic]
             and Standards of Ethics and Conflict of Interest.

Except for issuing this notice, the warden took no other disciplinary action against either

employee.

       Doyle and Temple objected to the notice and filed grievances seeking its withdrawal.

The process led to a hearing before an administrative hearing officer appointed by the


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Department of Employment Dispute Resolution. In his October 2003 decision, the hearing

officer agreed with the factual allegations of the warden and upheld the warden’s issuance of a

Group II disciplinary notice. 1 In the course of his opinion, however, the hearing officer took

issue with the warden’s summary description of the reprimanded conduct as “Unauthorized use

of or misuse of state property; Conspiring to Remove State Property Without Authorization.”

What Doyle and Temple actually did, the hearing officer reasoned, “is better described as

planning to uninstall equipment without proper authority.” The hearing officer recommended

that the notice be so amended. DOC raised no objection to this amendment.

       In a motion to reconsider, Doyle and Temple argued that the hearing officer should have

dismissed the Group II notice rather than amending it. The hearing officer disagreed:

               Procedural due process in an administrative proceeding does not
               require that the Agency establish each and every word used in a
               Written Notice. The Agency is only obligated to place Grievant on
               reasonable notice of the facts upon which the Agency believes
               Grievant should be disciplined. There is little doubt that the
               Agency informed Grievant of the basis for its disciplinary action.
               Although the wording of the Written Notice was not artfully
               drawn, the Agency presented sufficient facts to support its
               conclusion that Grievant should be given a Group II Written
               Notice.

Claiming a violation of state policy, Doyle and Temple requested that the Department of Human

Resource Management (DHRM) review the hearing officer’s decision pursuant to Code

§ 2.2-3006(A). Echoing the hearing officer’s reasoning, DHRM explained that the point of the

hearing was to review “the facts to determine whether the cited actions constitute misconduct


       1
         DOC personnel policies divided disciplinary actions into three categories, ranked by
severity. Group I offenses “include types of behavior least severe in nature but which require
correction in the interest of maintaining a productive and well-managed work force.” DOC
Procedures Manual § 5-10.15. Group II offenses “include acts and behavior which are more
severe in nature and are such that an accumulation of two Group II offenses should normally
warrant removal.” Id. at § 5-10.16. Group III offenses “include acts and behavior of such a
serious nature that a first occurrence should normally warrant removal.” Id. at § 5-10.17.

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and whether there are mitigating circumstances to justify reduction or removal of the disciplinary

action.” The hearing officer’s amendment of the disciplinary notice, DHRM concluded, fully

complied with state personnel policy. Neither Doyle nor Temple requested further review of the

hearing officer’s decision by the Department of Employee Dispute Resolution (DEDR).

       Doyle and Temple sought judicial review of the final agency decision pursuant to Code

§ 2.2-3006(B). The circuit court reversed the hearing officer’s decision and dismissed the

warden’s Group II disciplinary notice as “contrary to law.” The court found no fault with the

factual findings of the hearing officer or the conclusion that the employees’ conduct warranted a

Group II disciplinary notice. Instead, the court held that the hearing officer had no power to

amend the notice under Code §§ 2.2-3005 and 2.2-3005.1.

       DOC appeals to us, arguing that the circuit court erred as a matter of law when it reversed

the hearing officer’s decision and vacated the warden’s Group II disciplinary notice issued to

Doyle and Temple.

                                                 II.

       Under the Grievance Procedure Act, an administrative hearing officer serves primarily as

a factfinder. Tatum v. Va. Dept. of Agr. & Consumer Servs., 41 Va. App. 110, 121, 582 S.E.2d

452, 458 (2003) (citation omitted). The statute gives DHRM the responsibility to decide

“whether the hearing officer’s decision is consistent with policy.” Id. (citation omitted). By

doing so, the “General Assembly has clearly vested review of policy issues involved in employee

grievances in the Department of Human Resource Management, and not in the courts.” Va.

Dep’t of State Police v. Barton, 39 Va. App. 439, 446, 573 S.E.2d 319, 323 (2002) (noting that

an “[i]nterpretation of state agency policy is itself a matter of policy” outside the scope of

judicial review). The statute also vests with the DEDR final authority over “all matters related to



                                                -4-
procedural compliance” with the grievance procedure. Code § 2.2-1001(5). This too is beyond

judicial review. Tatum, 41 Va. App. at 124, 582 S.E.2d at 459.

       A grievant may seek judicial review only if an agency decision is “contradictory to law.”

Code § 2.2-3006(B). In this context, the “law” represents “the aggregate of legislation, judicial

precedents and accepted legal principles.” Tatum, 41 Va. App. at 124, 582 S.E.2d at 459

(internal quotation marks, brackets, and citations omitted). The party challenging the hearing

officer’s decision must “specify how that decision is ‘contradictory’ to the law and what ‘law’ is

thereby being contradicted.” Id.

       In this case, the circuit court held the hearing officer’s decision was “contradictory to

law” because it violated two statutes, Code §§ 2.2-3005 and 2.2-3005.1. Neither statute, in our

opinion, supports this holding.

       Code § 2.2-3005 describes the general duties of a hearing officer. In addition to his

specified powers, the hearing officer may take all “other actions as necessary or specified in the

grievance procedure.” Code § 2.2-3005(C)(7). The administrative rules governing the grievance

hearing authorize the hearing officer to “uphold or reverse the disciplinary action challenged by

the grievance, or, in appropriate circumstances, modify the action” taken by the agency. DEDR

Rules for Conducting Grievance Hearings § VI(A) (emphasis added). The power to modify a

disciplinary notice necessarily subsumes the power to restate it more accurately, particularly

when doing so changes none of the underlying factual findings.

       The General Assembly enacted Code § 2.2-3005.1 in 2004. See 2004 Va. Acts, ch. 674

(S.B. 201). The hearing officer issued both his initial and reconsideration decisions in 2003.

Because retroactive laws are disfavored, “a statute is always construed to operate prospectively

unless a contrary legislative intent is manifest.” Berner v. Mills, 265 Va. 408, 413, 579 S.E.2d

159, 161 (2003); see also Taylor v. Commonwealth, 44 Va. App. 179, 184, 604 S.E.2d 103, 105

                                               -5-
(2004) (“The general rule is that statutes are prospective in the absence of an express provision

by the legislature.” (citation omitted)). Code § 2.2-3005.1, therefore, does not apply to this case.

       Even so, Doyle and Temple argue, non-statutory legal principles independently support

the circuit court’s decision. The only such principle arguably applicable here, however, is

procedural due process: the right of a state employee with a property interest in his employment

to “oral or written notice of the charges against him, an explanation of the employer’s evidence,

and an opportunity to present his side of the story.” Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 546 (1985); see also Garraghty v. Jordan, 830 F.2d 1295, 1299 (4th Cir. 1987).

       In this case, the hearing officer accepted the underlying factual allegations in the

warden’s notice and agreed with the warden’s conclusion that this conduct constituted a Group II

disciplinary infraction. The hearing officer and warden disagreed only on how to describe the

infraction. Given its limited nature, the hearing officer’s modification of the warden’s notice did

not prejudice Doyle and Temple ⎯ a point they concede on appeal. The same witnesses would

have testified, the same exhibits admitted, and the same arguments made. The hearing officer’s

modification, therefore, did not violate procedural due process. See generally Leftwich v.

Bevilacqua, 635 F. Supp. 238, 241 (W.D. Va. 1986) (finding no procedural due process violation

where the disciplinary notice enabled the employee to understand the accusation against him).

                                                 III.

       The hearing officer’s amendment of the disciplinary notice did not violate any statute,

judicial precedent, or accepted legal principle. For this reason, the circuit court erred when it

reversed the hearing officer’s decision and vacated the warden’s Group II disciplinary notice.

                                                              Reversed and final judgment.




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