                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Beales and Senior Judge Haley
UNPUBLISHED


              Argued at Richmond, Virginia


              VIRGINIA DEPARTMENT OF CORRECTIONS
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0485-16-2                                   JUDGE JAMES W. HALEY, JR.
                                                                                 OCTOBER 11, 2016
              TAMMY ESTEP


                                 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                               David E. Johnson, Judge

                                Laura H. Cahill, Assistant Attorney General (Richard C. Vorhis,
                                Senior Assistant Attorney General, on briefs), for appellant.

                                Patricia Bugg Turner (Mary Elizabeth Davis; Elizabeth Scott Turner;
                                Spotts Fain PC, on brief), for appellee.


                      The Virginia Department of Corrections (“VDOC”) appeals the circuit court’s February 24,

              2016 decision holding VDOC in contempt for violating orders entered by the circuit court on

              September 1 and December 15, 2015. VDOC also appeals the circuit court’s decision to impose

              monetary sanctions against it in connection with the violation of those orders. VDOC asserts that

              the circuit court erred by imposing civil contempt sanctions against it because it is a state agency

              and is, therefore, entitled to sovereign immunity. It also contends the circuit court erred by holding

              it in civil contempt for failing to comply fully with those orders because VDOC made a good faith

              attempt to comply and was not given an opportunity to take corrective action before the circuit court

              found it in contempt. Finally, VDOC maintains that an $18,000 sanction is “inappropriate” because

              VDOC made a good faith effort to comply with the circuit court’s instructions.



                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Because we conclude that the evidence was insufficient for the circuit court to conclude

that VDOC was in violation of the orders entered on September 1 and December 15, 2015, we

reverse the circuit court’s decision.

                                         BACKGROUND

       The pertinent facts are not in dispute, and have been well-documented in prior litigation

between the parties and an earlier appeal. See Virginia Dep’t of Corr. v. Estep, 281 Va. 660, 710

S.E.2d 95 (2011) (hereinafter “Estep I”). Prior to November 2006, Estep was employed by

VDOC as Superintendent of the Central Virginia Correctional Unit (“CVCU”) in Chesterfield

County. After receiving consistently good performance ratings, she was involuntarily demoted

to a lower position on November 13, 2006. She filed a grievance pursuant to Code § 2.2-3003,

and a hearing officer heard evidence for three days before concluding that Estep’s demotion was

unwarranted. On October 4, 2007, the hearing officer entered an order directing VDOC to

               reinstate the Grievant to a comparable position as either a
               Superintendent or an Assistant Warden, such that she will be in the
               same Pay Band as she was when she was involuntarily demoted.
               The Hearing Officer order[ed] the agency to provide the Grievant
               similar housing as she had in her prior position or a supplement to
               her pay to compensate her for that housing.

Id. at 662, 710 S.E.2d at 96. The hearing officer went on to decide that,

               [i]f the Agency is unable to provide an Assistant Wardenship,
               which is in the same Pay Band that the Grievant occupied when
               she was Superintendent, along with the appropriate housing or
               housing allowance, . . . the Agency [must] return the Grievant to
               her original position with her original Pay Band and the housing
               provided at that Unit.

Id. at 663, 710 S.E.2d at 96. “Because neither party sought administrative or judicial review of

the hearing officer’s decision . . . , [it] became ‘final and binding’ pursuant to Code

§ 2.2-3005.1(C).” Id.




                                                -2-
       As Estep’s former position had been filled, VDOC attempted to place her in a

“comparable” position. Estep protested that the position in which she was placed was not

“comparable,” and, pursuant to Code § 2.2-3006(D), filed an action in circuit court to implement

the hearing officer’s decision. After finding that the position in which Estep had been placed

was not “comparable,” the circuit court ordered VDOC to restore Estep to her former position.

Estep I, 281 Va. at 663, 710 S.E.2d at 96. VDOC appealed the circuit court’s decision.

       On April 21, 2011, the Supreme Court1 upheld the circuit court’s decision. The Supreme

Court concluded that the evidence supported the circuit court’s finding that Estep’s new position

was not “comparable” and affirmed the circuit court’s order to restore her to her former position.

Id. at 665, 710 S.E.2d at 97.

       In June of 2011, Estep was reinstated to her original job at CVCU (a/k/a “Unit 13”) as a

Superintendent Senior, Security Manager II, Code 69117, Pay Band 6, reporting to a Security

Manager IV. On October 6, 2011, VDOC issued a memorandum announcing that it was

realigning job positions and pay bands. On April 25, 2015, VDOC moved Estep from her

position at CVCU to the Chesterfield Woman’s Detention and Diversion Center (“CWDDC”).

Estep retained the title of Superintendent Senior.

       In the wake of her transfer, on May 19, 2015, Estep filed a petition for implementation in

the circuit court pursuant to Code § 2.2-3006(D). Estep argued that her new position was an

involuntary demotion in violation of the hearing officer’s October 4, 2007 decision.

       On August 10, 2015, the circuit court issued a memorandum opinion, concluding that

VDOC had failed to place Estep in a comparable position to the one she had held as

Superintendent Senior at CVCU. On September 1, 2015, the circuit court ordered VDOC to


       1
         As the circuit court did not hold VDOC in contempt, this Court did not have subject
matter jurisdiction and transferred the appeal to the Supreme Court. See Virginia Dep’t of Corr.
v. Estep, 55 Va. App. 386, 388-91, 685 S.E.2d 891, 893-94 (2009).
                                                -3-
“return Ms. Estep ‘to a comparable position as either a Superintendent or an Assistant Warden,

such that she will be in the same Pay Band as she was when she was involuntarily demoted’ or

return Ms. Estep ‘to her original position with her original Pay Band’” and to provide “‘similar

housing as she had in her prior position or [to] supplement her pay to compensate her for that

housing’ . . . .”

        Following the September order, VDOC offered Estep a position at Southampton

Detention and Diversion Center (“Southampton”). When Estep maintained that the position was

not comparable to her original position, VDOC offered to participate in mediation with her.

Instead, on November 3, 2015, Estep petitioned the circuit court for a rule to show cause as to

why VDOC should not be held in contempt for its failure to return her to her former position or

to a comparable position.

        The parties appeared before the circuit court on December 7, 2015. The circuit court

heard evidence regarding the positions in which Estep might be placed that VDOC deemed

“comparable.”2 The Director of VDOC testified that VDOC preferred to place Estep in a

comparable position rather than to return her to her former position, a job that had already been

filled. Estep maintained that her original position at CVCU was “unique” and that a

“comparable” position was not available.

        Based upon the parties’ diametrically opposed positions, counsel for VDOC sought a

ruling from the circuit court regarding how to comply with its directive to place Estep in a

“comparable” position. The trial judge observed he “didn’t want it . . . stated on the record that




        2
           Three days prior to the hearing, VDOC offered Estep another position at Cold Springs
Correctional Unit (“Cold Springs”). Both the Southampton and the Cold Springs positions had
the title of Security Manager II, 69116, and were supervised by a Security Manager III. Both
positions were in Pay Band 5.
                                               -4-
I’m going to make a decision today about comparability.” Counsel for VDOC responded, “Our

hope is – Department of Corrections’ hope and my hope, and I think even [Estep’s attorney’s]

hope, is that if we could get some direction from the Court as to if you place her here or there or

wherever it might be, that will satisfy the Court’s order.”

       The circuit court answered,

               Well, we’ll be able to talk about that a little later on. . . . Because,
               I mean, why do we have a hearing officer if I’m going to do that?
               In other words, the hearing officer hears something. The hearing
               officer makes a decision. The circuit court’s duty is to implement
               the order of the hearing officer.

       Later, counsel for Estep, in asking the circuit court to order VDOC to place Estep in her

former position, asserted VDOC could not comply with the hearing officer’s directive to place

Estep in a “comparable” position because no such position existed. She stated, “I think it’s been

made clear to you today that there is no way to comply with the first part that says . . . .” The

trial judge interjected, “Well, that’s up to them [VDOC], isn’t it?” Counsel for VDOC

responded, “I don’t think it is. I think the Court can make that ruling. Judge Rockwell did that

in 2008, and the Supreme Court . . . .” When the circuit court judge noted that Judge Rockwell

had simply implemented the hearing officer’s decision by ordering VDOC to either place Estep

in her former job or in a comparable position, Estep’s counsel pointed out that Judge Rockwell

had ordered that Estep be returned to her former position. The trial judge responded that he was

not going to order anything other than the hearing officer’s decision and that the hearing officer’s

decision was either to place Estep in her old position or in a comparable position. When counsel

for Estep reiterated that she did not believe a comparable position existed, the trial judge stated,

“Well, they can make something up, can’t they? They can create something tomorrow if they

want to.”




                                                 -5-
       Counsel for Estep noted that VDOC’s attempt to reclassify what had been a lower level

position had resulted in the litigation that led to the Supreme Court decision. The circuit court

judge responded, “They have more options, though, it seems to me. But I understand the

argument. I am going to follow strictly the authority of this court and not take one step beyond

it.”

       Despite hearing evidence from the parties regarding the job options offered to Estep, the

circuit court judge ruled, “This Court has no facts upon which to make a determination that the

department has moved Ms. Estep to a comparable position because she is in the same position,

nor will it rule on comparability until that time.” The court cautioned, however, that “neither its

order, nor the order of the hearing officer, states that the only comparable position is the one

from which Ms. Estep was removed.”

       Following the December hearing, the circuit court found VDOC in contempt for violating

its September 1, 2015 order. The circuit court entered an order on December 15, 2015,

memorializing its bench ruling on December 7, 2015. The order directed VDOC to

               return Ms. Estep “to a comparable position as either a
               Superintendent or an Assistant Warden, such that she will be in the
               same Pay Band as she was when she was involuntarily demoted”
               or return Ms. Estep “to her original position with her original Pay
               Band” and to provide “similar housing as she had in her prior
               position or supplement her pay to compensate for that housing” on
               or before December 11, 2015.

The order provided that the circuit court would assess a fine of $1,000 per day against VDOC for

each day after December 11, 2015 that VDOC had failed to comply with the order.

       Immediately after the hearing, VDOC upgraded Estep’s position from Security Manager

II, Pay Band 5, to Security Manager III, Pay Band 6, Sub-Band 15. Later that same day, the

Director of VDOC sent a memorandum to Estep offering her three positions that VDOC deemed

“comparable” to her original position: Superintendent positions at CWDDC, Cold Springs, and


                                                -6-
Southampton. The memorandum stated that if Estep failed to select one of the jobs offered to

her within the three-day deadline set by the circuit court, VDOC would place her in the one that

best suited its operational needs. Estep selected the position at CWDDC so as to avoid having to

relocate from Chesterfield.

       Approximately one month later, on January 6, 2016, Estep filed a third petition to

implement the hearing officer’s decision and another request for a rule to show cause. On

February 17, 2016, the parties appeared before the circuit court. VDOC pointed out that it had

changed Estep’s title and pay band in her current position and had offered her two other positions

it deemed comparable. It noted that Estep had opted to remain in her current position in

Chesterfield rather than relocate.

       At the conclusion of the hearing, the circuit court sought to clarify what it considered a

“comparable” position. Citing the Supreme Court’s decision in Estep I, the court ruled that a

“comparable” position was one that was “equivalent” to the original position and made Estep

“whole.” It noted that it had not ruled in December that “the sole measure of comparability was

role code and pay band.” The circuit court therefore concluded that Estep’s position at CWDDC

was not “comparable” to her original position. However, it refused to decide whether the other

two positions offered to Estep were comparable; it reiterated that it could decide whether a

position was comparable only after VDOC placed Estep in another position. At the same time,

the circuit court ruled that it found “no authority in the Commonwealth’s grievance procedure

that allow[ed] the agency itself [to] determine if it is in compliance.” The court emphasized that

“the issue of comparability is triggered when DOC does something; namely, transfer Ms. Estep

to a position it believes comparable.” Concluding that it lacked the “authority” to decide

whether the positions offered to Estep were comparable, the circuit court ordered that VDOC

restore Estep to her original position.

                                               -7-
       On February 24, 2016, the circuit court entered an order holding VDOC in contempt for

violating its orders of September 1 and December 15, 2015, and fining VDOC $1,000 for each

day VDOC was in violation of those orders between December 18, 2015, and February 17, 2016.

The fine that accumulated between those dates totaled $68,000. The circuit court suspended

$50,000 of that fine on the condition that VDOC pay the $18,000 balance by February 29, 2016,

and on the condition that VDOC “complied in every regard with the Order of this Court.”

       VDOC filed a motion to reconsider, contesting both the contempt finding and the

monetary fines. After the circuit court denied the motion to reconsider, VDOC appealed the

circuit court’s February 24, 2016 order.

                                            ANALYSIS

       VDOC contends that the circuit court erred by imposing monetary sanctions against it

because VDOC, as a state agency, is cloaked with sovereign immunity. It asserts that, absent

explicit statutory or constitutional authority waiving VDOC’s sovereign immunity in employee

grievance proceedings, the civil contempt fines imposed by the circuit court were barred. VDOC

points out that Code § 2.2-3006(D), the statute granting authority to the circuit court to

implement the decision of the hearing officer, contains no express language approving monetary

sanctions against the Commonwealth in the event it fails to comply with the circuit court’s order.

VDOC also maintains that the circuit court erred by holding it in civil contempt for failing to

comply with its September 1 and December 15, 2015 orders because VDOC made a good faith

attempt to comply with them. Even assuming that VDOC did not fully comply with the orders, it

asserts that an $18,000 sanction was inappropriate due to its good faith attempts to comply.

       Estep counters that the doctrine of sovereign immunity did not bar the circuit court from

enforcing its own orders through its contempt powers. She points out that a court’s contempt

“power may be regulated by the Legislature, but cannot be destroyed or so far diminished as to

                                                -8-
be rendered ineffectual.” Burdett v. Commonwealth, 103 Va. 838, 842, 485 S.E. 878, 879

(1904) (quoting Carter v. Commonwealth, 96 Va. 791, 816, 32 S.E. 780, 785 (1899)). Estep

argues that, if state agencies are not subject to a circuit court’s contempt power, the circuit court

has no means to enforce its order and must simply “hop[e] for compliance.” Citing precedent

from other states, Estep urges the Court to uphold the circuit court’s imposition of a “coercive

fine” to insure VDOC’s compliance with its orders. She disputes VDOC’s argument that it made

a good faith effort to comply with the September and December orders.

       A court may find a “person” in contempt for “disobedience or resistance . . . to any lawful

process, judgment, decree or order of the court.” Code § 18.2-456(5).3 “As a general rule,

‘before a person may be held in contempt for violating a court order, the order must be in

definite terms as to the duties thereby imposed upon him and the command must be expressed

rather than implied.’” Glanz v. Mendelson, 34 Va. App. 141, 148, 538 S.E.2d 348, 352 (2000)

(quoting Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977)). Thus, prior to a circuit

court making a contempt finding, “the actions of the alleged contemnor [must] violate a clearly

defined duty imposed upon him or her by a court’s decree . . . .” Id. at 149 n.5, 538 S.E.2d at

352 n.5 (quoting Wilson v. Collins, 27 Va. App. 411, 424, 499 S.E.2d 560, 566 (1998)). When

the terms of the order issued by the circuit court are “unclear and open to various constructions,”

the circuit court may not find the party in contempt. See id.



       3
           The statute provides in pertinent part as follows:

                 The courts and judges may issue attachments for contempt, and
                 punish them summarily, only in the cases following:

                    ....

                 (5) Disobedience or resistance of an officer of the court, juror,
                 witness or other person to any lawful process, judgment, decree or
                 order of the court.

                                                 -9-
       “‘“[F]or a proceeding in contempt to lie,”’ there ‘“must be an express command or

prohibition” which has been violated.’” DHRI, Inc v. Hanbeck, 288 Va. 249, 255, 765 S.E.2d 9,

13 (2014) (quoting Petrosinelli v. PETA, 272 Va. 700, 706-07, 643 S.E.2d 151, 154 (2007)).

Contempt, whether civil or criminal, is a sanction. See Rainey v. City of Norfolk, 14 Va. App.

968, 971, 421 S.E.2d 210, 212 (1992). A circuit court imposes the sanction after the court is

presented with sufficient evidence to find that a party has violated the terms of the court’s order.

See Michaels v. Commonwealth, 32 Va. App. 601, 609, 529 S.E.2d 822, 826 (2000) (“Before a

person may be held in contempt of violating a court order, the order must be in definite terms as

to the duties thereby imposed upon him . . . .” (quoting Wilson v. Collins, 27 Va. App. 411, 424,

499 S.E.2d 560, 566 (1998))). “Under well-established Virginia jurisprudence, contempt only

lies ‘for disobedience of what is decreed, not for what may be decreed.’” DHRI, 288 Va. at 255,

765 S.E.2d at 13 (quoting Petrosinelli, 272 Va. at 706-07, 643 S.E.2d at 154).

       Here, the evidence was insufficient for the circuit court to find that VDOC violated its

September 1 and December 15, 2015 orders. The terms of those orders were not sufficiently

definite for the circuit court to find that VDOC was in violation of them. In both orders, the

circuit court ordered VDOC to return Estep “to a comparable position” or to her original position

without making any ruling whether the positions offered to her were “comparable.”

       The circuit court’s unwillingness to make such a ruling was based upon its legal

conclusion that it lacked the authority under the implementation statute, Code § 2.2-3006(D),4 to

determine whether the positions offered to Estep were comparable. However, nothing in the

statute or the case law interpreting the statute supports such a conclusion.




       4
         Pursuant to this subsection, a party to a grievance proceeding “may petition the circuit
court having jurisdiction in the locality in which the grievance arose for an order requiring
implementation of the final decision of a hearing officer.”
                                                - 10 -
       On the contrary, the circuit court judge who originally implemented the hearing officer’s

decision in 2008 specifically found that the position in which Estep had been placed was not

comparable and ordered VDOC to place her in her original position. On appeal, the Supreme

Court concluded in Estep I that the evidence supported the circuit court’s finding that Estep’s

new position was not “comparable” and affirmed the circuit court’s order to restore her to her

former position. Estep I, 281 Va. at 665, 710 S.E.2d at 97. The Supreme Court specifically held

“that the circuit court’s finding that the two positions were not comparable was supported by the

evidence.” Id. Thus, the Supreme Court implicitly recognized that a circuit court is authorized

to make factual findings in the course of implementing a hearing officer’s decision pursuant to

Code § 2.2-3006(D).

       When “the issue underlying the imposition of a sanction ‘is one of law, and not fact, we

do not accord the circuit court’s ruling the same weight it would be accorded if reached upon

conflicting factual evidence.’” Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991)

(quoting Tullidge v, Board of Supervisors, 239 Va. 611, 614, 391 S.E.2d 288, 289 (1990)).

Here, the issue underlying the circuit court’s imposition of the sanction was whether the circuit

court had the authority pursuant to Code § 2.2-3006(D) to make a factual finding regarding

whether the jobs offered by VDOC were “comparable” to the position previously held by Estep.

       The circuit court decided it lacked the authority to make factual findings regarding what

jobs were or were not comparable while, at the same time, ruling that VDOC could not make

such a determination on its own.5 We hold that the circuit court erred by ruling that it lacked the

authority to make such a determination under Code § 2.2-3006(D).


       5
          As the Supreme Court recognized in Estep I, the hearing officer had reached a final
decision in the grievance process by the time Estep sought implementation of that order. See
Estep I, 281 Va. at 663, 710 S.E.2d at 96 (“Because neither party sought administrative or
judicial review of the hearing officer’s decision . . . , the decision became ‘final and binding’
pursuant to Code § 2.2-3005.1(C).”). For that reason, the circuit court was unable to remand the
                                                - 11 -
       Accordingly, we do not reach the question of whether a circuit court’s inherent contempt

power reaches state agencies such as VDOC, or whether such agencies are immune from judicial

action based upon principles of sovereign immunity. It is a well-established principle of

appellate review that this Court should not decide constitutional questions “if the record permits

final disposition of a cause on non-constitutional grounds.” Luginbyhl v. Commonwealth, 48

Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting Keller v. Denny, 232 Va. 512, 516,

352 S.E.2d 327, 329 (1987)). Similarly, we should decide cases “on the best and narrowest

ground available.” Id. (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S.

517, 531 (1991) (Stevens , J., concurring)).

       We decide only that, pursuant to Code § 2.2-3006(D), the circuit court had the authority

to make factual findings regarding whether VDOC offered Estep a comparable position, and,

upon making that determination, to implement the hearing officer’s decision by ordering VDOC

to place her in the comparable position or to place her in her original job.6 Such a finding was,

on the facts of this case, necessary before “a clearly defined duty” was imposed upon VDOC.

See Glanz, 34 Va. App. at 149 n.5, 538 S.E.2d at 352 n.5 (quoting Wilson, 27 Va. App. at 424,

499 S.E.2d at 566). Because the terms of the September and December orders were “unclear and

open to various constructions,” the circuit court could not find VDOC in contempt. See id.




case to the hearing officer to make additional factual findings regarding the meaning of the
hearing officer’s directive to VDOC to place Estep in a “comparable” position.
       6
          Ultimately, the circuit court implicitly determined that the job options offered to Estep
were not “comparable” when it ordered VDOC on February 24, 2016, to restore her to her
original position. VDOC immediately complied and, on May 25, 2016, the circuit court ruled
that VDOC was in compliance. Estep did not appeal that decision. Thus, the September and
December 2015 orders, both of which contained the general directive that VDOC place Estep in
either a “comparable” job or in her former position, were the only orders of which VDOC was
found to be in violation, held in contempt, and subjected to monetary sanctions.
                                                 - 12 -
       In conclusion, we hold that the circuit court erred by concluding it had no authority under

Code § 2.2-3006(D) to construe the meaning of the hearing officer’s decision and to make

factual findings regarding whether VDOC had complied with the hearing officer’s decision by

offering Estep “comparable” positions. Without making such findings, the circuit court’s orders

of September 1 and December 15, 2015 were not sufficiently definite to support the circuit

court’s February 24, 2016 decision that VDOC violated those orders, to hold VDOC in

contempt, and to impose monetary sanctions. For these reasons, we reverse the circuit court’s

decision holding VDOC in contempt and imposing monetary sanctions against it.7

                                                                                        Reversed.




       7
         We do not remand the case to the circuit court to make such factual findings as to
comparability of positions as the circuit court later ordered VDOC to place Estep in her original
position, and ruled that VDOC complied with that order. The circuit court’s subsequent
February 24, 2016 order, coupled with VDOC’s compliance, renders the issue of the indefinite
terms in the September and December orders moot for all purposes except for whether VDOC
violated them and was properly held in contempt and subjected to monetary sanctions.
                                                - 13 -
