                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


VIRGINIA RETIREMENT SYSTEM, ET AL.
                                             OPINION BY
v.   Record No.   0902-96-2          JUDGE ROSEMARIE ANNUNZIATA
                                          JANUARY 7, 1997
ANTHONY M. RIZZO, JR.


             FROM THE CIRCUIT COURT OF ORANGE COUNTY
                   Lloyd C. Sullenberger, Judge
          Michael K. Jackson, Senior Assistant Attorney
          General & Chief (James S. Gilmore, III,
          Attorney General; John Paul Woodley, Jr.,
          Deputy Attorney General; John M. McCarthy,
          Senior Assistant Attorney General, on
          briefs), for appellants.

          C. Waverly Parker for appellee



     Appellant, Virginia Retirement System (VRS), denied the

application for disability retirement benefits of appellee,

Anthony M. Rizzo, Jr.   On appeal, the Circuit Court of Orange

County (circuit court) set aside the denial and remanded the

matter for further proceedings.    The circuit court's order was

the subject of an appeal to this Court, which, in material

respects, affirmed the circuit court's remand.    VRS again denied

benefits; Rizzo again appealed to the circuit court, which

granted Rizzo's motion for summary judgment and remanded the

matter to VRS to calculate and implement the disability benefits.

VRS appeals the order granting summary judgment.    For the

reasons that follow, we reverse.
                                      I.

     Rizzo applied to VRS for disability benefits pursuant to

Code § 51.1-156. 1       VRS denied Rizzo's application.    Following

appeal to the circuit court and subsequent appeal to this Court,

the matter was remanded for further proceedings.           On remand, the

parties attempted to resolve the matter through "informal"

adjudication, conducted pursuant to Code § 9-6.14:11. 2         Cf. Code
     1
      Code § 51.1-156 provides in pertinent part:
          A. Any member in service or within ninety
          days after termination of service who has not
          withdrawn his accumulated contributions as
          provided for in § 51.1-128 may retire for
          disability not compensable under the Virginia
          Workers' Compensation Act (§ 65.2-100 et
          seq.) upon written notification to the Board
          setting forth the date the retirement is to
          become effective.

                     *      *    *    *      *   *   *

          E. After a medical examination of the member
          or after reviewing pertinent medical records,
          the Medical Board shall certify that (i) the
          member is and has been continuously since the
          effective date of retirement if prior to
          filing of the notification, mentally or
          physically incapacitated for the further
          performance of duty, (ii) the incapacity is
          likely to be permanent, and (iii) the member
          should be retired. A member shall not be
          retired for disability for any condition
          which existed at the time of becoming a
          member unless medical evidence, convincing to
          the Board, supports the fact that the
          pre-existing condition has worsened
          substantially.
     2
      Code § 9-6.14:11 provides, in pertinent part:

          A. Agencies shall ascertain the fact basis
          for their decisions of cases through informal
          conference or consultation proceedings unless


                                     - 2 -
(..continued)
          the named party and the agency consent to
          waive such a conference or proceeding to go
          directly to a formal hearing. Such
          conference-consultation procedures include
          rights of parties to the case (i) to have
          reasonable notice thereof, (ii) to appear in
          person or by counsel or other qualified
          representative before the agency or its
          subordinates, or before a hearing officer as
          provided by subsection A of § 9-6.14:14.1,
          for the informal presentation of factual
          data, argument, or proof in connection with
          any case, (iii) to have notice of any
          contrary fact basis or information in the
          possession of the agency which can be relied
          upon in making an adverse decision, (iv) to
          receive a prompt decision of any application
          for a license, benefit, or renewal thereof,
          and (v) to be informed, briefly and generally
          in writing, of the factual or procedural
          basis for an adverse decision in any case.
                 *    *    *    *      *   *   *

          D. In any informal fact-finding proceeding
          in which a hearing officer, as described in
            § 9-6.14:14.1, is not used or is not
          empowered to recommend a finding, the board,
          commission, or agency personnel responsible
          for rendering a decision shall render that
          decision within ninety days from the date of
          the informal fact-finding proceeding or from
          a later date agreed to by the named party and
          the agency. If the agency does not render a
          decision within ninety days, the named party
          to the case decision may provide written
          notice to the agency that a decision is due.
          If no decision is made within thirty days
          from agency receipt of the notice, the
          decision is deemed to be in favor of the
          named party. The preceding sentence shall
          not apply to case decisions before (i) the
          State Water Control Board or the Department
          of Environmental Quality to the extent
          necessary to comply with the federal Clean
          Water Act or (ii) the State Air Pollution
          Control Board or the Department of
          Environmental Quality to the extent necessary
          to comply with the federal Clean Air Act. An
          agency shall provide notification to the



                               - 3 -
(..continued)
          named party of its decision within five days
          of the decision.

          E. In any informal fact-finding proceeding
          in which a hearing officer, as described in
            § 9-6.14:14.1, is empowered to recommend a
          finding, the board, commission, or agency
          personnel responsible for rendering a
          decision shall render that decision within
          thirty days from the date that the agency
          receives the hearing officer's
          recommendation. If the agency does not
          render a decision within thirty days, the
          named party to the case decision may provide
          written notice to the agency that a decision
          is due. If no decision is made within thirty
          days from agency receipt of the notice, the
          decision is deemed to be in favor of the
          named party. The preceding sentence shall
          not apply to case decisions before (i) the
          State Water Control Board or the Department
          of Environmental Quality to the extent
          necessary to comply with the federal Clean
          Water Act or (ii) the State Air Pollution
          Control Board or the Department of
          Environmental Quality to the extent necessary
          to comply with the federal Clean Air Act. An
          agency shall provide notification to the
          named party of its decision within five days
          of the decision.
          F. The provisions of subsection D
          notwithstanding, if the board members or
          agency personnel who conducted the informal
          proceeding are unable to attend to official
          duties due to sickness, disability, or
          termination of their official capacity with
          the agency, then the timeframe provisions of
          subsection D shall be reset and commence from
          the date that either new board members or
          agency personnel are assigned to the matter
          or a new proceeding is conducted if needed,
          whichever is later. An agency shall provide
          notification within five days to the named
          party of any incapacity of the board members
          or agency personnel that necessitates a
          replacement or a new proceeding.




                              - 4 -
§ 9-6.14:12 (governing "formal" adjudication). 3
     3
      Code § 9-6.14:12 provides, in pertinent part:

          A. The agency shall afford opportunity for
          the formal taking of evidence upon relevant
          fact issues in any case in which the basic
          laws provide expressly for decisions upon or
          after hearing and may do so in any case to
          the extent that informal procedures under
          § 9-6.14:11 have not been had or have failed
          to dispose of a case by consent.

                 *    *    *    *      *   *       *

          C. Where a hearing officer presides, or
          where a subordinate designated for that
          purpose presides in hearings specified in
          subsection F of § 9-6.14:14.1, he shall
          recommend findings and a decision unless the
          agency shall by its procedural regulations
          provide for the making of findings and an
          initial decision by such presiding officers
          subject to review and reconsideration by the
          agency on appeal to it as of right or on its
          own motion. The agency shall give deference
          to findings by the presiding officer
          explicitly based on the demeanor of
          witnesses.
          D. Prior to the recommendations or decisions
          of subordinates, the parties concerned shall
          be given opportunity, on request, to submit
          in writing for the record (i) proposed
          findings and conclusions and (ii) statements
          of reasons therefor. In all cases, on
          request, opportunity shall be afforded for
          oral argument (i) to hearing officers or
          subordinate presiding officers, as the case
          may be, in all cases in which they make such
          recommendations or decisions or (ii) to the
          agency in cases in which it makes the
          original decision without such prior
          recommendation and otherwise as it may permit
          in its discretion or provide by general rule.
          Where hearing officers or subordinate
          presiding officers, as the case may be, make
          recommendations or decisions, the agency
          shall receive and act on exceptions thereto.



                               - 5 -
(..continued)
          E. All decisions or recommended decisions
          shall be served upon the parties, become a
          part of the record, and briefly state or
          recommend the findings, conclusions, reasons,
          or basis therefor upon the evidence presented
          by the record and relevant to the basic law
          under which the agency is operating together
          with the appropriate order, license, grant of
          benefits, sanction, relief, or denial
          thereof.

                 *    *    *    *      *   *   *

          G. In any formal proceeding in which a
          hearing officer, as described in
          § 9-6.14:14.1, is not used or is not
          empowered by the agency to recommend a
          finding, the board, commission, or agency
          personnel responsible for rendering a
          decision shall render that decision within
          ninety days from the date of the formal
          proceeding or from a later date agreed to by
          the named party and the agency. If the
          agency does not render a decision within
          ninety days, the named party to the case
          decision may provide written notice to the
          agency that a decision is due. If no
          decision is made within thirty days from
          agency receipt of the notice, then the
          decision is deemed to be in favor of the
          named party. The preceding sentence shall
          not apply to case decisions before (i) the
          State Water Control Board or the Department
          of Environmental Quality to the extent
          necessary to comply with the federal Clean
          Water Act or (ii) the State Air Pollution
          Control Board or the Department of
          Environmental Quality to the extent necessary
          to comply with the federal Clean Air Act. An
          agency shall provide notification to the
          named party of its decision within five days
          of the decision.
          H. In any formal proceeding in which a
          hearing officer, as described in
          § 9-6.14:14.1, is empowered to recommend a
          finding, the board, commission, or agency
          personnel responsible for rendering a
          decision shall render that decision within
          thirty days from the date that the agency



                               - 6 -
     A VRS representative conducted a hearing on April 25, 1995.

At that hearing, Rizzo incorporated all of his evidence adduced

at the previous administrative hearing and introduced further

medical evidence of his psychiatrist, Dr. Robert S. Brown, Jr.,

to establish his disability.   The following day, the agency

representative notified VRS that he would forward the transcript
(..continued)
          receives the hearing officer's
          recommendation. If the agency does not
          render a decision within thirty days, the
          named party to the case decision may provide
          written notice to the agency that a decision
          is due. If no decision is made within thirty
          days from agency receipt of the notice, the
          decision is deemed to be in favor of the
          named party. The preceding sentence shall
          not apply to case decisions before (i) the
          State Water Control Board or the Department
          of Environmental Quality to the extent
          necessary to comply with the federal Clean
          Water Act or (ii) the State Air Pollution
          Control Board or the Department of
          Environmental Quality to the extent necessary
          to comply with the federal Clean Air Act. An
          agency shall provide notification to the
          named party of its decision within five days
          of the decision.
          I. The provisions of subsection G
          notwithstanding, if the board members or
          agency personnel who conducted the formal
          proceeding are unable to attend to official
          duties due to sickness, disability, or
          termination of their official capacity with
          the agency, then the timeframe provisions of
          subsection G shall be reset and commence from
          the date that either new board members or
          agency personnel are assigned to the matter
          or a new proceeding is conducted if needed,
          whichever is later. An agency shall provide
          notification within five days to the named
          party of any incapacity of the board members
          or agency personnel that necessitates a
          replacement or a new proceeding.




                               - 7 -
of Dr. Brown's testimony as soon as he received it.   VRS received

the transcript on May 26 with a request from the agency

representative that VRS forward the transcript to its Medical

Board.    On June 19, VRS forwarded the transcript of Dr. Brown's

testimony to the Medical Board and requested that the Board

comment on all the medical evidence.    On July 11, VRS received

correspondence from the Medical Board, requesting permission to

forward the evidence for review by Dr. Merritt Foster.    On July

26, VRS consented, requesting the Medical Board to forward the

evidence to Dr. Foster.   The Medical Board forwarded the evidence

to Dr. Foster on August 9.
     On August 21, 118 days after the hearing, VRS acknowledged

receipt of correspondence from Rizzo, notifying VRS that a

decision was due.   In response, VRS stated that it would ask the

Medical Board to advise Doctor Foster to "move forward."   On

September 29, thirty-nine days after it received Rizzo's first

notice, VRS received a second notice from Rizzo that a decision

was due.

     On September 27, the Medical Board forwarded a report from

Dr. Foster to VRS, noting that the Board adopted Dr. Foster's

report.    VRS forwarded the report to the agency representative on

October 4.

     On October 6, Rizzo wrote the agency representative and VRS

to inform them that, because more than thirty days had elapsed

since he first notified VRS that a decision was due, a decision




                                - 8 -
had been "deemed" in his favor pursuant to Code § 9-6.11:14(D).

VRS responded on October 22, arguing that Rizzo misinterpreted

the statute and that the "proceeding" envisioned in that section

was not concluded until VRS received the Medical Board's report.

     On November 6, the agency representative recommended that

Rizzo be granted benefits.   Later that day, however, the VRS

issued a decision denying benefits.    Rizzo appealed the substance

of VRS's decision to the circuit court and also filed a motion

for summary judgment, contending that, pursuant to Code
§ 9-6.14:11(D), a decision had been "deemed" in his favor because

VRS had failed to resolve the matter within the prescribed time

limits.

     The court granted Rizzo's motion for summary judgment,

concluding that
          the General Assembly, by using the phrase
          "from the date of the informal fact-finding
          proceeding" in the statute intended that the
          90 day period begin to run in a case such as
          the case at bar when the agency
          representative holds the fact-finding
          hearing. Otherwise, the agency representative
          and the agency's medical board would wholly
          control the time of decision and the
          limitation in the statute would be
          practically meaningless.


                                II.

     On appeal, we must determine the point in the adjudication

process from which the time limitations of Code § 9-6.14:11(D)

begin to run.   We find that the legislature intended those time

limitations to begin running at the close of the fact-gathering




                               - 9 -
stage of the adjudication process.

     VRS is established and governed by Chapter 1 of Title 51.1

of the Virginia Code.   VRS is an administrative agency subject to

Virginia's Administrative Process Act (VAPA), codified in Chapter

1.1:1 of Title 9.   VAPA's purpose is "to supplement . . . basic

laws conferring authority on agencies . . . [to] decide cases

. . . . [VAPA] does not supersede or repeal additional procedural

requirements in such basic laws."    Code § 9-6.14:3.   In that

light, Article 3 of VAPA governs "case decisions."
     As with any adjudication, the "case decision" process

imposes two general requirements on the agency personnel

responsible for determining a case.     The personnel must first

oversee the process by which relevant information is gathered.

The responsible person or persons must then formulate and render

a determination based on that information.

     Article 3 provides two mechanisms by which an agency gathers

the factual information necessary to decide a case.     In one

instance, agencies "ascertain the fact basis for their decisions

of cases through informal conference or consultation

proceedings."   Code § 9-6.14:11(A).    The statute refers to this

type of fact-gathering as an "informal fact-finding proceeding,"

see Code § 9-6.14:11(D),(E), which leads to the rendering of an

"informal fact-finding decision."      See Code § 9-6.14:11(C).    In

the other instance, the "formal proceeding," agencies "afford

opportunity for the formal taking of evidence upon relevant fact



                              - 10 -
issues."   Code § 9-6.14:12(A),(G),(H).




                              - 11 -
     Once the agency has completed its fact-gathering

responsibility, it then renders a decision.    The mechanics of the

latter responsibility depend, in part, on whether a hearing

officer, as defined in Article 3.1, presides over the "case

decision proceeding."   See Code §§ 9-6.14:11(D),(E),

9-6.14:12(G),(H), 9-6.14:14.1. 4   Where a hearing officer presides

over a case decision proceeding, whether informal or formal, the

hearing officer typically recommends findings and a decision to

the agency.   Code §§ 9-6.14:11(E),
9-6.14:12(C),(D),(E),(H).   In such cases, after receipt of the

recommendation, the agency must render a decision.    Where no

hearing officer presides over a case decision proceeding, the

     4
      Code § 9-6.14:14.1 sets forth qualification requirements
for hearing officers and provides, in pertinent part:

          D. Any hearing officer empowered by the
          agency to provide a recommendation or
          conclusion in a case decision matter shall
          render that recommendation or conclusion
          within ninety days from the date of the case
          decision proceeding or from a later date
          agreed to by the named party and the agency.
          If the hearing officer does not render a
          decision within ninety days, then the named
          party to the case decision may provide
          written notice to the hearing officer and the
          Executive Secretary of the Supreme Court that
          a decision is due. If no decision is made
          within thirty days from receipt by the
          hearing officer of the notice, then the
          Executive Secretary of the Supreme Court
          shall remove the hearing officer from the
          hearing officer list and report the hearing
          officer to the Virginia State Bar for
          possible disciplinary action, unless good
          cause is shown for the delay.



                              - 12 -
intermediate, recommendation stage is eliminated, and

decision-making responsibility falls directly to the "board,

commission, or agency personnel responsible for rendering a

decision."   Code §§ 9-6.14:11(D), 9-6.14:12(G).

     We find a distinction between the agency's responsibility

for fact-gathering, whether accomplished informally or formally,

and its responsibility for rendering a decision based on the

facts it gathers.   In short, the fact-gathering stage, whether it

is conducted informally or formally, provides the basis for which

the case will be decided. 5

     VAPA prescribes the time by which an agency must render a

decision.    Where the case involves no hearing officer, the agency

must render a decision within ninety days from the date of the

case decision proceeding, whether it be an informal conference or

consultation proceeding or a formal evidentiary proceeding.    Code

§§ 9-6.14:11(D), 9-6.14:12(G).    The statute provides an exception

where the agency representative responsible for rendering a

decision becomes incapacitated.   In such cases, the time limit is

reset and commences from the date that new agency personnel are

assigned or a new proceeding is conducted.   Code §§ 9-6.14:11(F),

9-6.14:12(I).   Where, by contrast, a hearing officer presides
     5
      This stage in the process is akin to the making of the
record in a court of law or equity. Indeed, judicial review of
agency decision-making is based solely upon the agency record,
or, where an informal agency proceeding does not require or make
such a record, judicial review is based on the agency file,
minutes, and records of its proceedings, which may be augmented
if necessary. See Code §§ 9-6.14:16, 9-6.14:17.




                               - 13 -
over the fact-gathering, the hearing officer must make a

recommendation within ninety days of the date of the case

decision proceeding, unless good cause is shown for the delay.

Code § 9-6.14:14.1(D).   From that point, the agency has thirty

days, without exception, to render a decision.   Code

§§ 9-6.14:11(E), 9-6.14:12(H).   We find these time limitations to

govern the agency's decision-rendering responsibility.   They do

not address the fact-gathering role of the agency but, instead,

begin to run from the date the fact-finding proceeding is

completed.

     Article 3, providing general rules for agency adjudications,

does not, and could not, address the scope of the fact-gathering

proceeding in each case.    Rather, such a determination will

depend on the nature of the case, the case record, and the basic

law governing the agency.   While a one-day hearing, whether

informal or formal, may be all that is needed to gather the

relevant factual information, a case may require further steps.

Indeed, the Revisers' Note to Code § 9-6.14:11 states that in

addition to conferences or consultations, "[t]o the extent that

basic laws permit, agencies may also proceed on the basis of

inspections, tests, or elections, followed by such

conference-consultation procedure as the case issues may

require."    Thus, contrary to the finding of the trial court, we

find that the legislature clearly intended that the fact-finding

process could encompass more than a hearing.



                               - 14 -
     In the present case, VRS was not authorized to render a

decision until it had received the report of the Medical Board

pursuant to Code § 51.1-156, upon which Rizzo based his

application.   This step in the process was of a fact-gathering

nature as the report would contain relevant information upon

which VRS would render its decision.   Accordingly, we find that

the time requirements of Code § 9-6.14:11(D) did not begin to run

until VRS received the Medical Board's report.   Applying those

requirements to this case, it is clear the trial court erred in

granting Rizzo's motion for summary judgment.
     Accordingly, the decision is reversed and remanded for

further proceedings. 6

                                            Reversed and remanded.




     6
      Contrary to Rizzo's contention, our decision does not
entitle VRS to circumvent an applicant's right "to receive a
prompt decision," see Code § 9-6.14:11(A)(iv), by unduly
extending the fact-gathering stage of the case decision process,
nor does it abrogate alternative remedies available to an
applicant to compel timely agency action.



                              - 15 -
