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CITY OF VIRGINIA BEACH v. HAY



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CITY OF VIRGINIA BEACH

v.

HAY


September 17, 1999

Record No. 981936

 

CITY OF VIRGINIA BEACH

v.

DAVID S. HAY

 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

J. Warren Stephens, Judge Designate

Present: All the Justices

OPINION BY JUSTICE ELIZABETH B. LACY


David S. Hay filed a grievance with the City of
Virginia Beach (the City) protesting the termination of his
employment as an assistant city attorney. When the City refused
to process Hay’s grievance, claiming that he was an appointed,
non-merit employee ineligible to participate in the grievance
process, Hay filed this proceeding. The trial court, citing
Dillon’s Rule, held that the City did not have the statutory
authority to hire Hay as an appointed employee, and, therefore,
that Hay was a merit employee eligible to participate in the
City’s grievance process. We granted the City an appeal, and we
now conclude that ? 2-166 of the Virginia Beach City Code
(City Code), providing that assistant city attorneys be appointed,
non-merit employees, is a reasonable implementation of the
City’s charter authority. Accordingly, we will reverse the
judgment of the trial court.

The General Assembly authorized the City to
create a department of law and to provide for assistant city
attorneys. Charter, City of Virginia Beach (City Charter),
?? 7.01, 9.01.
[1] Pursuant to this authority, the
City enacted ? 2-166 of the City Code which states that the
city council may "appoint such deputy and assistant city
attorneys as it may deem necessary to serve at the pleasure of
the city attorney."

The General Assembly also requires every city
with over fifteen employees to provide all of its
non-probationary employees, with certain listed exceptions,
access to an employee grievance procedure. Code
?? 15.2-1506, -1507. One of the permitted exceptions is
"[a]ppointees of elected groups or individuals." Code
? 15.2-1507(A)(3)(a)(1).

The personnel grievance procedure adopted by
the City provides that only merit employees are entitled to
grieve employment decisions. City Code ? 2-132. As defined
in the City Code, merit employees do not include "appointees
of the city council." Such appointees are considered
non-merit employees and are not eligible to file grievances under
the City’s grievance procedure. City Code ?? 2-75, -76.
[2]

There is no dispute that Hay was hired by
appointment of the city council, an elected body, to serve at the
pleasure of the city attorney. The dispute arises over whether
the city council had the authority to enact City Code
? 2-166 authorizing it to "appoint" assistant
city attorneys, thereby bringing such employees within a
statutory exception to the otherwise mandatory eligibility for
access to the employee grievance procedure. Code
? 15.2-1507(A)(3)(a)(1).

Hay argues that, under Dillon’s Rule, the City
may not designate assistant city attorneys as appointees
ineligible to grieve employment decisions absent specific charter
or statutory authorization from the General Assembly. The City
responds that Dillon’s Rule does not require specific
authorization under these circumstances but only requires that
the method chosen by the City to implement its conferred power to
hire assistant city attorneys be reasonable. We agree with the
City.

Under Dillon’s Rule, municipal governments have
only those powers which are expressly granted by the state
legislature, those powers fairly or necessarily implied from
expressly granted powers, and those powers which are essential
and indispensable. Commonwealth v. County Board of Arlington
County
, 217 Va. 558, 574, 232 S.E.2d 30, 40 (1977). Where the
state legislature grants a local government the power to do
something but does not specifically direct the method of
implementing that power, the choice made by the local government
as to how to implement the conferred power will be upheld as long
as the method selected is reasonable. Id. at 574-75, 232
S.E.2d at 40-41. Any doubt in the reasonableness of the method
selected is resolved in favor of the locality. Id. at 577,
232 S.E.2d at 42.

In this case, the General Assembly created the
department of law and expressly authorized the city council to
provide for assistant city attorneys and other employees of the
department. City Charter ?? 7.01, 9.01. While the power to
hire the employees for the department of law is not expressly
granted, it is fairly and necessarily implied from these charter
provisions. We do not think that the legislature would authorize
the city to "provid[e]" for certain positions within a
department of the government and at the same time withhold the
power to fill those positions.

While the power to hire assistant city
attorneys is fairly and necessarily implied from the express
language of ? 9.01 of the City Charter, there is no further
express or implied direction in the charter regarding the method
by which the City is to hire assistant city attorneys. Thus, our
inquiry is whether the City’s choice to appoint such employees to
serve at the will of the city attorney is a reasonable
implementation of its power to hire implied by ? 9.01 of
the City Charter.

Whether a method chosen to implement an express
or implied power is reasonable will depend upon the circumstances
of each case. However, the chosen method is unreasonable if it is
contrary to legislative intent or inappropriate for the ends
sought to be accomplished by the grant of the power. Arlington,
217 Va. at 577, 232 S.E.2d at 42. Furthermore, like the test
employed when considering whether a power is implied, if the
implementation expands the power beyond rational limits necessary
to promote the public interest, it is unreasonable. Id.
Applying these standards, we conclude that the method chosen by
the City to hire assistant city attorneys set out in
? 2-166 of the City Code was reasonable.

First, ? 2-166 does not conflict with any
other state or local legislative provision and is not contrary to
legislative intent. The General Assembly has not only recognized
that appointment of employees by elected bodies is a method of
filling positions which can be used by local governments, but it
has also identified appointees of elected bodies as a category of
employees which can legitimately be excluded from eligibility for
access to a personnel grievance procedure. Code
? 15.2-1507(A)(3)(a)(1). Furthermore, as reflected in the
exemptions, the types of employees which the General Assembly
contemplated could be excluded from access to the employee
grievance procedure include deputy and executive assistants to a
locality’s chief administrator. Code
? 15.2-1507(A)(3)(a)(3). There is a close analogy between
such positions and those of deputy city attorney and assistant
city attorney. For these reasons, we conclude that exempting
assistant city attorneys from access to the employee grievance
procedure is not inconsistent with legislative intent.

Equally important, ? 2-166 authorizes use
of this appointment method for hiring members of the law
department only in limited circumstances. Not every employee
hired pursuant to ? 9.01 of the City Charter is appointed
by city council, only deputy and assistant city attorneys. Given
the nature of the services performed by assistant city attorneys
and their relationship to the city attorney and city council, the
employment method established in ? 2-166 is not
inappropriate and does not expand the implied power to hire
beyond that which is needed to implement the authority to provide
for a department of law given in ? 9.01 of the City
Charter.

We reject Hay’s argument that because
? 9.02 of the City Charter specifically states that the
city attorney is appointed by and serves at the pleasure of the
city council
[3], while ? 9.01 does not
contain the same specific directive regarding assistant city
attorneys, the City does not have the power to hire assistant
city attorneys by appointment. Whether we consider this argument
as challenging the power of the City to appoint these employees
or as a challenge to the reasonableness of the method chosen by
the City to implement its power to hire them, the difference
between the two provisions does not support the conclusion drawn
by Hay.

City Code ? 9.02 merely reflects Code
? 15.2-1542, which allows a city to create the office of
city attorney but requires that "[s]uch attorney shall be
appointed by the governing body to serve at the pleasure of the
governing body." Thus, even if ? 9.02 did not appear
in the City Charter, the city attorney would be appointed by and
serve at the pleasure of the city council.

The difference in the two provisions
represents, in our opinion, the General Assembly’s choice to
limit the City’s discretion in determining how to employ the city
attorney, while allowing the City discretion as to the method of
employing assistant city attorneys. Of course, this discretion is
not open-ended; as we stated above, under Dillon’s Rule, the
City’s methods of implementation must be reasonable.

In summary, the power to hire assistant city
attorneys must be implied from the express power given to
"provid[e]" for such employees in ? 9.01 of the
City Charter. Because the specific method of hiring such
employees is not set out in the Charter, the method adopted by
the City to implement the power to hire must be reasonable. The
City’s choice of hiring assistant city attorneys by appointment
of the city council to serve at the pleasure of the city
attorney, City Code ? 2-166, is a reasonable method of
implementing the power to hire.

Because Hay was appointed by the city council,
he is a non-merit employee and, therefore, is not entitled to
grieve his termination decision under the City’s personnel
grievance procedures. City Code ?? 2-75, -76, -132.

Accordingly, the judgment of the trial court
will be reversed and final judgment entered here in favor of the
City.

Reversed and final judgment.

 

FOOTNOTES:

[1] Section 9.01 of the City Charter states:

DEPARTMENT OF LAW. The department of
law shall consist of the city attorney and such assistant
city attorneys and other employees as may be provided by
the council.

[2] As the parties agree, City Code ?? 2-75 and -76
are the successor ordinances to City Code ?? 2-43 and
–44, in effect at the time Hay was hired. The material
aspects of the ordinances have not changed.

[3] Section 9.02 of the City Charter states:

CITY ATTORNEY. The head of the
department of law shall be the city attorney. He shall be
an attorney at law licensed to practice law in the
Commonwealth of Virginia. He shall be appointed by the
council and shall serve at its pleasure.

 

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