Employment – County Finance Director – Grievance Procedure

A former county finance director cannot use Dillon’s Rule to overturn his termination after a transfer and a reduction in force; an Accomack County Circuit Court upholds the decision of the county administrator that this complaint is not grievable under county policy.

County policy 602.0 governs the rights of full-time employees who are terminated by layoff. Under that policy on a iiidepartmental basis,iii senior employees like plaintiff may displace less senior employees, of equal grade. County policy 701 is the county grievance procedure, established pursuant to Va. Code §§ 15.2-1506 and 15.2-1507. Non-grievable complaints specifically include termination by layoff based upon reduction in force or job abolition. An employee may request a determination by the county administrator whether or not a complaint is grievable. The determination is appealable to the circuit court. There is by law no appeal from the circuit court.

The administrator, without a formal written ordinance or resolution or written directive from the board of supervisors, created two departments, the department of finance with Michael Mason as director and the department of information technology and management services with petitioner Reed Ennis as director.

Petitioner argues that a county administrator has no authority to abolish or create departments. As legal authority he cites the Dillon Rule and two Richmond Circuit Court cases which we will informally call the iiiRichmond v. Wilderiii cases decided in November 2007. Respondent county argues the Dillon Rule does not apply because Code § 15.2-1500 grants authority to the administrator.

The two Richmond Circuit Court cases are not persuasive because their facts are far different from this case, not the least of which is that the Richmond City Council there had specifically previously resolved, or otherwise explicitly provided what the mayor and other executives should do or not do. That court’s application of the Dillon Rule to those cases was made of whole cloth.

It is now quite easily learned from the Internet that John Forrest Dillon was a state and federal judge from Iowa and later a professor in Columbia Law School and Yale Law School. Under “Dillon’s Rule,” municipal governments have only the powers that are expressly granted to them by the legislature, those necessarily implied from what is expressed, and those indispensable to municipal existence and function. Dillon’s Rule is adhered to in Virginia courts.

It is clear that Dillon’s Rule applies to authority flowing from the legislature to cities and counties. It is not a rule that applies or flows between a board of supervisors and a county administrator.

That the Accomack County Board of Supervisors has the authority to create, abolish or change departments within its executive administration is not questioned. It could not seriously be contended that the board did not know of or understand what departments previously existed or were thereafter created within the administration by the administrator. The two departments had existed for well over a year. The board did not expressly direct the administrator to create two departments out of one, and, most importantly for this case, neither did the board interfere with the administrator’s executive decision to do so. Dillon’s Rule does not apply to require express authority.

The court upholds the administrator’s decision that this complaint is not grievable because petitioner was not in a department of central accounting with Michael Mason because there was no such department; Ennis was terminated by layoff from the department of IT and management services; and Ennis cannot displace the director of another department.

Ennis v. County of Accomack (Tyler, J.) No. 10CL335, Sept. 15, 2010; Accomack County Cir.Ct. VLW 010-8-172, 10 pp.