Payne v. Fairfax County School Bd. ( 2014 )

PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.
JULIETTE PAYNE
OPINION BY
v. Record No. 140145 JUSTICE WILLIAM C. MIMS
October 31, 2014
FAIRFAX COUNTY SCHOOL BOARD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge
In this appeal, we consider whether Code § 22.1-315(A)
requires a school board to hold a hearing prior to suspending a
non-teaching employee without pay for fewer than five days.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The Fairfax County School Board employed Juliette Payne as
a Food and Nutrition Services Manager at Twain Middle School.
In December 2011, Payne’s supervisor recommended that she be
suspended without pay for three days for allegedly violating
Fairfax County Public Schools (“FCPS”) regulations. In January
2012, the Director of Employee Performance and Development
confirmed the supervisor’s recommendation and ordered Payne’s
unpaid suspension.
Payne filed a grievance challenging the suspension
pursuant to the procedure established in FCPS regulations. She
asserted that the suspension was improper because Code § 22.1-
315(A) requires school boards to conduct a hearing before
suspending an employee without pay. 1 She sought, among other
things, an award of back pay for all suspension days served and
the cancellation of all pending suspension days.
Payne’s grievance proceeded through five levels of
administrative review, culminating in a ruling upholding the
suspension on the ground that the grievance procedure was not
the correct vehicle through which to assert that it violated
state law. She thereafter withdrew her grievance.
In April 2013, Payne filed an amended complaint in the
circuit court seeking a declaratory judgment that Code § 22.1-
315(A) requires school boards to conduct a hearing prior to
suspending an employee without pay. The parties stipulated
facts and filed cross-motions for summary judgment. Following
a hearing, 2 the court ruled that the section applies only to
suspensions based either on threats to the safety or welfare of
the school division or the students, or on charges for
specified crimes. It concluded that Code § 22.1-315(A) did not
require the school board to conduct a hearing before Payne was
suspended without pay because her suspension was based on
1
She subsequently withdrew an additional ground.
2
At the hearing, the parties also stipulated that Payne’s
supervisor had recommended a second, five-day suspension
without pay on May 13, 2013. Nothing in the record reveals
whether the Director of Employee Performance and Development
confirmed the recommendation and ordered this second
suspension.
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allegations of poor work performance. It also concluded that
the section does not require a hearing when a school employee
is suspended without pay for five or fewer days. It therefore
granted the school board’s motion for summary judgment.
We awarded Payne this appeal.
II. ANALYSIS
In her first assignment of error, Payne asserts that the
circuit court erred because the plain language of Code § 22.1-
315(A) requires a school board hearing before any employee is
suspended without pay for any reason. In her second assignment
of error, she asserts that the court erred by ruling the
section does not require a hearing before an employee is
suspended without pay for five or fewer days.
We review a lower court’s interpretation of a statute de
novo. Eberhardt v. Fairfax County Emps. Ret. Sys. Bd. of Trs.,
283 Va. 190, 194, 721, S.E.2d 524, 526 (2012). Code § 22.1-
315(A) states:
A teacher or other public school employee,
whether full-time or part-time, permanent,
or temporary, may be suspended for good and
just cause when the safety or welfare of
the school division or the students therein
is threatened or when the teacher or school
employee has been charged by summons,
warrant, indictment or information with the
commission of a felony [or a specified
misdemeanor]. Except when a teacher or
school employee is suspended because of
being charged by summons, warrant,
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indictment or information with the
commission of one of the above-listed
criminal offenses, a division
superintendent or appropriate central
office designee shall not suspend a teacher
or school employee for longer than sixty
days and shall not suspend a teacher or
school employee for a period in excess of
five days unless such teacher or school
employee is advised in writing of the
reason for the suspension and afforded an
opportunity for a hearing before the school
board in accordance with §§ 22.1-311 and
22.1-313, if applicable. Any teacher or
other school employee so suspended shall
continue to receive his or her then
applicable salary unless and until the
school board, after a hearing, determines
otherwise. No teacher or school employee
shall be suspended solely on the basis of
his or her refusal to submit to a polygraph
examination requested by the school board.
Payne argues that the second and third sentences contain
the language relevant to this case. She acknowledges that the
phrase “so suspended” makes the third sentence no broader than
the second sentence. She argues that the second sentence
prohibits the suspension of a “teacher or school employee for a
period in excess of five days unless such teacher or school
employee is . . . afforded an opportunity for a hearing before
the school board,” except when the suspension is based on a
charge for one of the specified crimes. She concludes that the
third sentence consequently requires any employee suspended on
any ground other than one of the specified criminal charges to
be paid until the school board determines otherwise after a
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hearing. We need not reach this argument because Payne was not
suspended for more than five days.
“‘When the language of a statute is unambiguous, we are
bound by the plain meaning of that language. Furthermore, we
must give effect to the legislature's intention as expressed by
the language used unless a literal interpretation of the
language would result in a manifest absurdity.’” Lucas v.
Woody, 287 Va. 354, 360, 756 S.E.2d 447, 449 (2014) (quoting
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,
104, 639 S.E.2d 174, 178 (2007)). Absurdity “describes
‘situations in which the law would be internally inconsistent
or otherwise incapable of operation.’” Covel v. Town of
Vienna, 280 Va. 151, 158, 694 S.E.2d 609, 614 (2010) (quoting
Boynton v. Kilgore, 271 Va. 220, 227 n.9, 623 S.E.2d 922, 926
n.9 (2006)).
The phrase “so suspended” in the third sentence of Code §
22.1-315(A) refers to suspensions encompassed by the second
sentence. The second sentence deals only with suspensions “for
a period in excess of five days.” 3 It prohibits suspensions for
longer than 60 days, and requires a hearing before a suspension
3
The second sentence does not apply to suspensions based
on the criminal charges specified in the first sentence.
Consequently, the third sentence does not apply to them either.
Because such suspensions are not within the scope of the
question before us in this appeal, they are not affected by our
holding.
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lasting between six and 60 days. It does not require a hearing
for a suspension lasting five or fewer days. Accordingly,
whether the second sentence applies to all suspensions (as
Payne asserts) or only to those based on threats to the safety
or welfare of the school division or the students (as the
circuit court ruled), the phrase “so suspended” in the third
sentence means that a hearing is necessary only when the
teacher or school employee is suspended without pay for more
than five days. 4
Payne cites an opinion of the Attorney General, 1982-83
Op. Atty. Gen. 417, and a federal district court opinion
adopting its rationale, Wilkinson v. School Bd. of County of
Henrico, 566 F. Supp. 766, 772-73 (1983), to contend that the
third sentence requires a hearing prior to an unpaid suspension
of any duration. These authorities are not controlling.
Williams v. Augusta County Sch. Bd., 248 Va. 124, 127, 445
S.E.2d 118, 120 (1994) (opinions of the Attorney General);
Gazette, Inc. v. Harris, 229 Va. 1, 20, 325 S.E.2d 713, 728
(1985) (opinions of federal courts on questions of state law).
Virginia courts do not defer to an interpretation of a statute,
such as the one in the Attorney General’s opinion, that
4
This conclusion does not affect any hearing rights that
may be provided to teachers and other employees through other
statutes, their contracts, or regulations adopted by the school
board.
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contradicts the plain language of the statute. See Davenport
v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005).
Payne argues this interpretation endangers the due process
rights of teachers. However, she has no standing to argue the
due process rights of teachers. Any due process rights she may
have had as a non-teaching employee were fulfilled by the
grievance process. See Gilbert v. Homar, 520 U.S. 924, 932
(1997) (recognizing that a temporary suspension without pay may
trigger due process rights); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (holding due process
requires notice and an opportunity for a hearing).
Finally, Payne asserts in her third assignment of error
that school boards have no authority to suspend non-teaching
employees other than Code § 22.1-315 and her suspension
therefore violates the Dillon Rule. We again disagree.
“Dillon’s Rule provides that municipal corporations have
only those powers that are expressly granted, those necessarily
or fairly implied from expressly granted powers, and those that
are essential and indispensable.” Board of Zoning Appeals v.
Board of Supervisors, 276 Va. 550, 553-54, 666 S.E.2d 315, 317
(2008). A corollary of the rule extends this limitation to
school boards. Id. at 554, 666 S.E.2d at 317 (citing Kellam v.
School Board, 202 Va. 252, 254, 117 S.E.2d 96, 98 (1960)).
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However, Code § 22.1-28 vests school boards with authority
to supervise the schools in their school divisions. The power
to discipline school employees is not only necessarily and
fairly implied from this provision, such power is essential and
indispensable. Further, Code § 22.1-79(6) presupposes that
school boards have it.
III. CONCLUSION
For the foregoing reasons, we hold that Code § 22.1-315(A)
does not require a school board to hold a hearing before
suspending a non-teaching employee without pay for fewer than
five days. Because Payne was not suspended for more than five
days, we do not reach the question of whether the section
applies to all suspensions or only to those based on threats to
the safety or welfare of the school division or the students.
We will affirm the judgment of the circuit court.
Affirmed.
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