John H Pound v Dept of Game and Inland Fisheries

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Humphreys and Clements
Argued by teleconference
JOHN H. POUND
OPINION BY
v. 	Record No. 1767-02-3 	JUDGE ROBERT J. HUMPHREYS
MARCH 11, 2003
DEPARTMENT OF GAME AND
INLAND FISHERIES
FROM THE CIRCUIT COURT OF BATH COUNTY
Duncan M. Byrd, Jr., Judge
Charles M. Allen (Michael D. Hancock;
Goodman, Allen & Filetti, PLLC, on briefs),
for appellant.
Guy W. Horsley, Jr., Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General; Judith Williams Jagdmann, Deputy
Attorney General, on brief), for appellee.
John H. Pound appeals a judgment of the trial court, finding
him ineligible to receive benefits pursuant to the Virginia Law
Officer's Retirement System ("VaLORS"), Code § 51.1-211 et seq.
Pound contends that his status as a "special game warden" was
sufficient to place him within the relevant provisions of Title
51.1, which create and govern VaLORS. 	For the reasons that
follow, we affirm the judgment of the trial court.

I. 	Background
Pound began work for the Department of Game and Inland
Fisheries in November of 1971, as a wildlife biologist. 	In that
role, Pound was responsible for various tasks, including
maintaining certain fish and wildlife populations and analyzing
biological data.
On February 11, 1972, Pound was appointed as a "special game
warden" by the former Director of the DGIF. 	As evidence of his
appointment, Pound was given a certificate stating that he was
thereby commissioned as a special game warden, with statewide
authority, "so long as [he was] employed" by DGIF. 	Pound was also
given another certificate, stating that he had taken the oath
required of such officers, and a "wallet-sized" identification
card stating that he was "a qualified Special Game Warden" and
that his "authority" as such would expire "with termination of
employment." 	Accordingly, Pound's employment duties increased
with his new "appointment," permitting him to carry a firearm and
to enforce the hunting and fishing laws of the State of Virginia.
During the years that followed, Pound and other special game
wardens were directed by their supervisors to cease their law
enforcement activities for various periods of time, while DGIF
reviewed various training and certification requirements. 	After
each occasion, the special game wardens were told to resume their
law enforcement activities.
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In May of 1991, however, Pound received a memorandum from
Gary Spiers, his regional manager, which stated as follows, in
relevant part:
[E]ffective immediately you are no longer
authorized to perform the duties of a
Special Game Warden. 	Your Job Description
and performance Planning and Evaluation form
will both be revised to reflect this change
in work tasks and duties and performance
expectations.
(Emphasis added). 	Pound acknowledged that Spiers gave him the
memorandum during a face-to-face meeting and explained to him
that DGIF was "looking at doing away with some of the law
enforcement activities on national forest property, and that's
why they had chose [sic] to do away with [his] appointment at
that time." 	Pound further acknowledged that Spiers collected
all of the DGIF "law enforcement equipment" that had been issued
to him, in addition to his special game warden identification
card. 	Subsequently, in 1994, DGIF "discontinued the special
game warden appointments for [all other DGIF] employees due to
the costs in time and money that would be required for these
part-time officers."
Nevertheless, after that time, Pound and other employees who
had acted as former special game wardens, were asked, on occasion,
by DGIF to aid the regular game wardens in enforcement activities.
The individuals were also directed to report any violations they
observed to the regular game wardens for further investigation.
In addition, DGIF reissued pistols to those individuals who had
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formerly acted as special game wardens, including Pound, and set
up a program that would allow those individuals the option of
purchasing their pistol upon retirement. 	However, in issuing the
pistols to the "filed personnel" DGIF emphasized that the pistols
were issued for "non-law enforcement activities."
In 1999, the General Assembly passed VaLORS (which became
effective on October 1, 1999), which provides enhanced retirement
benefits for certain "law officers." 	See Code § 51.1-211 et seq.
After its enactment, Pound, who was still employed with DGIF as a
Wildlife Biologist Assistant, requested to be included in the
VaLORS retirement plan arguing that because he was a special game
warden, he was an "employee," as defined by the legislation
governing VaLORS. 	DGIF denied Pound's request, contending that
his status as a special game warden did not bring him within the
meaning of "employee" pursuant to the VaLORS enactment.
Pound ultimately appealed DGIF's denial and received a
hearing, pursuant to the State Grievance Procedure, before the
Department of Employment Dispute Resolution. 	See Code § 2.2-3001
et seq. 	After a hearing on the merits, the hearing officer found
that Pound was not entitled to benefits under VaLORS as a special
game warden. 	Specifically, the hearing officer found that Pound
was a "Special Game Warden" "in title only and not in substance."
Further, the hearing officer held that based upon the title of the
statutory enactment, as well as its language, the legislative
intent of the Act was that it apply only to individuals whose job
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duties require them to enforce criminal or quasi-criminal laws.
Thus, because the hearing officer found that Pound's position at
the time of VaLORS' enactment required no such duties, nor gave
him any such authority, he did not fall within the definition of
"employee" as stated by VaLORS and envisioned by the legislature.
Pound appealed the hearing officer's decision to the Circuit
Court of Bath County, pursuant to Code § 2.2-3006(B). 	After
hearing arguments on the issue and reviewing legal memoranda filed
by each party, the trial court affirmed the decision of the
hearing officer, finding that "because [Pound] was not authorized
to engage in law enforcement activities on October 1, 1999, the
effective date of VaLORS[,] . . . [Pound] is not covered."
II. 	Analysis
On appeal, Pound contends the trial court erred in affirming
the decision of the hearing officer, finding that he was not
entitled to benefits pursuant to VaLORS. 	Specifically, Pound
argues that he retained his status as a special game warden even
after he was directed by his supervisor to discontinue his law
enforcement duties and that accordingly he is an "employee" within
the meaning of VaLORS because he is a "game warden" as defined by
the VaLORS plan.
We first note that in conjunction with the Virginia Personnel
Act, Code § 2.2-2900 et seq, the General Assembly established a
system for handling state employee complaints arising in the
workplace by enacting the State Grievance Procedure. 	Code
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§ 2.2-3000 et seq.; Virginia Dept. of Envtl. Quality v. Wright,
256 Va. 236, 238, 504 S.E.2d 862, 862-63 (1998). 	Pursuant to Code
§ 2.2-3006 of that statutory scheme, a party may appeal a final
decision to the appropriate circuit court "on the grounds that the
determination is contradictory to law." 	After a hearing of the
appeal "on the record," the court may "affirm the decision or may
reverse or modify the decision." 	Code § 2.2-3006. 	Such
determinations of the circuit court may be appealed to this Court,
pursuant to Code § 17.1-405(1), granting any aggrieved party the
ability to appeal "[a]ny final decision of a circuit court on
appeal from . . . a grievance hearing decision issued pursuant to
§ 2.2-3005." 	Code § 17.1-405(1). 	Thus, because the General
Assembly granted to the circuit courts only the authority to
consider whether the final determination of the hearing officer is
"contrary to law," we are likewise limited to such review in
considering whether the trial court erred in its determination.
See Virginia Department of State Police v. Barton, 39 Va. App.
439, 573 S.E.2d 319 (2002); see also Shuler v. Virginia Employment
Commission, 14 Va. App. 1013, 1016-17, 420 S.E.2d 257, 259 (1992)
(holding that where statutory language plainly provides the
process governing judicial review of determinations, VAPA does not
govern such review). 	"We review . . . statutory interpretations
and legal conclusions de novo." 	Rollins v. Commonwealth, 37
Va. App. 73, 79, 554 S.E.2d 99, 102 (2001).
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The General Assembly created VaLORS in 1999 and ordered that
it become effective as of October 1, 1999. 	See 1999 Va. Acts,
ch. 585. 	Code § 51.1-217(B), as enacted by the legislature,
provided for a retirement allowance of $8,952 per annum (until the
"member's" 65th birthday), payable in addition to the "member's"
normal retirement benefits. 	Id.1 However, to qualify as a
"member" of VaLORs, the statute requires "membership in the
Retirement System." 	Code § 51.1-212. 	Pursuant to Code
§ 51.1-213, "Membership in the Retirement System [is] compulsory
for all employees." 	As used in Chapter 2.1 of Title 51.1,
"[e]mployee"
means any (i) member of the Capitol Police
Force as described in § 30-34.2:1, (ii)
campus police officer appointed under the
provisions of Chapter 17 (§ 23-232 et seq.)
of Title 23, (iii) game warden in the
Department of Game and Inland Fisheries
appointed under the provisions of Chapter 2
(§ 29.1-200 et seq.) of Title 29.1, (iv)
special agent of the Department of Alcoholic
Beverage Control appointed under the
provisions of Chapter 1 (§ 4.1-100 et seq.),
(v) law-enforcement officer employed by the
Virginia Marine Resources Commission as
described in § 9.1-101, (vi) correctional
officer as the term is defined in § 53.1-1,
and including correctional officers employed
at a juvenile correction facility as the
term is defined in § 66-25.3, (vii) any
parole officer appointed pursuant to
§ 53.1-143, and (viii) any commercial
1 The additional allowance amount has been adjusted by the
Board of Trustees of the Virginia Retirement System, pursuant to
the direction of the legislature, and is currently $9,264.
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vehicle enforcement officer employed by the
Department of State Police.
Code § 51.1-212 (emphasis added).
Code § 29.1-200(A) provides the Director of the DGIF with the
authority to "appoint regular and special game wardens as he may
deem necessary to enforce the game and inland fish laws."
(Emphasis added). 	Code § 29.1-205 provides as follows, in
relevant part:
All game wardens are vested with the
authority, upon displaying a badge or other
credential of office, to issue a summons or
to arrest any person found in the act of
violating any of the provisions of the
hunting, trapping, inland fish and boating
laws.
Regular game wardens are vested with the
same authority as sheriffs and other
law-enforcement officers to enforce all of
the criminal laws of the Commonwealth.
Any special game warden shall have general
police power while performing his duty on
properties owned or controlled by the Board.
(Emphasis added).
Pound argues that because Code § 51.1-212 uses the term "game
warden," versus "regular game warden" or "special game warden" as
distinguished in Code § 29.1-205, the General Assembly clearly
intended the term to apply to any "game warden" appointed pursuant
to Chapter 2 of Title 29.1. 	Accordingly, as Pound contends he was
still a special game warden at the time of the enactment of the
statute, he argues he falls within the definition of an "employee"
under VaLORS.
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We agree with Pound's contention that the language of Code
§ 51.1-212, and its related counterparts, is unambiguous and thus,
there is no need to resort to statutory construction. 	See City of
Richmond v. Confrere Club, 239 Va. 77, 80, 387 S.E.2d 471, 473
(1990) ("[W]hen a statute is clear and unambiguous, its plain
meaning must be accepted without resort to extrinsic evidence or
to the rules of construction. 	Legislative intent is determined
from the plain meaning of the words used."). 	Indeed, the phrase
"any" "game warden," as used in the statute is neither "difficult
to comprehend, of doubtful import, [n]or lacking in clearness and
definiteness." 	County of Augusta Jail v. Cook, 16 Va. App. 247,
252, 430 S.E.2d 546, 549 (1993).
However, we disagree with Pound's contention that his
particular status as a "special game warden" brought him within
the parameters of the statute. 	Pursuant to the requisite standard
of review here, we are bound by the hearing officer's factual
determination that Pound was a "special game warden" in "title
only" at the time VaLORS was enacted. 	Nevertheless, Pound
conceded during the hearing on his grievance that in May of 1991,
DGIF effectively revoked (or "[did] away with") his authority to
"enforce the game and inland fish laws," of Virginia. 	Code
§ 29.1-200. 	Indeed, Pound's regional manager, acting on behalf of
his employer, the Director of DGIF, provided Pound with a written
memorandum stating that he was "no longer authorized to perform"
such duties and told him that DGIF had chosen to "do away" with
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his "appointment" to perform such duties at that time.
Furthermore, the regional manager collected items Pound possessed
as indicia of any such authority, including his gun, his badge and
his special game warden identification card. 	Thus, as the hearing
officer recognized, after May of 1991, Pound had no power to act
as either a "game warden" and/or a "special game warden," pursuant
to the authority and duties set forth in Code § 29.1-205.2
Moreover, Pound's job duties, performance plans and performance
evaluations were specifically amended by DGIF to reflect this
change.
As stated above, Code § 29.1-200, governing the appointment
of special game wardens, gives the Director of the DGIF the
authority to appoint "special game wardens . . . to enforce the
game and inland fish laws," of Virginia. 	It does not permit the
Director to appoint special game wardens for other purposes, nor
does it permit the Director to maintain appointments for other
purposes. 	Accordingly, the reference in Code § 51.1-212 of VaLORS
to "any" "game warden in the Department of Game and Inland
Fisheries appointed under the provisions of Chapter 2 (§ 29.1-200
2 Indeed, even though DGIF subsequently directed Pound, and
others who had acted as special game wardens prior to 1994, to
assist regular game wardens in law enforcement on an occasional
basis and/or to report any violations observed, Pound and the
others were given the directive to do so only in conjunction
with the regular game wardens, who possessed the requisite power
and authority to enforce the game and inland fish laws of
Virginia.
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et seq.) of Title 29.1," clearly dictates that only "special game
wardens" with law enforcement duties and authority, fall within
the definition of "employees" within the context of VaLORS.
This is markedly contrary to the situation reflected in
County of Augusta Jail v. Cook, as relied upon by Pound. 	Cook, 16
Va. App. at 252-53, 430 S.E.2d at 549. 	In Cook, we found that no
language in Code § 65.2-402, the statute pertaining to
presumptions of compensability for specified conditions incurred
by those engaged in certain occupations, "expressly or impliedly
limit[ed] its application to deputy sheriffs who [were] primarily
law-enforcement officers." 	Id. 	Thus, regardless of whether Pound
retained the title of "special game warden" at the time VaLORS was
enacted, his title as such did not operate to bring him within the
definition of an "employee" under VaLORS.
The Supreme Court of Virginia has consistently held that
statutes "must be given a rational interpretation consistent with
[their] purposes, and not one which will substantially defeat
[their] objectives." 	City of Chesapeake v. Gardner Enterprises,
253 Va. 243, 247, 482 S.E.2d 812, 815 (1997) (citing Mayor v.
Industrial Dev. Auth., 221 Va. 865, 869, 275 S.E.2d 888, 890
(1981); Norfolk Southern Ry. Co. v. Lassiter, 193 Va. 360, 364, 68
S.E.2d 641, 643 (1952)); see also Tabb v. Commonwealth, 98 Va. 47,
56-57, 34 S.E. 946, 949 (1900) ("A provision of a section of a
statute ought not to receive a mere literal interpretation, when
it would contravene the intention of the Legislature apparent from
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the other sections and provisions thereof, but the words are to be
expanded or qualified to effectuate the intention."). 	Consistent
with this policy, we find that the Act governing VaLORS, by its
plain language, clearly evinces the legislature's intent that it
apply only to those "game wardens" described as "employees"
pursuant to Code § 51.1-212, who are cloaked with both the
authority, and the duty, to enforce the game and inland fish laws
of the Commonwealth.
As found by the hearing officer, the record here demonstrates
that since May of 1991, Pound has had no authority to enforce any
such laws, nor has the enforcement of such laws been a part of his
regular duties in his capacity as a wildlife biologist with DGIF.
Therefore, we affirm the trial court's judgment, determining that
the hearing officer's decision, denying Pound's request for
benefits pursuant to VaLORS was not "contradictory to law."
Affirmed.
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