Virginia Department of Corrections v. Bishop, Record No. 0987-21-3, 75 Va. App. 1 (May, 24 2022)

Facts. Richard Bishop was a “ranking major” at a VDOC Center. In March 2019, Bishop’s secretary told him that a supervisor was having a relationship with a subordinate. Bishop was eventually terminated for failing to report the relationship pursuant to VDOC policies. Bishop challenged his termination, and at a grievance hearing, contended that he had not reported the purported relationship because he though it was only gossip and not based in fact. He felt reporting it on such little information could subject him to making a false claim. The hearing officer disagreed and upheld the determination. Bishop appealed to the circuit court. While the circuit court recognized that reporting mere gossip of a sexual relationship could subject Bishop to Title VII discrimination claims, it ultimately reversed the hearing officer’s ruling on its determination that the ruling violated VDOC’s internal policies.

Issue. Whether a court can reverse a hearing officer’s decision based on a misapplication of internal policies.

Holding. A court cannot reverse an agency hearing officer’s ruling on internal agency policies because they are not “laws” within the context of Code § 2.2‑3006(B).

Notes. The state employee grievance procedure creates a “tripartite reviewing” procedure, where each reviewing entity plays a specific role: (a) a hearing officers is “the finder of fact and the final authority on factfinding,” (b) the Department of Human Resource Management determines whether the hearing officers’ ruling complies with personnel policies and the Employment Dispute Resolution determines whether the ruling complies with grievance procedures, and (c) the courts determine whether the ruling is “contradictory to law.” In the context of governing Code § 2.2‑3006(B), the phrase “contradictory to law” limits judicial review to determining the hearing officer’s ruling’s compliance with constitutional provisions, statutes, regulations, and judicial decisions.” Under the statute, agency policies are not synonymous with “law.” Here, the trial court reversed the ruling, not because it was contradictory to “law” as that term of art is intended to mean in the context of Code § 2.2‑3006(B), but because it violated agency policy. This determination was outside the scope of its permissible review.

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