Present: All the Justices 

CITY OF VIRGINIA BEACH 

v. Record No. 981936 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 17, 1999 

DAVID S. HAY 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

J. Warren Stephens, Judge Designate 

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 

 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 

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 

 

the time Hay was hired. The material aspects of the ordinances 

have not changed. 

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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 

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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 

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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 council3, while § 9.01 

 3

 Section 9.02 of the City Charter states: 

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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 

 

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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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 nonmerit 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.

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