COURT OF APPEALS OF VIRGINIA

Present: Ju dges Bumgardner, Hump hreys and Clements Argued by te leconference

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 COUR T OF BATH COUNTY Duncan M. Byrd , Jr., Judge Charles M. Allen (M ichael D. Hancock; Goodman, Allen & Filett i, PLLC, on briefs), for appellant. Guy W. Horsley, Jr ., Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Judith Willia ms Jagdmann, Deputy Attorney General, on brief), for appellee.

John H. Pound ap peals a judgment of the trial court, finding him ineligible to receive benefits pursuant to th e Virginia Law Officer's Retire ment System ("VaLORS "), Code § 51.1-211 et seq . Pound contends th at his status as a "spe cial game warden" was sufficient to pl ace him within the releva nt provisions of Title 51.1, which crea te and govern VaLORS. For the re asons that follow, we affirm the judgment of the trial court.I. Background Pound began work for the Depart ment of Game and Inland Fisheries in November of 1971, as a wildlife biologist. In that role, Pound was responsible fo r various tasks, including maintaining ce rtain fish and wildlife populations an d analyzing biological data. On February 11, 1972 , Pound was appo inted as a "special game warden" by the former Director of th e DGIF. As ev idence of his appointment, Pound was given a certificate statin g that he was thereby commis sioned as a spec ial game warden, with statewide authority, "so long as [he was] employed" by DGIF. Pound was also given another cert ificate, stating that he had taken the oath required of such offi cers, and a "wal let-sized" identification card stating that he was "a qualified Spec ial Game Warden" and that his "authority" as such would expire "with termin ation of employment." Ac cordingly, Pound's employ ment duties increased with his new "appointme nt," permitting him to carry a firearm and to enforce the hu nting and fishing laws of the Stat e of Virginia. During the years that followed , Pound and othe r special game wardens were directed by their supe rvisors to cease their law enforcement ac tivities for various peri ods of time, while DGIF reviewed various traini ng and certific ation requirem ents. After each occasion, the spec ial game wardens were told to resume their law enforcement activities.

- 2 -In May of 1991, howe ver, Pound received a memorandum from Gary Spiers, his region al manager, which stat ed 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, af ter that time, Pound an d other empl oyees who had acted as former spec ial game wardens, were asked, on occasion, by DGIF to aid the regu lar game wardens in en forcement ac tivities. The individuals we re also directed to report any violations they observed to the regular game wardens for further invest igation. In addition, DGIF reissued pistols to thos e individual s who had

- 3 -formerly acted as spec ial game wardens, incl uding Pound, and set up a program that wo uld allow those individuals th e option of purchasing their pistol upon retirement. Ho wever, in issuing the pistols to the "filed personnel" DGIF emphasized th at the pistols were issued for "non-law enforcem ent activities." In 1999, the General Assembly passed VaLO RS (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 enactmen t, Pound, who wa s still employed with DGIF as a Wildlife Biologist Assi stant, requested to be included in the VaLORS retirement plan arguing that because he was a special game warden, he was an "e mployee," as defined by the legislation governing VaLO RS. DGIF denied Pound's request, contending that his status as a special game ward en did not bring him within the meaning of "employee" pursuant to the Va LORS enactment. Pound ultimatelyappealed DGIF's de nial and received a hearing, pursuant to the State Grieva nce Procedure, before the Department of Em ployment Disput e Resolution. See Code § 2.2-3001

et seq . After a hearing onthe merits, the he aring officer found that Pound was not enti tled to benefits unde r VaLORS as a special game warden. Specific ally, the hearin g officer foun d that Pound was a "Special Game Wa rden" "in title only and not insubstance." Further, the hearing of ficer held that based upon the title of the statutory enac tment, as well as its language, the legislative intent of the Ac t was that it ap ply only to indi viduals whose job

- 4 -duties require them to enforce crimin al or quasi-cr iminal laws. Thus, because the hearing officer fo und that Pound' s position at the time of VaLO RS' enactment requ ired no such du ties, nor gave him any such authority, he did not fall with in the definition of "employee" as stat ed by VaLORS and envision ed by the le gislature. Pound appealed the hearing offi cer's decision to the Circuit Court of Bath Co unty, pursuant to Code § 2.2-30 06(B). After hearing argume nts on the issue and reviewing legal memoranda filed by each party, the trial court affi rmed the deci sion of the hearing office r, finding that "because [Pound] was no t authorized to engage in law enfo rcement activiti es on October 1, 1999, the effective date of VaLORS[,] . . . [Pou nd] is not covered."

II. Analysis On appeal, Pound cont ends the trial court erred in affirming the decision of the hearing offi cer, finding th at he was not entitled to bene fits pursuant to VaLORS . Specific ally, Pound argues that he retained his status as a spec ial game warden even after he was directed by his supervisor to discontinu e his law enforcement duti es and that accord ingly he is an "e mployee" within the meaning of VaLORS because he is a "game warden" as defined by the VaLORS plan. We first note that inconjunction wi th the Virginia Personnel Act, Code § 2.2-2900 et seq , the General Assembly established a system for handling state employee compla ints arising in the workplace by enacting the State Gr ievance Proced ure. Code

- 5 -§ 2.2-3000 et seq .; Virginia Dept. of Envtl. Quality v. Wright , 256 Va. 236, 238, 504 S.E.2d 862, 86 2-63 (1998). Pu rsuant to Code § 2.2-3006 of th at statutory sche me, a party may appeal a final decision to the appropriate ci rcuit court "o n the ground s that the determination is contradictory to law." After a hearing of the appeal "on the record," the court may "affirm the deci sion or may reverse or modify th e 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 an y aggrieved party the ability to appeal "[a] ny final decision of a circuit court on appeal from . . . a gr ievance hearing decision issuedpursuant to § 2.2-3005." Co de § 17.1-405(1 ). Thus, beca use the General Assembly granted to the circuit cour ts only the authority to consider whether the fi nal determinatio n of the hearin g officer is "contrary to law," we are likewise limited to such review in considering wh ether the trial co urt erred in its determination.
See Virginia Department of State Police v. Barton , 39 Va. App. 439, 573 S.E.2d319 (2002); see also Shuler v. Virgin ia Employment Commission , 14 Va. App. 1013, 1016-17, 420 S.E.2d257, 259 (1992) (holding that where statutory lang uage plainly provides the process governin g judicial review of dete rminations, VA PA does not govern such revi ew). "We review . . . statutory inte rpretations and legal co nclusions de novo ." Rollins v. Commonwealth , 37 Va. App. 73, 79, 554 S. E.2d 99, 102 (2001).

- 6 -The General Assemb ly 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 en acted by the legislature, provided for a retireme nt allowance of $8,952 per annum (until the "member's" 65th birthday), payable in addi tion to the "member's" normal retireme nt benefits. Id. 1 However, to qualify as a "member" of Va LORs, the statut e requires "membership in the Retirement System." Code § 51.1-212. Pursuant to Code § 51.1-213, "Membe rship in the Retirement System [is] compulsory for all employee s." As used in Chap ter 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.

- 7 -vehicle enforcement officer employed by the Department of State Police. Code § 51.1-212 (emphasis added). Code § 29.1-200(A) prov ides the Director of the DGIF with the authority to "appoi nt regular and spec ial game wardens as he may deem necessary to enforce th e game and inland fish laws ." (Emphasis adde d). Code § 29.1-205 pr ovides as fo llows, 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 § 29.1-2 05, the General As sembly clearly intended the term to apply to any "game ward en" appointe d pursuant to Chapter 2 of Title 29 .1. Accordingly, as Pound conten ds he was still a special ga me warden at th e time of the en actment of the statute, he argues he falls within the defi nition of an "employee" under VaLORS.

- 8 -We agree with Pound' s contention that th e language of Code § 51.1-212, and it s related counterp arts, is unambi guous and thus, there is no need to resort to statut ory constr uction. See City of Richmond v. Confrere Club , 239 Va. 77, 80, 38 7 S.E.2d 471, 473 (1990) ("[W]hen a st atute is clear and un ambiguous, its plain meaning must be accepted without resort to extrinsic ev idence or to the rules of constr uction. Legislative in tent is determined from the plain meaning of the words us ed."). Indeed , the phrase "any" "game warden ," as used in the statute is ne ither "difficult to comprehend, of doub tful import, [n]or lack ing in clearness and definiteness." County of August a Jail v. Cook , 16 Va. App. 247, 252, 430 S.E.2d 546, 549 (1993). However, we disagr ee with Pound's co ntention that his particular status as a "special game warden" brough t him within the parameters of the statute. Pursuant to the re quisite standard of review here, we are bound by the hear ing officer' s factual determination that Pound was a "special game wa rden" in "title only" at the time Va LORS was enacted. Neverthele ss, Pound conceded during the he aring on his grievance that in May of 1991, DGIF effectively revoke d (or "[did] away with ") his authority to "enforce the game and inland fish laws," of Virginia. Code § 29.1-200. Indeed, Poun d'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 chos en to "do away" with

- 9 -his "appointment " to perform such duti es at that time. Furthermore, the region al manager coll ected items Po und possessed as indicia of any such authority, including his gun, his badge and his special game warden identification card. Thus, as the hearing officer recogn ized, after May of 1991, Pound had no power to act as either a "game warden " and/or a "special ga me warden," pursuant to the authority and duties set forth in Code § 29.1-205. 2 Moreover, Pound' s job duties, pe rformance plans and performance evaluations we re specifically amended byDGIF to re flect this change. As stated above, Co de § 29.1-200, govern ing the ap pointment of special game ward ens, gives the Direct or of the DGIF the authority to appoint "s pecial game wardens . . . to enforce the game and inland fish la ws," of Virgin ia. It does not permit the Director to appo int special game wardens for other pu rposes, nor does it permit the Di rector to main tain appointments for other purposes. Accordingly, the reference in Code § 51.1-212 of VaLORS to "any" "game wardenin the Depart ment of Game and Inland Fisheries appoin ted 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.

- 10 -et seq.) of Title 29.1," clearly dictat es that only "special game wardens" with la w enforcement duti es and authority, fall within the definition of "employees" with in the context of VaLORS. This is markedly co ntrary to the situ ation refl ected in County of August a 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 pe rtaining to presumptions of compensability for specif ied conditions incurred by those engaged in certain occupa tions, "expressly or impliedly limit[ed] its appl ication to deputy sheriffs who [w ere] primarily law-enforcement officers." Id. Thus, rega rdless of wh ether Pound retained the title of "s pecial game wa rden" at the ti me VaLORS was enacted, his title as such did no t operate to brin g him within the definition of an "emp loyee" under VaLORS. The Supreme Cour t of Virginia has cons istently held that statutes "must be give n a rational interpreta tion consistent with [their] purposes , and not one wh ich will substa ntially defeat [their] obje ctives." City of Chesapeake v. Gardne r Enterprises , 253 Va. 243, 247, 482 S.E.2d 812, 81 5 (1997) (citing Mayor v. Industrial Dev. Auth. , 221 Va. 865, 869, 275 S.E.2d 888, 890 (1981); Norfolk Southe rn Ry. Co. v. Lassiter , 193 Va. 360, 364, 68 S.E.2d 641, 643 (1952)); see also Tabb v. Co mmonwealth , 98 Va. 47, 56-57, 34 S.E. 946, 949 (1900) ("A provisio n of a section of a statute ought not to receive a mere litera l interpreta tion, when it would contrave ne the intention of the Legislatur e apparent from

- 11 -the other sections and provisions thereof, but the words are to be expanded or qual ified to effectuate the in tention."). Consistent with this policy , we find that the Act governing VaLO RS, by its plain language, clearly evinces the legislature's in tent that it apply only to those "game ward ens" described as "employees" pursuant to Code § 51.1-212, who are cloaked with both the authority, and the duty, to enforc e the game and in land fish laws of the Commonwealth. As found by the hearin g officer, the record here demonstrates that since May of 1991 , Pound has had no authority to enforce any such laws, nor has the en forcement of su ch laws been a part of his regular duties in his capacity as a wildlife biolog ist with DGIF. Therefore, we af firm the trial court's judgment, determ ining that the hearing offi cer's decision, denying Pound' s request for benefits pursuant to VaLORS was not "con tradictory to law." Affirmed.

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