COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Alst on and Senior Judge Coleman

PHANENDHARNADH L. N. KONE MEMORANDUM OPINION * v. Record No. 0974-09-2 PER CURIAM NOVEMBER 24, 2009 VIRGINIA DEPARTMENT OF STATE POLICE

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Michael C. Allen, Judge (Phanendharnadh L.N. Kone, pro se , on briefs). (William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Ronald N. Regnery, Senior Assistant Attorney General, on brief), for appellee.

Phanendharnadh L.N. Kone, appellant, appeal s a decision of the tr ial court affirming the decision of the hearing officer under the grieva nce procedure for state employees and dismissing appellant’s appeal thereof. On ap peal, appellant argues: (1) the tria l court erred by not finding that the hearing officer’s deci sion was contradictory to law; (2 ) numerous documents admitted at his hearing were forged or falsified; and (3) his supervisors at the Virginia Department of State Police (VDSP) were not qualified or co mpetent to assess his sk ills. Upon reviewing th e record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the

decision of the trial court. See Rule 5A:27. Appellant was formerly empl oyed by the VDSP as a senior programmer/analyst. After receiving complaints about his work, appellant’s supervisors met with him on several occasions to discuss his work performance issu es. In August 2008, appellant received a Group II Written Notice

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - for “[f]ailure to follow a supervis or’s instructions, perf orm assigned work or otherwise comply with applicable established written policy.” Appellant challenged the i ssuance of the Group II Writ ten Notice through the state employee grievance procedure. See Code § 2.2-3000 et seq . After an eviden tiary hearing, the hearing officer found the VDSP me t its burden of proof regardin g the issuance of the Group II Written Notice. Appellan t requested reconsideration of the he aring officer’s de cision, which was

denied. Appellant appealed his case to the trial court. In its order entered on April 8, 2009, the trial court found that appellant had “failed to reference, cite and/or otherwise identify any statute (and/or other legislation), judicial precedent and/or accepted legal principle in support of his claim that the decision of the hearing officer was ‘contradictory to law’-- as required by Code § 2.2-3006(B) for

the reversal of that decision.” The trial court dis missed the appeal and affirmed the decision of the hearing officer. Appellant appealed the trial court’s decision to this Court. [A] party appealing from a heari ng officer’s decision to a circuit court is required to “speci fy how that decision [was] ‘contradictory’ to law and what ‘law’ [was] thereby being contradicted.” The appeali ng party must “identify [a] constitutional provision, statute, regulation or judicial decision which the [hearing officer’s] decision contradicted.” Virginia Polytechnic Inst. a nd State Univ. v. Quesenberry , 277 Va. 420, 429, 674 S.E.2d 854, 858 (2009) (citations omitted). The General Assembly has articula ted a very narrow standard of review to be applied by the circuit court in such appeals. Because this standard focuses solely on the question whether the hearing officer’s decision is contradictory to any applicable law, the party appealing the hearing officer’s de cision properly bears the burden of identifying the law thereby contradicted.

Id.- 3 - “‘Law’ is the ‘aggregate of legislatio n, judicial precedents and accepted legal principles.’” Virginia Dep’t of State Police v. Barton , 39 Va. App. 439, 446, 573 S.E.2d 319, 323 (2002) (quoting Black’s Law Dictionary 889 (7th ed. 1999)). In the document appellant fi led in the trial court entitled “R eply to Agency ’s Memorandum of Law in Opposition to Grievant’s Appeal,” appellant stated, generally, “[t]he decision of [the] hearing officer is ‘contradictory to law.’” However, appellant did not “specify how that decision [was] ‘contradictory’ to la w and what ‘law’ [was] thereby being contradicted.” Quesenberry , 277 Va. at 429, 674 S.E.2d at 858 (quoting Tatum v. Virginia Dep’t of Agric. , 41 Va. App. 110, 122, 582 S.E.2d 452, 458 (2003)). As in Quesenberry , appellant “failed to identify to the trial court any applicable cons titutional provision, statute, regulation, or co urt precedent of this Commonwealth that the hearing officer contradicted.” Id. In addition, the issues appellant raised on appeal to the trial co urt involved evidentiary materials, witness competen cy and credibility matters, and the hearing officer’s findings of fact, all of which were beyond the scope of review of the trial court purs uant to Code § 2.2-3006(B). “[T]he only grounds of appeal of the hearing officer’s deci sion is ‘that the determin ation is contradictory

to law.’” Barton , 39 Va. App. at 445, 573 S.E.2d at 322 (quoting Code § 2.2-3006(B)). The hearing officer’s decision is final and binding ‘if consistent with law and policy.’ Code § 2.2-3005.1(C)(iii).” Quesenberry , 277 Va. at 428, 674 S.E.2d at 858. “[B]ecause [appellant] failed to identify any applicable law that was contradicted by the hear ing officer’s decision, [appellant]’s appeal to the circuit court failed from its inception.” Id. at 430, 674 S.E.2d at 859. Appellant also requests that we remand this ca se to the trial court for an award of costs pursuant to Code § 2.2-3006(E). Code § 2.2-3006( E) provides that a court shall award an employee reasonable attorney’s fees and costs if the employee “substantially prevails on the- 4 - merits of a case brought under subsection B or D.” Appellant has not substantially prevailed on

the merits of the case. Theref ore, we deny appellant’s request. Accordingly, we summarily affirm th e decision of the trial court. See Rule 5A:27.

Affirmed.