COURT OF APPEALS OF VIRGINIA Present: Judges Hum phreys, Kelsey and Haley Argued in Richmond, Virginia

VIRGINIA EMPLOYM ENT COMMISSION OPINION BY v. Record No. 1216-10-1 J UDGE D. ARTHUR KELSEY FEBRUARY 15, 2011 COMMUNITY ALTERNAT IVES, INC. AND APRIL L. COLLIER

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge Cheryl A. Wilkerson, Senior Assist ant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellant.

J. Nelson Wilkin son (David C. Bu rton; Williams Mullen, P.C., on brief), for appellee Community Alternatives, Inc. No brief or argument for appellee April L. Collier.

Community Alternatives, Inc., fired April L. Collier for violating it s drug-free workplace policy after she tested positive on a drug test. The Virginia Employment Commission (VEC) awarded Collier unemployment benefits. The circ uit court reversed the award after concluding the VEC misapplied Code § 60.2-618(2)(b)(1), wh ich precludes employees fired for testing positive for drug use from receiving unemployment be nefits. Agreeing with the circuit court’s reasoning, we affirm.

I. In August 2007, Collier began working for Comm unity Alternatives, Inc. The employer maintained a drug-free workplace policy and re quired employees to submit to random drug screening. Collier signed the policy, verifying: “I understand procedures for testing and reviewing of results are conducted in accordance with recognized standards of the National Institute of Drug Administration.” App. at 14. Randomly selected for a drug test, Collier tested positive for marijuana use in September 2008.- 2 - The Sentara Medical Group colle cted the sample and forwarded it to Quest Diagnostics. Quest Diagnostics issued a report identifying the sp ecimen tested, the test results, the date and time the sample was collected, received, and reported, and the “Cer tifying Scientist” who verified the results. The repor t also confirmed the specimen wa s received by Quest Diagnostics and processed in its “DHHS” certified lab. DHHS is an acronym for the United States Department of Health and Human Services. Based on the drug test results, the employer fired Collier for violating the drug-free workplace policy. Collier filed a claim with the VEC seeking unemployment benefits. In response, the employer argued Collier was inelig ible for benefits under Code § 60.2-618(2)(b)(1)

because she had been fired for misconduct. A VE C deputy claims examiner awarded benefits. The employer sought review by a VEC appeals examiner. During the telephone conference hearing, the VEC appeals examiner asked for a chainof-custody affirmation — which she explained as the “form the Claimant would sign-off on before giving her specimen to whoever’s conducti ng . . . taking the specimen.” App. at 172. The employer’s representative replied, “I can try to find that and . . . fa x it to you if you want me to.”

Id. The appeals examiner answered, “[i]f you do ha ve it in her file, I w ould like for you to fax it please . . . .” Id. The employer’s representative tele faxed the separate chain-of-custody

affirmation to the VEC about an hour after the evid entiary hearing. Collier did not participate in the proceeding. Nor did she file any later statements contesting the authenticity ofthe chain-ofcustody form or her signature on it. The VE C appeals examiner reversed the award. Collier then requested a full VEC review of he r claim. Acting with delegated power from the full VEC, a “special examiner” reversed the appeals examiner and reinstated the award. The special examiner refused to consider the employer’s chain-of-custody affirmation because the telefax was received after the telephonic hear ing. Because the appeals examiner did not- 3 - expressly “hold open the record,” the special ex aminer concluded, the VEC would not treat the chain-of-custody affirmation as an exhibit. Th e VEC special examiner then held the drug test

was “insufficient” as a matter of law to establish a statutory prima facie case of misconduct because the test was not accompanied by a separa te chain-of-custody affi rmation. App. at 10. The VEC reached this conclusion even though Colli er never challenged the chain of custody for her test specimen. The employer appealed to the circuit court arguing that neither th e statute nor the VEC administrative regulations required a separate chain-of-custody affirmation. The employer’s Petition for Judicial Review also pointed out th at “Collier never challeng ed the chain of custody of her test specimen.” App. at 3. The VEC expre ssly admitted this fact in its Answer to Petition

for Judicial Review. See Tr. Ct. R. at 24. 1 In a commendable abundanc e of judicial caution, the

circuit court nonetheless remanded th e case to the VEC to clarify whet her it rejected the drug test as factually unreliable given the specific circumstan ces of this case or as insufficient as a matter of law to constitute a statutory prima facie showing of misconduct. See App. at 33-39. On remand, the VEC restated its view that th e statute required an em ployer in all cases (even cases in which no one contests the reliability of the drug test) to file a chain-of-custody

affirmation in order to establish a prima facie showing of misconduct. The failure to do so, the VEC believed, was a fatal omission in any misc onduct case based upon a positive drug test. In a detailed and thorough letter opini on, the circuit court reversed the VEC’s decision as inconsistent with Code § 60.2-618(2)(b)(1). The VEC appeals to us, asserting the circuit court erred in doing

so.

1 This factual concession constituted a binding judicial admission, conclusively establishing an unchallenged chain of custody. See generally Jones v. Ford Motor Co. , 263 Va. 237, 254, 559 S.E.2d 592, 600 (2002) (citing General Motors Corp. v. Lupica , 237 Va. 516, 520, 379 S.E.2d 311, 314 (1989)).- 4 - II. Under the Unemployment Benefits Act, “[t]he legislature intended unemployment benefits to be paid only to those who find them selves unemployed ‘without fault on their part.’” Va. Emp’t Comm’n v. Trent , 55 Va. App. 560, 568, 687 S.E.2d 99, 103 (2010) (quoting Israel v. Va. Emp’t Comm’n , 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988)). “Furthering this policy goal, Code § 60.2-618(2)(a) prohibits benefits ‘if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.’” Id. Code § 60.2-618(2)(b) provides examples of disqualifying misconduct. By statute, misconduct includes, but is not limited to: An employee’s confirmed positive test for a nonprescribed controlled substance, identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, where such test was cond ucted at the direction of his employer in conjunction with th e employer’s administration and enforcement of a known workplace drug policy. Such test shall have been performed, and a sample collected, in accordance with scientifically recognized standard s by a laboratory accredited by the United States Department of Hea lth and Human Services, or the College of American Pathology, or the American Association for Clinical Chemistry, or the equivale nt, or shall have been a United States Department of Transpor tation [DOT]-qualified drug screen conducted in accordance with the employer’s bona fide drug policy. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred. Code § 60.2-618(2)(b)(1) (added to Code § 60.2-618 by 1998 Va. Acts ch. 241 and 2008 Va. Acts ch. 719). Subsection 2(b )(1) breaks down into a simple premise: An employer makes a prima facie showing of misconduct by presenting a “conf irmed positive test” that satisfies three requirements:

 the test was conducted pursua nt to a “known workplace drug policy,”

 the testing and sampling were performed “in accordance with scientifically recogni zed standards,” and- 5 -  the testing lab was “accredited” or the test was a DOT qualified drug screen.

Id. 2 Once the employer presents a prima facie case, the burden shifts to the claimant to present “mitigating circumstances” which the VEC may consider “in determining whether misconduct

occurred.” Id. The question we must answer is whether this statute expressly or implicitly requires the employer to present a separate chain- of-custody affirmation to establish a prima facie case of misconduct. Our analysis should begin, “as al ways, with the language of the statute.” Meador v. Va. Birth-Related Neurologi cal Injury Comp. Program , 44 Va. App. 149, 153-54, 604 S.E.2d 88, 90 (2004) (citation omitted). Working from the stat utory text, “we strive to give that language a ‘literal construction’ unless doing so ‘w ould involve a manifest absurdity.’” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 276, 590 S.E.2d 631, 638 (2004) (citation omitted); see also Evans v. Evans , 280 Va. 76, 82, 695 S.E.2d 173, 176 (2010) (restating “manifest absurdity” caveat). “[B]y literal, we mean the words should be given their common, ordinary and accepted understanding.” Meador , 44 Va. App. at 154, 604 S.E.2d at 91 (citation and internal quotation marks omitted). This textualist approach presumes “the legislature ‘chose, with care,’ the specific words of the statute.” Kane v. Szymczak , 41 Va. App. 365, 371, 585 S.E.2d 349, 352-53 (2003) (citations omitted). The text of Code § 60.2-618( 2)(b)(1) nowhere states th e drug test results are per se invalid without a separate chai n-of-custody affirmation. Instea d, subsection (2)(b)(1) merely

2 Proof of a positive drug test, however, is not the sole means of proving disqualifying misconduct based on drug use. See , e.g. , Barkley v. Peninsula Transp. Dist. Comm’n , 11 Va. App. 317, 320, 398 S.E.2d 94, 95 (1990) (holdi ng the employee’s admitted drug use two days prior to her next scheduled work w eek sufficient even th ough the employer “never introduced evidence of the drug test results or ev idence regarding the chai n of custody of [the employee’s] test specimen”).- 6 - requires the test be performed, and the sample collected, in accordance with “scientifically recognized standards.” Conspicuously absent from subsection (2)(b)(1) is any freestanding statutory requirement that the drug test be accompanied by a separate chain-of-custody affirmation. Nor can the putative requirement be implied from the procedural guidelines governing VEC evidentiary hearings. By statut e, they “need not conform to common law or statutory rules of evidence and other techni cal rules of procedur e.” Code § 60.2-623(A); see also 16 Va. Admin. Code §§ 5-80-20(F), 5-80-30(D). 3

It is not as if the General Assembly has never addressed th e chain-of-custody concept in

the context of scientific test ing. Code § 19.2-187.01, for example, considers cert ificates of analysis issued by the “Division of Consolid ated Laboratory Services , the Department of Forensic Science or any of its regional laboratories, or by any laboratory authorized by such Division or Department, . . . [as] prima facie evidence that the person receiving the material was an authorized agent and that such receipt cons titutes proper recei pt by the laboratory for purposes of this section.” Code § 19.2- 327.1(A) addresses the “chain of cu stody” showing necessary for a felon seeking a new post-convicti on scientific investig ation of any human bi ological evidence. Code § 20-49.3 states the “documentary eviden ce of the chain of custody” essential for admission of genetic tests in parentage proceedings. That the General Assembly has specifically addressed the chain-of-custody concept on several occasions, but did not do so here, implies a specific legislative choice. In response, the VEC contends that ev en though “Code § 60.2-618(2)(b)(1) does not mention ‘chain of custody’ by name,” it can be implied from the statutory requirement that the testing and sample collection be performed pursuan t to “scientifically recognized standards.”

3 Accord Snyder v. Va. Emp’t Comm’n , 23 Va. App. 484, 487, 477 S.E.2d 785, 786-87 (1996); Baker v. Babcock & Wilcox Co. , 11 Va. App. 419, 425-26, 399 S.E.2d 630, 634 (1990).- 7 - App. at 43-44. We agree with th e thread of reasoning underlying this argument but fail to see

how it leads to the VEC’s conclusion.

It stands to reason that “scien tifically recognized standards” — if truly scientific and well recognized — would seek to ensure the sample collect ed for testing is in fact the sample actually

tested. See , e.g. , DHHS’s Mandatory Guidelines for Fe deral Workplace Drug Testing Programs, 69 Fed. Reg. 19644 (April 13, 2004) (requi ring testers to ensure the sample’s chain of custody) (later revisions summarized at 75 Fed. Reg. 22809 (April 30, 2010)). That truism, however, does not mean an accredited laboratory cannot provide certified test results without separately verifying this assertion. If we were to infer anything, it would be that an accredited laboratory would not certify its findings if they did not rest upon a secure chain-of-custody foundation. The absence of a separate document in addition to the certified lab results doe s not necessarily imply the lab failed to follow proper chain of custody protocols. However one parses the statutory language , the VEC concludes, it has consistently imposed a separate-document requirement affirm ing the chain of custody and, thus, we should defer to its interpretation of the statute. We decline the invitation to do so. While VEC factfinding receives the highest de gree of appellate deference, Trent , 55 Va. App. at 567-68, 687 S.E.2d at 103, no such deference applies to questi ons of law. “Pure statutory construction, a matter within the ‘core competen cy of the judiciary,’ requires de novo review.” Citland, Ltd. v. Commonwealth ex rel. Kilgore , 45 Va. App. 268, 275, 610 S.E.2d 321, 324 (2005) (citation omitted). “This axiom stems from basic principles of separation of powers. It is emphatically the province and duty of the judicial de partment to say what the law is.” Id. (citations and internal quotation marks omitted). “Virginia courts do not delegate that task to executive agencies.” Finnerty v. Thornton Hall, Inc. , 42 Va. App. 628, 635, 593 S.E.2d 568, 571 (2004).- 8 - The narrow nature of our holding, however, should not be overlooked. Like the circuit court, we reject only the VEC’ s broad view that a positive dr ug test can never constitute a prima facie case of misconduct under Code § 60.2-618(2)(b )(1) unless accompanied by a separate chain-of-custody affirmation. We hold only th at a positive drug test, without any additional chain-of-custody affirmation, presents a prima facie case of misconduct if the test complies with Code § 60.2-618(2)(b)(1). That said, we do not mean to invert th e VEC’s error by implying chain-of-custody affirmations can play no role in the decisionmak ing process. In cases where, unlike here, the evidence calls into question the chain of custody of the sample tested, then the VEC — like any other factfinder — may consider the presence or absence of a separate chain-of-custody affirmation in determining the probative wei ght of the drug test. Our holding that such affirmations are not legally essential to a prima facie case of misconduct leaves untouched the factual relevance they may have in cases where th e claimant specifically disputes the chain of custody.

III. Because the circuit court correctly interp reted Code § 60.2-618(2)(b)(1), we affirm.

Affirmed.