COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

CAROL A. BRUNTY, COMMISSIONER, 

 VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

 OPINION BY 

v. Record No. 0725-95-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 26, 1996 

BARBARA SMITH 

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY 

Charles L. McCormick, III, Judge 

 Craig M. Burshem, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

William H. Hurd, Deputy Attorney General; 

Siran S. Faulders, Senior Assistant Attorney 

General, on brief), for appellant. 

 

 John M. Boswell for appellee. 

 A local department of appellant, Virginia Department of 

Social Services ("DSS"), determined that appellee, Barbara Smith 

("Smith"), had committed "Founded-Physical Abuse-Level 3" against 

J. H. ("child"). Smith appealed to the Commissioner of DSS 

("Commissioner"), who affirmed the local department's finding. 

Smith appealed to the Circuit Court of Lunenburg County, which 

reversed the Commissioner's decision and dismissed the case. DSS 

appealed, contending that the trial court erred in reversing the 

Commissioner's affirmance. DSS also filed a motion to vacate 

both the trial court's order appointing a "special prosecutor" 

and its order reversing the Commissioner's affirmance. We agree 

with DSS' contention that the court had no authority to appoint a 
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special prosecutor and remand this case for a new hearing.1

 The facts are as follows. After Smith appealed the 

Commissioner's decision to the Lunenburg County Circuit Court, 

the court appointed Edwin B. Baker ("Baker"), Commonwealth's 

Attorney of Charlotte County, as a special prosecutor to act on 

behalf of DSS after finding that Smith was a personal friend of 

the Commonwealth's Attorney for Lunenburg County. Neither DSS 

nor the Attorney General's Office received notice of Baker's 

appointment. Meanwhile, the Attorney General's Office entered 

its appearance as counsel of record by filing an answer to 

Smith's petition for appeal. Notwithstanding the Attorney 

General's appearance in the case, neither it nor DSS was notified 

of the circuit court hearing scheduled on the matter. 

 At the hearing, Baker, after reviewing the evidence in the 

case, represented to the court that he found the evidence 

insufficient to support the finding of child abuse. Baker 

thereafter prepared an order which the court entered, dismissing 

the matter and ordering that Smith's name be removed from any 

register identifying her as having been found guilty of Physical 

Abuse-Level 3. Baker signed the order under the heading, "We ask 

for this." The order states that Baker "acted with full 

knowledge and concurrence of the office of the Attorney General." 

 DSS' motion to vacate is based on the trial court's 

 1 Because we decide the case on the grounds raised in 

DSS' motion to vacate, we address neither Smith's motion to 

dismiss nor the merits of the issues raised on appeal. 
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appointment of a prosecutor to act on behalf of DSS. DSS claims 

the appointment was improper and deprived it of legal 

representation before the court. DSS contends that the case was 

civil, not criminal, and that Code § 2.1-121 requires that DSS be 

represented by the Attorney General's Office in such cases. We 

agree. 

 The matter before the court was civil in nature rather than 

criminal. See Jackson v. W., 14 Va. App. 391, 410, 419 S.E.2d 

385, 396 (1992); cf. Commonwealth v. Gray, 248 Va. 633, 635-36, 

449 S.E.2d 807, 809 (1994) (proceedings on unreasonable refusal 

charge are civil and administrative in nature). Code § 2.1-1212

 

 2 Code § 2.1-121 provides, in part: 

 

 All legal service in civil matters for 

the Commonwealth, the Governor, and every 

state department, institution, division, 

commission, board, bureau, agency, entity, 

official, court, or judge, including the 

conduct of all civil litigation in which any 

of them are interested, shall be rendered and 

performed by the Attorney General, except as 

hereinafter provided in this chapter and 

except for any litigation concerning a 

justice or judge initiated by the Judicial 

Inquiry and Review Commission. No regular 

counsel shall be employed for or by the 

Governor or any state department, 

institution, division, commission, board, 

bureau, agency, entity, or official. The 

Attorney General, in his discretion, may 

represent personally or through one or more 

of his assistants any number of state 

departments, institutions, divisions, 

commissions, boards, bureaus, agencies, 

entities, officials, courts, or judges which 

are parties to the same transaction or which 

are parties in the same civil or 

administrative proceeding and may represent 

multiple interests within the same 
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provides that the Office of the Attorney General shall provide 

all legal services for the Department of Social Services in civil 

matters. See also Code § 2.1-121.2.3

 In the context of Code 

§ 2.1-121, the term "shall" is mandatory and reflects the General 

Assembly's intention that there be no discretion in complying 

with statute, except as provided in the statute itself. See Sink 

v. Commonwealth, 13 Va. App. 544, 546-47, 413 S.E.2d 658, 659-60 

(1992). Code § 2.1-121 contains three exceptions: (1) where the 

(..continued) 

department, institution, division, 

commission, board, bureau, agency, or entity. 

 The Attorney General, in his discretion, may 

represent personally or through one of his 

assistants any of the following persons who 

are made defendant in any civil action for 

damages arising out of any matter connected 

with their official duties: any member, 

agent, or employee of . . . the Department of 

Social Services. . . . If, in the opinion of 

the Attorney General, it is impracticable or 

uneconomical for such legal service to be 

rendered by him or one of his assistants, he 

may employ special counsel for this purpose, 

whose compensation shall be fixed by the 

Attorney General. 

 3 Code § 2.1-121.2 provides: 

 Notwithstanding any other provision of 

law, if the Attorney General finds after 

consultation with the head of the affected 

department that it is in the best interests 

of the Commonwealth to do so, the Attorney 

General may, in his discretion, authorize any 

employee of his office or any employee of a 

department to represent that department or an 

affiliated body in any administrative 

proceedings before the department, an 

affiliated body or before any hearing officer 

or examiner appointed or employed by the 

department or affiliated body. 
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chapter expressly grants an exception, see Code § 2.1-122;4

 (2) 

 

 4 Code § 2.1-122 provides: 

 No special counsel shall be employed for 

or by the Governor or any state department, 

institution, division, commission, board, 

bureau, agency, entity, official, justice of 

the Supreme Court, or judge of any circuit 

court or district court except in the 

following cases: 

 (a) Where because of the nature of the 

service to be performed, the Attorney 

General's office is unable to render same, 

the Governor after issuing an exemption order 

stating with particularity the facts and 

reasons upon which he bases his conclusion 

that the Attorney General's office is unable 

to render such service, may employ special 

counsel to render such service as the 

Governor may deem necessary and proper. 

 (b) In cases of legal services in civil 

matters to be performed for the Commonwealth, 

where it is impracticable or uneconomical for 

the Attorney General to render same, he may 

employ special counsel whose compensation 

shall be paid out of the appropriation for 

the Attorney General's office. 

 (c) In cases of legal services in civil 

matters to be performed for any state 

department, institution, division, 

commission, board, bureau, agency, entity, 

official, justice of the Supreme Court, or 

judge of any circuit court or district court 

where it is impracticable or uneconomical for 

the Attorney General's office to render same, 

special counsel may be employed but only upon 

the written recommendation of the Attorney 

General, who shall approve all requisitions 

drawn upon the Comptroller for warrants as 

compensation for such special counsel before 

the Comptroller shall have authority to issue 

such warrants. 

 (d) In cases where the Attorney General 

certifies to the Governor that it would be 

improper for the Attorney General's office to 

render legal services due to a conflict of 

interests, or that he is unable to render 

certain legal services, the Governor may 

employ special counsel or other assistance to 
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where the litigation, initiated by the Judicial Inquiry and 

Review Commission, involves a justice or judge; and (3) where the 

Attorney General determines that it is impractical or 

uneconomical for his or her office to render the services. 

 None of the exceptions apply in this case. The trial court 

had no authority to appoint a "special prosecutor" to represent 

DSS in a civil proceeding. Baker had no authority to represent 

DSS either at the hearing or by his signature on the final 

order.5

 For these reasons, the final order was entered 

improperly, without endorsement of counsel of record. See Rule 

1:13; Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717, 

719 (1988); Westerberg v. Westerberg, 9 Va. App. 248, 250, 386 

S.E.2d 115, 116 (1989). 

 Accordingly, both the trial court's order appointing Baker 

as "special prosecutor" and its order reversing the 

Commissioner's decision in this case are vacated and the matter 

remanded for any further proceedings deemed appropriate. 

(..continued) 

render such services as may be necessary. 

 5 Smith contends the Attorney General knew that the 

matter had been assigned to a prosecutor and concurred in the 

decision to allow the prosecutor to proceed with the case. It is 

unclear from the evidence to what extent the Attorney General's 

Office was aware of Baker's representation of DSS. However, the 

Attorney General's knowledge or concurrence, even if established, 

is not determinative under the facts of this case. Neither 

waiver nor estoppel may be raised to bar the government from 

exercising its governmental functions. See Sink, 13 Va. App. at 

547-48, 413 S.E.2d at 660-61; Monument Associates v. Arlington 

County Board, 242 Va. 145, 151, 408 S.E.2d 889, 892 (1991); cf.

Falls v. Virginia State Bar, 240 Va. 416, 418, 397 S.E.2d 671, 

672 (1990) (applying same principle to administrative agency). 
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Vacated and remanded.