Roop v. Whitt ( 2015 )

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and
McClanahan, JJ., and Russell and Lacy, S.JJ.
BRAD L. ROOP
OPINION BY
v. Record No. 140836 JUSTICE WILLIAM C. MIMS
February 26, 2015
J.T. “TOMMY” WHITT, IN HIS
CAPACITY AS SHERIFF
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
J. Howe Brown, Jr., Judge Designate
In this appeal, we consider whether a sheriff’s deputy is
a local employee for the purposes of Code § 15.2-1512.4.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Brad L. Roop was Captain of Criminal Investigations in the
Montgomery County Sheriff’s Office (“MCSO”). In May 2012, an
employee of the Virginia Department of Forensic Science (“DFS”)
informed Roop that the laboratory had repeatedly failed to
detect any controlled substances in evidence submitted by the
MCSO Street Crimes Unit (“SCU”). Roop met with Sheriff J.T.
“Tommy” Whitt because Roop believed that the information from
DFS could suggest corruption, impropriety, or malfeasance by
MCSO employees. Whitt directed Roop to investigate the matter.
During his investigation, Roop discovered what he
considered to be troubling irregularities in several cases
involving controlled substances, domestic violence, and child
endangerment. The alleged irregularities included
misrepresentations to the Commonwealth’s attorney’s office,
alteration of incident reports, use of a deputy’s brother as a
confidential informant, and controlled drug buys that failed to
yield controlled substances.
On June 23, 2012, Roop reported his findings to Whitt. On
June 26, Whitt met with the captain supervising the SCU. Later
that day, Whitt met with Roop and informed Roop that his
discoveries had been sufficiently explained. Roop disagreed,
advising Whitt that the evidence contained in Roop’s report
could not be ignored.
On June 29, Whitt suspended Roop with pay and informed him
that Whitt would initiate an internal affairs investigation by
the Blacksburg Police Department into Roop’s conduct. Roop was
never provided with the results of such an investigation, if
any. However, Whitt subsequently informed Roop that he
believed Roop had initiated the SCU investigation for personal
reasons, including a desire to discredit the SCU’s incumbent
supervising captain so Roop could command the unit himself. On
August 28, Whitt terminated Roop’s employment with the MCSO.
On December 7, 2012 Roop filed a complaint alleging that
his termination was impermissible retaliation, in violation of
Code § 15.2-1512.4, which protects the right of “any local
employee to express opinions to state or local elected
officials on matters of public concern.” In May 2013, he filed
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a motion for leave to amend the complaint and a proposed
amended complaint pursuant to Rule 1:8. Whitt opposed Roop’s
motion. In July, Roop filed a new amended complaint
substantially different from the one he proposed in May with
his motion for leave to amend.
Whitt filed a demurrer to the July amended complaint and a
motion to dismiss, arguing that Code § 15.2-1512.4 created no
right of action. He further argued that even if the statute
created a right of action, it did not apply to Roop because he
was not a local employee.
The circuit court held a hearing on the demurrer and
motion to dismiss the July amended complaint. At the hearing,
Roop argued that he was a local employee for the purposes of
Code § 15.2-1512.4 and that he had a right of action under Code
§ 8.01-221. He also made an oral motion for leave to amend his
amended complaint. The court ruled that neither Code § 8.01-
221 nor Code § 15.2-1512.4 created a cause of action. It also
ruled that Roop was not a local employee for the purposes of
Code § 15.2-1512.4 because sheriffs have broad discretion in
the hiring and firing of deputies. The court thereafter
entered an amended final order sustaining the demurrer, denying
leave to amend the amended complaint, and granting the motion
to dismiss.
We awarded Roop this appeal.
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II. ANALYSIS
In one assignment of error, Roop asserts that the circuit
court erred by ruling that he was not a local employee for the
purposes of Code § 15.2-1512.4. He argues that sheriff’s
deputies are included as local employees under Code §§ 15.2-
1512.2 and 51.1-700. He also argues that even if sheriffs have
discretion to terminate their deputies at will, this Court
recognized a cause of action for termination of employment in
violation of public policy in Bowman v. State Bank of
Keysville, 229 Va. 534, 540, 331 S.E.2d 797, 801 (1985). He
contends his termination violated the public policy expressed
in Code § 15.2-1512.4 and therefore is actionable.
Whether a sheriff’s deputy is a “local employee” as that
term is used in Code § 15.2-1512.4 is a question of statutory
interpretation. We review such questions de novo. Payne v.
Fairfax County Sch. Bd., ___ Va. ___, ___, 764 S.E.2d 40, 42
(2014).
Code § 15.2-1512.4 provides in relevant part that
“[n]othing in [Chapter 15 of Title 15.2] shall be construed to
prohibit or otherwise restrict the right of any local employee
to express opinions to state or local elected officials on
matters of public concern, nor shall a local employee be
subject to acts of retaliation because the employee has
expressed such opinions.” The section includes no definition
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of the term “local employee.” The only such definition in the
Code is in Code § 51.1-700. However, the application of that
definition is expressly limited to Chapter 7 of Title 51.1, a
chapter dealing with federal social security in a title
covering pensions, benefits, and retirement. Code § 51.1-700.
That subject is not connected to the one before us here, and we
do not believe the General Assembly intended it to apply to
Chapter 15 of Title 15.2. Cf. Prillaman v. Commonwealth, 199
Va. 401, 405, 100 S.E.2d 4, 7 (1957) ("The general rule is that
statutes may be considered as in pari materia when they relate
to the same person or thing, the same class of persons or
things or to the same subject or to closely connected subjects
or objects.")
“When the legislature leaves a term undefined, courts must
give [it] its ordinary meaning, taking into account the context
in which it is used.” American Tradition Inst. v. Rector &
Visitors of the Univ. of Va., 287 Va. 330, 341, 756 S.E.2d 435,
441 (2014) (internal quotation marks and alteration omitted).
The ordinary meaning of “employee” is “one employed by
another,” Webster's Third New International Dictionary 743
(1993), or “[s]omeone who works in the service of another
person (the employer) under an express or implied contract of
hire, under which the employer has the right to control the
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details of work performance”. Black's Law Dictionary 639 (10th
ed. 2014).
A sheriff’s deputy is appointed only by the sheriff, who
may remove a deputy subject only to a few statutory
limitations, such as those in Code § 15.2-1604. Code § 15.2-
1603. Further, the compensation of the sheriff and his or her
deputies is paid by the Commonwealth, not the locality. 1 Code
§§ 15.2-1609.7 and 15.2-1609.9. Finally, “[t]here is no
privity of obligation existing between a deputy sheriff and the
board of supervisors of a county. The supervisors . . . have
no say as to whom the sheriff shall appoint as his deputy; they
do not prescribe his duties; they have no control over his
conduct; they have no power to remove him from office nor any
control over the duration of his term thereof . . . .”
Rockingham County v. Lucas, 142 Va. 84, 92, 128 S.E. 574, 576
(1925).
Accordingly, a sheriff’s deputy is the employee of the
sheriff, not the local government. To ascertain whether a
sheriff’s deputy may be a local employee derivatively, through
1
Local governments may appropriate supplemental
compensation. Code § 15.2-1605.1. They may condition such
appropriations on the sheriff’s acceptance of certain
restrictions on the use of the appropriated funds. See Bailey
v. Loudoun County Sheriff's Office, 288 Va. 159, 167-68, 762
S.E.2d 763, 765 (2014).
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the sheriff, we must consider the role of the sheriff as a
constitutional officer.
Under the Constitution of Virginia, the General Assembly
may create or dissolve localities at will. Va. Const. art.
VII, § 2. The legislature may likewise provide by statute for
a locality’s government and administration. Id. A locality
therefore has no government until one is authorized by the
General Assembly.
By contrast, constitutional officers, including sheriffs,
are creations of the constitution itself. Va. Const. art. VII,
§ 4. Their offices exist, abeyant and unfilled, by virtue of
constitutional origination from the moment their county or city
is created by the legislature. Their offices and powers exist
independent from the local government and they do not derive
their existence or their power from it. Their compensation and
duties are subject to legislative control, but only by state
statute and not local ordinance. Id.; see Carraway v. Hill,
265 Va. 20, 24, 574 S.E.2d 274, 276 (2003).
Consequently, “[w]hile constitutional officers may perform
certain functions in conjunction with” local government, they
are neither agents of nor subordinate to local government. Id.
The local government has no control over their work
performance. Similarly, constitutional officers are elected by
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the voters for prescribed terms. They are neither hired nor
fired by the locality. They therefore are not local employees.
Accordingly, a sheriff’s deputy, who is an employee of the
sheriff, is not a local employee for the purposes of Code §
15.2-1512.4. The circuit court did not err in sustaining
Whitt’s demurrer.
In another assignment of error, Roop asserts that the
circuit court abused its discretion by denying his motion for
leave to amend the amended complaint. He argues that Rule 1:8
requires leave to be liberally granted and that Whitt would not
have been prejudiced by the amendment. However, while the
record reflects that Roop made an oral motion for leave to
amend the amended complaint, nothing discloses any proffer or
description of how the amendment would alter the pleading upon
which the circuit court had ruled. We therefore cannot review
the court’s decision to deny leave to amend. Prince Seating
Corp. v. Rabideau, 275 Va. 468, 470, 659 S.E.2d 305, 307 (2008)
(per curiam) (“We cannot review the ruling of a lower court for
error when the appellant does not bring within the record on
appeal the basis for that ruling or provide us with a record
that adequately demonstrates that the court erred. Our rules
require the appellant to present a sufficient record on which
the court can determine whether or not the lower court has
erred.” (internal quotation marks omitted)).
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For these reasons, we will affirm the judgment of the
circuit court. 2
Affirmed.
2
Roop expressly waived an additional assignment of error
in which he asserted that circuit court erred in ruling that
Code § 8.01-221 did not create a cause of action.
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