ANALYSIS OF APRIL 20, 2017 SUPREME COURT ORDER
(Posted April 20, 2017) You’ll note the slight difference in the title of today’s sermon. The Supreme Court of Virginia hands down no published opinions today, but it does give us one published order in a wrongful-termination appeal.
This analysis begins with a major caveat: Hale v. Town of Warrenton does not arise in an employment-at-will situation. Most employment cases do implicate at-will employment, where both the employer and employee are free to end the relationship at any time they wish. The employer still can’t fire the employee for reasons that violate public policy, such as a race-based firing; but other than that, both parties are equally free to walk.
The employee in this appeal was the Building Official for Warrenton. The Town hired him in 2006. The employee acknowledged that he was hired on a probationary basis, but after six months, he contended that the probationary period ended and he became a permanent employee.
That matters, because state law – the Virginia Administrative Code – states that building officials, after permanent employment, “shall not be removed from office except for cause after having been afforded a full opportunity to be heard …”
We’ll fast-forward a few years – keep that passage of time in mind – to 2012. Over that span, the Building Official may have stepped on some municipal toes. In November of that year, his boss, the Director of Planning and Community Development, showed up and told the Building Official, “You’re no longer a supervisor.” There was no pay cut and his duties remained the same; as far as I know, he got to keep his key to the executive washroom. Eventually the Town appointed another employee to fill the official role.
He filed a grievance anyway. The Town ruled that the personnel action wasn’t grievable. The Building Official appealed that to circuit court but was told that his grievance was untimely.
The next step was a wrongful-termination suit, back in circuit, in which the plaintiff sought a writ of mandamus to reinstate him. At a demurrer hearing, the judge ruled that “the alleged facts did not demonstrate that the Town had made a ‘permanent appointment’ of Hale as Building Official.”
Before I get to the appellate ruling, I’ll mention that today’s order never says that the Town fired the plaintiff; as far as I know, he remained a municipal employee – just not in a supervisory capacity. But that VAC section doesn’t say that the Building Official shall not be fired; it says, “shall not be removed from office …”
Today, the justices reverse the trial court and remand the case. In dismissing the suit, the trial court had ruled that the plaintiff had never been permanently appointed, so he couldn’t claim the benefit. The justices don’t rule today that the reverse is true; instead, they note that this is a disputed issue of fact, so a demurrer is the wrong procedural device to challenge the allegation.
In reaching this ruling, the justices note that the trial court had relied on documents outside the pleadings, using an oyer motion to do so. That’s perfectly permissible. But what the court took oyer of included the grievance-hearing testimony, in which the Planning Director had “conceded that Hale was not hired as ‘an interim building official,’ but rather ‘as a full-time employee’ who served as ‘the only building official for the Town of Warrenton at that time.’” You’ve got to admit, that creates at least a strong possibility that a factfinder will decide that the plaintiff really was on the job on a permanent basis. Aside from that, you have the simple question of tenure: Who hires a guy with a term of probation that lasts six or more years?
