ANALYSIS OF JUNE 8, 2023 SUPREME COURT OPINION

(Posted June 8, 2023) I need each of you to bear with me through the ensuing sentence, which I insist is true: The Supreme Court of Virginia this morning hands down an absolutely fascinating employee-grievance decision. The opinion has it all: fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, miracles…

Oh, wait; that’s The Princess Bride. Stick with me anyway. In City of Hampton v. Williamson, the justices evaluate the question whether an employee has the right to obtain documents relevant to his case before the grievance hearing.

The employee, Williamson, was an officer in Hampton’s fire department. Today’s opinion recites that one day three years ago, he “made a remark while watching a recap of the nightly news with a colleague. Another firefighter, who was not present at the time, learned of Williamson’s comment and interpreted it as offensive and racist.” The City eventually fired Williamson.

Perceiving that he’d been set up, the employee pursued relief through the City’s grievance procedures. That process led to the ultimate administrative step, a grievance-panel hearing.

Before that hearing, the employee’s lawyer asked the City for copies of “all correspondence, emails, or texts” received by “any city employee from any source complaining about the statement Mr. Williamson allegedly made which forms the basis for this disciplinary action,” and “any document which formed the basis for the disciplinary action” against him. The City admitted that it had 17 pages’ worth of relevant documents, and that some of them formed the basis for the firing, but it refused to produce them because the City didn’t intend to use them in the hearing. It gave the employee a list of intended witnesses instead.

That led the employee to sue in circuit court, seeking a writ of mandamus to produce the withheld documents. The City filed a demurrer, but the court overruled it, perceiving that the grievance procedure was remedial and should be interpreted liberally. In the absence of any other defense, the court entered final judgment in favor of the employee, ordering the City to turn over the documents under seal. The City sought and received a writ.

Today’s decision is split. Justice Powell writes for the chief justice and Justices McCullough, Russell, and Mann in holding that the grievance procedures available to local-government employees aren’t as broad as those for state employees. The relevant statute requires localities to

provide the panel or hearing officer with copies of the grievance record prior to the hearing, and provide the grievant with a list of the documents furnished to the panel or hearing officer, and the grievant and his attorney, at least 10 days prior to the scheduled hearing, shall be allowed access to and copies of all relevant files intended to be used in the grievance proceeding[.]

The last clause is the battleground today. The question here is which documents, exactly, are “intended to be used” in the hearing. The use of the passive voice here conceals the identity of the actor, a rhetorical trick that writers and speakers have been using for generations. (See, e.g., presidential Press Secretary Ron Nessen’s strategic retreat 50 years ago from his previous outraged accusations against Washington Post reporters as the Watergate affair unraveled: “Mistakes were made …”)

The court’s majority rules that the most natural reading of the statute is that it requires disclosure of documents that the City intends to use. The City expressly disavowed any intention to use these documents, and it normally would have no way of divining what documents the employee would intend to use. A broader reading, the majority concludes, would enable employees to launch a fishing expedition for all sorts of tangentially germane documents, and the statute simply isn’t that broadly worded. The court thus reverses the grant of the mandamus writ and enters final judgment for the City.

When I tell you that Justice Kelsey pens the dissent, you know we’re in for a fun ride. He and Justice Chafin read the same statutory language and reach the opposite conclusion. That’s largely because of the purpose of the entire grievance process: to provide a form of due process of law for employees, giving them, among other things, “oral or written notice of the charges against [them], an explanation of the employer’s evidence, and an opportunity to present [their] side of the story.”

Let me cut to the chase here: The dissent concludes that the majority’s ruling permits a glaring perversion of the statute’s purpose, as illustrated in a footnote in the dissent. Suppose one of the 17 pages turned out to be a smoking-gun document that absolutely won the case for the employee here; if it were to come into evidence, there would be no doubt as to the outcome. Asked in oral argument if the City could shield such a game-changing document simply by deciding not to use it, the City’s lawyer told the justices, “That would be our position, if we just chose not to use that document.”

WHAT??!! To lawyers, who are accustomed to principles of fair play in litigation, this result is an abomination, allowing one party to game the system to win a losing case. Justice Kelsey makes this point forcefully, concluding that such documents have to be disclosed if either party intends to use them (as the employee’s lawyer had clearly communicated to the City’s lawyer beforehand here). But only Justice Chafin joins him in seeing it this way.

I noticed one other troubling aspect to this case. Think back to that short description of the underlying statement, which one of the employee’s co-workers found offensive. The majority opinion gives no more explanation than that. The dissent fills in the details:

One evening, Lt. Williamson and a fellow supervisory firefighter watched a news program reporting on a violent attack on firefighters in another city who were attempting to extinguish burning buildings and cars lit on fire by protestors. The protesters pelted the firefighters with Molotov cocktails, rocks, bricks, and bottles. Finding themselves defenseless, the firefighters used their fire hoses to push the violent mob away from the scene in order to continue fighting the fires.

While watching the news program, Lt. Williamson and his colleague discussed what they might do if they were to find themselves in such a situation. During that conversation, Lt. Williamson said, “I would only do that if ordered to.” Lt. Williamson forthrightly admits that he made that remark and stands by it. The remark “was predicated solely in the context of the previous night’s news coverage,” which as Lt. Williamson points out, “depicted protesters violently attacking unarmed and unprotected firefighters who were attempting to extinguish fires set by those protesters, and who, lacking any other means of protection, utilized fire hoses as non-lethal means of self-defense from ongoing violent attack and injury.”

“I would only do that if ordered to.” That’s it; that’s the entire statement that the City concluded was so racist that one of its lieutenants had to go. Both of today’s opinions report that the lieutenant approached the complaining colleague – who didn’t even hear the statement directly – and apologized for inadvertently giving offense.

I don’t mention this to insist that the City was dead wrong. I have no experience in running a fire department and I would never try to force my personnel conclusions on them, however misguided the City’s actions might appear to me. My beef is instead with the court. Not the circuit court; the Supreme Court.

Back on January 26, I reported on the justices’ divided ruling in Colas v. Tyree, a police shooting case. I noticed then that the majority opinion, which reversed a judgment for a decedent’s estate, had omitted some highly relevant facts that had supported the jury’s verdict for the personal rep. A week earlier, the same thing happened in Forness v. Commonwealth, where the majority had swept uncomfortable facts into the shadows, leaving the dissent to drag them out into the open.

I believe that today’s majority commits the same sin of omission. If you read only the majority opinion, you might come away subtly rooting against the lieutenant. After all, he did something racist, right? Surely, he deserves what he got …

But the actual statement looks far more benign to me than the majority’s condensed factual report would lead you to believe. In this context, it’s highly plausible that the lieutenant said something innocuous, that a co-worker decided for his own reasons to try to turn it into something explosive, and the City then hid potentially exculpatory evidence from the lieutenant in the ensuing hearing, which must have appeared to him to be a Star Chamber proceeding. The court’s opinion now legitimizes that concealment, holding that that’s what the General Assembly must have meant would happen.

This is three times now, in just the last 4½ months, where a majority opinion deals with troublesome facts by the simple expedient of ignoring them. At least we had dissents in these three appeals, so someone on the court was able to point out what the majorities were evading in the way of inconvenient facts. I earnestly hope that the court doesn’t continue to utilize the ostrich approach in drafting opinions. Virginians deserve better.