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Linda Eberhardt, an employee of the Fairfax County School Board and a member of the Fairfax County Employees' Retirement Systems (FCERS), was injured during the course of her employment. Eberhardt applied for service-connected disability retirement benefits. The FCERS Board of Trustees denied Eberhardt's application for service-connected disability retirement benefits but awarded ordinary disability retirement benefits. Eberhardt appealed under Va. Code Ann. 51.1-823. The Board filed a motion to dismiss, asserting that the circuit court lacked subject-matter jurisdiction to hear the appeal because section 51.1-823 applied only to police officers' retirement systems in counties with the urban executive form of government. The court granted the motion. The Supreme Court affirmed, holding that the circuit court correctly ruled that section 51.1-823 did not confer jurisdiction upon it to hear Eberhardt's appeal because the word "board" as used in section 51.1-823 did not encompass the board of any retirement system created by a county having an urban executive form of government.Receive FREE Daily Opinion Summaries by Email
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LINDA A. EBERHARDT
Record No. 101761
JUSTICE WILLIAM C. MIMS
January 13, 2012
FAIRFAX COUNTY EMPLOYEES’
RETIREMENT SYSTEM BOARD OF TRUSTEES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
In this appeal, we consider whether Code § 51.1-823
confers jurisdiction upon a circuit court to hear an appeal
from a decision of the board of trustees of a retirement
system, other than a police retirement system, in a county
having the urban executive form of government.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Linda A. Eberhardt was an employee of the Fairfax County
School Board from April 1991 to September 2009.
2007, she suffered injuries to her back and neck while at work
and was transported to a hospital by ambulance.
subsequently filed a claim with the Workers’ Compensation
The parties stipulated that her injury arose out
of and in the course of her employment, and that she was
totally disabled from performing her pre-injury work duties
from January 2007 to June 2007 and thereafter from August 2007.
As a school board employee, Eberhardt was a member of the
Fairfax County Employees’ Retirement Systems (“FCERS”).
members are eligible for service-connected disability
retirement benefits if the disability is due to injury by
accident arising out of and in the course of their employment.
Fairfax County Code § 3-2-35.
Alternatively, members may be
eligible for ordinary disability retirement benefits if the
injury is not job-related.
Fairfax County Code § 3-2-33.
determination to award either service-connected or ordinary
disability retirement benefits is made by the FCERS board of
trustees (“the Board”) on the recommendation of its medical
Fairfax County Code §§ 3-2-33 and 3-2-35.
In July 2008, Eberhardt applied for service-connected
disability retirement benefits.
On the recommendation of the
medical examining board, the Board denied her application in
Eberhardt appealed the Board’s decision as
provided by Fairfax County ordinance. 1 In April 2010, the Board
again denied her application for service-connected disability
retirement benefits but awarded ordinary disability retirement
In May 2010, Eberhardt filed an appeal from the Board’s
determination in the circuit court, ostensibly under Code
§ 51.1-823, which provides that “[a]n appeal of right from the
action of the retirement board of any county having an urban
Though described in the ordinance as an appeal, the
procedure essentially is a rehearing because the adverse
decision is reviewed by the very body that originally rendered
it. See Fairfax County Code § 3-2-49(a) (“Any member adversely
affected by a decision of the Board shall receive written
notice of said decision and may, within thirty (30) days of
receipt of said notice, request in writing a review by the
Board of said decision, pursuant to procedures established by
county executive form of government on any matter in which the
board has discretionary power shall lie to the circuit court of
the county which has jurisdiction of the board.”
filed a motion to dismiss asserting that the court lacked
subject-matter jurisdiction to hear the appeal because Code
§ 51.1-823 applies only to police officers’ retirement systems
in counties with the urban executive form of government.
court granted the motion to dismiss and we awarded Eberhardt
Eberhardt asserts the circuit court erred (1) by
considering legislative history to interpret Code § 51.1-823
when, she contends, the statutory language is unambiguous and
(2) by holding that the term “retirement board” meant only the
retirement board of the police officers’ retirement system
despite the plain language of the statute.
A. STANDARD OF REVIEW
We review a circuit court’s interpretation of statutes de
Jones v. Williams, 280 Va. 635, 638, 701 S.E.2d 405, 406
When a statute is clear and unambiguous, “a court may
look only to the words of the statute to determine its
Hubbard v. Henrico Ltd. P’shp, 255 Va. 335, 339, 497
S.E.2d 335, 337 (1998).
It may not “consider rules of
statutory construction, legislative history, or extrinsic
Perez v. Capital One Bank, 258 Va. 612, 616, 522
S.E.2d 874, 876 (1999).
However, while the Code of Virginia is
often regarded as the complete statutory law of the
Commonwealth, that is not the case.
Statutes are enacted by
the General Assembly but the Code is arranged and published by
the Virginia Code Commission, an entity created by the General
Code § 30-145 and 30-146.
The General Assembly has authorized the Commission to
codify the “general and permanent statutes” enacted each year,
Code §§ 30-146 and 30-147(A), but the underlying enacted
legislation is found in the Acts of Assembly and is the
complete and accurate statutory law of the Commonwealth. 2
Because the authoritative text of any statute is the text
enacted by the General Assembly, reference to the legislation
printed in the Acts of Assembly upon enactment does not offend
the well-established rule against considering rules of
statutory construction, legislative history, or extrinsic
Simply put, the language of the Acts of Assembly is
the plain language of the statute. 3
Because the Commission’s statutory mandate includes only
codifying general and permanent statutes, the Code omits many
laws because they are not general, such as locality-specific
charter amendments, e.g., 2011 Acts ch. 454, or are not
permanent, such as the biennial appropriations act and its
amendments, e.g., 2010 Acts ch. 874 and 2011 Acts ch. 890.
Rarely, the codified language of a statute may diverge
from the language enacted by the General Assembly because of
error by the Commission, in which case courts rely on the
legislative text found in the Acts of Assembly. Alger v.
Commonwealth, 267 Va. 255, 257 n.1, 590 S.E.2d 563, 564 n.1
(2004) (When the Code diverges from the enacted bill, “[w]e
consider only the language actually adopted by the General
Likewise, consideration of the entire statute – i.e., the
entirety of a single legislative enactment as it appears in the
Acts of Assembly as a whole – to place its terms in context to
ascertain their plain meaning does not offend the rule because
“it is our duty to interpret the several parts of a statute as
a consistent and harmonious whole so as to effectuate the
A statute is not to be construed by singling
out a particular phrase.”
Virginia Electric & Power Co. v.
Board of County Supervisors, 226 Va. 382, 387-88, 309 S.E.2d
308, 311 (1983) (internal quotation marks and alterations
Accordingly, it is proper to consider the text of
House Bill 821 as enacted on April 9, 1990, and printed as
Chapter 832 of the Acts of Assembly of 1990 (“the
Recodification Act”), to ascertain the plain meaning of Code
§ 51.1-823 because that legislative enactment is the source of
the codified text.
THE MEANING OF “BOARD” IN CODE § 51.1-823
Code § 51.1-823 refers to a board that is not defined in
that section of the Code and it is the meaning of the word
“board” that the parties dispute in this case:
contends the word means the board of any retirement system
created by a county having an urban executive form of
Assembly.”). While that has not occurred in the statutes
applicable in this case, the proposition underscores the
primacy of the Acts of Assembly.
government, while FCERS contends it means only the board of a
police officers’ retirement system created by such a county.
A corollary of the rule that courts interpret a statute as
a consistent and harmonious whole is that when a term is used
in different sections of a statute, we give it the same meaning
in each instance unless there is a clear indication the General
Assembly intended a different meaning.
See Board of
Supervisors v. Marshall, 215 Va. 756, 761-62, 214 S.E.2d 146,
150 (1975) (“[W]here a word is used in different sections of a
statute and its meaning is clear in all but one instance, the
same meaning will be attributed to it elsewhere unless there be
something in the context which clearly indicates that the
Legislature intended some other and different meaning.”
(internal quotation marks and alterations omitted)).
Accordingly, we may look to the remainder of the Recodification
Act, particularly within the same subdivision in which the
provision codified as Code § 51.1-823 appears, to ascertain
whether the word “board” is clarified there.
In this case, it
The provision codified as Code § 51.1-821 incorporates by
reference Chapter 303 of the Acts of Assembly of 1944, titled
“An ACT to provide for the establishment, maintenance and
administration of a system of pensions and retirements for the
benefit of the personnel of police departments of any county
[meeting certain criteria],” (“the Fairfax Police Retirement
System Enabling Act”).
Section 1 of that enactment states that
[t]he governing body of any county [meeting
certain criteria met only by Fairfax County at
the time of enactment] is empowered and
authorized to create and establish as
hereinafter provided a board to be known as the
“policemen’s pension and retirement board” of
the county, herein after referred to as the
1944 Acts ch. 303.
Significantly, there is no alternative or
superseding definition of the word “board” anywhere within the
subdivision of the Recodification Act in which the provision
codified as Code § 51.1-823 appears.
Eberhardt next contends that the definition of the word
“board,” which is incorporated by operation of Code § 51.1-821
into the article into which Code § 51.1-823 was codified, is
superseded by the term “retirement board” that precedes it in
the same sentence within Code § 51.1-823.
By doing so, she
posits that the word “board” is susceptible to two meanings
within the same subdivision of the statute.
Thus it may refer
to two different boards within the same article.
“A statute is ambiguous if the text can be understood in
more than one way or refers to two or more things
simultaneously or when the language is difficult to comprehend,
is of doubtful import, or lacks clearness or definiteness.”
Covel v. Town of Vienna, 280 Va. 151, 158, 694 S.E.2d 609, 614
(quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8, 623 S.E.2d
922, 926 n.8 (2006)) (internal quotation marks omitted).
Courts may consider the legislative history of the statutory
language to resolve such an ambiguity.
Co. v. Prince William County Serv. Auth., 246 Va. 509, 515, 436
S.E.2d 618, 621 (1993).
As previously noted, the provision codified as Code
§ 51.1-823 was enacted upon the approval of the Recodification
The Act was the legislative implementation of the
Virginia Code Commission’s report on the revision of former
Title 51 of the Code of Virginia.
The report explains that the
provision codified as Code § 51.1-823 preserved the same right
of appeal provided by § 13 of the Fairfax Police Retirement
System Enabling Act, which had subsequently been codified in
Virginia Code Commission, Report on
former Code § 51-127.28.
the Revision of Title 51 of the Code of Virginia, House Doc.
No. 52, at 121 (1990).
Both former Code § 51-127.28 and § 13
of the Fairfax Police Retirement System Enabling Act provided
that “[a]n appeal of right from the action of the board on any
matter in which the board is given discretionary power shall
lie to the circuit court of the county within whose
jurisdiction the board is.”
While the recodification removed
former Code §§ 51-127.10 through -127.30 from the Code of
Virginia, those provisions remain statutory law because Code
§ 51.1-821 expressly incorporates the identical, earlier
statutory language found in the Fairfax Police Retirement
System Enabling Act prior to its codification in former Title
As noted above, § 1 of the Fairfax Police Retirement
System Enabling Act defines the word “board” as used throughout
the act as the board governing the police retirement system
enabled by that act.
The Virginia Code Commission report thus resolves any
ambiguity about the word “board” as used in Code § 51.1-823.
The word “board” there does not encompass the board of any
retirement system created by a county having an urban executive
form of government as Eberhardt contends and Code § 51.1-823
confers no greater right of appeal than § 13 of the Fairfax
Police Retirement System Enabling Act.
circuit court correctly ruled that Code § 51.1-823 did not
confer jurisdiction upon it to hear Eberhardt’s appeal and we
will affirm its judgment.