27 Feb Gloucester County Schools: Va. Code Ann. §15.2-209 – a Lawyer’s Notice
In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds.
§15.2-209 was passed in the 2007 session of the General Assembly and did not become effective until July 1, 2007. Hence it does not apply retroactively to causes of action accruing before that date.
§15.2-209 as a statute “in derogation of the common law . . . must be ‘strictly construed and not . . . enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found v. Morris, 275 Va. 319, 332 (2008). It also must be strictly construed because §15.2-209 so states expressly. See, §15.2-209(G). Such strict construction limits the applicability of §15.2-209 in several significant ways.
First, by its own language, §15.2-209 is strictly limited only to a claim for simple “negligence”. See, §15.2-209(A). It does not apply to claims of recklessness or gross negligence.
Second, by its own language, §15.2-209 applies only to a “county, city, or town,” not to a “school board”. §8.01-222 was the predecessor of §15.2-209: §8.01-222 was repealed incident to §15.2-209 being enacted by 2007 Senate Bill 913, approved March 15, 2007. §8.01-222 covered only a “city” or “town”. §15.2-209 added only a “county”. If the General Assembly meant to cover a “school board,” it could, should and would have done so in its new enactment; but it did not.
Although some people lump the County and School Board together in some undifferentiated whole, as if the School Board simply was subsumed by the county; the fact is that they are distinct. Legally, they are different entities, notwithstanding both are public authorities with somewhat similar names.
The School Board and the county were created separately by the Virginia Constitution. That is explicated by statute and confirmed by jurisprudence.
The County was created under Article VII of the Virginia Constitution. Its enabling statutes are found in Title 15.2 of the Code of Virginia. The School Board instead was created under Section 7 of Article VIII of the Virginia Constitution. Its enabling statutes are found in Title 22.1 of the Code of Virginia.
Section §22.1-71 specifically declares that the School Board is a “body corporate” and that as such it “is vested with all powers and charged with all the duties, obligations and responsibilities imposed upon school board by law and may sue, be sued,” etc. Section §22.1-293 provides that “assistant principals” are employees of the School Board.
For decades, numerous state and federal decisions have construed these constitutional and statutory literally. E.g., Bacon v. City of Richmond, 475 F. 3d. 633, 640-641, 642 (4th Cir. 2007) (Virginia law)(and cases cited therein)(“The School Board’s independence is further illustrated by its statutory authority to sue and be sued,” among other things); County School Board of Fairfax County v. Whitlow, Inc., 233 Va. 157, 158 (1982)(“We think it clear that school boards are incorporated within the meaning of Code §8.01-231”); Scott County School Board v. Scott County Board of Supervisors, 169 Va. 213 (1937). Cf., Kellam v. The School Board of the City of Norfolk, 202 Va. 252 (1960). Despite being required by law to levy on its residents toward funding education, the county has no control or power over School Board. Scott County.
Third, by its own language, §15.2-209 covers only claims “against any county, city, or town” itself, not against any officer, agent or employee of the foregoing. See, §15.2-209(A). Such additional coverage cannot be inferred and read into Subsection A; the General Assembly actually considered such individuals and consciously left them out of Subsection A. The General Assembly chose to reference such individuals only in Subsection E, thereby preserving any potential sovereign immunity of theirs, while not entitling them any notice: “E. This section does not, and shall not be construed to, abrogate, limit, expand or modify the sovereign immunity of any county, city, town, or any officer, agent or employee of the foregoing.” §15.2-209(E)(emphasis added).
The one-year statutory notice provision of the state is analogous. See, Va. Code Ann. §8.01-196.2, et seq. It is hornbook law that failure to fulfill that notice requirement bars only a claim against the Commonwealth itself, not its officer, agent or employee.
Other municipal jurisprudence has distinguished between an entity and its employees. Analogously, the Virginia Supreme Court has differentiated a school board and its employee vis-à-vis immunity entitlements. Short v. Griffitts, 220 Va. 53 (1979); Crabbe v. School Board, 209 Va. 356 (1968).
Further, and most fundamentally, a School Board employee is not even an employee of the County. He is an employee of the School Board only. See, Va. Code Ann. §22.1-293.