Opposition Brief — Bockes v. Fields

Court, U >

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a) | DEC 2 7 1993

No. 93-818 |

In The

Supreme Court of the United States

October Term, 1993

NANCY BOCKES,

Petitioner,

BETTYE LOU FIELDS, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

Rosert V. Warp

Warp & BisHop

P. O. Box 1809

Bristol, VA 24203-1809

(703) 466-8033

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

_|BEST AVAILABLE LE COPY; ub

SE AR ar at ONT R ae a ER 3 ARE ote WN

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QUESTIONS PRESENTED

(1) WHETHER A LOCAL BOARD OF SOCIAL SER-

VICES IS AN AGENT OF THE STATE FOR ELEVENTH

AMENDMENT PURPOSES WHEN A JUDGMENT

AGAINST THE LOCAL BOARD WOULD NECESSARILY

EFFECT THE STATE TREASURY?

(2) WHETHER A COUNTY MAY BE HELD LIABLE

FOR THE ACTIONS OF A LOCAL BOARD OF SOCIAL

SERVICES WHEN THE ACTIONS SURROUND THE

IMPLEMENTATION OF STATE POLICY RATHER THAN

COUNTY POLICY?

LIST OF PARTIES

MS. NANCY BOCKES, Petitioner

MS. BETTYE LOU FIELDS, in her official capacity as

member and Chairman of the Grayson County Board of

Social Services,

MR. ROBERT WELLS, in his official capacity as member

of the Grayson County Board of Social Services,

MR. DENNIS COOLEY, in his official capacity as member

of the Grayson County Board of Social Services,

GRAYSON COUNTY DEPARTMENT OF SOCIAL SER-

VICES,

and

GRAYSON COUNTY, VIRGINIA,

Respondents.

Page

QUESTIONS PRESENTED

LIST OF PARTIES i}

TABLE OF AUTHORITIES tii

CONSTILUTIONAL PROVISIONS, STA

RULES INVOLVED

STATEMENT OF THE CASI

SUMMARY OF Tt

ARGUMENT 12

CONCLUSION 27

TABLE OF AUTHORITIES

Page

CASES

Blaylock v. Schwinden, 862 F.2d 1352 (9th Cir.

SG a iN aaa ea eee oe eae ee eee 14

Benning v. Board of Regents of Regency Univer-

sity, S20 F.20 Fo CEN CE. FOP) one ks ke ches cee us 14

Bockes v. Fields, 798 F.Supp. 1219 (W.D. Va. 1992) ..... 8

City of St. Louis v. Propotnik, 485 U.S. 112 (1988) .... 26

Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986)..... 23

County of Fairfax v. Southern Iron Works, Inc. 242

Va. 435, 410 S.E.20 G74 C1991) «onc cccwccccvssccas 25

Edelman v. Jordan, 415 U.S. 651 (1974)........... 10, 15

Ex Parte Young, 209 U.S. 123 (1908).......... it, 34,45

Ford Motor Co. v. Department of Treasury 323

SEs EE 2 ca os oa cae ees be ek 12

Great Northern Life Insurance Company v. Read,

ee Ss EE CEE ooh rs oak ede eae 12, 15

Hawaii v. Gordon, 373 U.S. 57 (1963) ............... 12

Holland v. Rimmer, Docket No. 93-1447 (4th Cir.

UALS RNR ote ae eae aS of eee, ae ee ee ee eee 18

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194

A | IR eR AL ANTE RO a ER Syed Cerda NE Png ch ne tbr 28

Keller v. Prince George’s County (Keller II), 923

Pe er ee Ee es sor aaa ko xh oe eee ees 18

Monell v. Department of Social Services, 436 U.S.

Set. ee ce. eee CPEs oss vacua eoke eked een we

Morrash v. Strobel, 842 F.2d 64 (4th Cir. 1987) ...11, 24

Mt. Healthy City School District Board of Educa-

tien v. Coyne, 429 US. 278 CST a ccc ic cesses 18

TABLE OF AUTHORITIES —- Continued

Page

Parratt v. Taylor, 451 U.S. 527 (1981)............. 10, 28

Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292

ti) ey are rr rer my meen ATs: 23, 24

Pennhurst State School & Hospital v. Halderman,

S65 US. OP CIR 6 5 shea ee 12

Revene v. Charles County Commissioners, 882

F206 G70 (00h Cie. TPP. bcs cles carseat 12

Scheuer v. Rhodes, 416 U.S. 232 (1974).............. 15

Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985)........ 14

STATUTES

42 US... SOCOM TIGR. o6 cao ok bo eee

Code of Virginia, Section 1-13.17.................. 1, 26

Code of Virginia, Section 2.1-526.8:1............... Re

Code of Virginia, Section 63.1-25........ 1, 4, 19, 24, 26

Code of Virginia, Section 63.1-33.................. 2, 19

Code of Virginia, Section 63.1-34.................. Z, 19

Code of Virginia, Section 63.1-37..................3, 19

Code of Virginia, Section 63.1-44..................... 6

Code of Virginia, Section 63.1-50..............3, 19, 24

Code of Virginia, Section 63.1-56..................... 4

Code of Virginia, Section 63.1-91..................3, 21

Code of Virginia, Section 63.1-92............... 3, 5, 21

Code of Virginia, Section 63.1-106.................... 4

Code of Virginia, Section 63.1-116................. 6, 19

Code of Virginia, Section 63.1-118................. 7, 20

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED

1. U.S. Constitution Amendment XI

The judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States by

citizens of another State, or by citizens or subjects of any

foreign state.

2. Va. Code § 1-13.17.

Ordinances, etc., not to be inconsistent with Consti-

tution and laws.

When the council or authorities of any city or town,

or any corporation, board, or number of persons, are

authorized to make ordinances, bylaws, rules, regulations

or orders, it shall be understood that the same must not

be inconsistent with the Constitution and laws of the

United States or of this Commonwealth.

3. Va. Code § 2.1-526.8:1.

Insurance plans administered by the Department of

General Services, Division of Risk Management, for

political subdivisions and constitutional officers.

See: Petition of Ms. Bockes, 2-3.

4. Va. Code § 63.1-25.

Making rules and regulations.

The State Board shall make such rules and regula-

tions, not in conflict with this title, as may be necessary or

desirable to carry out the true purpose and intent of this

title.

No

The Board also may make such rules and regulations

as may be necessary in authorizing local boards of public

welfare to destroy or otherwise dispose of such records as

the local boards in their discretion deem are no longer

necessary in such offices and which serve no further

administrative historical or financial purpose.

5. Va. Code § 63.1-33.

Requiring reports from local boards; forms and sub-

mission schedule; approval of budgets by Commis-

sioner.

A. The Commissioner shall require of local boards

such reports relating to the administration of this title as

the Commissioner may deem necessary to enable the

State Board and the Commissioner to exercise and per-

form the functions, duties and powers conferred and

imposed by this title. He shall prescribe the form and

submission schedule of applications, reports, affidavits,

budgets and budget exhibits, and such other forms as

may be required in the administration of this title.

B. The Commissioner shall review budget requests

submitted by local boards of public welfare, make mod-

ifications consistent with the requirements of this title

and transmit the approved budget to each local board.

6. Va. Code § 63.1-34.

Access to records of local boards.

The Commissioner or his designated agents shall

have access at all times to the records of the local boards

relating to the appropriation, expenditure and distribu-

tion of funds for, and other matters concerning, assistance

and services under this title.

7. Va. Code § 63.1-37.

Standards for personnel.

The Commissioner shall enforce the entrance and

performance standards established by the State Board for

personnel employed in the administration of this title and

remove each employee who does not meet such stan-

dards.

8. Va. Code § 63.1-50.

Administration of law.

The local boards shall, subject to the rules and regu-

lations of the State Board, administer the provisions of

Chapters 3 (§ 63.1-38 et seq.), 4 (§ 63.1-59 et seq.) and 6

(§ 63.1-86 et seq.) of this title in their respective counties

and cities.

9. Va. Code § 63.1-91.

Local appropriation.

See: Petition, 5.

10. Va. Code § 63.1-92.

Reimbursement of localities by the Commonwealth.

Such funds as are received from the United States

and agencies thereof as grants-in-aid for the purpose of

providing assistance grants shall be paid monthly by the

Commissioner to each county, city or district fiscal officer

as reimbursement of the federal share of such grants as

have been paid by each county and city under the provi-

sions of this law. Within the limits of the appropriations

of state funds, the Commissioner shall also reimburse

monthly each county, city or district fiscal officer to the

extent of sixty-two and one-half percent of the balance of

such assistance grants as have been paid by each county,

city or district fiscal officer after crediting them with the

reimbursement made from federal funds; however, on

and after January 1, 1972, within the limits of the appro-

priations of state funds, the Commissioner shall make

such reimbursements for the entire balance of such grants

as have been paid by each city, county or district fiscal

officer after such credits. Within limitations of state

funds, the Commissioner shall reimburse monthly each

city, county or district fiscal officer to the extent of sixty-

two and one-half percent of such expenditures made in

connection with assistance provided under §§ 63.1-25.1

and 63.1-106. Within the limitations of the appropriations

of state funds for the purpose, the Commissioner shall

reimburse at the end of the fiscal year each city, county or

district fiscal officer to the extent of eighty percent of

expenditures made for auxiliary grants pursuant to

§ 63.1-25.1. Within limitation of state funds appropriated

for the purpose, the Commissioner shall reimburse to

each county, city or district fiscal officer an amount not

less than fifty percent or more than sixty-two and one-

half percent of such expenditures, not federally reimburs-

able, made for the care of children placed in family

homes or institutions pursuant to § 63.1-56.

Administrative expenditures made by the localities in

connection with the providing of assistance grants, other

benefits and related services, including child welfare,

shall be ascertained by the State Board, and the Commis-

sioner shall, within the limits of available federal funds

and state appropriations, reimburse monthly each county,

city or district fiscal officer therefor out of such federal

and state funds in an amount to be determined by the

State Board not less than fifty percent of such administra-

tive costs.

The Commissioner also shall reimburse monthly, to

the extent of funds available for such purpose, each

county, city or district fiscal officer out. of state and fed-

eral funds, to the extent provided in the preceding para-

graph, for monthly rental payments for office space

provided the department of public welfare or social ser-

vices in publicly owned buildings, for payments which

are based on the cost of initial construction or purchase of

a building or a reasonable amount for depreciation of

such building, and/or the cost of repairs and alterations

to either a privately or publicly owned building. How-

ever, no monthly rental payment shall exceed a reason-

able amount as determined by the Commissioner.

In the event the issuance of checks by the Common-

wealth is adopted as provided in § 63.1-92.1, local boards

issuing emergency payments as authorized by law shall

be reimbursed by the Commonwealth for such payments

as provided in this section.

Claims for reimbursement shall be presented by the

local board to the Commissioner, and shall be itemized

and verified in such manner as the Commissioner may

require. Such claim shall, upon the approval of the Com-

missioner, be paid out of funds appropriated by the Com-

monwealth and funds received from the federal

government for the purposes of this law, to the treasurer

or other fiscal officer of the county or city. Wherever two

Or more counties or cities have been combined to form a

welfare district pursuant to § 63.1-44, reimbursements by

the Commissioner under this section shall be paid to the

district fiscal officer or other person designated to receive

such funds by the governing bodies of such counties or

cities. Effective July 1, 1972, however, the Commonwealth

shall reimburse each county and city the full amount of

assistance grants provided for aid to dependent children.

11. Va. Code § 63.1-116.

Right of appeal to State Board.

Any applicant or recipient aggrieved by any decision

of a local board in granting, denying, changing or discon-

tinuing assistance, may, within thirty days after receiving

notice in writing of such decision appeal therefrom to, or

ask for a review of the same by the State Board.

Any applicant or recipient aggrieved by the failure of

the local board to make a decision within a reasonable

time may ask for a review of the same by the State Board.

The Board may, from time to time as it deems appro-

priate, appoint a committee consiscing of any three of its

members to consider and make final determinations on

any such appeal or review

The Board may delegate the duty and authority to

duly qualified hearing officers to consider and make

determinations on any appeal or review by an applicant

for or recipient of public assistance concerning any deci-

sion of a local board. The determination by the hearing

officer may be reviewed by the Board upon the request of

either the applicant, recipient or the local board. A review

of the hearing officer’s determination by the Board shall

/

be governed by such rules and procedure as the Board

shall determine.

12 Va. Code § 63.1-118

Review by State Board on own motion; application

not acted on by local board.

The State Board may, upon its own motion, review

any decision of a local board, and may consider any

application for assistance upon which a decision 1s not

made bv the local board within a reasonable time.

+

STATEMENT OF THE CASE

Shortly after Bettye Lou Fields, Robert Wells and

Dennis Cooley were appointed to the Board of Social

Services of Grayson County, Virginia, (“the board”), the

board came to the conclusion that it was no longer in the

best interest of the Grayson County Department of Social

Services, (“the department”), that Nancy Bockes, (“Ms.

Bockes”), continue as the director of the Department.

A53-58. The board consulted an attorney for advice as to

how to terminate the employment of Ms. Bockes. The

advice given to the board was that Ms. Bockes served at

the pleasure of the board and that her employment could

be terminated by the board. A53-58. In accordance with

their attornev’s advice, the board terminated Ms. Bockes

employment on June 8, 1990 A56-57

Ms. Bockes instituted a grievance claiming that her

termination did not comply with Volume 1A of the Local

Personnel Administrative Manual prepared by the Vir-

ginia Department of Social Services A30. A grievance

panel was convened under the state grievance procedure

and the panel reinstated Ms. Bockes with half of her back

pay and the appropriate benefits that would have been

earned for that amount of pay. A35-36.

Ms. Bockes instituted this action against the County

of Grayson, the members of the board in their individual

and official capacities, and the Grayson County Depart-

ment of Social Services to recover the back pay not

awarded by the grievance panel and attorney fees. After

hearing the evidence, the District Court held as a matter

of law that Ms. Bockes was a “permanent employee”

under the state personnel plan and that because a pre-

termination hearing was not held, Ms. Bockes was denied

due process. A15-16. The District Court allowed the case

to go to the jury on the issue of damages alone and the

jury returned a verdict of $20,000.00 for Ms. Bockes,

approximately $13,000.00 of which had been stipulated

by the parties. Al4. The District Court entered judgment

for Ms. Bockes against the County of Grayson. The Dis-

trict Court entered judgment in favor of the department

and the board. A27.

Accompanying the final order of the District Court

was an opinion which set forth the grounds for the deci-

sion. Bockes v. Fields, 798 F.Supp. 1219 (W.D. Va. 1992).

The opinion held that due primarily to the appointment

of the local board by the county, the county must be liable

for any damages suffered by Ms. Bockes. A25-26. This

finding was a partial basis for Grayson County, Virginia’s

appeal to the Fourth Circuit.

The District Court further determined that the board

and the department were agencies of the Commonwealth.

The basis for this holding was the finding that the struc-

ture and organization of the local department is so inter-

twined with the state department to warrant a finding

that the local department is the alter ego of the state

department. The Court found that the Commonwealth of

Virginia provided 80% of the funding for most of the local

department's operations. The court further found that the

Commonwealth of Virginia would be responsible for 80%

of the payment of any judgment and that this payment of

damages would necessarily affect the state treasury. Thus,

the court concluded, recovery against the local depart-

ment or the board would violate the Eleventh Amend-

ment. A20-22. This finding was the basis for Ms. Bockes

appeal to the Fourth Circuit.

The District Court also held that tne members of the

board in their individual capacity were entitled to quali-

fied immunity. This holding was not appealed by Ms.

Bockes and is scarcely mentioned in her petition, how-

ever, it is crucial to a proper understanding of the opinion

of the Fourth Circuit.

The Court of Appeals affirmed the District Court's

holding of Eleventh Amendment immunity for the Gray-

son County Department of Social Services. The Court of

Appeals concluded that the Commonwealth of Virginia

provided 80% of the funding for most of the local depart-

ment’s operations. The court further found that the Com-

monwealth of Virginia would be responsible for 80% of

the payment of any judgment and that this payment of

damages would necessarily affect the state treasury. As

Ms. Bockes did not appeal the grant of qualified immu-

nity to the board members in their official capacities, the

Court of Appeals was faced only with an official capacity

10

action for damages. As such, the Court of Appeals

affirmed the District Court's ruling that the local board

and local department is an agency of the Commonwealth

of Virginia for Eleventh Amendment purposes. A7-9

With respect to the County, the Court of Appeals held

that due to the domination of personnel policy by the

state, the county was pre-empted from regulating person-

nel policy for the local department. The authority to

regulate personnel policy with respect to personnel mat-

ters is retained by the State Board. A9-10. The respon-

dents contended before the Court of Appeals that under

state law at the time of Ms. Bockes’ termination she had

no reasonable expectation of continued employment

Alternatively, the county contended that if Ms. Bockes

did have such an expectation, the actions of the local

board constituted random and unauthorized actions as

defined under Parratt v. Taylor, 451 U.S. 527 (1981), and

that the grievance procedure remedied any deprivations

suffered by Ms. Bockes. The Court of Appeals did not

address these issues. Al10. The Court of Appeals denied

Ms. Bockes’ petition for rehearing. A28-29

ee +

SUMMARY OF THE ARGUMENT

The Eleventh Amendment bars an action in federal

court for the recovery of money from the state. Edelman v

Jordan, 415 U.S. 651 (1974). It is undisputed that any

recovery in this case would constitute a recovery from the

Commonwealth of Virginia. The reliance of Ms. Bockes

upon the cases which provide that a state may not extend

1]

Eleventh Amendment protection to its employees in their

individual capacities through promises of indemnity is

misplaced. This line of cases, referred to by Ms. Bockes as

the indemnity cases, arose from this Court’s ruling in Ex

Parte Young, 209 U.S. 123 (1908). Due to the fact no

officials in their individual capacities were before the

I Darte Youne

Court of Appeals, the rationale of Ex Par zy and the

‘indemnity cases, is not applicable to the present situation

t

[he Virginia State Department of Social Services

extensively regulates policy respecting the personnel of

local departments of soc ial services. By virtue of the state

department's 840 page regulatory personnel manual, the

state pre-empts counties from the entire personnel field

[T]he key issue in identifying a policymaker is

1 question not of who possesses final control

over polic v in form or theory, but rather of who

wields that authority in tact

2d 64. 68 (1987), (Citation omit

It is clear that the State Board, by and through its

personnel regulations wields the actual authority over

personnel policy decisions. Any policy made by the local

board is attributable only to the state

Ms. Bockes presents no true conflict between the

Court of Appeals decision and any decisions of other

Courts of Appeals or state courts ol last resort. The

decision of the Court of Appeals is not in conflict with

any decisions of this Court. The Court of Appeals for the

Fourth Circuit presently has at least one case before it

which will help define the scope of its Eleventh Amend-

ment decision in this case

ARGUMENT

It is well settled that the Eleventh Amendment bars

liability of certain officials when the practical effect of the

liability would be the same as a judgment against the

state. Pennhurst State School & Hospital v. Halderman, 465

U.S. 89, 123, n. 34, (1984). “[W]hen the action is in essence

one for the recovery of money from the state, the state is

the real, substantial party in interest and is entitled to

invoke its sovereign immunity from suit even though

individual officials are nominal defendants.” Ford Motor

Co. v. Department of Treasury, 323 U.S. 459, 464 (1945).

When relief is sought nominally against an officer or

agency of the state it is in fact against the sovereign if the

decree would operate against the state. Hawati v. Gordon,

373 U.S. 57, 58 (1963) (per curiam). The Eleventh Amend-

ment does not bar an action against a state official or

employee individually for his tortious conduct. Great

Northern Life Insurance Co. v. Read, 322 U.S. 47, 50-51

(1944). However, a lawsuit against an official in his offi-

cial capacity only is actually a lawsuit against the office

and the governmental entity itself. Revene v. Charles

County Commissioners, 882 F.2d 870, 874 (4th Cir. 1989).

The District Court determined that the members of the

local board, by consulting an attorney prior to the termi-

nation of Ms. Bockes, acted objectively reasonable and

were entitled to qualified immunity in their individual

capacities. Al3. Ms. Bockes did not appeal this deter-

mination. As such, for Eleventh Amendment purposes,

the only remaining defendants were the local board, and

the local department, both governmental agencies. The

case before the Court of Appeals was an appeal of a

decision in favor of governmental agencies. The question

13

presented was whether these agencies were agencies of

the state for Eleventh Amendment purposes.

The Court of Appeals’ decision was based primarily

upon the Commonwealth of Virginia’s funding of 80% of

the administrative operating costs of local social services

departments, including the refund of 80% of the premium

cost of a state held and operated liability insurance plan.

A7-9. The Public Officials Liability Self-Insurance Plan, or

POLSIP, is administered by the Commonwealth of Vir-

ginia, Department of General Services, Division of Risk

Management. A41-42. The amount of premium paid by

the state, if any, varies with respect to the type of agency

or political subdivision. Although 2.1-526.8:1, the statute

which creates the POLSIP, provides for no state contribu-

tions, the undisputed evidence is that for social services

departments, the state essentially pays 80% of the pre-

mium costs and that any judgment paid under the policy

would be taken from a fund established by payment of

these premiums. A40, 49.

The assets of the plan are invested by the Treasurer of

the Commonwealth and the fund is held in the name of

the Commonwealth. A check for the satisfaction of any

judgment against the plan must be signed by the Trea-

surer of the Commonwealth. A41-42. Any judgments paid

under the POLSIP come directly from the funds that have

been paid in for each type of agency. A41-42.

The District Court found that a judgment against the

department of social services would “inexorably affect

the state treasury as a majority of state money was paid

A21. This holding was

ut

into the insurance fund

affirmed by the Court of Appeals. A8. Ms. Bockes does

™

not contest the determination that state money is paid

into the fund on behalf of the local department. Ms

Bockes does not contend that none of this state money

would be used to satisfy any judgment against the

partment. Rather, Ms. Bockes focuses upon the nature

ot the state payments and argues that under the Court of

AI pe als’ decision, the state essentially allows depart

ments to purchase Eleventh Amendment protec tion

tron, 11. As will be examined, this argument relies

primarily upon assumption and speculation. Ms. Bockes

,

cites no authority which conflicts with the Court of

Appeals’ decision

lhe thrust of Ms. Bockes’ argument on the Eleventh

Amendment issue is based upon comparisons to cases

which have held that the promise by a state to indemnify

its officials can not be held to extend the state’s immunity

to the official if the official is facing liabilitv in his indi

, | | l, soe , ls , - )

vidual capacity. See e.g., Blaylock Schwinden, 862 F.2d

1352 (9th Cir. 1988); Benning v. Board of Regents of Regency

ersities, 928 F.2d 775; Wilson v. Beebe, 770 F.2d 578,

6th Cir. 1985). These cases. referred to by Ms. Bockes as

the indemnity cases simply hold that a state cannot

extend its immunity to officials in their individual] capaci

ties

[he indemnity line of cases are based primarily on

this Court’s decision in Ex Parte Young, 209 U.S. 123

1908). In that case, the Court stated that when a state

otticer acts in a manner violative of the Constitution. he

comes into conflict with the superior authority

of that Constitution, and he is in that case strip-

ped of his official or representative character

16

the Eleventh Amendment would have precluded any

judgment if the judgment was to be paid from state

funds. Further, if there were any doubt in the indemnity

cases as to whether the-official was a state official or a

local official, surely the state’s willingness to indemnify

the official would be a persuasive indication that the

official was a state official. Likewise, in the present case,

it is difficult to imagine why the state would willingly

agree to provide funds for insurance against liability for

the actions of the departments of social services and the

local board members in their official capacities if the state

did not believe itself potentially liable for those actions.

Ms. Bockes relies heavily on her affidavit, which

states that it is her “understanding” that the county

would be liable for the payment of any judgment in the

absence of insurance. The basis of this “understanding” is

not provided. This portion of Ms. Bockes’ affidavit is

essentially a lay opinion and a conclusion of law. It was

provided after a trial on the merits, without an oppor-

tunity for cross-examination. This “understanding” is

especially unpersuasive in light of state law. It is undis-

puted that the state pays the vast majority of all expendi-

tures of local departments. This “understanding” is also

in conflict with the letter of November 14, 1986 from the

State Department of Social Services to local directors

superintendents. A49-50. The letter states that if the local

departments were then covered by the local city or

county's legal liability insurance, this coverage would

cease in the future. A49, paragraph 3. This “understand-

ing” also defies common sense. If a county would be the

responsible party for a judgment against a local depart-

ment, it would not be logical for the state to be willing to

provide the funding for liability insurance when the

county has the authorization and the means to raise its

own funds.

Ms. Bockes further argues that the decision of the

Court of Appeals can be interpreted to extend Eleventh

Amendinent protection to counties, cities, and towns and

that the decision creates a distinction between identica|

agencies with respect to the Eleventh Amendment.

Ms. Bockes states:

“Under the Court of Appeals’ decision, any

political subdivision in the Commonwealth

which buys into the insurance plan of section

2.1-526.8:1 is a state agency protected by the

Eleventh Amendment, regardless of any other

facts about the connection between the entity

and the Commonwealth .. . The decision

creates the potential. that some county social

services boards in Virginia will be protected by

the Eleventh Amendment and others who have

not made the same arrangements for liability

insurance will not.”

Petition, Page 16

'his forecast is dubious. First, the premium rates

paid by the state, if any, vary according to the type of

political subdivision involved. A41-42, Code of Virginia,

Section 2.1-526.8:1. If a party for which the state does not

contribute to the premiums comes before a federal court,

then certainly the policy will be no basis for Eleventh

Amendment protection. Second, Ms. Bockes presumes

that the presence or absence of state funded insurance is

18

the only factor in all cases. This necessarily presumes that

absent state funded insurance, a department of social

services would not have sufficient connection to the state

to be determined a state agency for Eleventh Amendment

purposes. This is simply not the case. Although the effect

of a judgment on the state treasury was the deciding

factor in this case, the absence of such a direct effect will

mandate that other factors be considered. Whether an

agency is an agency of the state for Eleventh Amendment

purposes must be decided on a case by case method. Mt.

Healthy City School District Board of Education v. Doyle, 429

U.S. 274, 280 (1977), (listing factors to be considered in

determination)

As Ms. Bockes correctly points out, the Fourth Circuit

currently has before it Holland v. Rimmer, Docket No.

93-1447. Petition, 16. Also, as Ms. Bockes points out, the

Fourth Circuit will be forced to determine the breadth of

its holding in the present case. In Holland, the appellant

contends that the Buchanan County Department of Social

Services is not entitled to Eleventh Amendment immu-

nity because it did not participate in the POLSIP plan. To

determine whether a non-participating department is an

agency of the state, the Court of Appeals will most likely

examine the characterization of the agency under state

law; the extent of state control over the agency; the

dependence of the agency on state appropriations; and

the effect of a judgment on the state treasury. Keller v.

Prince George's County, 827 F.2d 952, 964 (4th Cir. 1987);

Mt. Healthy, 429 U.S. at 280. This examination will reveal

that regardless of the presence of state funded insurance,

local departments of social services are agencies of the

Commonwealth for Eleventh Amendment purposes and

19

that even if the Fourth Circuit’s reliance on the POLSIP

plan is overstated, this reliance is harmless error.

By operation of the Code of Virginia, the Virginia

Department of Social Services dominates the welfare SyS-

tem in Virginia. By statute, the Commissioner of Social

Services for the Commonwealth of Virginia may require

local boards to file any reports the Commissioner may

deem necessary relating to the administration of the wel-

fare system in Virginia. Code of Virginia, Section 63.1-33.

[he Commissioner mandates the form and submission

schedule of applications, reports, affidavits, budgets and

any other forms required to be filed by the local boards.

ld. The Commissioner is charged with review of budget

requests by the local boards and the commissioner may

make any modifications consistent with the require-

ments of the Code. Id. Section B. (Emphasis added). The

Commissioner shall have access at all times to the records

of the local boards concerning virtually every aspect of

the administration of the welfare system. Code of Virginia,

Section 63.1-34. The Commissioner shall enforce the

entrance and performance standards established by the

State Board for personnel employed in the administration

of the welfare system and remove each employee who

does not meet such standards. Code of Virginia, Section

63.1-37.

The State Board of Social Services mandates rules

and regulations necessary or desirable to carry out the

purposes and intent of the welfare system in Virginia.

Local boards are subject to those rules and regulations.

Code of Virginia, Sections 63.1-25, 63.1-50. Any person

aggrieved by a decision of a local board may appeal to

the State Board. Code of Virginia, Section 63.1-116. The

20

State Board, upon its own motion, may review any action

by a local board, and may consider any application for

assistance upon which a decision is not made by the local

board within a reasonable time. Code of Virginia, Section

63.1-118. (Emphasis added).

Volume 1A, the Virginia Department of Social Ser-

vices publication from which the District Court found

that Ms. Bockes gained a property interest in her employ-

ment, is an extensive body of rules and regulations con-

cerning every facet of personnel management for the

local boards. A43-48. Volume 1A consists of two separate

volumes, each approximately three inches thick, consist-

ing of a total of more than 840 pages.

Volume 1A states as its purpose:

“The State Board of Social Services establishes

and maintains the standards and policies that

provide the foundation of the Local Personnel

System. Administrative rules and procedures for

implementation of the State Board policies are

developed by the State Department of Social

Services. The Commissioner of the State Depart-

ment of Social Services is responsible for mak-

ing certain that the personnel polices,

administrative rules and procedures are prop-

erly maintained and administered. He must also

ensure that local welfare/social services depart-

ments comply with the provisions of the person-

nel plan.”

Volume 1A, Chapter A, Page 1, A43.

Volume 1A contains a statement of State Board Policy

within each section. One such statement of policy pro-

vides:

21

“The Virginia Department of Social Services is

responsible for providing a personnel system

encompassing all aspects of personnel; selection,

classification, compensation, administration,

and employee relations which complies with

appropriate federal and State laws and regula-

tions.”

Volume 1A, Chapter A, Page 2, A45.

The Grayson County Department of Social Services 1s

dependant upon funding from the Commonwealth of

Virginia. While Section 63.1-91 of the Code of Virginia

provides that local board’s of supervisors shall appropri-

ate such sums of money as shall be sufficient to provide

for the full range of social services, Section 63.1-92 pro-

vides for reimbursement from the Commonwealth of

expenditures by the localities. The Commonwealth pays

80% of the salaries of the local departments. The Com-

monwealth pays 80% of the employees health insurance

premiums. A60-61, 63. The Commonwealth even pays the

rent and overhead for office space for the local depart-

ment. Code of Virginia, Section 63.1-92. Where localities

qualify for federal assistance grants and appropriate local

money in reliance on these grants, the Commonwealth

has, since 1972, reimbursed localities fully for the

amounts of the grants after crediting the amount of the

federal grant. Code of Virginia, Section 63.1-92. There can

be no doubt that the local departments’ ability to function

and provide services depends primarily upon state fund-

ing.

As

a he

Further, as the District Court found, “local boards of

social services have not attained the local, independent

status traditionally afforded other local boards.” A22. No

statutory provisions exist to create the board of social

services as a body corporate. No statutory provisions

exist for the local board or department to raise funds.

[hey can not issue bonds or levy taxes. They depend

exclusively upon funding from other sources.

The statutory foundation, financial support, and

intensive regulation of social services in Virginia estab-

lishes that local departments of social services are agen-

cies of the state for Eleventh Amendment purposes. The

statutory feundation also establishes that if the Court of

Appeals was in error with respect to the insurance policy,

the error was harmless.

Ms. Bockes argues “if the Court of Appeals decision

is not reversed, this two-headed position by the Division

of Risk Management allows the Local Depart-

ments ... the best of both worlds: a Local Department

cannot be sued in state court because it is not a state

agency as to which sovereign immunity has been waived,

yet at the same time it could not be sued in federal court

because it is a state agency protected by the Eleventh

Amendment.” Petition, 20. This argument is pure specula-

tion. The position of the Division of Risk Management

referred to by Ms. Bockes is contained in a letter from a

claims adjuster at the Division of Risk Management. A51.

The letter states that it is simply the adjuster’s “opinion”

that the local department is not a state agency for pur-

poses of the Virginia Tort Claims Act. The letter also

mysteriously states that the addressee was referred to the

Division of Risk Management because “this office now

a

23

handles claims made against agencies of the Common-

wealth.” A51. In any event, this “opinion” has apparently

not been tested in either federal or state court. It is truly

novel for Ms. Bockes to give the opinion of an insurance

claims adjuster, in an adversarial situation, the weight of

judicial authority.

Ms. Bockes cites no authority which conflicts with

the Court of Appeals’ decision in this case. Her reliance

on the indemnity cases is misfocused. Any misconcep-

tions about the breadth of the Court of Appeals’ decision

will most likely be resolved in the near future in the cases

presently before the Court of Appeals.

ANY POLICY MADE BY THE LOCAL BOARD IN

THE TERMINATION OF MS. BOCKES IS

ATTRIBUTABLE TO THE STATE RATHER THAN TO

GRAYSON COUNTY

For municipal liability to be found under 42 U.S.C.

Section 1983, it must be shown that the execution of a

municipal policy or custom inflicts an injury. Monell v.

Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018

(1978). A county can be held responsible for a violation of

Section 1983 if it can be shown that the violation occurred

because of persistent widespread practice of county offi-

cials that becomes so well settled as to constitute custom

that fairly represents county policy. Coon v. Ledbetter, 780

F.2d 1158 (5th Cir. 1986).

The decision of a single policy making official may

give rise to municipal liability if that official is respons-

ible for establishing final government policy respecting

such activity. Pembaur v. Cincinnati, 475 U.S. 469, 482, 483,

N

>

106 S.Ct. 1292, 1299, 1300 (1986). However, the fact that a

policy-making official or policy making body has discre-

tion in the exercise of particular function does not, with-

out more, give rise to municipal liability. Pembaur, 475

U.S. at 481-482.

As the Court of Appeals correctly determined, the

local board is not responsible for establishing final gov

ernmental policy with regards to personnel. Due to the

massive volume of personnel regulations promulgated

and enforced by the State Board, it is clear that the State

Board, and not the County or local board, wields the

actual authority over personnel policy decisions

“[T]he key issue in identifying a policymaker is

a question not of who possesses final control

over policy in form or theory, but rather of who

wields that authority in fact

Morrash v. Strobel, 842 F.2d 64, 68 (1987), (Citation omit-

ted).

he local board is subject to the rules and regulations

of the State Board of Social Services. Code of Virginia

Section 63.1-50. Volume 1A falls under this category of

rules and regulations. Code of Virginia, Section 63.1-25, 50

Volume 1A regulates virtually every facet of personnel

administration for the local departments

“The State Board of Social Services establishes

and maintains the standards and policies that

provide the foundation of the Local Personnel

System. Administrative rules and procedures for

implementation of the State Board policies are

developed by the State Department of Social

N

JI

Services. The Commissioner of the State Depart-

ment of Social Services is responsible for mak-

ing certain that the personnel polices,

administrative rules and procedures are prop-

erly maintained and administered. He must also

ensure that local welfare/sociai services depart-

ments comply with the provisions of the person-

nel plan.”

Volume 1A, Chapter A, Page 1, A43. It is clear that the

State Board mandates personnel policy for the local

departments and that local boards are subject to state

control with respect to personnel policy. Through a selec-

tive listing of statutory provisions, Ms. Bockes attempts

to show that the County has control over the actions of

the Local Department. Petition, 21-24. As was set out

above, it is clear that the State has the authority to exhibit

greater control than the County. See supra, 19-22.

Nowhere in the list of statutes cited by Ms. Bockes has

the County been given the authority or control to effect

personnel decisions of the local board. This is because

control over personnel policy has been retained by the

State Board of Social Services and the control is wielded

through its massive body of personnel regulations, Vol-

ume 1A.

The County could not effect the personnel decisions of

the Local Department even if it wanted to do so. In

Virginia, the authority of municipal bodies to act is

expressly limited to the authority granted to them by the

general assembly, the authority necessarily implied from

the grant, and the authority which is essential and indis-

pensable. County of Fairfax v. Southern Iron Works, Inc., 242

Va. 435, 410 S.E.2d 674 (1991). The authority of municipal

bodies to act is expressly limited to actions not in conflict

26

1

with State law. Code of Virginia, Section 1-13.17. Where

Volume 1A is not in conflict with the laws and Constitu-

tion of the United States or the Commonwealth, it has the

effect of state law. Code of Virginia, Section 63.1-25. Per-

sonnel! policy of the local departments has been left to the

State Board and the County has been pre-empted from

the entire personnel field.

Ms. Bockes argues that the local board’s decision to

terminate her is “final” in that Ms. Bockes had no further

avenue with which to appeal this decision. She argues

that the finality of this decision makes the board the

“final arbiter” of policy for Grayson County. Petition

27-28. Ms. Bockes’ argument is flawed because it neces-

sarily presumes that the Local Department is always an

agency of the County. It is clear that with respect to

decisions respecting personnel, if the local board makes

policy, it is making policy only for the state. In other

words, as the Court of Appeals correctly found, if the

decision of the local board is attributable to anyone other

than the local board, it is attributable to the State Depart-

ment of Social Services, which establishes and maintains

the standards and policies that provide the foundation of

the Local Personnel System

Ms. Bockes’ reliance on the plurality opinion in City

of St. Louis v. Propotnik, 485 U.S. 112 (1988), is simply

misplaced. In Propotnik, the Court essentially held that

when a municipality’s actual practices differ from its

expressly stated policies, the practices represent the

actual policy. 485 U.S. at 130-31, 145 n.7. In that case, the

practices in question were within the realm of the munici-

pality’s ability to control policy, even if the effect of the

control violated the Constitution. In the present case, it is

27

clear that the county had no ability to affect personnel

policy.

Nowhere does Ms. Bockes cite authority in which a

municipal body been held accountable for implementa-

tion of a policy which was explicitly reserved to another

governmental body. In each case cited by Ms. Bockes, the

municipal body was held accountable because the policy

contested was within the realm of the municipal body’s

authority to effect and control, even if the effect of the

policy violated law or the Constitution. Except to aliege

that Ms. Bockes was terminated by a board with members

appointed by the Grayson County Board of Supervisors

(in violation of a policy enacted by an agency of the

Commonwealth of Virginia), the petitioner has cited no

policy of the county was followed, or violated, in the

termination of Ms. Bockes.

mn

CONCLUSION

As the Court of Appeals correctly found, it is clear

that Ms. Bockes is seeking recovery of money from the

Commonwealth of Virginia through the Grayson County

Department of Social Services. The Grayson County

Department of Social Services is an agency of the state for

Eleventh Amendment purposes. It is also abundantly

clear that any policy made by the Grayson County Board

of Social Services was policy of the state and not policy of

Grayson County. For these reasons, the petition for writ

of certiorari should not be granted.

In the District Court and before the Court of Appeals,

the respondents contended that under state law at the

time of Ms. Bockes’ termination, she had no reasonable

expectation of continued employment and that no due

process deprivation arose as a result of her termination

Alternatively, the respondents contended that if Ms

Bockes had a reasonable expectation of continued

employment, the failure of the local board to comply with

state regulations in the manner of her termination was a

random and unauthorized act, as detined by the Court in

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981) and

Hudson Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984), and

that the post-deprivation process remedied any depriva-

tion suffered by Ms. Bockes. Although these arguments

were not addressed by the Court of Appeals and are not

issues raised in Ms. Bockes’ Petition, the respondents

hereby request permission to address these issues if the

'

Court grants a Writ of Certiorari in this case

Respectfully ubmitted

Al

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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\ppeal ron he United State iWistrict Court

tor the Western District of Virginia, a

imuel G. Wilson, District Judgé

(CA-91-62-A)

Argued lune 8, 1993

»]

Decided luly 26, 1993

Before WILKINSON, Circuit Judge, SPROUSE, Senior Cir

cuit Judge, and G. ROSS ANDERSON, JR., United States

A3

District Judge for the District of South Carolina, sitting by

designation.

Affirmed in part, reversed in part, and remanded with

instructions to dismiss by published opinion. Judge Wilk-

inson wrote the opinion, in which Senior Judge Sprouse

and Judge Anderson joined.

COUNSEL

ARGUED: Kurt Joseph Pomrenke, WHITE, ELLIOTT &

BUNDY, P.C., Bristol, Virginia, for Appellant. Robert Vin-

cent Ward, LAW OFFICES OF ROBERT V. WARD, P.C.,

Bristol, Virginia, for Appellees. ON BRIEF: Steven R.

Miner, WHITE, ELLIOTT & BUNDY, P.C., Bristol, Vir-

ginia, for Appellant.

OPINION

WILKINSON, Circuit Judge:

This case poses two questions about the amenability

of governmental bodies to suit in federal court — here an

action claiming termination from employment without

due process. The first question is whether the Board of

Social Services for Grayson County, Virginia and the

Department of Social Services for Grayson County are

state entities, and thus immune from suit in federal court

under the Eleventh Amendment. We hold that they are

immune, because their liability to plaintiff would be cov-

ered by an insurance plan funded by the state. The sec-

ond question is whether Grayson County can be held

responsible under 42 U.S.C. § 1983 for the personnel

decisions of the Board. We hold that it cannot, because

A.4

4%

the Board did not dismiss plaintiff pursuant to any

County policy. We accordingly affirm the district court on

the first question, reverse it on the second question, and

remand with instructions that plaintiff’s claim be dis-

missed. Plaintiff must be satisfied with the extensive

grievance procedures provided by the Commonwealth of

Virginia, which she has already pursued with some suc-

CeSs.

The Commonwealth of Virginia has established a

complicated scheme for administering its social services

programs. At the top is the Commissioner of Social Ser-

vices, who is appointed by the Governor of Virginia. Va.

Code § 63.1-2. The Commissioner manages the Depart-

ment of Social Services for the entire state. Id. at

§ 63.1-1.1. A nine-member State Board of Social Services

also appointed by the Governor, advises the Commis-

sioner. Id. at §§ 63.1-14, 63.1-24.

he counties and cities in Virginia have local depart-

ments of social services as well, which help to implement

the programs enacted by the Commonwealth. Va. Code

§ 63.1-38.1. The local departments are overseen by local

boards of social services, which are appointed by the

counties or cities. Id. at §§ 63.1-38, 63.1-38.1. The local

board selects a local director, who administers social ser-

vices on a day-to-day basis. Id. at §§ 63.1-59, 63.1-60

The Commissioner and State Board of Secial Services

retain ultimate authority over personnel decisions at both

the state and local level, however. The State Board has the

duty to “establish minimum entrance and performance

A5

standards for the personnel employed by the Commis-

sioner, local boards and local superintendents.” Va. Code

§ 63.1-26. The Commissioner is required to “remove each

employee who does not meet such standards.” Id. at

§ 63.1-37. While local department employees “serve at the

id

pleasure of the local board,” the local board must adhere

to guidelines promulgated by the State Board when it

hires and fires personnel. Id. at § 63.1-61. “Members of

any local board may be suspended or removed for cause

by the State Board.” Id. at § 63.1-45.

Plaintiff Nanc-’ Bockes served for thirteen years as

Director of the Grayson County Department of Social

Services (the “Department”’). In June of 1990, she was

fired by the Grayson County Board of Social Services (the

“Board”), without notice and without a pre-termination

hearing. She then filed a grievance, using procedures

prescribed by the Virginia Department of Social Services.

A grievance panel ordered the Board to reinstate her as

Director and to give her one-half backpay for the period

during which she had no job.

Dissatisfied with the award, Bockes filed this § 1983

action seeking the other half of her backpay, plus dam-

ages for pain and suffering. She named the members of

the Board as defendants, both in their individual and

official capacities. She also named the Department and

the County itself.

Bockes’ case ultimately went to trial. At the close of

the evidence on liability, the district court ruled that

Bockes’ position as Director was “permanent,” and thus

that the Fourteenth Amendment required the Board to

A6

have given her a pre-termination hearing.! The court

submitted the issue of damages to the jury, which

awarded Ms. Bockes a total of $20,000: $13,000 for lost

wages and benefits; $7,000 for pain and suffering.

[he Board and the Department maintained that they

were immune from suit in federal court because they

were state entities under the Eleventh Amendment. The

County maintained that it was not liable because the

Board had not fired Ms. Bockes pursuant to any County

policy. The district court granted judgment as a matter of

law both to the Board and to the Department, agreeing

that they Were immune from suit under the Eleventh

Amendment. Bockes v. Fields, 798 F. Supp. 1219, 1222-24

(W.D. Va. 1992). The court upheld the $20,000 verdict

against the County, however, ruling that the Board’s fir-

ing of Ms. Bockes was an official policymaking act attrib-

utable to the County. Id. at 1224-26.

Both sides appeal this judgment. Bockes appeals the

ruling that the Board and the Department are immune

from suit. The County cross-appeals the ruling that it is

liable for the acts of the Board. All defendants maintain

alternatively that the district court erred in ruling that

Ms. Bockes was denied due process. We shall address

each issue in turn.

| The court also ruled that the Board members had qualli-

fied immunity in their individual capacities. Bockes does not

appeal this ruling.

I].

“The judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States by

citizens of another State, or by citizens or subjects of any

foreign state.” U.S. Const. amend. XI. This Amendment

serves to curb overreaching by the federal judiciary into

the internal affairs of a sovereign state. While the Elev-

enth Amendment on its face applies only to suits by

citizens of a foreign state, it is now well established that

an unconsenting state is immune from suits in federal

court brought by its own citizens as well. Edelman v.

Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louisiana, 134

U.S. 1 (1890). It is also well established that this immunity

extends to state agencies and officials, when a monetary

judgment against them would be paid from the state

treasury. “[W]hen the action is in essence one for the

recovery of money from the state, the state is the real,

substantial party in interest and is entitled to invoke its

sovereign immunity from suit even though individual

officials are nominal defendants.” Ford Motor Co. v.

Department of Treasury, 323 U.S. 459, 464 (1945). “Thus the

rule has evolved that a suit by private parties seeking to

impose a liability which must be paid from public funds

in the state treasury is barred by the Eleventh Amend-

ment.” Edelman, 415 U.S. at 663.

In this case, were we to hold the Board and the

Department liable to Ms. Bockes, a substantial portion of

that liability would be paid by the Commonwealth of

Virginia. The Board and the Department subscribe to the

Commonwealth’s Public Officials Liability Self-Insurance

Plan. Under this Plan, the Treasurer of Virginia manages a

A8&

separate trust fund which covers liability that subscribing

agencies incur in the discharge of their duties. The Com-

monwealth pays 80% of the premiums that fund this

Plan; the agencies the other 20%. Of the $20,000 judgment

against the Board and the Department, the Pian would

cover $10,500: $13,000 for Bockes’ lost wages and bene-

fits,2 minus a $2,500 deductible.* And since the Common-

wealth funds 80% of the Plan, 80% of this $10,500, or

$8,400, would come ultimately from the Virginia treasury

The Eleventh Amendment bars this recovery.

Ms. Bockes attempt to avoid this conclusion. She asks

us to consider other factors that this court has previously

identified as relevant to determining whether an agency

is a state entity for Eleventh Amendment purposes: the

characterization of the agency under state law; the extent

of state control over the agency; and the dependence of

the agency on state appropriations. See Keller v. Prince

George's County, 827 F.2d 952, 964 (4th Cir. 1987); Ram

Ditta v. Maryland Nat'l Capital Park & Planning Comm’‘n,

822 F.2d 456, 457-58 (4th Cir. 1987). Certainly these factors

should be considered in actions that seek remedies other

than damages from state treasuries. See, e.g., Ram Ditta,

822 F.2d at 458-60 (considering other factors after deter-

mining that judgment against Planning Commission

would not be paid from Maryland treasury). When the

The Plan does not cover Ms. Bockes’ damages for mental

anguish

> It is not clear from the record whether the deductible

would apply to this particular claim. We assume arguendo that it

does

AY

action seeks damages that would be satisfied by state

funds, however, no further inquiry is necessary.

We thus conclude that the Board and the Department

are immune from suit in federal court by Ms. Bockes.

That the Commonwealth would pay only part of the

judgment against these defendants does not restrict our

holding. Defendants’ Eleventh Amendment immunity

cannot turn on whether Bockes seeks damages for emo-

tional distress, or other damages ancillary to her core

claim that defendants denied her due process. The insur-

ance plan funded by the Commonwealth covers this core

claim. The Eleventh Amendment therefore bars the suit.

ITI.

Under Monell v. Department of Social Services, 436 U.S.

658 (1978), a county may be liable for acts done pursuant

to its “policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to

represent official policy.” Id. at 694. The district court

found the Board’s firing of Ms. Bockes to represent the

“official policy” of Grayson County, because the County

had the power to hire and fire the members of the Board.

The County argues that this analysis is misfocused,

because the Commonwealth, not the County, sets person-

nel policy for the Board.

We agree with the County. The relevant question is

whether the Board acted as the County’s designated “pol-

icymaking authority” when it fired Nancy Bockes.

“{P]lolicymaking authority’ implies authority to set and

implement general goals and programs of municipal gov-

ernment, as opposed to discretionary authority in purely

Al0

operational aspects of government.” Spell v. McDaniel, 824

F.2d 1380, 1386 (4th Cir. 1987). In Virginia, neither the

County nor the local boards have authority to set “gen-

eral goals and programs” for social services personnel;

that authority is reserved for the State Board. See Va.

Code §§ 63.1-26. The State Board has wielded this author-

ity by publishing a comprehensive personnel handbook,

which the local boards must follow. Among other things,

this handbook requires the local boards to apply merit

criteria in their personnel decisions. It even prescribes the

grievance procedure that Ms. Bockes used in this case. In

short, the Grayson County Board enjoyed its discretion to

fire Ms. Bockes at the prerogative of and within the

constraints imposed by the Commonwealth. Such

bounded, state-conferred discretion is not the “poli-

,7

cymaking authority” for which a county may be held

responsible under § 1983.

IV.

In sum, we hold that the Board and the Department

are immune from suit in federal court, and that the

County is not liable for the actions of the Board. We thus

need not address whether Ms. Bockes was deprived of

due process by being fired without a pre-termination

hearing, because none of the defendants are amenable to

federal suit. Ms. Bockes must settle for the remedy

afforded her by state law. The judgment of the district

court is

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED WITH INSTRUCTIONS TO DISMISS.

All

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

NANCY BOCKES,

Plai f, ‘ivi

laintif Civil Action No.

91-0062-A

FINAL ORDER

(Filed

July 30, 1992)

V

BETTYE LOU FIELDS,

ROBERT WELLS, AND

DENNIS COOLEY,

individually and in their

official capacities as

members of the Board of

Social Services, Grayson

County, Virginia,

DEPARTMENT OF

SOCIAL SERVICES,

GRAYSON COUNTY, )

VIRGINIA, and COUNTY |

)

)

OF GRAYSON, VIRGINIA,

Defendants.

In accordance with the court’s rulings at trial and the

court’s memorandum opinion entered on this date, it is

ADJUDGED and ORDERED that judgment be entered in

favor of plaintiff, Nancy Bockes, and against defendant,

Grayson County, Virginia, in the amount of $20,000, and

that judgment be and the same is, hereby, entered in

favor of defendants, the Department of Social Services of

Grayson County, Virginia, and Bettye Lou Fields, Robert

Wells, and Dennis Cooley in their individual and official

capacities as members of the Board of Social Services of

Grayson County, Virginia, and this case is ORUERED

stricken from the docket of the court.

|

Al2

ENTER this 29th day of July, 1992.

s/ legible

DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

NANCY BOCKES, )

Plaintiff, 7 |

os ) Civil Action No.

V. ) 91-0062-A

BETTYE LOU FIELDS, ) MEMORANDUM

ROBERT WELLS, AND OPINION |

DENNIS COOLEY, ce

(Filed

individually and in their

ep ) luly 30, 1992)

official capacities as

members of the Board of

Social Services, Grayson

County, Virginia, ,

DEPARTMENT OF |

SOCIAL SERVICES, )

GRAYSON COUNTY,

VIRGINIA, and COUNTY ?

OF GRAYSON, VIRGINIA, ?

Defendants. )

After thirteen years as Director of Social Services of

Grayson County, Virginia, a position classified as “perma-

nent” by the Department of Social Services personnel

manual, plaintiff, Nancy Bockes (“Bockes”), was termi-

nated without notice and a pre-termination hearing.

Al3

Following a post-termination hearing nearly a year later,

a grievance panel found the termination to be improper.

The grievance panel, however, did not order full backpay.

Alleging that she was entitled to notice and a hearing

before being discharged, Bockes brought this action

against Grayson County, Virginia (the “County”), the

Grayson County, Virginia Department of Social Services

(the “Local Department”), and the members of the Gray-

son County, Virginia Board of Social Services, Bettye Lou

Fields, Robert Wells, and Dennis Cooley, individually and

in their official capacities (collectively “the Local Board”).

The case was tried by a jury. At the conclusion of the

evidence on liability, the court found that Bockes had a

property interest, which entitled her to the protections of

procedural due process under the Fourteenth Amend-

ment. The court found, however, that the Local Board

members had qualified immunity in their individual

capacities.

The Local Department and the Local Board members

in their official capacities argued that the Eleventh

Amendment precluded an award of damages against

them. They also argued that even if they had no Eleventh

Amendment immunity, they could not be held liable

because Bockes was not fired “pursuant to a policy, cu--

tom or usage,” a prerequisite to liability under Monell v.

Department of Social Services, 436 U.S. 658, 694 (1978). The

County argued that it could not be held liable because the

Local Department is a state agency, not a county agency,

and that even if the Local Department were not a state

agency, Bockes was not fired “pursuant to a policy-cus-

tom or usage” of the County. The court took the matter

fen

L114

inder advisement and submitted the question of dam-

iges to the jury Dy way OF special interrogatory [he jury

warded compensatory damages of $20,000. For the rea

, +} + + tA +} rt 7 ' : h s+ } le rth

i Pili VV it OUT now rminas tnat tne Ele ventn

An nament pre ides a dan ve award against the Lox i]

epartment nd the | il | rd but concludes that the

{ wine ‘ ; , agar iry era , , >)

|

Kes \ em{ ved lirector of the Lo Depart

ment tron 177 90. The | Personnel Administ!

tive Manu Volun LA for the Local Department

ifies the position as “permanent According to Vol

ime lA. a permanent position is a position of! indefinite

lroratior thers , eX] r becvre : te or = } positior C

nd a permanent employee may be terminated only for

La (rn | re w 1QQ thes lo ] Board met with Bo ke

ind told her ft} t they } id loct ontidencs in her The

Local Board then gave Bockes th option of resigning I

re ny rire i Betore Té [ ondirt , Bockes isked to make i

phone ll. After receiving advice from her lawyer

Bocke isked the Li | Board to list the reasons for het

lismissal in writing and to give her an opportunity to

rred by | Ki

Travel 141

( irt Keportel! S$ ] 207

| t T2 © QO 771) RO

Tota $13,161.28

A15

respond. The Local Board declined on advice of counsel,

and after Bockes refused to resign, the Local Board fired

her. Bockes filed a grievance pursuant to Va. Code Ann.

S§ 2.1-110-116. The grievance panel ordered the Local

Board to reinstate Bockes and awarded her one-half of

her backpay. Bockes then filed this-suit to recover her

remaining backpay as well as compensatory damages,

alleging that the Local Board had violated her due pro-

cess rights by not notifying her of the reasons for her

termination and by not giving her an opportunity to

respond to those reasons before her termination.

[|

As the court stated at trial, based upon the evidence

presented, Bockes was a “permanent employee” with the

Local Department, which gave Bockes a property interest

in her job.2 This property interest entitled Bockes to

receive procedural due process. See Cleveland Bd. of Educ

Che wisdom of insulating a department head by classify-

ing his or her position as a “permanent’ position might be

subject to debate. This, however, is not the forum for that

debate. This court’s role is limited to determining whether

Bockes had a legitimate expectation of continued employment

founded in state law, Bishop v. Wood, 426 U.S. 341 (1976),

whether by statute, Detweiler v. Virginia Dep't of Rehabilitative

Services, 705 F.2d 557, 590-60 (4th Cir. 1983), by contract, Perry 7

Sindermann, 408 U.S. 593, 601 (1972), or by rules or mutually

explicit understandings that support a claim of entitlement. At

trial, the court determined as a matter of law that the depart-

ment personnel manual created a mutually explicit understand-

ing supporting a claim of entitlement. See Bradley v. Colonial

Mental Health & Retardation Services Bd., 856 F.2d 703, 707-08 (4th

Cir. 1988)

Al6

4

v. Loudermill, 470 U.S. 532, 541 (1985). Procedural due

process required that Bockes receive notice and “some

kind of a hearing” before discharge. See id. at 542. Bockes

received neither.

At trial the defendants argued that the actions of the

Local Board were “random and unauthorized,” and

therefore, Parratt v. Taylor, 451 U.S. 527 (1981), overruled in

part by, Daniels v. Williams, 474 U.S. 327 (1986), not Louder

mill, governs. Under Parratt, post-deprivation remedies

may be sufficient to satisfy due process if the conduct

complained of is random and unauthorized. Id. at 543-44.

However, as the Court of Appeals for the Fifth Circuit

stated, to apply Parratt

the deprivation must truly have been unpredict-

able or unforeseeable; the pre-deprivation pro-

cedures must have been impotent to counter the

state actors’ particular conduct; and the conduct

must have been “unauthorized” in the sense

that it was not within the officials’ express or

implied authority.

Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (citing

Zinermon v. Burch, 494 U.S. 113, 132-35 (1990)). As noted

bv the court at trial, the absence of any one of those

elements would preclude the court from applying Parratt

See id

t

Plumer v. Maryland, 915 F.2d 927 (4th Cir. 1990), is

instructive. Following an informal administrative hearing

in which Plumer was shown an anonymous letter that

accused Plumer of continual drunk driving, Tami

Plumer’s motor vehicle license was suspended by the

Maryland Motor Vehicle Administration “pending clear-

ance by the Medical Advisory Board.” Rather than appeal

A117

the suspension to the circuit court, Plumer filed a § 1983

action in the United States District Court for the District

of Maryland claiming that her due process rights under

the Fourteenth Amendment had been violated. The dis-

trict court dismissed Plumer’s due process claim, finding

that the suspension of Plumer’s license was a result of a

“random and unauthorized act” for which Maryland pro-

vided an adequate post-deprivation remedy by way of

appeal to the circuit court. Although the court of appeals

affirmed because it found no due process violation, it

concluded that Parratt could not be applied.

According to the Fourth Circuit, “[i]n response to

some confusion in the courts of appeal regarding the

scope of the Parratt doctrine, the Supreme Court recently

reemphasized Parratt’s narrow scope” in Zinermon v.

Burch, 494 U.S. 113 (1990). Plumer, 915 F.2d at 929 (foot-

note omitted). The Fourth Circuit expressly agreed with

the Fifth Circuit as to “[t]he lesson of Zinermon”:

“{T]he Parratt/Hudson doctrine is restricted to

cases where it truly is impossible for the state to

provide predeprivation procedural due process

before a person unpredictably is deprived of his

liberty or property through the unauthorized

conduct of a state actor.” Caine v. Hardy, 905 F.2d

858, 862 (5th Cir. 1990). We agree, and so con-

clude that Parratt is inapplicable to Plumer’s

suit against the state. Under Zinermon, as we

concluded recently, we must “first ask whether

the risk of an erroneous deprivation was fore-

seeable, and next whether predeprivation safe-

guards would have any value in guarding

against the kind of deprivation . . . allegedly

suffered.” Fields v. Durham, 909 F.2d 94, 97 (4th

2

Be

<<

z

Al18

Cir. 1990) (Fields II) (quoting Zinermon, 110 S.Ct.

at 988).

Id. at 930. In the Fourth Circuit’s opinion, “the risk of an

erroneous license deprivation clearly was foreseeable”

and procedural safeguards were practicable making Par-

ratt inapplicable. Id. at 931. Moreover, according to the

court:

the conduct of the state employees here was not

“unauthorized,” for the state has delegated to

its employees “the power and authority to effect

the very deprivation complained of here,

. and also delegated to them the concomitant

duty to initiate the procedural safeguards set up

by state law to guard against unlawful [termina-

tion].”

Id. (quoting Zinermon, 110 S. Ct. 975, 990 (1990)). Thus,

Bockes’ termination without a sufficient pre-termination

hearing coes not fall within, in the words of the Fourth

Circuit, “Psrratt’s narrow scope.” Id. at 929. As in Plumer,

pre-deprivaticn process, rather than a post-deprivation

remedy, was required under Zinerinon because pre-depri-

vation process was possible and the state delegated to the

Local Board the power to effect the very deprivation

about which Bockes complained.

ITI.

The court next must consider whether the Eleventh

Amendment precludes Bockes from recovering a judg-

ment against the Local Department and the Local Board

Alg9

because the Local Department is a state agency.> The

Eleventh Amendment protects unconsenting states

“against a private party’s suit for damages.” Keller v.

Prince George's County (Keller II), 923 F.2d 30, 32 (4th Cir.

1991) (citations omitted). It is well settled that “any arm

of the state is protected by such immunity.” Id. (citations

omitted). “On the other hand, a municipality or other

local government unit does not enjoy the protection of

the eleventh amendment and may be sued under § 1983

for constitutional deprivations.” Keller v. Prince George's

County (Keller [), 827 F.2d 952, 963 (4th Cir. 1987) (cita-

tions omitted). Because the bar of the Eleventh Amend-

ment cannot extend to the County, the question before the

court on this score is whether the Local Department is the

alter ego of the state for Eleventh Amendment purposes.

Bockes suggests the following factors are considered

in determining the status of the Local Department under

the Eleventh Amendment: “the characterization of the

Department under state law; the extent of state control

over the Department; the extent to which it depends on

state appropriations; and whether a damage award

would come from state funds.” Keller I, 827 F.2d at 964

* It is well recognized that suits against individuals in their

official capacity are actually suits against the go,ernmental

entity itself. Revene v. Charles County Comm'rs, 882 F.2d 870, 874

(4th Cir. 1989) (citations omitted); Giancola v. West Virginia Dep't

of Public Safety, 830 F.2d 547, 550 (4th Cir. 1987). Therefore,

Bockes’ suit against the Local Board members in their official

capacities is nothing more than a suit solely against the Depart-

ment. The court will couch its Eleventh Amendment analysis in

terms of the County and the Department, but the analysis wil!

necessarily encompass the Local Board as well.

A20

(citation omitted). These factors all probe an entity’s rela-

tive degree of autonomy from the state. Ram Ditta v.

Maryland Nat'l Capital Park and Planning Comm'n, 822 F.2d

456, 457-58 & n.4 (4th Cir. 1987). However, “the most

important consideration is whether the state treasury will

be responsible for paying any judgment.” Ram Ditta, 822

F.2d at 457; see also Keller I, 827 F.2d at 964.

According to the evidence presented in this case, if

the Local Department were found liable, most of the

judgment would be paid by the state. Of the $20,000 jury

verdict in favor of Bockes, the state would be responsible

for approximately $13,000. This amount would be paid

out of the state’s Public Officials Liability Self-Insurance

Plan, which is managed by the Treasurer of Virginia, who

holds the money for the plan in a separate insurance

fund. All political subdivisions in Virginia, including the

Local Department, are allowed to participate in the insur-

ance plan, although participation is voluntary. Since the

Local Board decided that the Local Department would

participate in this state self-insurance plan, the Local

Department pays a premium into the insurance fund

“using a combination of state and local funds,” with the

state reimbursing the Local Department for 80% of the

premiu m.

Bockes argues that since the damage award would be

paid from a separate fund, there is no effect on the state

treasury so as to afford the Local Department the protec-

tion of the Eleventh Amendment. That argument is mis-

placed on the record before the court. According to the

evidence, the Local Department is reimbursed by the

state for 80% of its premium payments. Due to the dispa-

rate amount of money provided by the state for the

A21

premium payments, any judgment from the insurance

fund will inexorably affect the state treasury as a majority

of state money was paid into the insurance fund and

would, therefore, be used to cover a judgment award

against the Local Department. The fact that the insurance

fund is separate from the general treasury is of no conse-

quence. See, e.g., Paschal v. Jackson, 936 F.2d 940, 944-45

(7th Cir. 1991) (segregating state money into separate

fund does not change fact that recovery is out of state

treasury), cert. denied, 112 S. Ct. 992 (1992). The crucial

inquiry is whether state funds will be used to pay for a

damage award, which is clearly the case here. Accord-

ingly, the court finds that a recovery of the $13,000 would

be, in effect, a recovery of funds from the state prohibited

by the Eleventh Amendment.4

The structure and organization of the Local Depart-

ment and its relationship with the Virginia Department of

Social Services (“the Virginia Department”) also favors

the finding that the Local Department should be treated

as the states’ alter ego for Eleventh Amendment pur-

poses. First, although in Virginia, the Grayson County

Board of Supervisors (“the County Board”) appoints and

* The court recognizes that the court of appeals has held

that a damage award that would be satisfied from a separate

unemployment compensation fund did not violate the Eleventh

Amendment. Brown v. Porcher, 660 F.2d 1001, 1006-07 (4th Cir.

1981), cert. denied, 459 U.S. 1150 (1983). However, Brown

involved no state money and, therefore, is not controlling. See

id.; see also Dyson v. Lavery, 417 F. Supp. 103, 107-09 (E.D. Va.

1976) (college had judgment against it that could be satisfied out

of student activities fee fund, which contained no state money,

and therefore, college could not invoke Eleventh Amendment to

prohibit retroactive damage award).

A22

is authorized to remove the members of the Local Board,

who, in turn, select the local director and employees, the

Virginia Commissioner of Social Services (“the Commis-

sioner”) is expressly authorized to remove them. Va.

Code Ann. § 63.1-45, -62. Second, the County must follow

state procedures and guidelines in organizing its Local

Department. See, e.g., Va. Code Ann. § 63.1-26. Third, the

Local Board is required to submit its budget to the Com-

missioner. Va. Code Ann. § 63.1-54. Fourth, local boards

of social services have not attained the local, independent

status traditionally afforded other local boards. Compare

Va. Code Ann. § 22.1-71 (code section entitled “School

board constitutes body corporate; corporate powers”);

Ram Ditta, 822 F.2d at 458. Finally, the County contributes

no more than 20% of the funding for the Local Depart-

ment, with the remainder coming from varying combina-

tions of state and federal funds.

In sum, the Local Department’s structure and organi-

zation and its relationship with the Virginia Department,

coupled with the fact that most of the judgment would be

paid from state funds, preponderate in favor of the con-

clusion that the Local Department is, in essence, the

states’ alter ego, and thus, protected by the Eleventh

Amendment from a damage award in a § 1983 action in

federal court.5 Compare Ram Ditta, 822 F.2d at 458-59

(Parks & Planning Commission was designated as body

corporate, was not required to submit budget to state,

was not represented by state attorney general’s office,

° Neither party raised nor does the court find any waiver of

Eleventh Amendment immunity with regard to the Department

or the Board.

A23

and state exercised no control over Commission person-

nel matters, and, therefore, court found it to be local

agency). That conclusion, however, does not end the

court's inquiry because the County, nevertheless, may be

subject to liability if the Local Board’s actions may be

fairly attributed to the County.®

IV.

A county is subject to municipal liability “when exe-

cution of a government's policy or custom, whether made

by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the

injury.” Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir.

1987) (quoting Monell v. Department of Social Services, 436

U.S. 658, 694 (1978)), cert. denied, 484 U.S. 1027 (1988).

““[P]olicymaking authority’ implies authority to set and

® The reasoning of Keller II, which held that a local depart-

ment of social services in Maryland was, in effect, an agency of

the state and, therefore, immune from suit, provides some sup-

port. In Keller II, the court of appeals stated:

[t]he Department is a local department of social ser-

vices operated by the Maryland Department of

Human Resources, an agency of the executive branch

of state government. The employees of the Depart-

ment receive fringe benefits and paychecks from the

state and perform their duties subject to state person-

nel policy. State law and procedure dictate how the

Department operates and organizes its programs.

Only two percent of the Department's funding comes

from the county with the remainder coming from the

state and federal governments.

923 F.2d at 32.

A24

implement general goals and programs of municipal gov-

ernment, as opposed to discretionary authority in purely

operational aspects of government.” Spell, 824 F.2d at

1386; see, e.g., Bennett v. City of Slidell, 728 F.2d 762, 769

(5th Cir. 1984) (“policymakers act in the place of the

governing body in the area of their responsibility”), cert.

denied, 472 U.S. 1016 (1985). Final authority is “a neces-

sary attribute of ‘policymaking authority.’ ” Spell, 824

F.2d at 1386. However, “a municipal agency or official

may have final authority to make and implement policy

despite a municipality’s retention of powers of ultimate

control over both policy and policymaker. The question is

one of authority-in-fact.” Id. A single decision by an

official exercising such authority is sufficient to subject a

municipality to § 1983 liability. Morrash v. Strobel, 842 F.2d

64, 67 (4th Cir. 1987) (citing Pembaur v. City of Cincinnati,

475 U.S. 469, 479-80 (1986)).

Though the definition of policymaker is a matter of

federal law, the determination of which official or offi-

cials fall within this definition is necessarily guided by

state law. Dotson v. Chester, 937 F.2d 920, 924 (4th Cir.

1991) (citing City of St. Louis v. Praprotnik, 485 U.S. 112,

124 (1988)). Examining state law, which can include valid

local ordinances and regulations, will usually “direct a

court to some official or body that has the responsibility

for making law or setting policy in any given area of a

local government’s business.” Jd. From an examination of

the control in fact exercised by the County Board through

its appointment of Local Board members, the court

readily concludes that the Local Board's actions, at least

as to personnel matters, are fairly attributable to the

County Board and, therefore, the County.

A25

The County maintains that a finding by the court that

the Local Department is a state agency for Eleventh

Amendment purposes would preclude the County from

being held liable because it did not employ the

tortfeasors — the board members of the Local Department

that discharged Bockes without affording her due pro-

cess. That argument, however, begs the question. In

determining whether the County is liable, the question is

not by whom are the tortfeasors employed. Rather, the

question is whether the tortfeasors were Carrying out

official County policy — that is, whether their conduct is

fairly attributable to the County. See Witt v. Harbour, 508

F. Supp. 378, 380 n.5 (W.D. Va. 1980), aff'd, 644 F.2d 883

(4th Cir.), cert. denied, 454 U.S. 879 (1981). The court has

concluded that because the Local Board exercised author-

ity that it was expressly authorized by law to exercise and

because ultimate local control over the Local Board is

given to the County Board, the decision to discharge

Bockes is fairly attributable to the County.

The structure of the chain of command of the Local

Department is somewhat unigue. As previously men-

tioned, the Local Board, which is expressly authorized to

hire and fire the local director, is appointed and can be

removed by the County Board. At the Same time, the

Virginia Department retains Oversight responsibilities

and is authorized to discharge Local Board members as

well as Local Department employees who fail to meet

state standards. Thus, authority over day-to-day person-

nel matters is exercised at the local level with ultimate

local control resting with the County Board, which is

expressly authorized to discharge members of the Local

Board at will. Cf. Dotson, 937 F.2d at 928-32 (concluding

that sheriff who was designated as state official was

acting as county official, and thus, subjected county to

§ 1983 liability); Hughes v. Halifax County Sch. Bd., 855 F.2d

183, 185 (4th Cir. 1988) (school board, not maintenance

supervisor lacking authority to control and supervise per-

sonnel, is policymaker for school personnel decisions),

cert. denied, 488 U.S. 1042 (1989); Morrash v. Strobel, 842

F.2d 64, 67-68 (4th Cir. 1987) (city council, not director of

public safety, is policymaker, because council retains right

to decide how to utilize personnel). Given such a struc-

ture, it is not inconsistent to find that the discharge of the

local director by the Local Board is an act fairly attributa-

ble to the County.” On the one hand, the County cannot,

in effect, maintain control over the personnel decisions of

the Local Department and, on the other hand, escape

accountability simply because the Local Department tech-

nically can be classified as an agency of the state for

Eleventh Amendment purposes. See Dotson, 937 F.2d at

928 (“the Sheriff is not always a state employee or always

a county employee. He may, on occasion, be both, or

sometimes one and sometimes the other. It all depends on

the particular function the Sheriff is performing.”) (emphasis

added).

? Additional authority indicates clearly that the Local

Board is the policymaker for personnel matters. According to

the terms of Volume IA, a publication of the Virginia Depart-

ment, the Local Board is the “appointing authority” for all

personnel actions. Volume 1A, Chapter A at 11. Moreover, the

Handbook for Local Boards of Social Services notes that the

Local Board is a policymaking body. Handbook at 17.

V.

For the above-stated reasons, the court finds that

Bockes was entitled to but did not receive procedurai due

process before she was discharged, that the Eleventh

Amendment precludes a judgment award against the

Local Department and the Local Board, and that the

County is liable for the Local Board’s decision to dis-

charge Bockes without affording her procedural due pro-

cess. In accordance with the jury’s verdict, therefore, the

court will enter judgment against the County in the

amount of $20,000.

ENTER this 29th day of July, 1992.

/s/ Ille gible

DISTRICT JUDGE

A28

-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

23, 1993

August

CA-91-62-A

NANCY BOCKES

Plaintiff Appellant

BETTYE LOU FIELDS, Individually and as a member

and Chairman of the Board of Social Services, Grayson

County, Virginia; ROBERT WELLS, Individually and as

member of the Board of Social Services, Grayson

County Virginia; DENNIS COOLEY, Individually and

as a member and Vice-Chairman of the Board of Social

Services, Grayson County, Virginia; DEPARTMENT OI!

SOCIAL SERVICES, Grayson County, Virginia

Defendants - Appellees

and

COUNTY OF GRAYSON, VIRGINIA

Detendant

NANCY BOCKES

COUNTY OF GRAYSON, VIRGINIA

Detendant Appellant

and

A29

BETTYE LOU FIELDS, Individually and as a member

and Chairman of the Board of Social Services, Grayson

County, Virginia; ROBERT WELLS, Individually and as

a member of the Board of Social Services, Grayson

County Virginia; DENNIS COOLEY, Individually and

as a member and Vice-Chairman of the Board of Social

Services, Grayson County, Virginia; DEPARTMENT OF

SOCIAL SERVICES, Grayson County, Virginia

Defendants

On Petition for Rehearing with

Suggestion for Rehearing in Banc

~i

Appellant Bockes’ petition for rehearing and sugges-

tion for rehearing in banc were submitted to this Court.

\s no member of this Court or the panel requested a poll

on the suggestion for rehearing in banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

7

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

S Bert M Montague

CLERK

A30

JOINT EXHIBIT #2

91-62

COMMONWEALTH OF VIRGINIA

STATE EMPLOYEE PROCEDURES

JUN 20 1990

GRIEVANCE FORM A

EMPLOYEE Nancy Bockes

Name

State Job Classification Agency

Vork Facility Section

Geographic Location Work Phone No.

NATURE OF GRIEVANCE I was discharged by the Gray-

son County Social Services Board on June 8, 1990. The

only reason given me was poor employee morale. This

reason was pretextual. My job performance was exem-

Slory [sic] in the view of most employees, clients, state

if

and regional social service personnel, and citizens.

DATE GRIEVANCE OCCURRED June 8, 1990 RELIEF

KEQUESTED Reinstatement to position of Director; back

pay; reinstatement and/or compensation for lost benefits;

compensation for attorney fees

‘s/ Nancy Bockes

Nancy Bockes

A31

MANAGEMENT STEPS

STEP 1 EMPLOYEE-IMMEDIATE SUPERVISOR

DATE OF VERBAL PRESENTATION TO

SUPERVISOR

DATE OF SUPERVISOR’S VERBAL REPLY

DATE FORM A SUBMITTED TO SUPERVISOR 06/20/90

SUPERVISOR’S FIRST STEP REPLY 06/25/90

The Employee serves as Director of the Department

of Social Services at the pleasure of the Board. Employee

did not keep the Board properly informed and the Board

does not think Employee can properly manage the

Department within guidelines of Virginia Law and Regu-

lation of the State Dept. of Social Services.

SUPERVISOR’S SIGNATURE /s/ Bettye Lou Fields,

DATE 6-25-90 Chairman

{ |] I consider this grievance concluded and do not wish

to advance my grievance to the next step.

EMPLOYEE’S SIGNATURE ———_—_sdDATE ere

[X] I do not accept the first step supervisor’s reply and

wish to advance my grievance to the next step.

[ ] I wish to appeal the first step supervisor’s non-

grievable reply to the Office of Employee Relations

Counselors.

EMPLOYEE’S SIGNATURE _

TO NEXT STEP

___ DATE SUBMITTED

A32

STEP 2 EMPLOYEE-SECOND STEP MANAGER

DATE OF SECOND STEP MEETING MANAGER'S

SECOND STEP REPLY |

MANAGER’S SIGNATURE DATE |

[ ] Iconsider this grievance concluded and do not wish

to advance my grievance to the next step.

EMPLOYEE’S SIGNATURE _ DATE _

[ |] I do not accept the second step manager’s reply and

wish to advance my grievance to the next step.

[ ] I wish to appeal the second step manager’s non-

grievable reply to the Office of Employee Relations

Counselors.

EMPLOYEE’S SIGNATURE ___ DATE SUBMITTED

TO NEXT STEP

OERC FORM 01-0185

A33

DENE & DENE

ATTORNEYS AT LAW

158 COURT STREET, N.E.

POST OFFICE BOX 1135

ABINGDON, VIRGINIA 24210

January 28, 1991

LOUIS DENE TELEPHONE (703) 628-8644

HOPE DENE FACSIMILE (703) 628-8846

Ms. Nancy Bockes

P.O. Box 434

Independence, VA 24348

Grayson County Department of Social Services

P.O. Box 434

Independence, VA 24348

Mr. William Wells

Grayson County Board of Supervisors

Independence, VA 24348

Department of Personnel and Training

700 East Franklin Street, Suite 910

Richmond, VA 23219

Joseph S. Tate, Esq.

Gwyn, Tate & Tate

Bank of Marion Building

Marion, VA 24354-2599

Kurt J. Pomrenke, Esq.

White, Elliott & Bundy

P.O. Box 8400

Bristol, Virginia 24201

Mr. Roy F. Rose

Box. 417

Clintwood, VA 24228

A34

Mr. Harold Williams

P.O. Box 967

Galax, VA 24333

Re: Grayson County Department of Social Services and

Nancy Bockes

Enclosed please find your copy of the Panel Decision in

the above-referenced matter.

Your cooperation and assistance has been appreciated.

Very truly yours,

/s/ Louis Dene

Louis Dene

LD/ned

A35

DPT Form 01-019

GRIEVANCE FORM B

PANEL DECISION

Grievant Nancy Bockes

Agency Grayson County Department of Social Services

It has been determined by the agency head or the Circuit

Court that this grievance qualifies for a panel hearing.

Panel Chairman Louis Dene

Date January 18, 1991

Place of Hearing Grayson County Courthouse

Date of Hearing January 9, 10, 11, 1991

Panel Members:

1. Employee Selection Roy Rose

2...Agency Selection Harold Williams

3. Third Member Louis Dene

Issue Whether the discharge of grievant, Nancy Bockes,

was proper and in accord with the applicable rules, regu-

lations and policies.

Panel Decision Discharge was not in accord with the

applicable policies, rules and regulations set forth in Vol-

ume IA of the policies and procedure manual. Reinstate-

ment with one-half back pay, excluding any and all

monies earned from wages, vacation pay, sick leave pay,

and any other source. Grievant is to receive any salary

increase she had [sic] would have received as though she

had been working for the entire year of 1990; grievant's

A36

benefits will accrue for 1991 without any interruption or

break in service. Social Services shall make the appropri-

ate contributions to greivant’s [sic] pension limited to the

monies that the agency pays the grievant. Panel recom-

mends the Board of Social Services meet with the griev-

ant and clearly set forth the expectations of that

department, and it is strongly recommended that the

Board and the members deal directly with the Director

when information is needed from that Agency.

Reason for Panel Decision

The evidence presented to the panel shows the Board of

Social Services of Grayson County did not follow the

procedures outlined in Volume IA, and there was not just

cause for discharge.

/s/ Louis Dene /s/ Roy F. Rose

Panel Chairman Panel Member

/s/ Harold L. Williams

Panel Member

Panel to Record the Vote . 2 oo

[x] 2-1

Note: Panel Chairman shall transmit this decision to the

agency head, the employee, and the Department

of Personnel and Training within fifteen (15) work

days following conclusion of the hearing. The

agency head shall transmit copies of this decision

to appropriate supervisors within three (3) work

days following receipt of the decision.

A37

White Elliott & Bundy

ATTORNEYS AT LAW

Dominion Bank Building

601 State Street, Suite 600

Post Office Box 8400

Bristol, VA-TN 24203

Telephone 703-466-8400

Fax 703-466-8161

June 5, 1992

Jackson S. White, Jr.

James Wm. Elliott, Jr.t

John S. Bundy

Mark M. Lawson

Howard C. McElroy

James R. Hodges

Kurt J. Pomrenke

Rick J. Bearfield*

Amelia L. Bland

James E. Green

Pamela Meade Sargent

Mark R. Graham

Steven ¥ Minor

D. Jeffrey Coale

Steven T. Clark

Kyle P. Macionet

tAdmitted in Tennessee

and Virginia

*Admitted in Tennesee

ABINGDON OFFICE

The Dominion Center

330 Cummings Street

P.O. Box 429

Abingdon, VA 24210

Telephone 703-628-9515

Fax 703-628-7808

JOHNSON City OFFICE

Suite 18 Princeton Square

207 Princeton Road

P.O. Box 4210 CRS

Johnson City, TN 37602

Telephone 615-282-1006

Fax 615-282-3081

Thomas C. Phillips, Jr.

Of Counsel

A38

The Hon. Samuel G. Wilson, Judge

United States District Court

P.O. Box 749

Abingdon, VA 24210

Re: Bockes v. Grayson County Board of Social Services,

et. al.

Our File No. 5355-HG-1

Dear Judge Wilson:

Please find enclosed two documents which Bob Ward

and I have stipulated to and which hopefully address

some of the questions you raised. The first document is a

letter dated June 2, 1992, from LaVaun Reedy, Office

Manager for the Grayson County Department of Social

Services, advising Mr. Ward that the premium paid by the

local department for the public officials liability policy

written by the Division of Risk Management is comprised

of 80 percent state funds and 20 percent local funds.

The second document is a letter dated June 4, 1992,

from Robert C. Vogt, Program Manager, Political Subdivi-

sions, Division of Risk Management, in which he pro-

vides some explanatory information concerning the

public officials liability self insurance plan.

I have filed today with the Clerk a supplemental

memorandum regarding our opinion of the significance

to this case of the Division of Risk Management Public

Officials Liability Insurance Program

A39

Should you need any additional information, please

advise. Mr. Ward has not previously seen our supplemen-

tal memorandum, and may desire time to respond.

Sincerely,

/s/ Kurt Pomrenke

Kurt J. Pomrenke

Encs.

c: Mr. Robert V. Ward (w/o enclosure)

Ms. Nancy Bockes (w/o enclosure)

A40

Grayson County Department of Social Services

P.O. Box 434

Independence, Va. 24348

[LOGO] ; 703-773-2452 PUBLIC

SOCIAL SERVICES TO 703-236-9541 ASSISTANCE

CHILDREN AND ADULTS FOOD STAMPS

MEDICAID

June 2, 1992

Mr. Robert V. Ward

Suite 300

Executive Plaza

510 Cumberland St.

P.O. Box 1809

Bristol, VA 24203-1809

Dear Mr. Ward:

Mr. Dennis Cooley requested I send you the information

regarding the Division of Risk Management. This is reim-

bursed at 80% state and 20% local. He stated Judge

Wilson needs this as soon as possible. Would you please

see that he is informed.

If I can be of further assistance, please advise.

Sincerely,

/s/ LaVaun H. Reedy

(Mrs.) LaVaun H. Reedy

Office Manager

cc: Dennis Cooley

A4l1

LOGO

COMMONWEALTH of VIRGINIA

DEPARTMENT OF GENERAL SERVICES

June 4, 1992

DIVISION OF RISK MANAGEMENT—-

JAMES MADISON BUILDING

4TH FLOOR

109 GOVERNOR STREET

RICHMOND, VIRGINIA 23219

(804) 786-5968

FAX (804) 371-8400

VOICE/TDD (804) 786-6152

TO WHOM IT MAY CONCERN

PUBLIC OFFICIALS LIABILITY SELF-INSURANCE

PLAN (POLSIP)

I am employed by the Commonwealth of Virginia,

Department of General Services, Division of Risk Man-.

agement (DRM).

Under Section 2.1-526.8:1, of the code Virginia, DRM

acts as the administrator and trustee for the POLSIP.

The POLSIP is essentially a group self-insurance that

is non-assessable. All political subdivisions in Virginia

are eligible to participate in the Plan. Such participation

is voluntary.

DRM sets the rates/cost for participation. For Social

Service Departments; a rate is set based on the size of the

agency. Agencies, statewide, have been categorized into

several different groups based on the size of population

served. The larger the population served the larger the

cost.

A42

[he agency, upon a decision to participate, makes

payment directly to DRM. The payment is made using a

combination of state and local funds. The State pays the

majority of the costs. The states share of the costs is 80%

with the locality funding the remaining 20%.

Any judgements paid under the POLSIP come

directly from the funds that have been paid in for each

type of political subdivision.

Che funds paid into the Plan are held in a single self-

insurance trust fund, with the assets invested on the

funds behalf by the Treasurer of Virginia.

Any check making payment out of the Trust Fund

account is signed by the Treasurer of Virginia. The

account is held in the name of the Commonwealth.

I can be reached at (800) 678-4924 extension 5-4616, if

further information is needed.

Sincerely,

/s/ Robert C. Vogt

Robert C. Vogt

Program Manager

Political Subdivisions

A43

VIRGINIA DEPARTMENT

OF SOCIAL SERVICES PERSONNEL

7/84 VOLUME IA, CHAPTER A, PAGE 1

INTRODUCTION

he material contained in the Local Personnel Adminis-

trative Manual is a comprehensive text comprised of the

policies, administrative rules and procedures to be used

in the administration of local welfare/social service per-

sonnel. This administrative manual provides the basis for

the State Personnel System applicable to all local social

service d epartments.

Ihe State Board of Social Services establishes and main-

tains the standards and policies that provide the founda-

tion of the Local Personnel System. Administrative rules

and procedures for implementation of the State Board

policies are developed by the State Department of Social

Services. The Commissioner of the State Department of

Social Services is responsible for making certain that the

personnel policies, administrative rules and procedures

are properly maintained and administered. He must also

ensure that local welfare/social services departments

comply with the provisions of the personnel plan. Local

boards of welfare/social services must adopt the state

policies or in lieu of these, under the conditions set forth

in the State Personnel Plan, request approval to adopt

local jurisdictional personnel policies. The intent of the

A44

law, the State Board policies and the rules for administra-

tion of the personnel plan, is to provide for the mainte-

nance of an adequate qualified staff essential to the

effective operation of the social service programs.

This document provides the policies, rules and pro-

cedures for the operation of a Personnel System applica-

ble to local welfare/social service employees. It is

divided into the following six Chapters. Chapters B, C,

and D generally conform to the organizational structure

of the State Department of Social Services, Office of Per-

sonnel:

Chapter A General Overview of the Local Personnel

Plan

Chapter B- Classification and Compensation

Chapter C Personnel Management including all aspects

of Employment and Employee Benefits

Chapter D Employee Relations Management

Chapter E Jurisdiction-Wide Personnel Systems

Chapter F Local Agency Personnel System (LAPS)

l. STATE BOARD OF SOCIAL SERVICES

In accordance with federal and State law, the State

Board of Social Services has established personnel

policies which are the basis for a comprehensive

Local Personnel System applicable to employees of

local welfare/social services departments. The per-

sonnel system promulgated by the State Board is in

keeping with the Federal Merit Principles, and federal

and State law. The State Board is ultimately respons-

ible for maintenance of the system and monitoring of

its use by local agencies.

No

A45

All local departments of welfare/social services must

utilize the personnel system established by the Board.

However, there are provisions throughout the plan

that allow local agencies to request approval for local

jurisdictional policies in lieu of the State policy.

Under specific conditions, the State Board has pro-

vided for inclusion of local department of welfare /

social services employees in a comprehensive local

jurisdiction-wide personnel plan. Prior approval of

the jurisdiction-wide plan is required and continued

approval is contingent upon compliance with the

original agreement and conformity with the policies

in the Local Personnel Plan. Refer to Chapter E for

more information.

RESPONSIBILITY FOR PERSONNEL ADMINISTRA-

TION

State Board Policy

The Virginia Department of Social Services is respons-

ible for providing a personnel system encompassing

all aspects of personnel; selection, classification, com-

pensation, administration, and employee relations

which complies with appropriate federal and State

laws and regulations.

a. Federal Requirements

The Federal Standards for a Merit System of Per-

sonnel Administration, Section 5 CFR, Part 900,

subpart F, (b) states that, “Certain Federal grant

programs, require, as a condition of eligibility,

that State and local agencies that receive grants

establish merit personnel systems for their per-

sonnel engaged in administration of the grant-

aided program. These merit personnel systems

are in some cases required by specific federal

grant statutes and in other cases are required by

A46

regulations of the federal grantor agencies. Title II

of the Act [Intergovernmental Personnel Act of

1970, as amended] gives the U. 5S. Office of Per-

sonnel Management authority to prescribe stan-

dards for these federally required merit personnel

standards.”

1)

2)

State Board Policy

The Department of Social Services is commit-

ted to providing a personnel system based

upon merit and fitness applicable to all local

welfare/social service agencies in Virginia

which complies with the federal regulations

set forth in the “Federal Standards for a Merit

System of Personnel Administration,” 5 CFR,

Part 900, subpart F.

The Six Merit Principles

The Federal Standards for a Merit System of

Personnel Administration contain six merit

principles that apply to all systems of person-

nel administration that must comply with the

standards. The six principles are as follows:

a) recruiting, selecting and advancing

employees on the basis of their relative

ability, knowledge and skills, including

open consideration of qualified appli-

cants for initial appointment;

b) providing equitable and adequate com-

pensation;

c) training employees, as needed, to assure

high quality performance;

d) retaining employees on the basis of the

adequacy of their performance, correcting

inadequate performance, and separating

A47

employees whose inadequate perfor-

mance cannot be corrected;

e) assuring fair treatment of applicants and

employees in all aspects of personnel

administration without regard to political

affiliation, race, color, national origin, sex,

religious creed, age or handicap and with

proper regard for their privacy and con-

stitutional rights as citizens. This “fair

treatment” principle includes compliance

with the federal equal employment

opportunity and nondiscrimination laws;

and

f) assuring that employees are protected

against coercion for partisan political pur- _

poses and are prohibited from using their

official authority for the purpose of inter-

ferring [sic] with or affecting the result of

an election or a nomination for office.

State Requirements

The Code of Virginia, Section 63.1-26 delegates

the State Board authority for establishing person-

nel policies which are applicable to employees of

local welfare/social service departments.

1) State Board Policy

The Virginia Department of Social Services is

responsible for establishment and mainte-

nance of administrative policies and pro-

cedures governing personnel administration

in the Virginia social services program. It is

the responsibility of the State Board of Social

Services to establish entrance and perfor-

mance standards for personnel administration

in accordance with the provisions contained

in Section 63.1-26 of the Code of Virginia.

A48

2) Code of Virginia Reference

a)

The standards in Section 63.1-26 include

such rules and regulations as may be

embraced in the development of a system

of personnel administration meeting

requirements of the federal Department

of Health, and Human Services (HHS)

under appropriate federal legislation

relating to programs administered by the

Board; provided,

* * *

A49

LOGO

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF SOCIAL SERVICES

November 14, 1986

TO: Local Directors/Superintendents

SUBJECT: PUBLIC OFFICIALS LIABILITY SELF INSUR-

ANCE PLAN

You were recently mailed information from the State’s

Division of Risk Management concerning the above. If

your agency is not presently covered by Professional

Liability Insurance, you are encouraged to make immedi-

ate application to the Office of Risk Management for such

coverage as is now being offered.

The Department of Social Services will reimburse 80% of

the premium cost for this insurance. This Department

will not participate in reimbursement of any deductible

amounts that may be charged under policy terms of the

insurance.

If your agency is currently covered by your local city or

county Public Officials and Employees’ Legal Liability

Insurance policy, you will note from the Division of Risk

Management's release that local welfare/social services

agencies will not be insured in any policy Risk Manage-

ment may issue in the future to your local governing

body. This prohibition also seems to be applicable to most

private insurance carriers.

Now that the Division of Risk Management has devel-

oped and published its plan to offer Public Officials Lia-

bility Self Insurance to all local welfare/social services

agencies that make application, we see no reason for any

A50

local agency not to have adequate financial protection

and legal services in the event a professional liability

claim is made against any welfare/social services agency

or its employees.

If you need assistance of any kind in matters relating to

professional liability insurance, please contact Mr. S. P.

Hair, Director, Division of Administration, telephone

(804) 281-9206.

/s/ William L. Lukhard

William L. Lukhard

cc: Regional Directors

A51

LOGO

COMMONWEALTH of VIRGINIA

DEPARTMENT OF GENERAL SERVICES

July 8, 1993

DIVISION OF RISK MANAGEMENT

JAMES MADISON BUILDING

4TH FLOOR

109 GOVERNOR STREET

RICHMOND, VIRGINIA 23219

(804) 786-5968

FAX (804) 371-8400

VOICE/TDD (804) 786-6152

Daniel R. Bieger, Esq.

Copeland, Molinary & Bieger, P.C.

212 West Valley St.

P.O. Box 1296

Richmond, VA 24210

Re: Clyde and Janice Quick

Dear Mr. Bieger:

This letter will acknowledge receipt of your fax sent

to the Office of the Attorney General. Please be advised

that this office now handles claims made against agencies

of the Commonwealth.

We are of the opinion that the Buchanan County

Department of Social Services is not a State agency for the

purposes of the Tort Claims Act. We will, however, retain

your letter for whatever legal effect it may have.

Sincerely,

/s/ Lynne Noyes

Lynne E. Noyes

Claims Management

Specialist

cc. Kurt J. Pomrenke, Esq.

Bill Jones

A52

IN THE UNITED STATES DISTRICT COURT FU® THE

WESTERN DISTRICT OF VIRGINIA

Abingdon Division

snc ocninsnensolhcpsas mma x

NANCY BOCKES,

Plaintiff, . Civil Action No.

ois 91-62-A

: . (Filed Jan. 8, 1993)

BETTYE L. FIELDS, n

mas 9:45 a.m.

individually and as a Member :

EES. : er February 5, 1992

and Chairman of the Board of FOIE = SE

Social Services, Grayson oe

County, Virginia, et al.,

Defendants. |

ccscsssseamsesnissnitiamepasaieiann nn x

PARTIAL TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE SAMUEL G. WILSON

UNITED STATES DISTRICT JUDGE, and a jury

APPEARANCES:

KURT J. POMRENKE, Esquire

White, Elliott & Bundy

P.O. Box 8400

Bristol, Virginia 24203-8400

Counsel for the Plaintiff.

ROBERT V. WARD, Esquire

P.O. Box 1809

Bristol, Virginia 24203-1809

Counsel for the Defendants.

Proceedings recorded by mechanical stenography, tran-

script produced by Reporter.

oi ean eee a

A53

BRIDGET A. DICKERT

UNITED STATES COURT REPORTER

P.O. BOX 749

ABINGDON, VIRGINIA 24210

(703) 628-2549

[Robert Wells on Direct Examination by Robert Ward]

* * *

[p. 78] Q. ... Did you reach a point in time where

you reached a decision you didn’t think was in the best

interest of the board for this lady to be a director?

A That’s exactly right.

Q_ Did you have a conversation with these other two

members about that?

A Yes, I did.

Q Did you come upon an agreed course of action?

A Yes, sir.

As a result of that agreed course of action did

you, did you consult an attorney in Marion?

A Yes, I did?

A [sic] About when was that?

A Sometime in May, I think.

[p. 79] Q 1990?

A 1990.

Q All right. On the first occasion with the attorney

did all three members go?

A No, sir, just myself.

Q

A

Q

A54

Did you discuss with the attorney the problems?

Yes, Sif.

How many times were you present at meetings

with your lawyer?

A

QO

A

By myself or with the board?

Both. How many times by yourself -

I think I met with Joe Tate twice, the first time to

discuss with him, you know, about the information that I

had, or if we were correct in what we were trying to do,

to advise us, and then one other time I think I stopped by

there and dropped off some more statements people had

given me, and then one time we three met together.

Q

All right. Did you tell Mr. Tate that you wanted to

fire Mrs. Bockes?

A

No, I don’t think I said it that way. I said, “What

can we do?” I said, “Can we fire her? We need advice.”

Q

Were you told that you had to comply with the

provisions of 1-A, manual 1-A?

[p. 80] A No, sir.

Q

Did you, as a board, decide to terminate Mrs.

Bockes from her employment?

A

Q

A

Q

Yes, sir.

Did you follow Mr. Tate’s advice in doing that?

Yes, sir.

And what advice was that? What specifically did

Mr. Tate tell you you had to do?

A55

A To dismiss her, to tell her that we had lost faith in

her ability to run that agency.

Q Did he give you any instructions as to whether

you should say anything else?

A He told us to keep our mouths shut.

Q Did you follow his instructions?

A Yes, sir.

Q Did you discuss with him the provisions of the

code section that said the superintendent serves at the

pleasure of the board? Did you discuss that with him?

A Yes, sir. | asked him specifically about that.

Q_ Did you know what it meant when it said subject

to the provisions of the merit system?

A No, sir, I did not.

Q_ Did you rely on his advice to comply with what

that meant?

[p. 81j A Yes, sir.

Q The procedure that happened on June 8, 1990,

was that done in accordance with your attorney’s instruc-

tions?

A Yes, it was.

* * *

[Dennis Cooley on Direct Examination by Robert Ward]

* * *

A56

[p. 88] Q Did you reach a point when you fettit was

in the best interests of the Grayson County Department of

Social Services to terminate Mrs. Bockes from her posi-

tion?

A Yes, sir.

© When was that?

A I guess probably May, something to that effect

Q Do you have any written notes to recall specific

dates?

A No.

Q Did you, did you have conversations with Mrs

Fields and Mr. Wells about this?

A Yes, sir.

Q Was there any agreement to contact an attorney?

A Yes, sir

© Before any board action was taken on June 8th of

1990 did you, yourself, also meet with an attorney?

A Yes, sir

Q Who was present?

A The other board members.

Q Okay. Was, at that point in time was a decision

made that you could fire Mrs. Bockes by the procedure

used, June 8th?

[p. 89] A Yes, sir.

Q What were your instructions?

is Ni

A57

A To terminate.

Q What were your instructions as to how?

A That’s what we had to do, simply termination,

since she was an at will employee.

Q Who used the term at will employee?

A Pleasure of the board.

Q What I’m asking you, were those the attorney's

words or were they your words?

A Oh, I’m sorry. Yes, sir. The attorney’s words.

Q All right. If you had been told that you had to

comply with the provisions of 1-A by your attorney

would you have done that?

A Yes, sir.

Q At the time that the action was taken on June 8,

1990 did you believe you were in full compliance with the

law?

A Yes, sir.

* * *

[Bettye Lou Fields on Direct Examination by Robert Ward]

* * *

[p. 94] Q Did you reach a point where you felt it

was in the best interests of the Department of Social

Services of Grayson County to terminate Mrs. Bockes and

replace her with someone else?

A Yes, I did.

A58

Q Was that an easy thing to do?

A No, it was not.

Q When you went on the board did you take an

A Yes, sir.

Q Did you discuss this with Mr. Wells and Mrs.

Cooley?

A Yes, I did.

Q Did there come to be an agreement that some-

thing had to be done?

Ss

A Yes.

Q As a result of that were you present for the

meeting with the attorney?

A Yes, one meeting with the attorney, the three of

us.

QO Pardon?

A The three of us met with the attorney.

[p. 95] Q Okay. At that meeting were you told you

had to comply with the provisions of 1-A?

A No, sir.

Q At that meeting were you told, at least given 1-A,

the appropriate procedure for terminating Mrs. Bockes?

A Yes, we were told that to just tell her that we had

lost confidence in her ability to lead, to say nothing else,

to give no other reasons, that she was, that she would,

A59

she worked at the pleasure of the Board, and that meant

we didn’t even have to have a reason. We certainly

wouldn’t — well, anyway, that’s what we did.

Q Did you follow his advice?

A Yes.

Q When you were asked to name specifics did you

follow his advice and not say anything?

A Yes, sir.

Q_ If you had been told to comply with provisions of

1-A by the attorney would you have done that?

A Yes, sir.

A60

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

: ABINGDON DIVISION

NANCY BOCKES )

Plaintiff?

) CIVIL ACTION NO.

) 91-0062-A

BETTYE LOU FIELDS,

et al,

)

Defendants )

AFFIDAVIT

I, Nancy Bockes, hereby swear and affirm that the

following statements are true:

1. I am employed as the director of the Grayson

County Department of Social Services. The employees of

our agency and myself always have been considered to be

local employees of a local agency, and not state

employees or employees of a state agency.

2. Our Department of Social Services employees are

covered by Grayson County’s Blue Cross/Blue Shield

group health insurance policy. This is the same policy

that all county employees, with the possible exception of

the sheriff's department, participate in. | am unaware of

any provisions in either the state code or state board

policy which would allow employees of a local social

services agency to participate in the state employee group

health insurance policy. Eighty percent of the cost of the

premiums for the health insurance policy are borne by

the state, and twenty percent are paid by Grayson

County. Grayson County pays the premiums for our

Aél

employees, and then receives eighty percent reimburse-

ment from the state of Virginia.

3. The Grayson Department of Social Services rents

office space from Grayson County, and our office is

located in the basement of the Grayson County Court-

house. The rent is 80/20 money. (eighty percent paid by

the state; twenty percent by the county).

4. Room and board expenses for our foster care

program is 50/50 money (fifty percent paid by the state;

fifty percent by the county). Foster care services is paid

with 80/20 money; however, when that money is

exhausted, the ratio then becomes 50/50. We almost

always run out of our state allotment, and are forced to

use 50/50 money.

5. The general relief program is solely a local option

program. That is, our board of social services in Grayson

County has determined that we will offer the general

relief program. This program is totally discretionary on

the part of the local board and is not mandated by the

state of Virginia. The ratio for this program is approx-

imately 62/38 (sixty-two percent paid by the state; thirty-

eight percent by the county). It is my understanding that

most counties have dropped their general relief program

since it is a local option program.

6. Our social services board members are paid a

$30.00 salary per month for attending our board meet-

ings. This money is local only money, meaning there is no

state reimbursement (“local” money means funds allo-

cated to us by the Grayson County Board of Supervisors).

The board members’ mileage expenses are reimbursed

80/20.

A62

7. Our commodity program (the distribution of food

products to the needy) is funded with local only money,

and then we are reimbursed by the federal government.

No state money is used for this program.

8. Our local board of social services is the hiring

authority for our department. In interviewing prospective

employees for our department, our board always informs

those applicants that if hired they would be considered

the same as any other county employee.

9. The Grayson County Social Services Board voted

to allow our employees to participate in the state griev-

ance procedure, as opposed to participating in a local

grievance procedure.

10. The Grayson County Board of Supervisors, in

the past, decided that all county employees, including the

Department of Social Services employees, would be cov-

ered by the state employee retirement fund, and not a

local plan.

11. The employees of the Grayson County Depart-

ment of Social Services do not receive raises unless the

Grayson County Board of Social Services approve such

raises. The Grayson County Department of Social Ser-

vices employee do not receive the same raises that state

employees throughout Virginia receive. Our raises are

totally dependent upon the action of our local board of

social services. 2

12. Our department has five cars which are titled in

our local agency’s name and which have local license

plates. Our cars are serviced at the Grayson County

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garage, and we purchase gasoline from the county. Con-

versely, state vehicles have state license plates, are ser-

viced at the Virginia Department of Transportation

garage, and purchase their gasoline from the Department

of Transportation.

13. On several occasions the Grayson County

Administrator, Don Young, and other county officials

have borrowed our automobiles, particularly our van, for

county use.

14. The Chairman of the Grayson County Board of

Social Services signs all warrant registers which are then

sent to the county treasurer for the issuance of payroll

checks. There is no state involvement in this procedure.

15. The County Treasurer signs and issues the pay-

roll checks for our social services employees. The eighty

percent state reimbursement for these costs is paid

directly to the County Treasurer.

16. The County Treasurer handles all of our depart-

ment’s accounts and keeps track of all of our books. Our

agency keeps no money; the County Treasurer handles

everything. The Department of Social Services can write

checks, but the County Treasurer must sign them.

17. The cost for my grievance procedure, which

would have included attorney fees, court reporter fees

and the administrative hearing chairman's fees, was paid

with 100 percent local money. No state funds were

approved or appropriated for this expense

18. The Board of Supervisors for Grayson County

must approve all new programs or new employees which

would require the expenditure of twenty percent local

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money. Without that approval from the County, we could

not implement new programs or hire additional

employees. Thus, the Board of Supervisors directly con-

trols whether we implement new programs or hire addi-

tional employees.

19. Every Grayson County employee, including

employees of the Department of Social Services, pay five

percent of their salary into the Virginia Retirement Sys-

tem. Conversely, the state of Virginia pays this five per-

cent share for state employees. Those state employees

pay nothing out of their own paychecks.

20. When the regular County audit is performed,

the Grayson Department of Social Services is audited at

the same time and by the same auditors who audit every

other county department. My work performance as direc-

tor of this agency is evaluated on a regular basis by the

Grayson Board of Social Services. No one from the State

Department of Social Services or the Western Region

Department of Social Services participates in my evalua-

tions.

21. Irecently had to request an additional allocation

from the Grayson County Board of Supervisors in the

approximate amount of $12,500.00, which was the local

share (50%) to fund necessary programs in foster care,

ADC foster care and subsidized adoption, through the

end of the fiscal year. If the county doesn’t give us those

funds, we cannot obtain the 80% state money (approx-

imately $69,000.00).

22. If there is no insurance coverage, it is my under-

standing that any civil judgments awarded against the

Board of Social Services or the Grayson Department of

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Social Services would have to be paid out of local only

money, and is not reimbursed by the state.

/s/ Nancy Bockes

Nancy Bockes

STATE OF VIRGINIA

COUNTY OF WILLIAMSBURG

Personally appeared before me, a Notary Public for

State and County aforesaid, Nancy Bockes, who, upon

being duly sworn, stated that the foregoing is true and

correct to the best of her knowledge and belief.

WITNESS my signature and seal this 12th day of

March, 1992.

/s/ Barbara J. Thompson

Notary Public whose

commission expires on

December 31, 1994

[SEAL]