15.2-1636.9 - Appeal from decision of Board.
§ 15.2-1636.9. Appeal from decision of Board.
A. Any officer whose budget is affected by a decision of the Board under thisarticle made for the fiscal year pursuant to and at the time designated by §§15.2-1636.7 and 15.2-1636.8 and no other, or any county or city affectedthereby, or the Attorney General as representative of the Commonwealth, shallhave the right to appeal from any such decision of the Board, withinforty-five days from the date of such decision. Such appeal shall lie to thecircuit court of the county or city wherein the officer making the appealresides. The court shall be presided over by three judges of circuit courtsremote from that to which the appeal is taken. The three judges shall bechosen by the Chief Justice of the Supreme Court from a panel of fifteenactive or retired judges selected to hear such matters by the Supreme Court.Such judges shall remain on the panel for a period of time determined by theChief Justice of the Supreme Court. No judge may be appointed to hear anappeal involving a jurisdiction in his current or former circuit. Notice ofsuch appeal shall be given within the time above specified by any suchofficer to the Compensation Board, the county or city affected and theAttorney General. The officer appealing shall, in the appeal, state withspecificity what action of the Compensation Board the officer is contesting,the additional services provided to the locality not required by law, and thecost of providing such service. The Compensation Board shall notify the ChiefJustice forthwith when all administrative remedies have been exhausted by theappellant and the three-judge court shall be designated upon receipt of thenotice by the Chief Justice. The appeal shall be heard within forty-five daysfrom the date such notice is filed by the Board with the Chief Justice. Atleast fifteen days' notice of the time and place set for the hearing shall begiven the officer noting such appeal, the county or city affected, theCompensation Board and the Attorney General. On such appeal all questionsinvolved in said decision shall be heard de novo by the court and itsdecision on all questions shall be certified by the clerk thereof to theofficer affected, to the locality and to the chairman of the CompensationBoard.
In making its decision, the court shall give consideration to the amount offunds budgeted and expended by the local government for the constitutionalofficer which exceeds the amount reimbursed by the Compensation Board, theextent to which the officer provides additional services to the locality notrequired by law and to what extent, if any, the local government shouldparticipate in providing the additional funding requested by theconstitutional officer. The court shall also give consideration both to theofficer's ability to perform his statutory duties without additional fundingand the ability of the Compensation Board and local government to provideadditional funding for the officer's functions. The court shall also considermaximum staffing and funding levels set in the general appropriation act andany other statutory provisions which would otherwise prohibit theCompensation Board from granting the officer's request. The burden of provingthe necessity of additional funding shall be borne by the officer. After dueconsideration of Compensation Board and local government statutory authorityand the constitutional officer's demonstrated need for additional funding,the court shall determine the extent to which the Compensation Board andlocal government shall share in the additional funding. Should the courtdetermine that additional funding is necessary for the officer to perform hisduties, and that it is the responsibility of the Compensation Board toprovide all or part of the additional funds, and that the Compensation Boarddoes not have the ability to provide such additional funding, theCompensation Board shall request the necessary additional funding from theGeneral Assembly at its next occurring regular session.
Should the court determine that additional funding is necessary for theofficer to perform his duties and that it is the responsibility of the localgovernment to provide all or part of the additional funds, and that the localgovernment does not have the ability to provide such additional funding, thechief administrative officer of the local government shall include suchrequest in the budget submission to the local governing body.
From the decision of the court there shall be no right of further appeal. Thedecision of the court shall be within the difference between the amountsoriginally requested by the appealing officer pursuant to § 15.2-1636.7 andthe amounts fixed by the Compensation Board for such fiscal year; however,when the appeal is filed by a county or city such decision shall be withinthe difference between the prior salaries, expenses and other allowances ofsuch officer and the amounts fixed by the Compensation Board for such fiscalyear. In the event an appeal is filed by both the officer affected and thecounty or city affected, such decision shall be within the difference betweenthe amounts originally requested by the appealing officer pursuant to §15.2-1636.7 and the prior salaries, expenses and other allowances of suchofficer.
In pursuing the provisions of this section, constitutional officers may usefunds designated by the Compensation Board or appropriated by their localgoverning body to employ independent counsel, provided that funds have beenspecifically appropriated for such purpose.
B. Notwithstanding the provisions of subsection A, no appeal of any decisionof the Board shall lie to the circuit court from the date of enactment ofthis subsection until July 1, 1993, at which time the circuit court mayconsider appeals for all fiscal years affected by this moratorium and forsubsequent fiscal years.
(Code 1950, § 14-65; 1964, c. 386, § 14.1-52; 1971, Ex. Sess., c. 156; 1972,c. 390; 1974, c. 465; 1976, c. 673; 1977, c. 80; 1980, c. 588; 1983, c. 382;1991, c. 617; 1992, c. 342; 1993, cc. 554, 563; 1995, c. 733; 1998, c. 872.)