Can a Virginia public employer choose not to revoke VRS pension benefits after an employee's job-related felony conviction?

Plain-English summary

The Essex County Attorney asked three related questions about Virginia Retirement System pension forfeiture for public employees convicted of job-related felonies. The 2011 statute, § 51.1-124.13 of the Code of Virginia, says that "[n]o person shall be entitled to" VRS benefits if convicted of a felony and the employer determines the felony arose from misconduct in a covered position. The VRS-issued form for triggering forfeiture, Form VRS-180 (Rev. 12/11), had said the employer "may" file the form, which Essex County had read as conferring discretion to decline to seek forfeiture.

Attorney General Mark R. Herring concluded the form was wrong and the statute was mandatory.

On the statute: once the employer has made a final determination that the felony arose from misconduct in a covered position (after written notice to the employee, opportunity to be heard, and any circuit court appeal), the employer has no discretion. The statute's "as soon as practicable" implementation language and its flat prohibition on benefits implicitly require the employer to notify the VRS Board.

On the form: agency interpretations in guidance documents (§ 2.2-4001) are entitled to deference only when consistent with the statute. The "may" language in Form VRS-180 (Rev. 12/11) conflicted with the statute and was not entitled to deference. VRS recognized this and replaced the form (Rev. 12/15) with mandatory language: an employer "complete[s] this form to notify VRS" of the conviction and that benefits "must be forfeited."

On reliance: an employer who had previously relied on the permissive language and declined to file the form had a continuing obligation to comply. The statute provides no explicit timeframe for post-final-determination notification, only the general "as soon as practicable" standard. A prior misreading of the statute does not waive the duty. Essex County therefore had to complete and transmit the current Form VRS-180 to the VRS Board notwithstanding its earlier decision not to.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

VRS forms, VRS regulations, and Title 51.1 of the Code have been updated periodically since 2017. Before relying on the specific revision history of Form VRS-180 or the procedural details described here, check the current form and the current text of § 51.1-124.13.

Background and statutory framework

Section 51.1-124.13, enacted in 2011, provides that "[n]o person shall be entitled to any of the benefits of this title as provided in this section if (i) he is convicted of a felony and (ii) the person's employer determines that the felony arose from misconduct occurring on or after July 1, 2011, in any position in which the person was a member covered for retirement purposes under any retirement system administered by the Board." The statute commits to the employer the factual determination of whether the felony arose from misconduct in a covered position. Before making that determination the employer must give the employee "reasonable prior written notice and ... an opportunity to be heard." The employee has five working days to appeal to circuit court. The determination becomes "final" after ten days without an appeal, or upon affirmance by the circuit court. Once final, the VRS Board "as soon as practicable after the employer notifies the Board" implements the forfeiture.

The AG read this scheme as imposing two distinct duties on the employer: a discretionary fact-finding duty (was the felony in a covered position?) and a mandatory notification duty (once the determination is final, tell the Board). Implicit in the directive that the Board act "as soon as practicable after the employer notifies the Board" is the requirement that the employer notify. The plain meaning of the prohibition on benefits, combined with the implementation directive, leaves the employer no discretion at the back end.

On the inconsistency between the statute and Form VRS-180 (Rev. 12/11), the AG relied on the framework in Jackson v. W., 14 Va. App. 391, 399 n.6 (1992), and Dep't of Mines, Minerals & Energy v. May Bros., Inc., 11 Va. App. 115, 119 (1990). Administrative guidance documents are not binding and earn deference only "according to their persuasive effect." When the interpretation conflicts with the statute, "the usual deference accorded to an agency's interpretation should be withheld." The "may" language in the older form created exactly that conflict, was not entitled to deference, and had been corrected in Rev. 12/15.

On retroactive reconsideration, the AG noted that § 51.1-124.13 does not specify a timeframe for notification, only the "as soon as practicable" standard. A misreading of the statute does not waive the duty. The employer in Essex County had to revisit its 2014 decision and transmit Form VRS-180 (Rev. 12/15) for the qualifying felony conviction.

Common questions

Q: Can a Virginia public employer choose to let an employee keep VRS benefits after a job-related felony conviction?
A: The AG concluded no. Once the employer has made a final determination that the felony arose from misconduct in a covered position, § 51.1-124.13 makes forfeiture mandatory and the employer must notify the VRS Board.

Q: What about the older Form VRS-180 that said "you may" file?
A: The AG concluded that language was inconsistent with the statute and was not controlling. VRS itself fixed it in the December 2015 revision by replacing "may" with mandatory directives.

Q: Does the employer still get to decide whether the felony arose from misconduct in a covered position?
A: Yes. The fact determination is the employer's responsibility, subject to the employee's notice, hearing, and circuit-court appeal rights. The non-discretionary part is the back end: once the determination is final, notification of VRS is required.

Q: An employer made the wrong call back in 2014 based on the old form. What does the opinion say?
A: That the employer must reconsider and notify the VRS Board now. The statute imposes no time bar on the notification duty, and a prior misreading of the statute does not waive it.

Q: How quickly must the employer notify VRS after the determination becomes final?
A: The statute requires action "as soon as practicable" and gives no specific deadline. Employers should treat this as a directive to act promptly once the appeal window has closed or the circuit court has affirmed.

Q: Are all felony convictions covered?
A: Only those associated with the employee's performance of duties in a VRS-covered position. The forfeiture is targeted at job-related misconduct.

Citations and references

Virginia statutes:

• Va. Code Ann. § 51.1-124.3 (definitions)
• Va. Code Ann. § 51.1-124.13 (felony-conviction forfeiture)
• Va. Code Ann. §§ 51.1-100 to 51.1-169 (VRS)
• Va. Code Ann. §§ 51.1-600 to 51.1-605 (Government Employees Deferred Compensation Plan)
• Va. Code Ann. §§ 51.1-607 to 51.1-613 (Cash Match Plan)
• Va. Code Ann. § 2.2-4001 (definition of "guidance document")
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Davenport v. Little-Bowser, 269 Va. 546 (2005)
• Jackson v. W., 14 Va. App. 391 (1992)
• Dep't of Mines, Minerals & Energy v. May Bros., Inc., 11 Va. App. 115 (1990)

Administrative materials:

• VRS Form VRS-180 (Rev. 12/11) (permissive language, since superseded)
• VRS Form VRS-180 (Rev. 12/15) (mandatory language)

Prior AG opinions:

• 2015 Op. Va. Att'y Gen. 119

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/16-024_McRoberts--VRS_felon_benefits_forfeiture.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

January 18, 2017

Andrew R. McRoberts, Esquire
Essex County Attorney
1111 East Main Street
Post Office Box 1998
Richmond, Virginia 23218-1998

Dear Mr. McRoberts:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask three questions regarding the interpretation of § 51.1-124.13 of the Code of Virginia, which requires the forfeiture of pension, retirement, and related benefits provided under the Virginia Retirement System ("VRS") to public employees convicted of certain felonies:

1) Does an employer have discretion under § 51.1-124.13 and Form VRS-180 ("Employer Request for Forfeiture of Member Benefits") to file Form VRS-180 to initiate forfeiture of VRS benefits once it has determined that an employee's felony conviction was associated with the performance of the employee's job duties;

2) Does the response to the first question above change based on the language of Form VRS-180, in effect on February 4, 2014, indicating "if an employee is convicted of a felony for misconduct occurring on or after July 1, 2011 and you have determined that the felony was in association with the performance of the employee's job duties, you may request the employee forfeit all VRS benefits ...." (emphasis added); and

3) Must an employer which relied on the permissive language of Form VRS-180 (Rev. 12/11) as described above in electing not to seek the forfeiture of employee VRS benefits in 2014 now reconsider the forfeiture of VRS benefits issue?

Applicable Law and Discussion

Title 51.1 of the Code of Virginia establishes pension, retirement, and related benefits for various public employees,[1] including benefits for public employees in positions covered under the Virginia Retirement System.[2] Section 51.1-124.13 of the Code of Virginia, enacted in 2011, requires that a person otherwise entitled to VRS benefits under Title 51.1 forfeit those benefits if they are convicted of a felony arising from misconduct that occurred in any position covered under VRS. Specifically, the statute provides in pertinent part that:

No person shall be entitled to any of the benefits of this title as provided in this section if (i) he is convicted of a felony and (ii) the person's employer determines that the felony arose from misconduct occurring on or after July 1, 2011, in any position in which the person was a member covered for retirement purposes under any retirement system administered by the Board.[3]

Pursuant to the statute, the employer is tasked with determining whether a felony conviction arose from misconduct in a covered position on or after July 1, 2011.[4] Before making such a determination, the employer must provide the employee with "reasonable prior written notice and ... an opportunity to be heard." If the employer then makes a determination against the employee, the employee has the right to appeal the determination by submitting a notice to the circuit court within five working days. The employer's determination against the employee becomes "final" after ten days if no appeal is sought, or upon the date of the circuit court's decision if an appeal is sought and the determination is affirmed. Upon the employer notifying the Board of Trustees of VRS (the "Board") of the final determination against the employee, the Board must proceed to implement the forfeiture of benefits "as soon as practicable."[5]

1. No employer discretion to file Form VRS-180.

You ask whether an employer participating in VRS has discretion under § 51.1-124.13 to file Form VRS-180 to initiate forfeiture of VRS benefits once it has determined that an employee's felony conviction arose out of misconduct in a covered position. As noted in a prior opinion of this Office, it "is a 'principal rule of statutory interpretation . . . that courts will give statutory language its plain meaning.'"[6] Section 51.1-124.13 is clear that "No person shall be entitled to any of the benefits of [Title 51.1] ... if (i) he is convicted of a felony and (ii) the person's employer determines that the felony arose from misconduct occurring on or after July 1, 2011, in any position in which the person was a member covered for retirement purposes under any retirement system administered by the Board."[7] In addition, the statute goes on to mandate that VRS implement the forfeiture "as soon as practicable after the employer notifies the Board" of the final determination.[8] Implicit in this directive is a clear requirement that the employer notify VRS once a determination has been made final against the employee.

Accordingly, the statute allows for no discretion on the part of the employer once a final determination has been made that the felony arose from misconduct in a VRS-covered position with the employer. In the absence of statutory language creating such discretion, I must conclude from the plain language of the forfeiture statute that an employer is required to notify VRS of any final determination against an employee.

2. Form VRS-180 (Rev. 12/11) conflicts with statutory prohibition.

You next inquire about the effect of language in Form VRS-180 ("Employer Request for Forfeiture of Member Benefits") (Rev. 12/11), in effect on February 4, 2014, which indicated that "[i]f any employee is convicted of a felony for misconduct occurring on or after July 1, 2011 and you have determined that the felony was in association with the performance of the employee's job duties, you may request the employee forfeit all VRS benefits ...." (Emphasis added.)

Form VRS-180 (Rev. 12/11) is an administrative guidance document.[9] Although interpretations of statutes contained in administrative guidance documents are not binding and do not have the force of law, they are entitled to some deference by the courts according to their persuasive effect.[10] No deference, however, is given if the interpretation is inconsistent with the statute. "When an agency's statutory interpretation conflicts with the language of the statute ... the usual deference accorded to an agency's interpretation should be withheld."[11]

Form VRS-180 (Rev. 12/11) is inconsistent with § 51.1-124.13 of the Code of Virginia to the extent that it suggests the employer has discretion whether to file the form. As the VRS Form interprets the statute in a manner that creates a conflict, it must not be given deference here. I note that a current version of Form VRS-180 (Rev. 12/15) does not contain the discretionary language. Rather, it directs a covered employer to "[c]omplete this form to notify VRS that a member has been convicted of a felony for misconduct associated with the member's performance of job duties and that all VRS related benefits must be forfeited."[12] By removing the discretionary language, VRS has expressed its recognition that the mandatory interpretation of § 51.1-124.13 controls.

3. Reconsideration of election not to seek forfeiture of employee VRS benefits based on language of Form VRS-180 is required.

Finally, you ask whether an employer who relied on the permissive language of Form VRS-180 (Rev. 12/11) in electing not to seek the forfeiture of employee VRS benefits in 2014 must now reconsider the forfeiture. As discussed above, § 51.1-124.13 does not grant an employer any discretion to determine whether an employee's benefits are forfeited. The only determination an employer is permitted to make is deciding whether the felony arose from misconduct in a covered position.[13] Once the employer has provided the person prior written notice and an opportunity to be heard, and the determination becomes final, the employer must notify the VRS Board.[14]

Once the determination becomes final, the statute provides no explicit timeframe for notifying the VRS Board. Rather, employers and the Board are instructed to comply with the statute "as soon as practicable." A misinterpretation of statute does not waive the employer's obligation to notify the Board of its final determination. Thus, the County must complete and transmit Form VRS-180 (Rev. 12/15) to the VRS Board notwithstanding a prior decision to decline to do so.[15]

Conclusion

Accordingly, it is my conclusion that an employer does not have discretion under § 51.1-124.13 of the Code of Virginia and Form VRS-180 (Rev. 12/15) regarding whether or not to file Form VRS-180 to initiate forfeiture of VRS benefits once it has determined that an employee was convicted of a felony associated with the performance of his job duties. This conclusion does not change despite the language found on the prior Form VRS-180 (Rev. 12/11), seemingly making such a filing discretionary, because the statutory language in § 51.1-124.13 clearly mandates the forfeiture of all benefits awarded under Title 51. Finally, § 51.1-124.13 mandates that an employer, who relied on the permissive language of Form VRS-180 (Rev. 12/11) rather than the plain wording of the statute, notify the VRS Board of its final determination that an employee was convicted of a felony that "arose from misconduct occurring on or after July 1, 2011, in any position in which the person was a member covered for retirement purposes under any retirement system administered by the Board."

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] An "employee" includes any "employee of a locality participating in the Retirement System." VA. CODE ANN. § 51.1-124.3 (2013).

[2] For example, Title 51.1 establishes the Virginia Retirement System (§§ 51.1-100 through 51.1-169), the Government Employees Deferred Compensation Plan (§§ 51.1-600 through 51.1-605), and the Cash Match Plan (§§ 51.1-607 through 51.1-613).

[3] VA. CODE ANN. § 51.1-124.13(A) (2013).

[4] Id.

[5] Section 51.1-124.13(C).

[6] 2015 Op. Va. Att'y Gen. 119, 125 (quoting Davenport v. Little-Bowser, 269 Va. 546, 555 (2005)).

[7] Section 51.1-124.13(A) (emphasis added).

[8] Section 51.1-124.13(C). The only exception to a forfeiture of benefits is when an employee "is or becomes a member in service after relinquishment of benefits under subsection C, [in which case] he shall be entitled to the benefits under [Title 51.1] based solely on his service occurring after the relinquishment." Section 51.1-124.13(D).

[9] VA. CODE ANN. § 2.2-4001 (2014) (definition of "guidance document").

[10] See Jackson v. W., 14 Va. App. 391, 399 n.6 (1992).

[11] Dep't of Mines, Minerals & Energy v. May Bros., Inc., 11 Va. App. 115, 119 (1990).

[12] VA. RETIREMENT SYSTEM, Employer Request for Forfeiture of Member Benefits (VRS-180), available at http://www.varetire.org/pdf/forms/vrs-180.pdf.

[13] Section 51.1-124.13(A).

[14] Section 51.1-124.13(C).

[15] Section 51.1-124.13(A).