Are Virginia state-employed firefighters covered by the Line of Duty Act if they are injured or killed on the job?

Plain-English summary

A state senator asked whether firefighters who work for the Commonwealth of Virginia itself, rather than for a local fire department, qualify for benefits under Virginia's Line of Duty Act (LODA). LODA pays death and disability benefits to certain public safety personnel killed or hurt while doing their jobs.

The AG read the LODA statute literally. Section 9.1-400(B) defines who counts as a covered person, and the only firefighters listed are members of a fire company, fire department, or rescue squad that has been formally recognized "by an ordinance or a resolution of the governing body of any county, city or town" as part of that locality's official safety program. Commonwealth firefighters as a class are not in the list.

Because the legislature spelled out exactly which firefighters are eligible, the AG concluded the omission of state firefighters was intentional. A state firefighter could only become eligible if his or her unit is also officially recognized by a county, city, or town as part of that locality's safety program.

Currency note

This opinion was issued in 2010. 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.

LODA in particular has been amended several times since 2010, including changes to who administers benefits and to eligibility categories. Anyone considering a claim should check the current text of Va. Code § 9.1-400 et seq. and consult the Virginia Retirement System, which now administers the program.

Common questions

What is the Line of Duty Act?
A Virginia statutory scheme that provides death and disability benefits to families of public safety personnel who die in the line of duty, and to public safety personnel who are disabled in the line of duty. As of the 2010 opinion, the categories of covered "deceased persons" included specifically defined groups of law enforcement, firefighters, and rescue squad members.

Why are state firefighters treated differently from local firefighters?
The statute as written in 2010 limited coverage to firefighters who were members of a fire company, fire department, or rescue squad that had been formally recognized by a local governing body. The AG noted there is no parallel mention of fire units operated directly by the Commonwealth, so by the rule of statutory construction known as expressio unius est exclusio alterius (the inclusion of one excludes the other) state firefighters were considered intentionally omitted.

Could a state firefighter ever be covered under LODA based on this opinion?
Yes, if the firefighter were also a member of a fire company, department, or rescue squad that had been formally recognized by a county, city, or town as part of that locality's official safety program. The vehicle to coverage was through local-government recognition, not direct state employment.

Does this opinion bind anyone?
No. AG opinions are persuasive but not binding precedent. A court applying LODA would read the statute itself; the AG's reading is one data point.

Background and statutory framework

LODA, codified at Va. Code §§ 9.1-400 through 9.1-408, was the General Assembly's chosen mechanism for compensating families and survivors when public safety personnel are killed or disabled on duty. The eligibility section, § 9.1-400(B), lists who counts as a "deceased person" and a "disabled person" for benefit purposes.

The opinion turned on a tool of statutory interpretation: when a legislature lists specific items in a statute, courts presume that anything not on the list was meant to be excluded. The AG cited Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240 (2001), and Turner v. Wexler, 244 Va. 124 (1992), for the expressio unius maxim. Because LODA's text named only firefighters belonging to locally recognized units, the AG inferred that Commonwealth firefighters were left out on purpose.

Citations

• Va. Code Ann. § 9.1-400
• Va. Code Ann. § 9.1-400(B)
• Va. Code Ann. §§ 9.1-400 through 9.1-408
• Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001)
• Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-039-Ruff.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 10, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Frank M. Ruff, Jr.
Member, Senate of Virginia
P. O. Box 332
Clarksville, Virginia 23927

Dear Senator Ruff:

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

Issue Presented

You ask whether firefighters who are employees of the Commonwealth qualify for "line of duty" coverage pursuant to the Code of Virginia.

Response

It is my opinion that firefighters who are employees of the Commonwealth are not covered under the Line of Duty Act, § 9.1-400 et seq., unless they are members of a fire company or department or rescue squad that has been recognized by an ordinance or a resolution of the governing body of a Virginia county, city, or town as an integral part of the official safety program of such county, city, or town.

Applicable Law and Discussion

The Line of Duty Act ("Act") provides certain benefits to eligible law enforcement and other public safety personnel who are injured or killed in the line of duty. The list of persons accorded benefits under the Act is specifically defined. Code § 9.1-400(B) provides unambiguously that to be covered under the Act, a firefighter must be a member of a fire company or department or a rescue squad that has been recognized by an ordinance or a resolution of the governing body of a county, city, or town as an integral part of the official safety program of such county, city, or town. Section 9.1-400 reads in part:

"Deceased person" means any individual whose death occurs on or after April 8, 1972, as the direct or proximate result of the performance of his duty ... as a ... member of any fire company or department or rescue squad that has been recognized by an ordinance or a resolution of the governing body of any county, city or town of the Commonwealth as an integral part of the official safety program of such county, city or town... [Emphasis added.]

See VA. CODE ANN §§ 9.1-400 through 9.1-408 (2006 & Supp. 2010).

Under generally accepted principles of statutory construction, the mention of one thing in a statute implies the exclusion of another. Section 9.1-400 does not mention firefighters employed by the Commonwealth in the list of those eligible for benefits under the Act. Rather, the statute only mentions members of a fire company or department or rescue squad properly recognized by a governing body of a county, city, or town as being an integral part of its official safety program. Therefore, the exclusion of firefighters employed by the Commonwealth is presumed to be intentional.

Conclusion

Accordingly, it is my opinion that firefighters employed by the Commonwealth are not covered by the Line of Duty Act unless they are members of a fire company or department or rescue squad that has been recognized by an ordinance or a resolution of the governing body of a county, city, or town as an integral part of the official safety program of such county, city, or town.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

See Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001). See also Norman J. Singer and J.D. Shambie Singer, 2A SUTHERLAND STATUTORY CONSTRUCTION § 47.23 (7th ed. 2007); 17 MICHIE'S JURISPRUDENCE, Statutes § 45 (2006).

The maxim of statutory construction expressio unius est exclusio alterius is applicable here. Where a statute speaks in specific terms, an implication arises that omitted terms were not intended to be included within the scope of the statute. See, e.g., Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992).