Monica Drasovean v. Steven Walts

Opinion

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 17th day of December, 2024.

Monica Drasovean, Appellant,

against Record No. 0259-23-4 Circuit Court No. CL21-7439

Steven Walts, et al., Appellees.

Upon a Petition for Rehearing En Banc

Before Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Causey, Friedman, Chaney, Lorish, Callins, White and Frucci

On November 20, 2024, the appellees, by counsel, filed a petition requesting that the Court set aside

the judgment rendered on November 6, 2024, and grant a rehearing en banc on the issue(s) raised in the

petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the Court grants the petition for rehearing en banc and reinstates the appeal of those issues on the docket. The

Court stays the mandate previously entered in this case pending the Court’s en banc decision.

The parties must file briefs in compliance with the schedule set forth in Rule 5A:35(b).

A Copy,

Teste:

A. John Vollino, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court

Deputy Clerk COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Athey, Causey and Callins Argued at Winchester, Virginia

MONICA DRASOVEAN MEMORANDUM OPINION* BY v. Record No. 0259-23-4 JUDGE DORIS HENDERSON CAUSEY NOVEMBER 6, 2024 STEVEN WALTS, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Carroll A. Weimer, Jr., Judge

Benjamin F. North (Binnall Law Group, PLLC, on briefs), for appellant.

John F. Cafferky (William B. Porter; Ian J. McElhaney; Blankingship & Keith, P.C, on brief), for appellees.

The Circuit Court of Prince William County granted appellees’ plea in bar and determined,

as a matter of law, that sovereign immunity bars gross negligence claims when a government

official is sued in his official capacity. On appeal, Monica Drasovean argues that the circuit court

erred in its decision. Precedent states that when a suit is brought against a government official

under the theory of gross negligence, sovereign immunity does not block that claim. However,

when a defendant is sued in his official capacity, the suit is effectively against the entity with which

he is employed. Thus, the question in this case is whether the sovereign immunity to which school

boards are entitled bars claims of gross negligence. This is a matter of first impression. We hold

that the circuit court erred in granting the plea in bar, reverse, and remand the holding of the circuit

court to determine whether the alleged actions taken by the appellees amounted to gross negligence.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

The Prince William County School Board (School Board) operates the Prince William

County Public Schools (PWCS). During the 2016-17 school year, Monica Drasovean was a student

enrolled in the Special Education Program at C.D. Hylton High School (Hylton). During this time,

Dr. Steven Walts served as PWCS’s Superintendent, Dr. Michelle Roper served as the Director of

Special Education for PWCS, and David Cassady served as the principal of Hylton (collectively

School Board Employees).

Around November 2016, H.A.1 transferred from another high school into Hylton’s Special

Education Program. Drasovean alleges that H.A. had “a known troubled record involving harmful,

sexual, and abusive behavior.” According to Drasovean, before H.A. arrived at Hylton, a teacher at

Hylton contacted the school’s head of the Special Needs Education Department and relayed her

opinion that “[H.A.] would not be a good fit for the special needs program at Hylton and would

pose a danger to other students.” The department head then relayed this concern to Cassady, who

contacted Dr. Roper about the transfer. Dr. Roper ultimately allowed H.A. to transfer to Hylton.

Upon his arrival at Hylton, H.A. was placed in several classes with Drasovean that were

supervised by teachers, and at least one class included both a teacher and a teacher’s aide.

Drasovean alleges that, from November 2016 to January 2017, H.A. sexually assaulted

Ms. Drasovean by touching her breasts and legs, kissing her, and “trying to take her outside of the

school building to perform other sexual acts on her.” Drasovean alleges that many of these acts

occurred in one of Ms. Drasovean’s classes, which was attended by only four other students, and

many of “the assaults occurred in open view of other people.” Ms. Drasovean’s teachers never saw

these assaults. On January 23, 2017, Ms. Drasovean reported the assaults to her mother, who then

reported them to Hylton.

1 We use initials to refer to the student in an attempt to better protect his privacy. -2- On January 22, 2019, Drasovean filed her first action (first action) in the Circuit Court for

Prince William County against the School Board Employees, the Virginia Board of Education, and

directly against the School Board, alleging that, while Ms. Drasovean was a student at Hylton, H.A.

assaulted her. The complaint in the first action alleged claims for “negligence/gross negligence” in

violation of 42 U.S.C. § 1983, and violations of Section 504 of the Rehabilitation Act and Title II of

the Americans with Disabilities Act.

The first action was removed to the United States District Court for the Eastern District of

Virginia, where Drasovean’s federal claims were dismissed, and her state law negligence claims

were remanded to circuit court. The circuit court sustained defendants’ demurrers to Drasovean’s

simple negligence claim with prejudice but granted Drasovean leave to amend her claim for gross

negligence.

Drasovean filed an amended complaint alleging a single count of gross negligence against

the Virginia Board of Education and the School Board Employees, however, she nonsuited the first

action on March 2, 2021. Subsequently, Drasovean filed this action, asserting a single count of

gross negligence against the School Board Employees in their official capacities only.

The School Board Employees filed a plea in bar on the ground that Drasovean’s complaint

against them in their official capacities amounted to a suit against the School Board. They argued

that the School Board is entitled to sovereign immunity in tort, and because a suit against them in

their official capacities is effectively against the School Board, sovereign immunity should bar the

complaint. On January 13, 2023, the circuit court heard oral argument. The court held that

the manner which the defendants have been sued, that is their official capacity, this is tantamount or the same as a suit against the governmental entity and the governmental entity enjoys sovereign immunity as to . . . all negligence, and as such, these employees in their official capacity are immune pursuant to sovereign immunity.

-3- Consequently, the circuit court granted the School Board Employees’ plea in bar, dismissing the

case with prejudice. This appeal timely follows.

ANALYSIS

I. Standard of Review

“The existence of sovereign immunity is a question of law that is reviewed de novo.”

Burns v. Gagnon, 283 Va. 657, 673 (2012) (quoting Lee v. City of Norfolk, 281 Va. 423, 439

(2011)). “A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577 (2010). “The party asserting a plea in

bar bears the burden of proof on the issue presented.” Id. The circuit court held a hearing where

the parties presented their arguments. However, “[w]here no evidence is taken in support of the

plea, the trial court, and the appellate court upon review, must rely solely upon the pleadings in

resolving the issue presented.” Robinson v. Nordquist, 297 Va. 503, 513-14 (2019) (quoting

Tomlin v. McKenzie, 251 Va. 478, 480 (1996)). Additionally, “[i]n doing so, the facts stated in

the plaintiff’s [complaint] are deemed true.” Massenburg v. City of Petersburg, 298 Va. 212,

216 (2019) (second alteration in original) (quoting Lostrangio v. Laingford, 261 Va. 495, 497

(2001)). “This approach results in functionally de novo review of the trial court’s judgment.”

Id. Here, the issue of gross negligence and school boards is one of first impression for this

Court.

Whether the School Board is entitled to sovereign immunity, the scope of that immunity,

and whether that immunity bars a claim of gross negligence is the question of this appeal. Given

the complexity of this inquiry, it is necessary to understand the history of sovereign immunity, its

application under Virginia law, and the difference between the sovereign immunity available to

various governmental entities and the sovereign immunity available to individuals employed by

those entities.

-4- II. History of Sovereign Immunity

We begin with the doctrine of sovereign immunity, which is rooted in English common

law and adhered to the notion that “no suit or action can be brought against the king, even in civil

matters, because no court can have jurisdiction over [the Crown].” Alden v. Maine, 527 U.S.

706, 715 (1999) (quoting 1 W. Blackstone, Commentaries on the Laws of England 234-235

(1765)). “‘Dual sovereignty is a defining feature of our Nation’s constitutional blueprint.’ Upon

ratification of the Constitution, the States entered the Union ‘with their sovereignty intact.”’

Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). Federalism presupposes that the

States retain exclusive sovereignty in some aspects of governance, share sovereign power with

the federal government in other aspects, and yield their sovereign power only in those aspects of

governance exclusively assigned to the federal government by the United States Constitution.”

Clark v. Va. Dep’t of State Police, 292 Va. 725, 728 (2016).

The application of this immunity, in practice, was unique in the United States because of

the inherent qualities of federalism: though the nation itself was a sovereign, the states retained

their sovereignty in relation to one another and the federal government. This principle led to the

ratification of the Eleventh Amendment, which codified state sovereign immunity at the federal

level: “[t]he Judicial power of the United States shall not be construed to extend to any suit in

law or equity, commenced 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. The ratification

of the Eleventh Amendment followed the 1793 case Chisholm v. Georgia, 2 U.S. 419 (1793),

where the Court ruled that a citizen of South Carolina could sue the state of Georgia. In that

case, Justice Iredell disagreed and reasoned that if the common law barred suit against the

sovereign, then the states necessarily, absent express consent, must be similarly protected.

-5- Following Justice Iredell’s reasoning, the first congressional meeting following the

Court’s decision in Chisholm led to the ratification of the Eleventh Amendment, which codified

a state’s immunity from suit in federal courts in actions brought against it by citizens of another

state. Although the Eleventh Amendment applied specifically to the power of the federal

judiciary, its underlying principles began to be applied by the states in the states. It was the

nature of the Eleventh Amendment and the inherent structure of the Constitution itself that led

the Court in Alden to find that each state has a “constitutional privilege . . . to assert its sovereign

immunity in its own courts.” 527 U.S. at 754.

A. Sovereign Immunity: The State as a Party

When a state is a named party in a suit, it has a right to assert its sovereign immunity as a

bar to the continuation of the suit. While a state may waive its sovereign immunity either by

statute or by consent, such a waiver must be express.2 See Alden, 527 U.S. at 724 (“The handful

of state statutory and constitutional provisions authorizing suits or petitions of right against

States only confirms the prevalence of the traditional understanding that a State could not be

sued in the absence of an express waiver.”). The State is likewise immunized when it is not a

named party, but when an officer of the state is sued in a manner that renders the suit

2 Many states, including Virginia, have codified liability for certain state and government employees and entities under certain circumstances. In 1981, the Virginia legislature enacted the Virginia Tort Claims Act, which “constitutes an express limited waiver of the Commonwealth’s immunity from tort claims.” Bates v. Commonwealth, 267 Va. 387, 391 (2004); see also Code §§ 8.01-195.1 – 8.01-195.9. Shortly after the law was codified, the Fairfax County Circuit Court held that the Fairfax County “School Board is a ‘state agency’ as defined in [Code §] 8.01-195.2, and its Plea of Sovereign Immunity is overruled.” Murphy v. Fairfax Cnty. Sch. Bd., 6 Va. Cir. 97, 98 (Fairfax Cnty. 1984). In 1986, the Act was amended, explicitly stating that “‘[s]chool boards’ as defined in paragraph 5 of § 22.1-1 are not state agencies nor are employees of school boards state employees.” 1986 Va. Acts ch. 534. -6- functionally against the state.3 Id. at 756 (“Some suits against state officers are barred by the

rule that sovereign immunity is not limited to suits which name the State as a party if the suits

are, in fact, against the State.”). However, though sovereign immunity “bars suits against the

States,” it does not bar suits against “lesser entities” such as “municipal corporation[s] or other

governmental entit[ies] which [are] not an arm of the State.” Id.

1. Derivative Sovereign Immunity: State Agents and Officers

When an agent or officer of the state is sued in his individual capacity, the suit may be

barred by an application of the state’s sovereign immunity to the state actor. See Messina v.

Burden, 228 Va. 301, 309 (1984). While the state itself, and the qualifying arms of the state, are

entitled to absolute immunity from civil actions, agents and employees of the state may be

entitled to that same immunity on a qualified basis. See Sayers v. Bullar, 180 Va. 222, 230

(1942).

Whether an officer or employee of a government agency may claim sovereign immunity

is dependent both upon the scope of the immunity to which his employer is entitled and the

extent to which his actions satisfy the derivative immunity’s qualifications. James v. Jane, 221

Va. 43, 52 (1980). For example, when state officers are sued in their individual capacity for

actions taken within the scope of their employment, they are typically immune, as those actions

are considered extensions of the state’s authority. Sayers, 180 Va. at 229 (“[t]he alleged act of

the defendants was the act of the State”). Such immunity does not extend to an officer of the

state, however, when his actions are “so negligent as to take him outside the protection of his

3 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (stating that the “‘general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter’” (quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam))); see also Larson v. Domestic & Foreign Comm. Corp., 337 U.S. 682 (1949) (noting that the relief sought and against whom the relief is obtained is the greatest determining factor in questions of whether a suit nominally against an officer is functionally one against the state). -7- employment” and thus out of the realm of the protection of the state’s sovereign immunity.

James, 221 Va. at 52. Similarly, the state’s sovereign immunity does not extend to employees

who engage in intentional misconduct. See Tomlin, 251 Va. at 481 (stating that “where

sovereign immunity is claimed by an agent of the state, rather than by the state as an entity, it

will not be extended to acts which constitute a wanton and intentional deviation from the duties

the agent has been assigned to undertake”). The characterization of conduct as part of a

sovereign immunity analysis, though discussed in this section strictly in its application to state

agents and officers, raises unique implications in the present case and requires an inquiry as to

how “conduct” itself applies to suits against entities. This will be discussed further along in the

analysis.

2. State Sovereign Immunity Extended to Government Entities: Classification as an “Arm of the State” versus a local municipality

While Alden clearly states that sovereign immunity does not protect municipal

corporations or lesser entities from suit, it qualifies that limitation with the phrase “which is not

an arm of the State.” 527 U.S. at 756. Governmental entities that are considered arms of the

State are thus entitled to the same sovereign immunity as the State itself. See Mann v. County

Bd. of Arlington Cnty., 199 Va. 169 (1957).

When determining whether a municipality or other local government entity is an “arm of

the state,” Virginia courts have traditionally inquired as to the entity’s creation and the nature of

its performed functions. When a local government entity is “purely local in nature and not a

state agency performing a function of state government,” then it is “not entitled to the same

immunity from tort liability that is enjoyed by the Commonwealth.” Va. Elec. & Power Co. v.

-8- Hampton Redevelop. and Housing Auth., 217 Va. 30, 33 (1976).4 Thus, an entity “purely local

in nature” would not be considered an “arm of the state,” but rather a municipality or municipal

corporation. Id. Although municipalities and municipal corporations are tangentially connected

to the state government, is well settled that “a municipality is clothed with two-fold functions;

one governmental, and the other private or proprietary.” Hoggard v. City of Richmond, 172 Va.

145, 147 (1939). When an injury arises from an alleged negligent exercise of a municipal

corporation’s authority, courts attempt5 to categorize the function of the municipal corporation as

either governmental or proprietary: a “function is considered governmental if it is the exercise of

an entity’s political, discretionary, or legislative authority,” but a function is considered

proprietary when it “is a ministerial act, ‘assumed in consideration of the privileges conferred by

. . . charter,’ and involves no discretion.” Carter v. Chesterfield Cnty. Health Comm’n, 259 Va.

588, 591 (2000) (quoting City of Richmond v. Long’s Adm’rs, 58 Va. (17 Gratt.) 375, 379

(1867)). Such a distinction is necessary for determining that entity’s immunity, as “[m]unicipal

corporations are immune from tort liability when performing governmental functions, but are not

immune when exercising proprietary functions.” Id. at 590. The distinction between “arms of

the state” and local municipalities is crucial to this case, as the school board’s respective

classification determines the degree of sovereign immunity to which it is entitled.

4 Factors to be considered in distinguishing an entity’s local rather than state governmental functions are its statutory authority, the procedures through which its officials are elected or appointed, and how its finances are managed and apportioned. See Va. Elec. & Power Co., 217 Va. at 33. 5 Distinguishing between governmental and proprietary functions is a matter of rhetorical ease, but practical difficulty. See Carter v. Chesterfield Cnty. Health Comm’n, 259 Va. 588, 592 (2000) (“the principles for differentiating governmental and proprietary functions are easily recited, as we have often noted, application of these principles ‘has occasioned much difficulty’” (quoting Ashbury v. City of Norfolk, 152 Va. 278, 282 (1929))).

-9- 3. Derivative Sovereign Immunity: Employees of Municipalities and Lesser Government Entities

In the same way that a municipal corporation or local government body may be entitled

to the state’s sovereign immunity depending on the nature of its functions, so too may an

employee of such an entity be entitled to immunity. When a person is an agent of a “lesser

entity” of the state, like a municipal corporation, his potential entitlement to derivative sovereign

immunity involves a two-step inquiry: the scope of the immunity to which the entity itself is

entitled, and whether the employee satisfies the requirements for claiming that immunity.

Patterson v. City of Danville, 301 Va. 181, 189 (2022). If a municipality is not itself entitled to

sovereign immunity by nature of its proprietary—as opposed to governmental—functions, then

its agents are not entitled to sovereign immunity even for acts of simple negligence. See Fines v.

Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 313 (2022).

Just as the inquiry regarding a municipality’s entitlement to sovereign immunity centers

upon the nature of its functions, an inquiry regarding the derivative sovereign immunity available

to its agents centers upon the nature of that agent’s actions. Id. When an employee is entitled to

derivative sovereign immunity, that immunity can be overcome with claims of gross negligence.

Patterson, 301 Va. at 197 (“[a]llegations of gross negligence can pierce through a derivative-

sovereign-immunity defense asserted by an otherwise immune government employee”).

However, in certain instances, even acts of simple negligence may proceed against a

defendant entitled to sovereign immunity. The Supreme Court of Virginia routinely depends

upon a “four, non-exclusive factor” test to determine whether derivative sovereign immunity is

available to such an employee in actions alleging simple negligence:

(i) the nature of the function performed by the employee; (ii) the extent of the [governmental employer’s] interest and involvement in the function; (iii) the degree of control and direction exercised by the [governmental employer] over the employee; and (iv)

- 10 - whether the act complained of involved the use of judgment and discretion.

Id. at 190 (alterations in original) (quoting Messina, 228 Va. at 309); see also James, 221 Va. at

52. While the present case concerns the school board’s immunity, not the individual employees’

immunity, the analyses set forth in Patterson, Messina, and James underscore the importance in

recognizing the variations in sovereign immunity and its availability to certain employees and

entities.

B. Derivative Sovereign Immunity in Virginia: Case Law

In James v. Jane, two patients sought to recover damages from their respective injuries

following the allegedly negligent acts of the defendants. 221 Va. at 45. Upon the defendants’

pleas of sovereign immunity predicated upon their employment with the University of Virginia,

the Court established a comprehensive four-factor test for determining when an employee is

entitled to derivative sovereign immunity for acts of simple negligence. Id. at 53. Although the

physicians were each employees of the University, which “no one question[ed]” was an “agency

of the Commonwealth of Virginia [and therefore] entitled to the protection of the immunity of

the state,” the Court found that “[a] physician who fails to use reasonable care in the treatment of

a patient acts at his own risk, and is not entitled to invoke the doctrine of sovereign immunity.”

Id. at 51, 55. Thus, employees of state agencies have limited state immunity.

Two years later, the Court relied on its recent decision in James, as well as the decisions

in Kellam,6 Crabbe7 and Short,8 and the statutory and constitutional constructions of the office of

both a high school principal and a superintendent, in deciding whether defendants holding such

6 Kellam v. Sch. Bd. of City of Norfolk, 202 Va. 252 (1960). 7 Crabbe v. County Sch. Bd. of Northumberland Cnty., 209 Va. 356 (1968). 8 Short v. Griffiths, 220 Va. 53 (1979).

- 11 - offices were entitled to sovereign immunity. In Banks v. Sellers, 224 Va. 168 (1982), when a

high school student alleged that the injuries she sustained after being stabbed by another student

were the result of the defendants’ negligence in failing to provide her with a safe environment,

the Court held that both the principal and the superintendent were “entitled to sovereign

immunity” because they were, respectively, a “supervisory official who exercises powers

involving a considerable degree of judgment and discretion” and “essentially a counterpart to the

superintendent [whose] function is very similar.” Id. at 173. Notably, the Banks case concerned

the immunity available to those individuals by the nature of their jobs. Although the defendants

in this case hold the same offices, the defendant officials in Banks were not sued in their official

capacities.

In 1983, when a plaintiff was injured because of an automobile accident sued the state

superintendent of the expressway for his allegedly negligent failure to “provide barriers and

other traffic control devices sufficient to prevent vehicles from entering the wrong lane of

travel,” the Court further explicated its understanding and application of the doctrine of

sovereign immunity. Hinchey v. Ogden, 226 Va. 234, 237 (1983). While the plaintiff in

Hinchey argued that the purpose of sovereign immunity is to protect state funds and should

therefore not apply to the superintendent as she was not seeking to recover from the treasury, the

Court “disagree[d] with Hinchey’s contention that the protection of the public purse is the sole

justification for the doctrine of sovereign immunity.” Id. at 239. Instead, the Court found that

while the protection of the state treasury is a factor of sovereign immunity, “the principal

justification [in this case] for upholding the claim of sovereign immunity is the need for order

and uniformity in the administration of the affairs of government.” Id. at 240. Hinchey, too, was

an individual capacity case.

- 12 - Finally, in the 1984 case Messina v. Burden, the Court examined “under what

circumstances an employee of a governmental body is entitled to the protection of sovereign

immunity.” 228 Va. at 307. The Court’s comprehensive analysis of the purpose of the doctrine

and the history of its application in Virginia courts resulted in an affirmation of the decision

below. Most notably, the Court’s analysis included the rationale that “the absence of any claim

of gross negligence or intentional misconduct demonstrates the correctness of the trial court’s

decision to sustain the plea of sovereign immunity.” Id. at 311 (emphasis added). The Court

noted this absence once again in Lentz v. Morris, 236 Va. 78 (1988), finding that the facts in

Lentz “[did] not support a charge of either gross negligence or intentional misconduct,” the Court

held that the defendant schoolteacher was entitled to derivative sovereign immunity based upon

the immunity of the school board. Id. at 82. Both Messina and Lentz were individual capacity

cases.

C. Virginia School Boards and Sovereign Immunity

While the “doctrine of sovereign immunity is ‘alive and well’ in Virginia,” it has not

“persevered . . . without substantial debate over its permissible scope and the consistency of its

applications.” Messina, 228 Va. at 307; Patterson, 301 Va. at 189. This difficulty is clear

insofar as the doctrine has been applied to local school boards and their employees. As this suit

pertains to school board employees in their official capacities only, we must analyze sovereign

immunity solely in its application to the school board.

In a matter of first impression, the Supreme Court of Virginia held in Kellam v. School

Board of City of Norfolk, 202 Va. 252 (1960), that a school board was considered an arm of the

state. This was reasoned through analogy to similar statutory constructions and holdings in West

Virginia law, which the Court found was “applicable and persuasive because of the similarity of

the law in Virginia and West Virginia governing school boards.” Id. at 255. Relying on

- 13 - Kellam’s holding and the subsequent case law involving the application of sovereign immunity

to school boards, Virginia courts applied the doctrine in varying ways throughout the next

several decades.

When a student brought suit against his shop teacher alleging that the teacher’s

negligence in allowing the student to use a broken table saw led to the student’s injury, the Court

in Crabbe v. School Board of Northumberland County, 209 Va. 356 (1968), held that the

“defendant School Board is immune from liability for the injuries sustained by the plaintiff by

reason of its alleged negligence,” but disagreed “with the contention of this defendant that the

immunity of the School Board from liability to the plaintiff extends to him.” Id. at 358-59.

Similarly, in 1979, the Court held in Short v. Griffiths, 220 Va. 53 (1979), that

“employees of a local school board did not enjoy the governmental immunity afforded the board,

and were responsible for their acts of simple or ordinary negligence.” Id. at 56 (relying on

Crabbe, 209 Va. 356, where the defendant schoolteacher was liable for his negligence despite

the School Board enjoying sovereign immunity). Short was an individual capacity suit in which

the defendant school board employee was not immune, but the school board was. The school

board was immune because of its classification in Kellam as an “arm of the state” rather than a

municipal corporation.

A decade later, however, the Court expressly overruled Short, and overruled Crabbe

“insofar as it address[ed] the employee’s liability in that case.” Lentz, 236 Va. at 82 (holding

that defendant gym teacher was entitled to sovereign immunity absent a claim of “gross

negligence or intentional misconduct”). The Court’s decision in Lentz was based upon the

factors outlined in Messina, which established Virginia’s test for determining which government

employees were entitled to the sovereign immunity of the state based on their employment.

- 14 - Relying on Lentz, Virginia circuit courts continued to grant school employees derivative

sovereign immunity in claims alleging simple negligence. See Koffman v. Garnett, 265 Va. 12

(2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v.

Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994). In several cases, Virginia circuit courts

have held that school boards and their employees enjoy immunity even when gross negligence is

alleged. Croghan v. Fairfax County Sch. Bd., 59 Va. Cir. 120, 121 (Fairfax Cnty. 2002) (“[T]he

immunity shared by the state and its agencies (including school boards) is absolute and applies as

a bar to liability whether the degree of alleged negligence is simple or gross.”); Mattox v.

Campbell Cnty. Sch. Bd., 37 Va. Cir. 221, 222 (Campbell Cnty. 1995) (“[T]he doctrine of

sovereign immunity protects the Campbell County School Board from allegations of both simple

negligence and gross negligence.”).

In 2012, however, the Circuit Court in the City of Suffolk overruled the school board’s

plea of sovereign immunity as to plaintiff’s “[c]ounts IV and XX of the Complaint,” since those

counts “allege[d] gross negligence by the School Board and its employees” and “sovereign

immunity does not apply where gross negligence is alleged.” Simpson v. Thorsen, 84 Va. Cir.

252, 255 (Suffolk 2012). While this holding applied specifically to the sovereign immunity of

the school board, the issue of derivative sovereign immunity as applied to school board

employees was decided by the Virginia Supreme Court only several months later in Burns.

When a former Gloucester County High School student filed a complaint against two

students and the assistant principal alleging “simple and gross negligence, assault, and battery,”

the Court explained that although “an individual working for an immune governmental entity is

entitled to the protection of sovereign immunity under the common law, he is not immunized

from suit” and that in order to overcome an employee’s derivative sovereign immunity, the

- 15 - “‘degree of negligence . . . is elevated from simple to gross negligence.’” Burns, 283 Va. at 663,

677 (quoting Colby v. Boyden, 241 Va. 125, 128 (1991)).

Although a suit against the named defendants in their official capacities is functionally a

claim against the school board, the school board’s sovereign immunity should be scrutinized

under the factors set forth in Messina, Lentz, and Burns, because Virginia school boards should

be considered municipal corporations rather than arms of the state.

D. Virginia School Boards should be considered municipal corporations rather than arms of the state

In both statutory construction9 and in function, a school board is a municipal corporation.

This classification of Virginia school boards was examined thoroughly by the Eastern District

Court of Virginia in Drewrey v. Portsmouth City School Board. 264 F. Supp. 3d 724 (E.D. Va.

2017). In Drewrey, the court examined whether the Portsmouth City School Board was entitled

to sovereign immunity. Based on four factors, originally applied by the Fourth Circuit Court of

Appeals in Cash v. Granville County Board of Education, 242 F.3d. 219 (4th Cir. 2001), the

District Court found that the school board was not an arm of the State and therefore not entitled

to sovereign immunity. Drewrey, 264 F. Supp. 3d at 727. The court in Drewrey examined the

following factors: (1) the State treasury, (2) the degree of control exercised by the state over the

school board, (3) the degree to which the school board was focused on local versus statewide

concerns, and (4) how the school board was treated under state law. Id. The court found that

“Virginia law characterizes its school boards as local governmental entities, not arms of the

State,” and thus the Portsmouth City School Board was not entitled to a claim of sovereign

immunity. Id. at 730. When applied to the facts in this case, specifically, to the Prince William

City School Board, the Drewrey factors show that the school board should be treated as a

9 Code § 22.1-71. - 16 - municipal corporation rather than an arm of the State. Thus, Prince William County School

Board is not entitled to sovereign immunity according to the Drewrey factors.

III. The Drewrey Factors

A. The State Treasury Factor

Code § 22.1-82(B) requires that all “costs, expenses and liabilities of [any legal

proceeding to which the school board, member or official may be party10] shall be paid out of

funds appropriated to the school board.” The funds appropriated to the school board are an

amalgamation of state funds, federal funds, local funds, and donations. Code § 22.1-88. Thus,

even if an argument could be made that funds apportioned to the School Board are partially

funded by the State and thus affect the State treasury, it is not the State treasury itself. Such

logic would run against the doctrine that suits may lie against officers in their individual capacity

so long as the judgments paid come from the officer’s pockets. An officer’s income is at least

partially made up of State funds. An indirect or unsubstantial monetary contribution to a suit

cannot be considered functionally the same as a suit which solely and directly implicates the

State treasury. Thus, PWCS Board funds are not part of the Virginia State Treasury.

B. Degree of Control

Virginia school boards exercise both discretionary and financial control over the

operation of their schools. Drewrey, 264 F. Supp. 3d at 728. While the Commonwealth has

some degree of control, for the most part Virginia school boards “retain[] sole decisionmaking

authority” and “a wide breadth of financial autonomy and independent responsibilities.” Id.;

Code §§ 22.1-28, -79. Furthermore, its officials are “locally elected and appointed” as opposed

to appointed by the Governor. Drewrey, 264 F. Supp. 3d at 729; Code § 22.1-76(A). The degree

of Commonwealth involvement and control over local school boards ends at their statutory

10 See Code § 22.1-82(A) for alteration. - 17 - construction,11 which designates the school board as a “body corporate.” Code § 22.1-71.

Statutory creation does not demonstrate enough state control over school boards to classify them

as “arms of the state” rather than municipal corporations. The Commonwealth of Virginia has a

limited degree of control over the PWCS Board.

C. Local versus Statewide Concerns

Although school boards are tasked with the promulgation of the Commonwealth’s

educational standards, each school board sets its own “locality-level policies,” such as

determining the length of the school year, the curriculum, “the methods of teaching[,] and the

government to be employed in the schools.” Drewrey, 264 F. Supp. 3d at 730. While these

policies cannot be inconsistent with the statewide standards, the school boards, comprised wholly

of locally selected members, are solely responsible for the establishment and promulgation of

those policies. Code § 22.1-79(5). Therefore, although Virginia exercises “limited involvement

in some general standards for state-wide education,” the “concerns of [Virginia] school boards

are primarily local.” Drewrey, 264 F. Supp. 3d at 730.

D. State Law’s Treatment of the Entity

Drewrey’s fourth factor regarding the state law’s treatment of the entity in question

requires the most nuanced analysis for the purposes of the present case. The court found in

Drewrey that, although the Board argued that “the Supreme Court of Virginia found [in Kellam]

that a school board is considered an arm of the State,” Kellam was not applicable, as the case at

hand was a question of federal law rather than a claim in tort. Id. Although the present case

involves a tort law claim, and therefore invokes Kellam, it would be a mistake to “treat[] a state

court decision as to whether an entity is a state actor as determinative.” Id. Rather than applying

11 Code § 22.1-28. - 18 - the dicta of a single case in isolation, Drewrey’s fourth factor is better analyzed through a

wholistic understanding of the state’s treatment of the entity over time.

The Virginia Tort Claims Act abrogated the sovereign immunity of state agencies for

actions in tort. Code § 8.01-195.2. This abrogation led the Fairfax County Circuit Court to find

that because the “School Board [was] a ‘state agency’ as defined [in the Act], [its] Plea of

Sovereign Immunity is overruled.” Murphy v. Fairfax Cnty. Sch. Bd., 6 Va. Cir. 97, 98 (Fairfax

Cnty. 1984). In 1986, the Act was amended to explicitly state that school boards were not

considered agencies of the state for purposes of the Act, thereby excluding school boards from

the statutory abrogation of the sovereign immunity of state agencies. 1986 Va. Acts ch. 534.

While this exclusion in light of the decision in Murphy implies that the Virginia legislature wants

school boards to retain their entitlement to sovereign immunity, classifying the school boards as

municipal corporations does not undermine that goal. Rather, it subjects local school boards to

the same analysis and protection as any other government municipality. In actions concerning its

governmental functions, school boards will still be immune in tort. This immunity will

accomplish what all sovereign immunity doctrine seeks to accomplish⎯the necessary

furtherance of governmental goals, policies, and procedures will not be prohibited for fear of

suit. However, it will also ensure the protection of those to whom the school board is

accountable when the school board is engaged in proprietary functions. Thus, overall, school

boards have been treated as municipalities by the State of Virginia, and their entitlement to

sovereign immunity should be subject to the same analysis as other municipalities.

IV. PWCS Board: Government Entity or Municipality

In light of the varying degrees and possible applications of sovereign immunity, the

question raised on appeal requires two wholly separate and distinct analyses. First, because the

circuit court’s determination that “the manner in which the defendants have been sued, that is

- 19 - their official capacity, [is] tantamount or the same as a suit against the [School Board],” we must

first decide whether the circuit court erred in classifying the school board as a “government

entity” rather than a “municipality.” As noted earlier in our analysis, the scope of the immunity

available to the School Board is dependent upon this classification. Second, this Court must

determine, for the first time, whether the degree of negligence pled against an entity, as opposed

to an individual, should determine whether the suit is barred by sovereign immunity.

A. Official Capacity versus Individual Capacity

“Official capacity” suits are effectively suits against the entity for whom the individual

works and are separate and distinct from “individual capacity” suits where the individual is sued

for the actions he took while acting within the scope of his employment. The capacity in which

these defendants were sued is neither irrelevant nor a matter of semantics. The Virginia Supreme

Court and the United States Supreme Court have made it clear that “individual capacity” and

“official capacity” are wholly distinct. See Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 221

(2023) (“Critically, both ‘official capacity’ and ‘individual capacity’ have come to be terms of

art.”).

Official capacity suits “represent only another way of pleading an action against an entity

of which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

Proper application of [the] principle [that “liability on the merits and responsibility for fees go hand in hand”] in damages actions against public officials requires careful adherence to the distinction between personal- and official-capacity action suits. Because this distinction apparently continues to confuse lawyers and confound lower courts, we attempt to define it more clearly through concrete examples of the practical and doctrinal differences between personal and official capacity actions.

Kentucky v. Graham, 473 U.S. 159, 164 (1985).

Individual or personal capacity suits against government agents seek to impose personal

liability upon the officer for his actions taken under color of state title. In contrast, an official- - 20 - capacity suit is simply “another way of pleading an action against an entity for which an officer

is an agent.” Monell, 436 U.S. at 690 n.55. Thus, “an official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity,” because “while an award of damages

against an official in his personal capacity can be executed only against the official’s personal

assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look

to the government entity itself.” Graham, 473 U.S. at 166.

Indeed, the Supreme Court recently re-emphasized this distinction in Suffolk City School

Board v. Wahlstrom, 302 Va. at 221:

In the more than a century since Ex Parte Young, [209 U.S. 123 (1990),] public officials have, depending on the circumstances, been subject to suit in either their official capacities or their individual capacities, with different procedures and immunity rules applying as a result of those circumstances. Critically, both “official capacity” and “individual capacity” have come to be terms of art as it pertains to suits against government officials and are neither interchangeable nor synonymous.

Here, because each of the named defendants (officers/agents of the School Board) was

sued only in his or her official capacity, the suit is essentially a suit against the (government

entity) Prince William County School Board. Indeed, it was upon this basis that the trial court

granted appellees’ plea in bar. Thus, the proper inquiries for this Court on appeal are

determining whether the School Board is entitled to sovereign immunity and, if so, the scope of

that immunity.

B. PWCS Board Sovereign Immunity

It is undisputed that the suit against the three named defendants, in their official capacity,

is functionally against the School Board. Most illustrative of this distinction and its importance

is this Court’s most recent decision regarding school boards in Ibanez v. Albemarle County

School Board, 80 Va. App. 169 (2024). In Ibanez, plaintiff parents, on behalf of themselves and

their minor children, sued the school board alleging that its Anti-Racism Policy “violate[d] their - 21 - rights under the Virginia Constitution and a Virginia statute.” Id. at 176. The trial court “found

that the underlying constitutional and statutory provisions were not self-executing and dismissed

their claims for lack of standing,” and sustained the defendants’ plea in bar raising the defense of

sovereign immunity. Id. This Court noted that, pursuant to the holdings in Kellam and Banks,

“the doctrine of sovereign immunity ‘applies not only to the state, but also to certain government

officials,’” which “generally includes school boards . . . and school officials acting in their

official capacities.” Id. at 189 (quoting Gray v. Va. Sec’y of Transp., 276 Va. 93, 102 (2008)).

Without relying too heavily on the import of a single word, this Court’s use of the word

“generally” regarding the sovereign immunity of school boards allows for the understanding that

a differentiation can and should be made between school boards’ policies and the actions of its

officials.

Although a school board should be entitled to sovereign immunity insofar as such

entitlement serves the doctrinal purpose of protecting a local government entity’s ability to

promulgate its state-apportioned duties, its sovereign immunity should be qualified in the same

manner as the immunity to which an employee or official is entitled. The school board can

create, adopt, and implement policies according to its statutory duties. Where a school board is

sued based on its policies, the doctrine of sovereign immunity is reasonable. However, where a

school board employee is sued for the actions taken under color of his title, the sovereign

immunity to which he is entitled is based upon the characterization of his conduct. In this case,

although the underlying alleged actions are attributable to the three individually named

defendants, the “official capacity” status of the suit necessarily characterizes those actions as

actions taken by the school board.12 In reality, the school board cannot, as an entity, “act” in the

12 This recalls the earlier point, that the characterization of conduct in derivative sovereign immunity cases raises a unique question in this case. - 22 - ordinary sense of the term; it “acts” through its agents and employees. See Pulliam v. Coastal

Emergency Servs. of Richmond, Inc., 257 Va. 1, 24 (1999) (“A corporation can act only through

its officers and agents.”). This distinction closely mirrors the distinction of governmental and

proprietary functions comparatively in the determination of the sovereign immunity available to

municipal corporations or local government entities.

For that reason, the same analysis should be applied to school boards. Where a school

board’s actions should be considered governmental, like the promulgation and implementation of

policies, it should be entitled to sovereign immunity. But where, as here, the underlying claim is

based upon individual actors or actions rather than policy or other governmentally necessary

duties, a school board’s “actions” should be considered proprietary. When based upon the

characterization of the actions or omissions of its employees, the extent of the school board’s

sovereign immunity should be subject to the analysis in Lentz: the school board should be

immune for acts of simple negligence, but should not be immune for acts of gross negligence or

intentional misconduct. Immunity cannot be asserted when gross negligence, rather than simple

negligence, is alleged.

C. Whether Sovereign Immunity Bars a Claim against a School Board Is a Matter of Degree

When a local entity, like a school board, is sued based on its agents’ actions, the factors

differentiating the entity from the state itself do not support an entitlement to absolute immunity

such that actions alleging gross negligence should not proceed. The Drewrey analysis is

essential to this determination. Appropriately, when a judgment is rendered against a school

board, funds awarded in the judgment come from the school board treasury, not the state

treasury. The school board is primarily concerned with local matters, not state matters. The

state exercises little control over the school board. Therefore, not every action by the school

board is done on behalf of the state. Each action must be analyzed accordingly. Some actions - 23 - are taken on behalf of the localities each school board serves. The state will treat school boards

as government entities deserving of its sovereign immunities essentially when the school board is

performing its governmental functions, i.e., the establishment and promulgation of local

educational policies and procedures, use of school funding, and matters relating to the regulation

of the schools under the school board’s jurisdiction. Comparatively, the school board exercises

its proprietary function primarily through the actions of its employees.

Therefore, a school board’s entitlement to sovereign immunity should be analyzed in the

same manner as derivative sovereign immunity is analyzed for agents of the state. It is logical to

view the school board as an officer of the state rather than to view the school board as an “arm of

the state” where questions of sovereign immunity are involved. For this reason, the test for

determining whether sovereign immunity bars a claim against a school board should be a matter

of degree. Where simple negligence is alleged, the school board should be immune. Where

gross negligence is alleged, the claim is not barred.

D. Sovereign Immunity Defense Analysis

We turn now to the case before this Court, in which appellant asserts that the trial court

erred because this Court recently stated in Bradford v. Crain, No. 0386-22-2, 2023 Va. App.

LEXIS 164 (Mar. 14, 2023), that sovereign immunity does not protect a public employee against

gross negligence claims, even if the public employee is acting in his or her official capacity. Our

appellant also argues that our Supreme Court’s jurisprudence on sovereign immunity “make[s]

no distinction between official capacities and individual capacities,” leaving only a general rule

that can be applied notwithstanding the capacity in which a defendant is sued.

As reiterated above, appellant’s claim that the capacity in which a defendant is sued is

irrelevant is incorrect. Both the Virginia Supreme Court and the United States Supreme Court

have clearly stated that “individual capacity” and “official capacity” are wholly distinct. See

- 24 - Wahlstrom, 302 Va. at 221 (“Critically, both ‘official capacity’ and ‘individual capacity’ have

come to be terms of art.”); Graham, 473 U.S. at 165 (explaining that personal liability suits seek

to hold individuals liable for their conduct while acting as an agent or employee of an office).

Given the claim of sovereign immunity, the capacity of the suit is critically determinative.

Official capacity suits “represent only another way of pleading an action against an entity

of which an officer is an agent.” Graham, 473 U.S. at 165-66 (quoting Monell, 436 U.S. at 690

n.55). Here, appellant’s suit was effectively against the Prince William County School Board.

Thus, the court must determine whether the School Board is entitled to the sovereign immunity

asserted by defendants, and the scope of that immunity.

Decisively, in statutory construction and in function, a school board is a municipal

corporation. This classification of Virginia school boards was examined thoroughly by the

Eastern District Court of Virginia in Drewrey v. Portsmouth City School Board. Although

Drewrey was a case in federal court, its finding that the local Virginia school board was not

entitled to sovereign immunity is applicable here.13 The court in Drewrey found that “Virginia

law characterizes its school boards as local governmental entities, not arms of the State,” and

thus the Portsmouth City School Board was not entitled to a claim of sovereign immunity. 264

13 When the Eastern District Court of Virginia remanded appellant’s state claims to state court, it cited Drewrey, stating:

All of the individually named [d]efendants were employees of the School Board (a local municipality) . . . [t]he School Board and its employees sued in their official capacities are not arms of the state and are therefore not absolutely immune from suit under the Eleventh Amendment. See, e.g., Drewrey v. Portsmouth City Sch. Bd., 264 F. Supp. 3d 724, 730 (E.D. Va. 2017) (concluding that, “in Virginia, local school boards act as independent local governmental agencies, not as arms of the State for purposes of sovereign immunity”).

Drasovean v. Va. Bd. of Educ., No. 1:19-cv-286, 2019 U.S. Dist. LEXIS 250619, at *7-9 (E.D. Va. May 3, 2019). - 25 - F. Supp. 3d at 730. While the analysis of sovereign immunity in this case must be applied to the

school board, the nature of the claim warrants an analysis of the application of derivative

sovereign immunity14 in claims of gross negligence.15

In assessing whether sovereign immunity bars a negligence claim, Virginia courts must

embark on a two-part inquiry. First, the court must establish whether the defense of sovereign

immunity is available to the defendant. Second, if a defendant is entitled to sovereign immunity,

the court must determine whether the defendant’s actions amounted to gross negligence. If an

individual is protected by sovereign immunity, a plaintiff must establish that the actions taken by

the official amounted to gross negligence to overcome the sovereign immunity defense. See

Colby, 241 Va. at 128 (“In Virginia, a government agent entitled to the protection of sovereign

immunity is not immunized from suit. Rather, the degree of negligence which must be shown to

impose liability is elevated from simple to gross negligence.”); see also Burns, 283 Va. at 677.

“Virginia law defines gross negligence as ‘a heedless and palpable violation of legal duty

respecting the rights of others which amounts to the absence of slight diligence, or the want of

even scant care.’” Patterson, 301 Va. at 198 (quoting Commonwealth v. Giddens, 295 Va. 607,

613 (2018)). Stated differently, “[g]ross negligence ‘requires a degree of negligence that would

shock fair-minded persons, although demonstrating something less than willful recklessness.’”

14 Derivative sovereign immunity applies when an individual claims the sovereign immunity to which his employer may be entitled and is based on the notion that “government can function only through its servants, and certain of those servants must enjoy the same immunity in the performance of their discretionary duties as the government enjoys.” First Va. Bank- Colonial v. Baker, 225 Va. 72, 79 (1983). 15 When simple negligence is alleged against a defendant in his individual capacity, Virginia courts must apply the four-part test outlined in Burns: “(1) the nature of the function the employee performs; (2) the extent of the governmental entity’s interest and involvement in the function; (3) the degree of control and direction exercised by the governmental entity over the employee; and (4) whether the alleged wrongful act involved the exercise of judgment and discretion.” 283 Va. at 676 (quoting Lentz, 236 Va. at 82). - 26 - Elliott v. Carter, 292 Va. 618, 622 (2016) (quoting Cowan v. Hospice Support Care, Inc., 268

Va. 482, 487 (2004)). “Because ‘the standard for gross negligence is one of indifference, not

inadequacy,’ a claim for gross negligence must fail as a matter of law when the evidence shows

that the defendants exercised some degree of care.” Id. (quoting Kuykendall v. Young Life, 261

F. App’x 480, 491 (4th Cir. 2008)). “Ordinarily, the question [of] whether gross negligence has

been established is a matter of fact to be decided by a jury.” Burns, 283 Va. at 678 (quoting

Frazier v. City of Norfolk, 234 Va. 388, 393 (1987)).

Although the appellees were sued in their official capacities, the School Board’s status as

a municipal corporation and the nature of the functions of the defendants renders their claim of

sovereign immunity subject to abrogation based on the degree of negligence alleged by the

plaintiff. Thus, the circuit court was incorrect to conclude that School Board Employees enjoyed

sovereign immunity “as to all negligence” and were immune from suit under gross negligence.

Instead, as our case law instructs “the degree of negligence which must be shown to impose

liability is elevated from simple to gross negligence.” Burns, 283 Va. at 677 (quoting Colby, 241

Va. at 128). Here, Drasovean alleged in her complaint that the appellees, acting in their official

capacity, committed gross negligence because they were aware that a violent student had been

accepted into the intellectual disability class, as well as evidence that the abuse Drasovean

suffered occurred in plain view of the teacher in the classroom. Thus, Drasovean properly pled

her gross negligence claim against the school officials. Therefore, the circuit court erred by not

applying any analysis to the gross negligence claim and sustaining the plea in bar.

- 27 - CONCLUSION

The trial court erred in granting the appellees’ plea in bar based on sovereign immunity.

We therefore reverse the circuit court’s granting of the plea in bar and remand for proceedings

consistent with this option.

Reversed and remanded.

- 28 - Callins, J., dissenting.

The issue before this Court is whether the sovereign immunity enjoyed by employees of a

county school board, sued in their official capacity, is absolute or qualified. The majority today

determines that it is qualified, irrespective of the capacity in which those employees are sued. I

disagree.

As an initial matter, Monica Drasovean raises a single issue for appellate consideration:

whether the trial court below erred by sustaining the school board employee appellees’ plea in

bar and determining that “a government official’s sovereign immunity protects the official from

gross negligence claims when sued in their official capacity.” Drasovean argues on appeal that

this Court’s prior unpublished decision in Bradford v. Crain, No. 0386-22, 2023 Va. App.

LEXIS 164 (Mar. 14, 2023),16 dictates that sovereign immunity may not be relied upon by public

officials being sued in their official capacity in the face of allegations of gross negligence. Put

differently, Drasovean principally contends that by suing the officials who serve the school board

in their official capacity, rather than the school board itself, allegations of gross negligence

defeat any defense of sovereign immunity.

The gravamen of the majority’s decision turns on the scope of the sovereign immunity

extended to individuals sued in their official capacity. Let me first note that I agree with the

majority that suing an individual in their official capacity is tantamount to suing the associated

agency. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity

receives notice and an opportunity to respond, an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity . . . . It is not a suit against the official

16 “The citation of judicial opinions, orders, judgments, or other written dispositions that are not officially reported, whether designated as ‘unpublished,’ ‘not for publication,’ ‘non precedential,’ or the like, is permitted as informative, but will not be received as binding authority.” Rule 5A:1(f). - 29 - personally, for the real party in interest is the entity.”). Discordantly, however, the majority

determines that all three appellees—namely the county school superintendent, the county

director of special education, and the school principal—are entitled to qualified sovereign

immunity, even when sued in their official capacities.

It is true that when an agent of a governmental agency engages in conduct beyond the

scope of their duties as an agent, or otherwise engages in conduct which rises to the level of

gross negligence, those individuals are liable in their individual capacities. Cf. Sayers v. Bullar,

180 Va. 222, 226 (1942) (holding that state employees were entitled to sovereign immunity

where the employees caused damage to a claimant’s property by setting off explosives in the

construction of a pipeline at the Commonwealth’s direction). But here, all three school board

employees were explicitly sued in their official capacities. As the majority points out, “official

capacity” and “individual capacity” are terms of art and are “neither interchangeable nor

synonymous.” See Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 221 (2023). By suing

appellees in their official capacity, Drasovean is necessarily subject to the legal implications of

that choice. Drasovean effectively brings suit against the school board, because “an

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Graham, 473 U.S. at 166. Given that the school board as an arm of the Commonwealth enjoys

absolute sovereign immunity, the trial court below properly sustained appellees’ plea in bar. See

Kellam v. Norfolk City Sch. Bd., 202 Va. 252, 259 (“[S]chool boards act in connection with

public education as agents or instrumentalities of the state, in the performance of a governmental

function, and consequently they partake of the state’s sovereignty with respect to tort

liability. . . . [T]he right to recover should not be determined by the gradation of negligence or

by the adjectives used in the complaint.”).

- 30 - Ultimately, the issue here is one of proper pleading. I would affirm the trial court and

hold that when seeking to sue an agent of an arm of the Commonwealth, a claimant must sue an

agent in their individual capacity, lest the claimant’s claim be barred by the Commonwealth’s

absolute sovereign immunity.17

Accordingly, I respectfully dissent.

17 This conclusion stems from the fact that where, as here, the claims allege that agents of a governmental agency have engaged in gross negligence, those agents can only be held liable individually. See Sayers, 180 Va. at 226; see also Kellam, 202 Va. at 255-56 (“[School boards] are involuntary corporations, organized not for the purpose of profit or gain, but solely for the public benefit . . . . Such corporations are but the agents of the State, for the sole purpose of administering the state system of public education.”). The burden is then on the agents to assert sovereign immunity. In doing so, the agents would be required to demonstrate their entitlement to sovereign immunity vis-à-vis the factors delineated in James v. Jane, 221 Va. 43, 53 (1980), and by demonstrating that they were otherwise acting within the scope of their authority as an agent of the Commonwealth. - 31 - COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Athey, Causey and Callins Argued at Winchester, Virginia

MONICA DRASOVEAN MEMORANDUM OPINION* BY v. Record No. 0259-23-4 JUDGE DORIS HENDERSON CAUSEY NOVEMBER 6, 2024 STEVEN WALTS, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Carroll A. Weimer, Jr., Judge

Benjamin F. North (Binnall Law Group, PLLC, on briefs), for appellant.

John F. Cafferky (William B. Porter; Ian J. McElhaney; Blankingship & Keith, P.C, on brief), for appellees.

The Circuit Court of Prince William County granted appellees’ plea in bar and determined,

as a matter of law, that sovereign immunity bars gross negligence claims when a government

official is sued in his official capacity. On appeal, Monica Drasovean argues that the circuit court

erred in its decision. Precedent states that when a suit is brought against a government official

under the theory of gross negligence, sovereign immunity does not block that claim. However,

when a defendant is sued in his official capacity, the suit is effectively against the entity with which

he is employed. Thus, the question in this case is whether the sovereign immunity to which school

boards are entitled bars claims of gross negligence. This is a matter of first impression. We hold

that the circuit court erred in granting the plea in bar, reverse, and remand the holding of the circuit

court to determine whether the alleged actions taken by the appellees amounted to gross negligence.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

The Prince William County School Board (School Board) operates the Prince William

County Public Schools (PWCS). During the 2016-17 school year, Monica Drasovean was a student

enrolled in the Special Education Program at C.D. Hylton High School (Hylton). During this time,

Dr. Steven Walts served as PWCS’s Superintendent, Dr. Michelle Roper served as the Director of

Special Education for PWCS, and David Cassady served as the principal of Hylton (collectively

Around November 2016, H.A.1 transferred from another high school into Hylton’s Special

Education Program. Drasovean alleges that H.A. had “a known troubled record involving harmful,

sexual, and abusive behavior.” According to Drasovean, before H.A. arrived at Hylton, a teacher at

Hylton contacted the school’s head of the Special Needs Education Department and relayed her

opinion that “[H.A.] would not be a good fit for the special needs program at Hylton and would

pose a danger to other students.” The department head then relayed this concern to Cassady, who

contacted Dr. Roper about the transfer. Dr. Roper ultimately allowed H.A. to transfer to Hylton.

Upon his arrival at Hylton, H.A. was placed in several classes with Drasovean that were

supervised by teachers, and at least one class included both a teacher and a teacher’s aide.

Drasovean alleges that, from November 2016 to January 2017, H.A. sexually assaulted

Ms. Drasovean by touching her breasts and legs, kissing her, and “trying to take her outside of the

school building to perform other sexual acts on her.” Drasovean alleges that many of these acts

occurred in one of Ms. Drasovean’s classes, which was attended by only four other students, and

many of “the assaults occurred in open view of other people.” Ms. Drasovean’s teachers never saw

these assaults. On January 23, 2017, Ms. Drasovean reported the assaults to her mother, who then

1 We use initials to refer to the student in an attempt to better protect his privacy. -2- On January 22, 2019, Drasovean filed her first action (first action) in the Circuit Court for

Prince William County against the School Board Employees, the Virginia Board of Education, and

directly against the School Board, alleging that, while Ms. Drasovean was a student at Hylton, H.A.

assaulted her. The complaint in the first action alleged claims for “negligence/gross negligence” in

violation of 42 U.S.C. § 1983, and violations of Section 504 of the Rehabilitation Act and Title II of

The first action was removed to the United States District Court for the Eastern District of

Virginia, where Drasovean’s federal claims were dismissed, and her state law negligence claims

were remanded to circuit court. The circuit court sustained defendants’ demurrers to Drasovean’s

simple negligence claim with prejudice but granted Drasovean leave to amend her claim for gross

Drasovean filed an amended complaint alleging a single count of gross negligence against

the Virginia Board of Education and the School Board Employees, however, she nonsuited the first

action on March 2, 2021. Subsequently, Drasovean filed this action, asserting a single count of

gross negligence against the School Board Employees in their official capacities only.

The School Board Employees filed a plea in bar on the ground that Drasovean’s complaint

against them in their official capacities amounted to a suit against the School Board. They argued

that the School Board is entitled to sovereign immunity in tort, and because a suit against them in

their official capacities is effectively against the School Board, sovereign immunity should bar the

complaint. On January 13, 2023, the circuit court heard oral argument. The court held that

the manner which the defendants have been sued, that is their official capacity, this is tantamount or the same as a suit against the governmental entity and the governmental entity enjoys sovereign immunity as to . . . all negligence, and as such, these employees in their official capacity are immune pursuant to sovereign immunity.

-3- Consequently, the circuit court granted the School Board Employees’ plea in bar, dismissing the

“The existence of sovereign immunity is a question of law that is reviewed de novo.”

Burns v. Gagnon, 283 Va. 657, 673 (2012) (quoting Lee v. City of Norfolk, 281 Va. 423, 439

(2011)). “A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577 (2010). “The party asserting a plea in

bar bears the burden of proof on the issue presented.” Id. The circuit court held a hearing where

the parties presented their arguments. However, “[w]here no evidence is taken in support of the

plea, the trial court, and the appellate court upon review, must rely solely upon the pleadings in

resolving the issue presented.” Robinson v. Nordquist, 297 Va. 503, 513-14 (2019) (quoting

Tomlin v. McKenzie, 251 Va. 478, 480 (1996)). Additionally, “[i]n doing so, the facts stated in

the plaintiff’s [complaint] are deemed true.” Massenburg v. City of Petersburg, 298 Va. 212,

216 (2019) (second alteration in original) (quoting Lostrangio v. Laingford, 261 Va. 495, 497

(2001)). “This approach results in functionally de novo review of the trial court’s judgment.”

Id. Here, the issue of gross negligence and school boards is one of first impression for this

Whether the School Board is entitled to sovereign immunity, the scope of that immunity,

and whether that immunity bars a claim of gross negligence is the question of this appeal. Given

the complexity of this inquiry, it is necessary to understand the history of sovereign immunity, its

application under Virginia law, and the difference between the sovereign immunity available to

various governmental entities and the sovereign immunity available to individuals employed by

We begin with the doctrine of sovereign immunity, which is rooted in English common

law and adhered to the notion that “no suit or action can be brought against the king, even in civil

matters, because no court can have jurisdiction over [the Crown].” Alden v. Maine, 527 U.S.

706, 715 (1999) (quoting 1 W. Blackstone, Commentaries on the Laws of England 234-235

(1765)). “‘Dual sovereignty is a defining feature of our Nation’s constitutional blueprint.’ Upon

ratification of the Constitution, the States entered the Union ‘with their sovereignty intact.”’

Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). Federalism presupposes that the

States retain exclusive sovereignty in some aspects of governance, share sovereign power with

the federal government in other aspects, and yield their sovereign power only in those aspects of

governance exclusively assigned to the federal government by the United States Constitution.”

The application of this immunity, in practice, was unique in the United States because of

the inherent qualities of federalism: though the nation itself was a sovereign, the states retained

their sovereignty in relation to one another and the federal government. This principle led to the

ratification of the Eleventh Amendment, which codified state sovereign immunity at the federal

level: “[t]he Judicial power of the United States shall not be construed to extend to any suit in

law or equity, commenced 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. The ratification

of the Eleventh Amendment followed the 1793 case Chisholm v. Georgia, 2 U.S. 419 (1793),

where the Court ruled that a citizen of South Carolina could sue the state of Georgia. In that

case, Justice Iredell disagreed and reasoned that if the common law barred suit against the

sovereign, then the states necessarily, absent express consent, must be similarly protected.

-5- Following Justice Iredell’s reasoning, the first congressional meeting following the

Court’s decision in Chisholm led to the ratification of the Eleventh Amendment, which codified

a state’s immunity from suit in federal courts in actions brought against it by citizens of another

state. Although the Eleventh Amendment applied specifically to the power of the federal

judiciary, its underlying principles began to be applied by the states in the states. It was the

nature of the Eleventh Amendment and the inherent structure of the Constitution itself that led

the Court in Alden to find that each state has a “constitutional privilege . . . to assert its sovereign

When a state is a named party in a suit, it has a right to assert its sovereign immunity as a

bar to the continuation of the suit. While a state may waive its sovereign immunity either by

statute or by consent, such a waiver must be express.2 See Alden, 527 U.S. at 724 (“The handful

of state statutory and constitutional provisions authorizing suits or petitions of right against

States only confirms the prevalence of the traditional understanding that a State could not be

sued in the absence of an express waiver.”). The State is likewise immunized when it is not a

named party, but when an officer of the state is sued in a manner that renders the suit

2 Many states, including Virginia, have codified liability for certain state and government employees and entities under certain circumstances. In 1981, the Virginia legislature enacted the Virginia Tort Claims Act, which “constitutes an express limited waiver of the Commonwealth’s immunity from tort claims.” Bates v. Commonwealth, 267 Va. 387, 391 (2004); see also Code §§ 8.01-195.1 – 8.01-195.9. Shortly after the law was codified, the Fairfax County Circuit Court held that the Fairfax County “School Board is a ‘state agency’ as defined in [Code §] 8.01-195.2, and its Plea of Sovereign Immunity is overruled.” Murphy v. Fairfax Cnty. Sch. Bd., 6 Va. Cir. 97, 98 (Fairfax Cnty. 1984). In 1986, the Act was amended, explicitly stating that “‘[s]chool boards’ as defined in paragraph 5 of § 22.1-1 are not state agencies nor are employees of school boards state employees.” 1986 Va. Acts ch. 534. -6- functionally against the state.3 Id. at 756 (“Some suits against state officers are barred by the

rule that sovereign immunity is not limited to suits which name the State as a party if the suits

are, in fact, against the State.”). However, though sovereign immunity “bars suits against the

States,” it does not bar suits against “lesser entities” such as “municipal corporation[s] or other

governmental entit[ies] which [are] not an arm of the State.” Id.

When an agent or officer of the state is sued in his individual capacity, the suit may be

barred by an application of the state’s sovereign immunity to the state actor. See Messina v.

Burden, 228 Va. 301, 309 (1984). While the state itself, and the qualifying arms of the state, are

entitled to absolute immunity from civil actions, agents and employees of the state may be

entitled to that same immunity on a qualified basis. See Sayers v. Bullar, 180 Va. 222, 230

Whether an officer or employee of a government agency may claim sovereign immunity

is dependent both upon the scope of the immunity to which his employer is entitled and the

extent to which his actions satisfy the derivative immunity’s qualifications. James v. Jane, 221

Va. 43, 52 (1980). For example, when state officers are sued in their individual capacity for

actions taken within the scope of their employment, they are typically immune, as those actions

are considered extensions of the state’s authority. Sayers, 180 Va. at 229 (“[t]he alleged act of

the defendants was the act of the State”). Such immunity does not extend to an officer of the

state, however, when his actions are “so negligent as to take him outside the protection of his

3 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (stating that the “‘general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter’” (quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam))); see also Larson v. Domestic & Foreign Comm. Corp., 337 U.S. 682 (1949) (noting that the relief sought and against whom the relief is obtained is the greatest determining factor in questions of whether a suit nominally against an officer is functionally one against the state). -7- employment” and thus out of the realm of the protection of the state’s sovereign immunity.

James, 221 Va. at 52. Similarly, the state’s sovereign immunity does not extend to employees

who engage in intentional misconduct. See Tomlin, 251 Va. at 481 (stating that “where

sovereign immunity is claimed by an agent of the state, rather than by the state as an entity, it

will not be extended to acts which constitute a wanton and intentional deviation from the duties

the agent has been assigned to undertake”). The characterization of conduct as part of a

sovereign immunity analysis, though discussed in this section strictly in its application to state

agents and officers, raises unique implications in the present case and requires an inquiry as to

how “conduct” itself applies to suits against entities. This will be discussed further along in the

2. State Sovereign Immunity Extended to Government Entities: Classification as an “Arm of the State” versus a local municipality

While Alden clearly states that sovereign immunity does not protect municipal

corporations or lesser entities from suit, it qualifies that limitation with the phrase “which is not

an arm of the State.” 527 U.S. at 756. Governmental entities that are considered arms of the

State are thus entitled to the same sovereign immunity as the State itself. See Mann v. County

When determining whether a municipality or other local government entity is an “arm of

the state,” Virginia courts have traditionally inquired as to the entity’s creation and the nature of

its performed functions. When a local government entity is “purely local in nature and not a

state agency performing a function of state government,” then it is “not entitled to the same

immunity from tort liability that is enjoyed by the Commonwealth.” Va. Elec. & Power Co. v.

-8- Hampton Redevelop. and Housing Auth., 217 Va. 30, 33 (1976).4 Thus, an entity “purely local

in nature” would not be considered an “arm of the state,” but rather a municipality or municipal

corporation. Id. Although municipalities and municipal corporations are tangentially connected

to the state government, is well settled that “a municipality is clothed with two-fold functions;

one governmental, and the other private or proprietary.” Hoggard v. City of Richmond, 172 Va.

145, 147 (1939). When an injury arises from an alleged negligent exercise of a municipal

corporation’s authority, courts attempt5 to categorize the function of the municipal corporation as

either governmental or proprietary: a “function is considered governmental if it is the exercise of

an entity’s political, discretionary, or legislative authority,” but a function is considered

proprietary when it “is a ministerial act, ‘assumed in consideration of the privileges conferred by

. . . charter,’ and involves no discretion.” Carter v. Chesterfield Cnty. Health Comm’n, 259 Va.

588, 591 (2000) (quoting City of Richmond v. Long’s Adm’rs, 58 Va. (17 Gratt.) 375, 379

(1867)). Such a distinction is necessary for determining that entity’s immunity, as “[m]unicipal

corporations are immune from tort liability when performing governmental functions, but are not

immune when exercising proprietary functions.” Id. at 590. The distinction between “arms of

the state” and local municipalities is crucial to this case, as the school board’s respective

classification determines the degree of sovereign immunity to which it is entitled.

4 Factors to be considered in distinguishing an entity’s local rather than state governmental functions are its statutory authority, the procedures through which its officials are elected or appointed, and how its finances are managed and apportioned. See Va. Elec. & Power Co., 217 Va. at 33. 5 Distinguishing between governmental and proprietary functions is a matter of rhetorical ease, but practical difficulty. See Carter v. Chesterfield Cnty. Health Comm’n, 259 Va. 588, 592 (2000) (“the principles for differentiating governmental and proprietary functions are easily recited, as we have often noted, application of these principles ‘has occasioned much difficulty’” (quoting Ashbury v. City of Norfolk, 152 Va. 278, 282 (1929))).

-9- 3. Derivative Sovereign Immunity: Employees of Municipalities and Lesser Government Entities

In the same way that a municipal corporation or local government body may be entitled

to the state’s sovereign immunity depending on the nature of its functions, so too may an

employee of such an entity be entitled to immunity. When a person is an agent of a “lesser

entity” of the state, like a municipal corporation, his potential entitlement to derivative sovereign

immunity involves a two-step inquiry: the scope of the immunity to which the entity itself is

entitled, and whether the employee satisfies the requirements for claiming that immunity.

Patterson v. City of Danville, 301 Va. 181, 189 (2022). If a municipality is not itself entitled to

sovereign immunity by nature of its proprietary—as opposed to governmental—functions, then

its agents are not entitled to sovereign immunity even for acts of simple negligence. See Fines v.

Just as the inquiry regarding a municipality’s entitlement to sovereign immunity centers

upon the nature of its functions, an inquiry regarding the derivative sovereign immunity available

to its agents centers upon the nature of that agent’s actions. Id. When an employee is entitled to

derivative sovereign immunity, that immunity can be overcome with claims of gross negligence.

Patterson, 301 Va. at 197 (“[a]llegations of gross negligence can pierce through a derivative-

sovereign-immunity defense asserted by an otherwise immune government employee”).

However, in certain instances, even acts of simple negligence may proceed against a

defendant entitled to sovereign immunity. The Supreme Court of Virginia routinely depends

upon a “four, non-exclusive factor” test to determine whether derivative sovereign immunity is

available to such an employee in actions alleging simple negligence:

(i) the nature of the function performed by the employee; (ii) the extent of the [governmental employer’s] interest and involvement in the function; (iii) the degree of control and direction exercised by the [governmental employer] over the employee; and (iv)

- 10 - whether the act complained of involved the use of judgment and discretion.

Id. at 190 (alterations in original) (quoting Messina, 228 Va. at 309); see also James, 221 Va. at

52. While the present case concerns the school board’s immunity, not the individual employees’

immunity, the analyses set forth in Patterson, Messina, and James underscore the importance in

recognizing the variations in sovereign immunity and its availability to certain employees and

In James v. Jane, two patients sought to recover damages from their respective injuries

following the allegedly negligent acts of the defendants. 221 Va. at 45. Upon the defendants’

pleas of sovereign immunity predicated upon their employment with the University of Virginia,

the Court established a comprehensive four-factor test for determining when an employee is

entitled to derivative sovereign immunity for acts of simple negligence. Id. at 53. Although the

physicians were each employees of the University, which “no one question[ed]” was an “agency

of the Commonwealth of Virginia [and therefore] entitled to the protection of the immunity of

the state,” the Court found that “[a] physician who fails to use reasonable care in the treatment of

a patient acts at his own risk, and is not entitled to invoke the doctrine of sovereign immunity.”

Id. at 51, 55. Thus, employees of state agencies have limited state immunity.

Two years later, the Court relied on its recent decision in James, as well as the decisions

in Kellam,6 Crabbe7 and Short,8 and the statutory and constitutional constructions of the office of

both a high school principal and a superintendent, in deciding whether defendants holding such

6 Kellam v. Sch. Bd. of City of Norfolk, 202 Va. 252 (1960). 7 Crabbe v. County Sch. Bd. of Northumberland Cnty., 209 Va. 356 (1968). 8 Short v. Griffiths, 220 Va. 53 (1979).

- 11 - offices were entitled to sovereign immunity. In Banks v. Sellers, 224 Va. 168 (1982), when a

high school student alleged that the injuries she sustained after being stabbed by another student

were the result of the defendants’ negligence in failing to provide her with a safe environment,

the Court held that both the principal and the superintendent were “entitled to sovereign

immunity” because they were, respectively, a “supervisory official who exercises powers

involving a considerable degree of judgment and discretion” and “essentially a counterpart to the

superintendent [whose] function is very similar.” Id. at 173. Notably, the Banks case concerned

the immunity available to those individuals by the nature of their jobs. Although the defendants

in this case hold the same offices, the defendant officials in Banks were not sued in their official

In 1983, when a plaintiff was injured because of an automobile accident sued the state

superintendent of the expressway for his allegedly negligent failure to “provide barriers and

other traffic control devices sufficient to prevent vehicles from entering the wrong lane of

travel,” the Court further explicated its understanding and application of the doctrine of

sovereign immunity. Hinchey v. Ogden, 226 Va. 234, 237 (1983). While the plaintiff in

Hinchey argued that the purpose of sovereign immunity is to protect state funds and should

therefore not apply to the superintendent as she was not seeking to recover from the treasury, the

Court “disagree[d] with Hinchey’s contention that the protection of the public purse is the sole

justification for the doctrine of sovereign immunity.” Id. at 239. Instead, the Court found that

while the protection of the state treasury is a factor of sovereign immunity, “the principal

justification [in this case] for upholding the claim of sovereign immunity is the need for order

and uniformity in the administration of the affairs of government.” Id. at 240. Hinchey, too, was

- 12 - Finally, in the 1984 case Messina v. Burden, the Court examined “under what

circumstances an employee of a governmental body is entitled to the protection of sovereign

immunity.” 228 Va. at 307. The Court’s comprehensive analysis of the purpose of the doctrine

and the history of its application in Virginia courts resulted in an affirmation of the decision

below. Most notably, the Court’s analysis included the rationale that “the absence of any claim

of gross negligence or intentional misconduct demonstrates the correctness of the trial court’s

decision to sustain the plea of sovereign immunity.” Id. at 311 (emphasis added). The Court

noted this absence once again in Lentz v. Morris, 236 Va. 78 (1988), finding that the facts in

Lentz “[did] not support a charge of either gross negligence or intentional misconduct,” the Court

held that the defendant schoolteacher was entitled to derivative sovereign immunity based upon

the immunity of the school board. Id. at 82. Both Messina and Lentz were individual capacity

While the “doctrine of sovereign immunity is ‘alive and well’ in Virginia,” it has not

“persevered . . . without substantial debate over its permissible scope and the consistency of its

applications.” Messina, 228 Va. at 307; Patterson, 301 Va. at 189. This difficulty is clear

insofar as the doctrine has been applied to local school boards and their employees. As this suit

pertains to school board employees in their official capacities only, we must analyze sovereign

In a matter of first impression, the Supreme Court of Virginia held in Kellam v. School

Board of City of Norfolk, 202 Va. 252 (1960), that a school board was considered an arm of the

state. This was reasoned through analogy to similar statutory constructions and holdings in West

Virginia law, which the Court found was “applicable and persuasive because of the similarity of

the law in Virginia and West Virginia governing school boards.” Id. at 255. Relying on

- 13 - Kellam’s holding and the subsequent case law involving the application of sovereign immunity

to school boards, Virginia courts applied the doctrine in varying ways throughout the next

When a student brought suit against his shop teacher alleging that the teacher’s

negligence in allowing the student to use a broken table saw led to the student’s injury, the Court

in Crabbe v. School Board of Northumberland County, 209 Va. 356 (1968), held that the

“defendant School Board is immune from liability for the injuries sustained by the plaintiff by

reason of its alleged negligence,” but disagreed “with the contention of this defendant that the

immunity of the School Board from liability to the plaintiff extends to him.” Id. at 358-59.

Similarly, in 1979, the Court held in Short v. Griffiths, 220 Va. 53 (1979), that

“employees of a local school board did not enjoy the governmental immunity afforded the board,

and were responsible for their acts of simple or ordinary negligence.” Id. at 56 (relying on

Crabbe, 209 Va. 356, where the defendant schoolteacher was liable for his negligence despite

the School Board enjoying sovereign immunity). Short was an individual capacity suit in which

the defendant school board employee was not immune, but the school board was. The school

board was immune because of its classification in Kellam as an “arm of the state” rather than a

A decade later, however, the Court expressly overruled Short, and overruled Crabbe

“insofar as it address[ed] the employee’s liability in that case.” Lentz, 236 Va. at 82 (holding

that defendant gym teacher was entitled to sovereign immunity absent a claim of “gross

negligence or intentional misconduct”). The Court’s decision in Lentz was based upon the

factors outlined in Messina, which established Virginia’s test for determining which government

employees were entitled to the sovereign immunity of the state based on their employment.

- 14 - Relying on Lentz, Virginia circuit courts continued to grant school employees derivative

sovereign immunity in claims alleging simple negligence. See Koffman v. Garnett, 265 Va. 12

(2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v.

Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994). In several cases, Virginia circuit courts

have held that school boards and their employees enjoy immunity even when gross negligence is

alleged. Croghan v. Fairfax County Sch. Bd., 59 Va. Cir. 120, 121 (Fairfax Cnty. 2002) (“[T]he

immunity shared by the state and its agencies (including school boards) is absolute and applies as

a bar to liability whether the degree of alleged negligence is simple or gross.”); Mattox v.

Campbell Cnty. Sch. Bd., 37 Va. Cir. 221, 222 (Campbell Cnty. 1995) (“[T]he doctrine of

sovereign immunity protects the Campbell County School Board from allegations of both simple

In 2012, however, the Circuit Court in the City of Suffolk overruled the school board’s

plea of sovereign immunity as to plaintiff’s “[c]ounts IV and XX of the Complaint,” since those

counts “allege[d] gross negligence by the School Board and its employees” and “sovereign

immunity does not apply where gross negligence is alleged.” Simpson v. Thorsen, 84 Va. Cir.

252, 255 (Suffolk 2012). While this holding applied specifically to the sovereign immunity of

the school board, the issue of derivative sovereign immunity as applied to school board

employees was decided by the Virginia Supreme Court only several months later in Burns.

When a former Gloucester County High School student filed a complaint against two

students and the assistant principal alleging “simple and gross negligence, assault, and battery,”

the Court explained that although “an individual working for an immune governmental entity is

entitled to the protection of sovereign immunity under the common law, he is not immunized

from suit” and that in order to overcome an employee’s derivative sovereign immunity, the

- 15 - “‘degree of negligence . . . is elevated from simple to gross negligence.’” Burns, 283 Va. at 663,

Although a suit against the named defendants in their official capacities is functionally a

claim against the school board, the school board’s sovereign immunity should be scrutinized

under the factors set forth in Messina, Lentz, and Burns, because Virginia school boards should

be considered municipal corporations rather than arms of the state.

D. Virginia School Boards should be considered municipal corporations rather than arms of the state

In both statutory construction9 and in function, a school board is a municipal corporation.

This classification of Virginia school boards was examined thoroughly by the Eastern District

Court of Virginia in Drewrey v. Portsmouth City School Board. 264 F. Supp. 3d 724 (E.D. Va.

2017). In Drewrey, the court examined whether the Portsmouth City School Board was entitled

to sovereign immunity. Based on four factors, originally applied by the Fourth Circuit Court of

Appeals in Cash v. Granville County Board of Education, 242 F.3d. 219 (4th Cir. 2001), the

District Court found that the school board was not an arm of the State and therefore not entitled

to sovereign immunity. Drewrey, 264 F. Supp. 3d at 727. The court in Drewrey examined the

following factors: (1) the State treasury, (2) the degree of control exercised by the state over the

school board, (3) the degree to which the school board was focused on local versus statewide

concerns, and (4) how the school board was treated under state law. Id. The court found that

“Virginia law characterizes its school boards as local governmental entities, not arms of the

State,” and thus the Portsmouth City School Board was not entitled to a claim of sovereign

immunity. Id. at 730. When applied to the facts in this case, specifically, to the Prince William

City School Board, the Drewrey factors show that the school board should be treated as a

9 Code § 22.1-71. - 16 - municipal corporation rather than an arm of the State. Thus, Prince William County School

Board is not entitled to sovereign immunity according to the Drewrey factors.

Code § 22.1-82(B) requires that all “costs, expenses and liabilities of [any legal

proceeding to which the school board, member or official may be party10] shall be paid out of

funds appropriated to the school board.” The funds appropriated to the school board are an

amalgamation of state funds, federal funds, local funds, and donations. Code § 22.1-88. Thus,

even if an argument could be made that funds apportioned to the School Board are partially

funded by the State and thus affect the State treasury, it is not the State treasury itself. Such

logic would run against the doctrine that suits may lie against officers in their individual capacity

so long as the judgments paid come from the officer’s pockets. An officer’s income is at least

partially made up of State funds. An indirect or unsubstantial monetary contribution to a suit

cannot be considered functionally the same as a suit which solely and directly implicates the

State treasury. Thus, PWCS Board funds are not part of the Virginia State Treasury.

Virginia school boards exercise both discretionary and financial control over the

operation of their schools. Drewrey, 264 F. Supp. 3d at 728. While the Commonwealth has

some degree of control, for the most part Virginia school boards “retain[] sole decisionmaking

authority” and “a wide breadth of financial autonomy and independent responsibilities.” Id.;

Code §§ 22.1-28, -79. Furthermore, its officials are “locally elected and appointed” as opposed

to appointed by the Governor. Drewrey, 264 F. Supp. 3d at 729; Code § 22.1-76(A). The degree

of Commonwealth involvement and control over local school boards ends at their statutory

10 See Code § 22.1-82(A) for alteration. - 17 - construction,11 which designates the school board as a “body corporate.” Code § 22.1-71.

Statutory creation does not demonstrate enough state control over school boards to classify them

as “arms of the state” rather than municipal corporations. The Commonwealth of Virginia has a

Although school boards are tasked with the promulgation of the Commonwealth’s

educational standards, each school board sets its own “locality-level policies,” such as

determining the length of the school year, the curriculum, “the methods of teaching[,] and the

government to be employed in the schools.” Drewrey, 264 F. Supp. 3d at 730. While these

policies cannot be inconsistent with the statewide standards, the school boards, comprised wholly

of locally selected members, are solely responsible for the establishment and promulgation of

those policies. Code § 22.1-79(5). Therefore, although Virginia exercises “limited involvement

in some general standards for state-wide education,” the “concerns of [Virginia] school boards

Drewrey’s fourth factor regarding the state law’s treatment of the entity in question

requires the most nuanced analysis for the purposes of the present case. The court found in

Drewrey that, although the Board argued that “the Supreme Court of Virginia found [in Kellam]

that a school board is considered an arm of the State,” Kellam was not applicable, as the case at

hand was a question of federal law rather than a claim in tort. Id. Although the present case

involves a tort law claim, and therefore invokes Kellam, it would be a mistake to “treat[] a state

court decision as to whether an entity is a state actor as determinative.” Id. Rather than applying

11 Code § 22.1-28. - 18 - the dicta of a single case in isolation, Drewrey’s fourth factor is better analyzed through a

wholistic understanding of the state’s treatment of the entity over time.

The Virginia Tort Claims Act abrogated the sovereign immunity of state agencies for

actions in tort. Code § 8.01-195.2. This abrogation led the Fairfax County Circuit Court to find

that because the “School Board [was] a ‘state agency’ as defined [in the Act], [its] Plea of

Sovereign Immunity is overruled.” Murphy v. Fairfax Cnty. Sch. Bd., 6 Va. Cir. 97, 98 (Fairfax

Cnty. 1984). In 1986, the Act was amended to explicitly state that school boards were not

considered agencies of the state for purposes of the Act, thereby excluding school boards from

the statutory abrogation of the sovereign immunity of state agencies. 1986 Va. Acts ch. 534.

While this exclusion in light of the decision in Murphy implies that the Virginia legislature wants

school boards to retain their entitlement to sovereign immunity, classifying the school boards as

municipal corporations does not undermine that goal. Rather, it subjects local school boards to

the same analysis and protection as any other government municipality. In actions concerning its

governmental functions, school boards will still be immune in tort. This immunity will

accomplish what all sovereign immunity doctrine seeks to accomplish⎯the necessary

furtherance of governmental goals, policies, and procedures will not be prohibited for fear of

suit. However, it will also ensure the protection of those to whom the school board is

accountable when the school board is engaged in proprietary functions. Thus, overall, school

boards have been treated as municipalities by the State of Virginia, and their entitlement to

sovereign immunity should be subject to the same analysis as other municipalities.

In light of the varying degrees and possible applications of sovereign immunity, the

question raised on appeal requires two wholly separate and distinct analyses. First, because the

circuit court’s determination that “the manner in which the defendants have been sued, that is

- 19 - their official capacity, [is] tantamount or the same as a suit against the [School Board],” we must

first decide whether the circuit court erred in classifying the school board as a “government

entity” rather than a “municipality.” As noted earlier in our analysis, the scope of the immunity

available to the School Board is dependent upon this classification. Second, this Court must

determine, for the first time, whether the degree of negligence pled against an entity, as opposed

to an individual, should determine whether the suit is barred by sovereign immunity.

“Official capacity” suits are effectively suits against the entity for whom the individual

works and are separate and distinct from “individual capacity” suits where the individual is sued

for the actions he took while acting within the scope of his employment. The capacity in which

these defendants were sued is neither irrelevant nor a matter of semantics. The Virginia Supreme

Court and the United States Supreme Court have made it clear that “individual capacity” and

“official capacity” are wholly distinct. See Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 221

(2023) (“Critically, both ‘official capacity’ and ‘individual capacity’ have come to be terms of

Official capacity suits “represent only another way of pleading an action against an entity

of which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

Proper application of [the] principle [that “liability on the merits and responsibility for fees go hand in hand”] in damages actions against public officials requires careful adherence to the distinction between personal- and official-capacity action suits. Because this distinction apparently continues to confuse lawyers and confound lower courts, we attempt to define it more clearly through concrete examples of the practical and doctrinal differences between personal and official capacity actions.

Individual or personal capacity suits against government agents seek to impose personal

liability upon the officer for his actions taken under color of state title. In contrast, an official- - 20 - capacity suit is simply “another way of pleading an action against an entity for which an officer

is an agent.” Monell, 436 U.S. at 690 n.55. Thus, “an official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity,” because “while an award of damages

against an official in his personal capacity can be executed only against the official’s personal

assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look

Indeed, the Supreme Court recently re-emphasized this distinction in Suffolk City School

In the more than a century since Ex Parte Young, [209 U.S. 123 (1990),] public officials have, depending on the circumstances, been subject to suit in either their official capacities or their individual capacities, with different procedures and immunity rules applying as a result of those circumstances. Critically, both “official capacity” and “individual capacity” have come to be terms of art as it pertains to suits against government officials and are neither interchangeable nor synonymous.

Here, because each of the named defendants (officers/agents of the School Board) was

sued only in his or her official capacity, the suit is essentially a suit against the (government

entity) Prince William County School Board. Indeed, it was upon this basis that the trial court

granted appellees’ plea in bar. Thus, the proper inquiries for this Court on appeal are

determining whether the School Board is entitled to sovereign immunity and, if so, the scope of

It is undisputed that the suit against the three named defendants, in their official capacity,

is functionally against the School Board. Most illustrative of this distinction and its importance

is this Court’s most recent decision regarding school boards in Ibanez v. Albemarle County

School Board, 80 Va. App. 169 (2024). In Ibanez, plaintiff parents, on behalf of themselves and

their minor children, sued the school board alleging that its Anti-Racism Policy “violate[d] their - 21 - rights under the Virginia Constitution and a Virginia statute.” Id. at 176. The trial court “found

that the underlying constitutional and statutory provisions were not self-executing and dismissed

their claims for lack of standing,” and sustained the defendants’ plea in bar raising the defense of

sovereign immunity. Id. This Court noted that, pursuant to the holdings in Kellam and Banks,

“the doctrine of sovereign immunity ‘applies not only to the state, but also to certain government

officials,’” which “generally includes school boards . . . and school officials acting in their

official capacities.” Id. at 189 (quoting Gray v. Va. Sec’y of Transp., 276 Va. 93, 102 (2008)).

Without relying too heavily on the import of a single word, this Court’s use of the word

“generally” regarding the sovereign immunity of school boards allows for the understanding that

a differentiation can and should be made between school boards’ policies and the actions of its

Although a school board should be entitled to sovereign immunity insofar as such

entitlement serves the doctrinal purpose of protecting a local government entity’s ability to

promulgate its state-apportioned duties, its sovereign immunity should be qualified in the same

manner as the immunity to which an employee or official is entitled. The school board can

create, adopt, and implement policies according to its statutory duties. Where a school board is

sued based on its policies, the doctrine of sovereign immunity is reasonable. However, where a

school board employee is sued for the actions taken under color of his title, the sovereign

immunity to which he is entitled is based upon the characterization of his conduct. In this case,

although the underlying alleged actions are attributable to the three individually named

defendants, the “official capacity” status of the suit necessarily characterizes those actions as

actions taken by the school board.12 In reality, the school board cannot, as an entity, “act” in the

12 This recalls the earlier point, that the characterization of conduct in derivative sovereign immunity cases raises a unique question in this case. - 22 - ordinary sense of the term; it “acts” through its agents and employees. See Pulliam v. Coastal

Emergency Servs. of Richmond, Inc., 257 Va. 1, 24 (1999) (“A corporation can act only through

its officers and agents.”). This distinction closely mirrors the distinction of governmental and

proprietary functions comparatively in the determination of the sovereign immunity available to

For that reason, the same analysis should be applied to school boards. Where a school

board’s actions should be considered governmental, like the promulgation and implementation of

policies, it should be entitled to sovereign immunity. But where, as here, the underlying claim is

based upon individual actors or actions rather than policy or other governmentally necessary

duties, a school board’s “actions” should be considered proprietary. When based upon the

characterization of the actions or omissions of its employees, the extent of the school board’s

sovereign immunity should be subject to the analysis in Lentz: the school board should be

immune for acts of simple negligence, but should not be immune for acts of gross negligence or

intentional misconduct. Immunity cannot be asserted when gross negligence, rather than simple

C. Whether Sovereign Immunity Bars a Claim against a School Board Is a Matter of Degree

When a local entity, like a school board, is sued based on its agents’ actions, the factors

differentiating the entity from the state itself do not support an entitlement to absolute immunity

such that actions alleging gross negligence should not proceed. The Drewrey analysis is

essential to this determination. Appropriately, when a judgment is rendered against a school

board, funds awarded in the judgment come from the school board treasury, not the state

treasury. The school board is primarily concerned with local matters, not state matters. The

state exercises little control over the school board. Therefore, not every action by the school

board is done on behalf of the state. Each action must be analyzed accordingly. Some actions - 23 - are taken on behalf of the localities each school board serves. The state will treat school boards

as government entities deserving of its sovereign immunities essentially when the school board is

performing its governmental functions, i.e., the establishment and promulgation of local

educational policies and procedures, use of school funding, and matters relating to the regulation

of the schools under the school board’s jurisdiction. Comparatively, the school board exercises

its proprietary function primarily through the actions of its employees.

Therefore, a school board’s entitlement to sovereign immunity should be analyzed in the

same manner as derivative sovereign immunity is analyzed for agents of the state. It is logical to

view the school board as an officer of the state rather than to view the school board as an “arm of

the state” where questions of sovereign immunity are involved. For this reason, the test for

determining whether sovereign immunity bars a claim against a school board should be a matter

of degree. Where simple negligence is alleged, the school board should be immune. Where

We turn now to the case before this Court, in which appellant asserts that the trial court

erred because this Court recently stated in Bradford v. Crain, No. 0386-22-2, 2023 Va. App.

LEXIS 164 (Mar. 14, 2023), that sovereign immunity does not protect a public employee against

gross negligence claims, even if the public employee is acting in his or her official capacity. Our

appellant also argues that our Supreme Court’s jurisprudence on sovereign immunity “make[s]

no distinction between official capacities and individual capacities,” leaving only a general rule

that can be applied notwithstanding the capacity in which a defendant is sued.

As reiterated above, appellant’s claim that the capacity in which a defendant is sued is

irrelevant is incorrect. Both the Virginia Supreme Court and the United States Supreme Court

have clearly stated that “individual capacity” and “official capacity” are wholly distinct. See

- 24 - Wahlstrom, 302 Va. at 221 (“Critically, both ‘official capacity’ and ‘individual capacity’ have

come to be terms of art.”); Graham, 473 U.S. at 165 (explaining that personal liability suits seek

to hold individuals liable for their conduct while acting as an agent or employee of an office).

Given the claim of sovereign immunity, the capacity of the suit is critically determinative.

Official capacity suits “represent only another way of pleading an action against an entity

of which an officer is an agent.” Graham, 473 U.S. at 165-66 (quoting Monell, 436 U.S. at 690

n.55). Here, appellant’s suit was effectively against the Prince William County School Board.

Thus, the court must determine whether the School Board is entitled to the sovereign immunity

Decisively, in statutory construction and in function, a school board is a municipal

corporation. This classification of Virginia school boards was examined thoroughly by the

Eastern District Court of Virginia in Drewrey v. Portsmouth City School Board. Although

Drewrey was a case in federal court, its finding that the local Virginia school board was not

entitled to sovereign immunity is applicable here.13 The court in Drewrey found that “Virginia

law characterizes its school boards as local governmental entities, not arms of the State,” and

thus the Portsmouth City School Board was not entitled to a claim of sovereign immunity. 264

13 When the Eastern District Court of Virginia remanded appellant’s state claims to state court, it cited Drewrey, stating:

All of the individually named [d]efendants were employees of the School Board (a local municipality) . . . [t]he School Board and its employees sued in their official capacities are not arms of the state and are therefore not absolutely immune from suit under the Eleventh Amendment. See, e.g., Drewrey v. Portsmouth City Sch. Bd., 264 F. Supp. 3d 724, 730 (E.D. Va. 2017) (concluding that, “in Virginia, local school boards act as independent local governmental agencies, not as arms of the State for purposes of sovereign immunity”).

Drasovean v. Va. Bd. of Educ., No. 1:19-cv-286, 2019 U.S. Dist. LEXIS 250619, at *7-9 (E.D. Va. May 3, 2019). - 25 - F. Supp. 3d at 730. While the analysis of sovereign immunity in this case must be applied to the

school board, the nature of the claim warrants an analysis of the application of derivative

In assessing whether sovereign immunity bars a negligence claim, Virginia courts must

embark on a two-part inquiry. First, the court must establish whether the defense of sovereign

immunity is available to the defendant. Second, if a defendant is entitled to sovereign immunity,

the court must determine whether the defendant’s actions amounted to gross negligence. If an

individual is protected by sovereign immunity, a plaintiff must establish that the actions taken by

the official amounted to gross negligence to overcome the sovereign immunity defense. See

Colby, 241 Va. at 128 (“In Virginia, a government agent entitled to the protection of sovereign

immunity is not immunized from suit. Rather, the degree of negligence which must be shown to

impose liability is elevated from simple to gross negligence.”); see also Burns, 283 Va. at 677.

“Virginia law defines gross negligence as ‘a heedless and palpable violation of legal duty

respecting the rights of others which amounts to the absence of slight diligence, or the want of

even scant care.’” Patterson, 301 Va. at 198 (quoting Commonwealth v. Giddens, 295 Va. 607,

613 (2018)). Stated differently, “[g]ross negligence ‘requires a degree of negligence that would

shock fair-minded persons, although demonstrating something less than willful recklessness.’”

14 Derivative sovereign immunity applies when an individual claims the sovereign immunity to which his employer may be entitled and is based on the notion that “government can function only through its servants, and certain of those servants must enjoy the same immunity in the performance of their discretionary duties as the government enjoys.” First Va. Bank- Colonial v. Baker, 225 Va. 72, 79 (1983). 15 When simple negligence is alleged against a defendant in his individual capacity, Virginia courts must apply the four-part test outlined in Burns: “(1) the nature of the function the employee performs; (2) the extent of the governmental entity’s interest and involvement in the function; (3) the degree of control and direction exercised by the governmental entity over the employee; and (4) whether the alleged wrongful act involved the exercise of judgment and discretion.” 283 Va. at 676 (quoting Lentz, 236 Va. at 82). - 26 - Elliott v. Carter, 292 Va. 618, 622 (2016) (quoting Cowan v. Hospice Support Care, Inc., 268

Va. 482, 487 (2004)). “Because ‘the standard for gross negligence is one of indifference, not

inadequacy,’ a claim for gross negligence must fail as a matter of law when the evidence shows

that the defendants exercised some degree of care.” Id. (quoting Kuykendall v. Young Life, 261

F. App’x 480, 491 (4th Cir. 2008)). “Ordinarily, the question [of] whether gross negligence has

been established is a matter of fact to be decided by a jury.” Burns, 283 Va. at 678 (quoting

Although the appellees were sued in their official capacities, the School Board’s status as

a municipal corporation and the nature of the functions of the defendants renders their claim of

sovereign immunity subject to abrogation based on the degree of negligence alleged by the

plaintiff. Thus, the circuit court was incorrect to conclude that School Board Employees enjoyed

sovereign immunity “as to all negligence” and were immune from suit under gross negligence.

Instead, as our case law instructs “the degree of negligence which must be shown to impose

liability is elevated from simple to gross negligence.” Burns, 283 Va. at 677 (quoting Colby, 241

Va. at 128). Here, Drasovean alleged in her complaint that the appellees, acting in their official

capacity, committed gross negligence because they were aware that a violent student had been

accepted into the intellectual disability class, as well as evidence that the abuse Drasovean

suffered occurred in plain view of the teacher in the classroom. Thus, Drasovean properly pled

her gross negligence claim against the school officials. Therefore, the circuit court erred by not

applying any analysis to the gross negligence claim and sustaining the plea in bar.

The trial court erred in granting the appellees’ plea in bar based on sovereign immunity.

We therefore reverse the circuit court’s granting of the plea in bar and remand for proceedings

The issue before this Court is whether the sovereign immunity enjoyed by employees of a

county school board, sued in their official capacity, is absolute or qualified. The majority today

determines that it is qualified, irrespective of the capacity in which those employees are sued. I

As an initial matter, Monica Drasovean raises a single issue for appellate consideration:

whether the trial court below erred by sustaining the school board employee appellees’ plea in

bar and determining that “a government official’s sovereign immunity protects the official from

gross negligence claims when sued in their official capacity.” Drasovean argues on appeal that

this Court’s prior unpublished decision in Bradford v. Crain, No. 0386-22, 2023 Va. App.

LEXIS 164 (Mar. 14, 2023),16 dictates that sovereign immunity may not be relied upon by public

officials being sued in their official capacity in the face of allegations of gross negligence. Put

differently, Drasovean principally contends that by suing the officials who serve the school board

in their official capacity, rather than the school board itself, allegations of gross negligence

The gravamen of the majority’s decision turns on the scope of the sovereign immunity

extended to individuals sued in their official capacity. Let me first note that I agree with the

majority that suing an individual in their official capacity is tantamount to suing the associated

agency. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity

receives notice and an opportunity to respond, an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity . . . . It is not a suit against the official

16 “The citation of judicial opinions, orders, judgments, or other written dispositions that are not officially reported, whether designated as ‘unpublished,’ ‘not for publication,’ ‘non precedential,’ or the like, is permitted as informative, but will not be received as binding authority.” Rule 5A:1(f). - 29 - personally, for the real party in interest is the entity.”). Discordantly, however, the majority

determines that all three appellees—namely the county school superintendent, the county

director of special education, and the school principal—are entitled to qualified sovereign

It is true that when an agent of a governmental agency engages in conduct beyond the

scope of their duties as an agent, or otherwise engages in conduct which rises to the level of

gross negligence, those individuals are liable in their individual capacities. Cf. Sayers v. Bullar,

180 Va. 222, 226 (1942) (holding that state employees were entitled to sovereign immunity

where the employees caused damage to a claimant’s property by setting off explosives in the

construction of a pipeline at the Commonwealth’s direction). But here, all three school board

employees were explicitly sued in their official capacities. As the majority points out, “official

capacity” and “individual capacity” are terms of art and are “neither interchangeable nor

synonymous.” See Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 221 (2023). By suing

appellees in their official capacity, Drasovean is necessarily subject to the legal implications of

that choice. Drasovean effectively brings suit against the school board, because “an

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Graham, 473 U.S. at 166. Given that the school board as an arm of the Commonwealth enjoys

absolute sovereign immunity, the trial court below properly sustained appellees’ plea in bar. See

Kellam v. Norfolk City Sch. Bd., 202 Va. 252, 259 (“[S]chool boards act in connection with

public education as agents or instrumentalities of the state, in the performance of a governmental

function, and consequently they partake of the state’s sovereignty with respect to tort

liability. . . . [T]he right to recover should not be determined by the gradation of negligence or

- 30 - Ultimately, the issue here is one of proper pleading. I would affirm the trial court and

hold that when seeking to sue an agent of an arm of the Commonwealth, a claimant must sue an

agent in their individual capacity, lest the claimant’s claim be barred by the Commonwealth’s

17 This conclusion stems from the fact that where, as here, the claims allege that agents of a governmental agency have engaged in gross negligence, those agents can only be held liable individually. See Sayers, 180 Va. at 226; see also Kellam, 202 Va. at 255-56 (“[School boards] are involuntary corporations, organized not for the purpose of profit or gain, but solely for the public benefit . . . . Such corporations are but the agents of the State, for the sole purpose of administering the state system of public education.”). The burden is then on the agents to assert sovereign immunity. In doing so, the agents would be required to demonstrate their entitlement to sovereign immunity vis-à-vis the factors delineated in James v. Jane, 221 Va. 43, 53 (1980), and by demonstrating that they were otherwise acting within the scope of their authority as an agent of the Commonwealth. - 31 -