Could the City of Rexburg deputize BYU-Idaho's private campus security officers as Idaho peace officers, and could POST certify them?
Plain-English summary
Since 1988, the City of Rexburg, Idaho, and Brigham Young University-Idaho (a private university owned by the Corporation of the Church of Jesus Christ of Latter-Day Saints) had operated under a Law Enforcement Service Agreement under which BYU-Idaho employees were sworn in and commissioned as Rexburg police officers, then assigned to a "University Division" of the Rexburg Police Department to patrol the campus. BYU-Idaho paid all the salaries, owned the equipment, hired and fired the officers, and handled day-to-day supervision. The Rexburg Chief of Police's role was limited to general oversight and the formal commissioning. POST had certified the officers under a 1989 informal legal opinion that called the arrangement permissible because the BYU-Idaho employees were "administered" by the city.
Twenty years later, the POST Council asked the Attorney General to take a fresh look. The AG, after reviewing the relevant statutes and conducting a factual investigation including interviews with current and former officials, concluded the original 1989 analysis was wrong and overrode it.
First, an Idaho municipal corporation can enter a joint-powers agreement to share its police power only with other public agencies. The Joint Exercise of Powers Act at Idaho Code §§ 67-2326 through 67-2333 expressly limits joint-powers agreements to "the state of Idaho or any other public agency of this state." BYU-Idaho is a private corporation, not a public agency, so the City of Rexburg's delegation of police authority through the agreement was ultra vires (beyond the city's legal authority). The constitution and statutes also do not give cities any general power to delegate police authority to private entities; the only narrow exception in Idaho law is Idaho Code § 19-511, which lets the governor commission railroad and steamboat company employees as police on company premises.
Second, because the underlying agreement was invalid, POST could not certify BYU-Idaho employees as peace officers. Idaho Code § 19-5101(d) defines "peace officer" as an employee of a police or law enforcement agency that "is a part of or administered by the state or any political subdivision thereof." The AG concluded the BYU-Idaho University Division officers were not actually administered by Rexburg in the statute's plain-meaning sense: BYU-Idaho hired them, supervised them, paid them, set their schedules, owned their equipment, and could fire them at will. Rexburg's only meaningful role was the formal commissioning and the right to revoke that commission.
Third, the AG concluded the previously certified officers nonetheless qualified as de facto officers under State v. Whelan (1982), so all arrests and other lawful actions they took during the period of erroneous certification remained valid until either decertification by POST or a court ruling.
The opinion also flagged a separate constitutional issue that would arise if the legislature ever did try to authorize private religious-institution police: the Establishment Clauses of the First Amendment and Idaho Constitution art. I, § 4 would have to be considered.
Currency note
This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What is a joint-powers agreement?
An agreement under the Idaho Joint Exercise of Powers Act (§§ 67-2326-67-2333) that lets two or more public agencies share a power they each already hold. The classic example, cited in the opinion, is the Mini-Cassia Drug Enforcement Task Force, where two counties (Cassia and Minidoka) and two cities (Rupert and Heyburn) jointly run a drug-enforcement operation. All four parties already had police power, so they could pool it.
Why doesn't this apply to BYU-Idaho?
Because BYU-Idaho is a private corporation. It does not have police power to share. Idaho Code § 67-2328(a) requires that powers be "exercised and enjoyed jointly with the state of Idaho or any other public agency of this state having the same powers, privilege or authority." A joint-powers agreement between a public agency and a private entity is not authorized.
Then who can be a "peace officer" in Idaho?
Under Idaho Code § 19-5101(d), a peace officer is an employee of a police or law enforcement agency that "is a part of or administered by the state or any political subdivision thereof," whose duties primarily involve crime prevention/detection and enforcement of state, traffic, or local penal laws. Federally recognized Indian tribe officers can also qualify if POST-certified and deputized by a county sheriff or city chief of police.
Why did the AG say the BYU-Idaho officers were not "administered by" Rexburg?
The AG read "administered" in its plain English meaning: "to manage or supervise the execution, use, or conduct of." The factual investigation showed BYU-Idaho hired, supervised, paid, scheduled, equipped, and could fire the University Division officers. The Rexburg Chief of Police could review reports, attend a weekly meeting, and revoke an officer's commission. That is not real administration of the law enforcement function.
What is the de facto officer doctrine?
A common-law rule that protects the validity of acts taken by an officer who, in good faith and under color of an apparently lawful appointment, performed official duties even though it later turns out the appointment was defective. State v. Whelan (1982) sets the Idaho standard: "An officer de facto is one who actually assumes and exercises the duties of a public office under color of a known and authorized appointment or election, but who has failed to comply with all the requirements of the law prescribed as a precedent to the performance of the duties of the office." A de facto officer's actions are valid until the officer is removed or decertified. The AG concluded the BYU-Idaho University Division officers fit that description, so all their previous arrests and other actions stood.
What had to change after this opinion?
Going forward, POST could not certify additional BYU-Idaho employees, and the existing arrangement would have to be restructured (or, the AG noted, the legislature could try to authorize it explicitly, subject to potential Establishment Clause challenge). One option, not addressed in the opinion, would be for BYU-Idaho to operate as an unsworn campus-security force without arrest authority, calling Rexburg PD or the Madison County Sheriff for any actual law enforcement.
What is the "two-hat" concept?
Some campus officers wear two hats in their day, sometimes acting as university employees (locking doors, escorting bank deposits, jumpstarting cars) and sometimes as commissioned peace officers (responding to a crime). The Rexburg-BYU agreement used this model. Under the AG's analysis, the second hat (peace officer) was the one without legal authority.
Background and statutory framework
A municipal corporation in Idaho is a creature of the State, possessing only such powers as the constitution and legislature grant (Alpert v. Boise Water Corp., Adams v. City of Pocatello, Caesar v. State). Article XII, § 2 of the Idaho Constitution gives cities police power but only to "make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with [the city] charter or with the general laws."
Idaho Code § 19-204 lets cities form police services to prevent public offenses; § 50-209 spells out the powers of municipal policemen ("arrest all offenders against the law of the state, or of the city, by day or by night, in the same manner as the sheriff or constable"). § 50-301 gives cities general power to "exercise all powers and perform all functions of local self-government in city affairs as are not specifically prohibited by or in conflict with the general laws or the constitution."
Joint-powers agreements live in §§ 67-2326-67-2333. The act says public agencies can share their existing powers with other public agencies. There is no provision authorizing public-private joint-powers agreements for police authority.
Idaho Code § 19-511 is the only exception that explicitly authorizes private-entity police authority: the governor (not a city) can appoint and commission a railroad or steamboat company employee as a police officer on the company's premises, cars, and boats. The narrow scope of this exception confirms by negative implication that broader public-private police arrangements are not authorized.
POST Council certification is governed by Idaho Code § 19-5101 (definitions) and § 19-5109 (certification powers and duties). The peace-officer definition limits POST certification to employees of public law enforcement agencies.
The de facto officer doctrine comes from State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982), with related cases including State v. Wilson (1925), Gasper v. District Court (1953), and State v. Swenson (Ct. App. 1991).
Citations
Idaho Constitution: art. I, § 4; art. XII, §§ 1, 2.
Idaho Code: §§ 18-8103, 19-204, 19-510, 19-511, 19-5101, 19-5109, 31-2202, 31-2227, 50-209, 50-301, 67-2326, 67-2327, 67-2328, 67-2330, 67-2332, 67-2333, 67-2902, 67-2905.
Idaho cases: Adams v. City of Pocatello, 91 Idaho 99, 416 P.2d 46 (1966); Alpert v. Boise Water Corp., 118 Idaho 137, 795 P.2d 298 (1990); Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980); City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680 (1956); Druffel v. State, Dep't of Transp., 136 Idaho 853, 41 P.3d 739 (2002); Envirosafe Serv. of Idaho v. Owyhee County, 112 Idaho 687, 735 P.2d 998 (1987); Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953); Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959); Oregon Short Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877 (1933); Rowe v. City of Pocatello, 70 Idaho 343, 218 P.2d 695 (1950); State Dep't of Health and Welfare v. Housel, 140 Idaho 96, 90 P.3d 321 (2004); State v. Musser, 67 Idaho 214, 176 P.2d 199 (1946); State v. Steunenberg, 5 Idaho 1, 45 P. 462 (1896); State v. Swenson, 119 Idaho 706, 809 P.2d 1185 (Ct. App. 1991); State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982); State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion08-02.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
ATTORNEY GENERAL OPINION NO. 08-2
To: POST Council
c/o Mr. Jeff Black, Executive Director
Peace Officer Standards and Training Academy
P.O. Box 700
Meridian, ID 83680-0700
Per Request for Attorney General's Opinion
You have requested an Attorney General's Opinion concerning whether members of the University Division of the Rexburg Police Department who patrol the premises of Brigham Young University-Idaho (BYU-Idaho) are peace officers as defined by Idaho Code § 19-5101(d).
QUESTIONS PRESENTED
- Does the City of Rexburg have constitutional or statutory authority to delegate its law enforcement authority to employees of a private corporation?
2.a. Does the POST Council have the authority to certify the employees of a private corporation as law enforcement officers?
2.b. If not, what is the status of the BYU-Idaho employees who have performed law enforcement functions while certified as peace officers by the POST Council?
CONCLUSIONS
- No. Idaho municipal corporations cannot enter into a joint powers agreement to exercise the municipality's police power with any entity other than the State of Idaho or its political subdivisions. Idaho authorizes joint powers agreements to be entered into only between public entities. As a private educational institution, BYU-Idaho is not a public agency. The City of Rexburg exceeded its authority by entering into an agreement with BYU-Idaho for the joint exercise of law enforcement authority.
2.a. No. The POST Council can only certify peace officers who are employees of police or law enforcement agencies which are part of or administered by the state or its political subdivisions. Idaho Code §§ 19-5101 and 19-5109. Although the City of Rexburg entered into an agreement with BYU-Idaho to jointly share law enforcement powers, as explained in the answer to Question 1 above, that sharing of powers is ultra vires. Therefore, the POST Council has no lawful basis upon which to certify employees of BYU-Idaho.
2.b. POST Council previously certified BYU-Idaho employees as members of the University Division of the Rexburg Police Department. It is our opinion that under Idaho law these employees qualify as de facto officers and that all arrests and other lawful actions of BYU-Idaho employees certified in the past as law enforcement officers prior to a decision of a court of competent jurisdiction or de-certification by POST should be upheld.
INTRODUCTORY OVERVIEW
In 1988, the City of Rexburg and BYU-Idaho entered into a Law Enforcement Service Agreement, under which employees of BYU-Idaho are to be "sworn in and commissioned as police officers of the City of Rexburg." BYU-Idaho bears the costs of paying and equipping the officers, who are supervised in their law enforcement functions by the Rexburg Chief of Police. As BYU-Idaho employees, these officers also perform non-law enforcement functions and are supervised by BYU-Idaho in such capacity.
In 1989 the original Law Enforcement Service Agreement was reviewed by legal counsel for the Department of Law Enforcement (now the Idaho State Police) who concluded, without in depth analysis, that the agreement complied with Idaho law. The City of Rexburg, BYU-Idaho, and the POST Council have relied upon the 1989 conclusion since its issuance.
Upon receipt of this request, this office reviewed the 1989 conclusion and determined that additional legal research and analysis was necessary to fully address the questions presented.
ANALYSIS
I. THE CITY OF REXBURG DOES NOT HAVE AUTHORITY TO SWEAR IN AND COMMISSION THE EMPLOYEES OF A PRIVATE CORPORATION AS LAW ENFORCEMENT OFFICERS
A. The Scope of a Municipal Corporation's Police Power
Rexburg is a municipality organized under art. XII, sec. 1 of the Idaho Constitution. The constitution grants an incorporated city or town the legislative and executive power to "make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its [city or town] charter or with the general laws." Art. XII, § 2.
But this "broad" grant of police power to cities is not without limitation. Idaho recognizes that a municipal corporation, as a creature of the state, possesses and exercises only those powers either expressly or impliedly granted by the state constitution or the legislature. Alpert v. Boise Water Corp., 118 Idaho 136, 142, 795 P.2d 298, 304 (1990).
Although Idaho cities are expressly granted the power to form a police service, the constitution and statutes do not authorize cities to delegate police power to private entities.
B. Municipal Corporations Lack Authority to Contract for the Joint Exercise of Police Power With Private Entities
Joint powers agreements in Idaho are governed by Idaho Code §§ 67-2326 to 67-2333 inclusive. Idaho Code § 67-2328(a) defines and limits the purpose of joint powers agreements:
Any power, privilege or authority, authorized by the Idaho Constitution, statute or charter, held by the state of Idaho or a public agency of said state, may be exercised and enjoyed jointly with the state of Idaho or any other public agency of this state having the same powers, privilege or authority; but never beyond the limitation of such powers, privileges or authority.
The Law Enforcement Services Agreement entered into between the City of Rexburg, a municipal corporation, and BYU-Idaho, a private corporation, does not comply with Idaho Code § 67-2328 because the statute permits the sharing of municipal powers only between public entities. Therefore, to the extent the Law Enforcement Service Agreement purports to delegate the police power of the City of Rexburg to BYU-Idaho or its employees, that delegation is ineffective.
II. THE POST COUNCIL LACKS THE AUTHORITY TO CERTIFY THE EMPLOYEES OF BYU-IDAHO AS PEACE OFFICERS
A. The POST Council Lacks Authority to Enter Into Joint Exercise of Power Agreements With Private Entities
For the same reason that the City of Rexburg lacks the authority to delegate its police power to BYU-Idaho, a private entity, the POST Council does not have the authority under Idaho Code § 67-2330, to recognize the joint exercise of powers agreement between the City of Rexburg and BYU-Idaho and certify officers acting under that agreement.
B. The POST Council Exceeded Its Authority When It Certified BYU-Idaho Employees as Peace Officers
Idaho Code § 19-5101(d) has, since 1981, defined a "peace officer" as:
any employee of a police or law enforcement agency which is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic or highway laws of this state or any political subdivision.
The plain and ordinary meaning of the word "administered" in Idaho Code § 19-5101(d) is: "to manage or supervise the execution, use, or conduct of." The University Division officers, on the other hand, are not "administered," that is actually managed or supervised, by the City of Rexburg. Management and supervision is delegated to BYU-Idaho.
C. During the Time the BYU-Idaho Employees Were Certified by the POST Council They Were de Facto Officers Under Idaho Law
As explained by the Idaho Supreme Court in State v. Whelan, 103 Idaho 651, 655, 651 P.2d 916, 920 (1982), "[a]n officer de facto is one who actually assumes and exercises the duties of a public office under color of a known and authorized appointment or election, but who has failed to comply with all the requirements of the law prescribed as a precedent to the performance of the duties of the office." A reasonable conclusion is that during the time the POST Council certified BYU-Idaho employees as members of the University Division of the Rexburg Police Department, the officers were de facto officers under Idaho law and their actions could not be successfully challenged as illegitimate.
DATED this 26th day of August, 2008.
LAWRENCE G. WASDEN
Attorney General
ANALYSIS BY:
Ralph R. Blount
Deputy Attorney General
Criminal Law Division