Are jailers and 911 communicators (telecommunicators / dispatchers) employed by a North Carolina sheriff's office automatically considered 'law enforcement officers' under the state retirement statutes just because they are sworn officers with the power of arrest?

Plain-English summary

Catawba County challenged a Retirement Systems Division conclusion that certain sheriff's-office communicators and jailers did not qualify as law enforcement officers under the Local Governmental Employees' Retirement System and State 401(k) plan. The county emphasized that the employees were certified and sworn. The AG said sworn status alone was not enough under either statutory definition.

The position also had to have assigned primary duties in preventing or detecting crime, generally enforcing State criminal law, or serving civil process. The opinion explained "primary" as a majority of the sworn employee's work time. Occasional performance of those tasks, or certification to perform them, did not satisfy the test.

The Retirement Systems Division had reviewed 25 position descriptions supplied by Catawba County. Those descriptions appeared to have been completed by employees and approved by supervisors and the sheriff. The AG considered it reasonable to use them for the determination and invited the county to submit any other relevant information about the positions' duties.

The opinion expressly rejected blanket decisions about jailers, dispatchers, bailiffs, or other job titles. Actual assigned duties could vary, so eligibility required careful review case by case. The described Catawba positions did not qualify on the information supplied, but that finding did not decide every jailer or dispatcher position in North Carolina.

Currency note

This opinion applied the cited retirement definitions in 1994 and evaluated Catawba County's position descriptions. Check current statutes and the actual assigned duties of a position for a present classification.

Background and statutory framework

G.S. § 128-21(11b) and G.S. § 143-166.50(a)(3) supplied the definitions used for the local retirement system and the State 401(k) plan. The opinion said both required more than a sworn officer's power of arrest. Assigned primary duties in the listed law-enforcement work were also necessary.

The AG noted earlier letters expressing the same statutory interpretation and a retirement handbook stating the definition. The application still depended on each position's duties. The opinion did not give job titles a categorical status.

Common questions

Is a sworn sheriff's-office employee automatically a law enforcement officer for these retirement provisions?

No. The opinion said the position must also have assigned primary duties in the crime-related work or civil-process service listed by the statutes.

Are all jailers and dispatchers excluded?

No. The AG said the Retirement Systems Division and State 401(k) Plan did not make blanket determinations by job title. Each position needed individual review of its assigned duties.

What evidence did the AG consider for the Catawba positions?

The Division relied on 25 county-supplied position descriptions, apparently completed by employees and approved by supervisors and the sheriff. The AG invited further relevant information from the county.

What does "primary duties" mean in this opinion?

The AG said the majority of a sworn employee's work time must be spent on crime prevention or detection, general enforcement of State criminal law, or civil-process service.

Source

• Landing page: https://ncdoj.gov/opinions/communicators-and-jailors-employed-by-the-catawba-county-sheriffs-office/

Citations

• G.S. § 128-21(11b) (LGERS definition of law enforcement officer)
• G.S. § 143-166.50(a)(3) (State 401(k) definition of law enforcement officer)

Original opinion text

June 8, 1994

Ms. Carolyn Crouch
Staff Attorney
Catawba County
100-A South West Boulevard
P.O. Box 389
Newton, North Carolina 28658-0389

Re: Advisory Opinion: Status of Communicators and Jailors Employed by the Catawba County Sheriff's Office as "Law Enforcement Officers" in the North Carolina Local Governmental Employees' Retirement System and in the Supplemental Retirement Income of North Carolina (the State 401(k) Plan). G.S. 128-21(11b); G.S. 143-166.50(a)(3).

Dear Ms. Crouch:

We are in receipt of your June 2, 1994, letter concerning the participation of communicators and jailors employed by the Catawba County Sheriff's Office as "law enforcement officers" in the Supplemental Retirement Income of North Carolina (the State 401(k) Plan) and the North Carolina Local Governmental Employees' Retirement System, and are writing in response to that letter. We are also in receipt of a June 2, 1994, letter from Janith J. Huffman, Personnel Director for Catawba County, to which we are responding by copy of this letter.

In January of 1992, Sheriff Huffman of Catawba County contacted the Sheriff's Standards Section of this Office seeking an opinion as to whether certain of his employees should be considered "law enforcement officers" within the meaning of the retirement statutes. On January 10, 1992, Mr. Peters wrote to Sheriff Huffman indicating his understanding that Sheriff Huffman would be sending job descriptions of the relevant jobs; Mr. Peters also indicated the Retirement Systems Division's willingness and his willingness to provide Sheriff Huffman with the requested opinion. A copy of this letter is enclosed for your convenience. By letter of January 21, 1994, Coleen J. Rhodes, Personnel Services Supervisor of Catawba County, forwarded to the Retirement Systems Division 25 position descriptions for communicators and jailors in the Sheriff's Department. Ms. Rhodes stated in that letter that "it is our understanding that the Attorney General's recent opinion is that jailors and radio telecommunicators are considered custodial and not eligible for LEO/401k retirement benefits." Ms. Rhodes asked for an opinion on whether "these job descriptions . . . are eligible to continue under LEO and to receive the 401k contribution." The Retirement Systems Division asked that Mr. Peters, as its counsel, review the job descriptions submitted. Mr. Peters provided his response to that request by his letter of April 22, 1994.

In your letter, you take exception to the determination contained in Mr. Peters' April 22 letter by stating that every affected employee is a certified sworn law enforcement officer. Ms. Huffman makes a similar point in her letter. As is made clear in both G.S. 143-166.50(a)(3) and G.S. 128-21(11b), however, simply being a sworn law enforcement officer is not sufficient to meet the statutory definition of a "law enforcement officer." In order to meet that definition, an employee must also be "serving in a position with assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process." G.S. 143-166.50(a)(3); G.S. 128-21(11b). Please note that these statutes do not state that the test is met if the employee occasionally performs these duties or is certified or authorized to perform these duties. Rather, the statutes require that the position occupied by the employee must have these duties assigned as primary functions of the position. In other words, the majority of the sworn employee's work time must be spent in the prevention or detection of crime, the general enforcement of the criminal laws, or the serving of civil process.

In this connection, you also take issue with Mr. Peters' assessment of the duties of these positions based only on the job descriptions and without any knowledge of the actual tasks performed by the employees. You also state that you will provide all necessary documents to show that these employees meet the statutory requirements. Catawba County is, of course, free and welcome to provide any relevant information to the Retirement Systems Division. We must note, however, that the determination that these employees do not meet the statutory definition of law enforcement officers was based upon position descriptions supplied by the Personnel Services Supervisor of Catawba County in support of her request for an opinion on the status of these employees. Each of these job descriptions appears to have been completed by the employees occupying the positions in the latter part of 1993; they also appear to have been approved by the appropriate supervisors and by Sheriff Huffman as accurate reflections of the duties and responsibilities of the positions.

Under these circumstances, it hardly seems unreasonable to assume that if these positions had assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process, then these recently completed and approved position descriptions would give some indication of that fact. Likewise, it hardly seems unreasonable to have relied on these position descriptions in reviewing this matter, because the position descriptions were supplied by Catawba County for that very purpose.

The recommendation made in the April 22 is quite consistent with long-standing interpretations of this statute. Both the Retirement Systems Division and its counsel in this Office have consistently determined that positions that only require the usual duties of jailors and communicators or dispatchers do not meet the statutory definition of law enforcement officers. We are enclosing for your information five letters on this subject as follows:

a. letter dated February 23, 1990, from Norma S. Harrell, Assistant Attorney General, to Dennis Ducker, Director of the Retirement Systems Division;

b. Letter dated December 6, 1988, from Norma S. Harrell to E. T. Barnes, Director of the Retirement Systems Division;

c. Letter dated March 25, 1988, from Dennis Ducker to Sheriff George Garner of Duplin County;

d. Letter dated October 12, 1987, from Norma S. Harrell to Sheriff Preston Oldham of Forsyth County;

e. Letter dated August 31, 1987, from Norma S. Harrell to the Sheriff George Garner of Duplin County.

Each of these letters contains the opinion that while being a sworn officer with power of arrest is required to meet the statutory definition of "law enforcement officer," it is not all that is required. An employee must also be "serving in a position with assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process."

We are also enclosing a copy of a January 30, 1992, memorandum from the North Carolina Association of County Commissioners to all county managers. This memorandum, of course, was generated without the request, direction, supervision, approval, or review of the Retirement Systems Division or the State 401(k) Plan. It does, however, clearly and correctly state the requirements for meeting the statutory definition of law enforcement officer.

The statutory definition has for many years also been clearly stated at the beginning of the handbook Your Retirement Benefits – For Local Law Enforcement Officers, promulgated by the Retirement Systems Division on a regular basis for distribution to Retirement System members.

Given the statutory definition of law enforcement officer, neither the Retirement Systems Division nor the State 401(k) Plan makes blanket determinations as to whether employees in certain jobs, such as jailors, dispatchers, or bailiffs, may or may not be considered law enforcement officers within the meaning of the retirement statutes. While generalizations can be made about such positions, the duties actually assigned to them can vary greatly. Accordingly, the determination must be made on a case-by-case basis after careful review of the duties and responsibilities of each position.