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 asked the AG whether its sheriff's office communicators (dispatchers) and jailers qualified as "law enforcement officers" for purposes of the Local Governmental Employees' Retirement System and the State 401(k) Supplemental Retirement Income Plan. The county's position was that every affected employee was a certified sworn officer, so they should count as law enforcement officers.

Senior Deputy Attorney General Norma S. Harrell (this opinion is consistent with prior letters she had authored) and the Retirement Systems Division reached the opposite conclusion: jailers and dispatchers do not automatically qualify, even when sworn.

The statutory text drove the analysis. Both G.S. § 128-21(11b) (the local retirement system definition) and G.S. § 143-166.50(a)(3) (the State 401(k) definition) define a "law enforcement officer" with a two-part test:

1. The employee must be a sworn law enforcement officer.

2. The 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."

The opinion drilled into the second prong. The statute says "assigned primary duties," not "occasionally performs these duties," not "is certified or authorized to perform these duties." The job description must put crime work or civil process service at the center of the position. As the AG explained: "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."

Jailers typically do not meet this test. Their primary duties are custodial: monitoring inmates, maintaining facility security, processing intake and release. These are essential functions of a sheriff's office, but they are not crime prevention or enforcement on the streets.

Dispatchers and telecommunicators typically also do not meet this test. Their primary duties are communications: receiving calls, dispatching officers, maintaining radio contact. Again, essential and demanding work, but not the primary statutory category.

The opinion's reasoning was rooted in the position descriptions Catawba County itself had supplied. Twenty-five position descriptions, completed in 1993 by the employees occupying the positions and approved by their supervisors and Sheriff Huffman, were the basis for the Retirement Systems Division's review. The AG noted dryly that if these recently-approved descriptions had reflected primary crime-prevention duties, the descriptions would have shown it. They did not. So the conclusion was supported by the county's own documentation.

The AG also flagged that this conclusion was nothing new. Five prior letters from 1987 through 1990 (from Norma S. Harrell and Dennis Ducker) had reached the same conclusion in similar contexts: Forsyth County, Duplin County, and others. The statutory definition had been consistently interpreted to exclude purely custodial or dispatch positions for over a decade. The Retirement Systems Division had published the same interpretation in its handbook Your Retirement Benefits – For Local Law Enforcement Officers for years. A January 30, 1992 memorandum from the North Carolina Association of County Commissioners to all county managers had spread the same interpretation through the county-government community.

The county was free to provide additional documentation (perhaps showing that specific employees in fact performed crime-prevention or civil-process duties as primary functions, beyond what the formal job descriptions indicated). But absent such documentation, the standard jailers and dispatchers in a county sheriff's office were not LEOs for retirement-system purposes.

Currency note

This opinion was issued in 1994. 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. G.S. § 128-21(11b) and G.S. § 143-166.50(a)(3) have been amended multiple times since 1994. The North Carolina General Assembly has periodically considered legislation to extend LEO retirement benefits to detention officers (jailers), with various approaches over the years. The State Bureau of Investigation's role in detention officer training has also expanded, blurring the line in some contexts. The core statutory test (sworn LEO with primary crime-prevention duties) has been durable, but specific position-by-position eligibility determinations should always be made against current statutory language and current Retirement Systems Division guidance.

Background and statutory framework

North Carolina's public-sector retirement framework includes several plans. State employees participate in the Teachers' and State Employees' Retirement System. Local government employees (including most sheriff's office personnel) participate in the Local Governmental Employees' Retirement System (LGERS) under Chapter 128. Sworn law enforcement officers in either system get enhanced benefits under a special LEO classification: earlier retirement eligibility, higher accrual rates, supplemental retirement income through the State 401(k) plan (with a state-funded contribution), and other features.

The LEO classification is not free. The State and the local government employer pay higher contributions for LEO-classified employees. The benefit is also more generous. Both ends of the deal track the statutory definition of who is and is not an LEO.

The definition is found in identical language in two places: G.S. § 128-21(11b) (the LGERS provision) and G.S. § 143-166.50(a)(3) (the 401(k) provision). The two-part structure (sworn LEO plus primary-duties test) is identical across both statutes.

The primary-duties test exists because not every sworn person in a law enforcement agency does law enforcement work. Sheriffs' offices employ jailers, communicators, civil-process servers, court bailiffs, administrative staff, and (in many counties) detectives, deputies on patrol, and specialized officers. Some of these positions are clearly LEO; some are clearly not. Some are mixed. The statute draws the line based on what the position primarily does, not on whether the person holding it has been sworn.

The 1994 opinion's approach to evaluating mixed cases is concrete: look at the job descriptions, look at how the supervisor and the employees themselves describe the work, ask what the majority of work time is spent on. If the job descriptions consistently emphasize custodial or dispatch tasks, the position is not LEO. If they emphasize crime prevention, criminal investigation, response to active crimes, or service of civil process, the position is LEO. Edge cases require fact-specific analysis.

The AG opinion's reliance on the county's own position descriptions was a useful procedural lesson. Counties cannot have it both ways: claim LEO status for retirement purposes (with the attendant higher employer contribution) while writing position descriptions that emphasize custodial work. The descriptions and the classification must align.

The five prior letters referenced in the 1994 opinion (from 1987-1990) reflect a steady, consistent application of the statutory test across multiple counties. This consistency strengthens the case for relying on the interpretation: it is not a one-off reading but a settled administrative practice with which the General Assembly has had time to disagree if it wished to.

Common questions

Could a particular jailer qualify as an LEO if their actual day-to-day work involved primarily crime prevention?

In theory, yes. The statute focuses on primary duties, not on job titles. If a particular employee classified as a "jailer" actually spent the majority of their work time on crime prevention or investigation (perhaps because the position had non-standard duties), the employee could potentially qualify. But the burden would be on the county to demonstrate this, and standard position descriptions for jailers do not typically support the showing.

What about a deputy who spends most of their time serving civil process?

Civil process service is one of the three categories that qualify under the statute (along with crime prevention and crime enforcement). A deputy whose assigned primary duty is serving civil process (subpoenas, summons, warrants, evictions) qualifies as an LEO for retirement purposes.

Did this opinion affect employees who had previously been classified as LEOs and were now being told they did not qualify?

Yes, indirectly. The opinion confirmed an existing interpretation but it had practical consequences for employees who had been mistakenly classified. The Retirement Systems Division would typically adjust the classification prospectively, and the affected employees might have had grievances or appeals available to challenge the change. The AG opinion itself did not address remedies for mis-classified employees.

How does this opinion interact with collective bargaining or sheriff-employee organizations?

North Carolina does not have public-sector collective bargaining for most categories of public employees, including sheriff's office personnel. There is no labor-contract layer that could override the statutory definition. Sheriffs' associations and county-employee associations could and did lobby the General Assembly to amend the definition (with varying success over the decades), but the 1994 opinion correctly applied the statute as then written.

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.