Can North Carolina counties hire private companies to run their county jails, force their sheriffs to accept jail privatization, or combine two existing county jails into a 'district confinement facility' run by a private contractor with non-certified guards?

Plain-English summary

The AG answered several questions about whether North Carolina counties, sheriffs or private companies could operate county jails or district confinement facilities under the law then in effect. For a county jail, the answer was no to privatization. N.C.G.S. § 162-22 gave the sheriff care and custody of the jail and authority to be or appoint its keeper. N.C.G.S. § 162-24 barred the sheriff from delegating final responsibility for official duties. The opinion concluded that neither the county nor the sheriff could transfer the duty to a private entity, even by agreement.

The AG specifically rejected appointing a private contractor as keeper of a county jail. In the opinion's words, the power to appoint a keeper refers to "assistants in his employ and under his supervision." It says private contractors would not be in the sheriff's employ or under his supervision. The opinion offers no exception for a jail management contract that merely reserves final authority to the sheriff.

The opinion drew a narrower distinction for a district confinement facility. It says a private contractor did not appear to be barred from serving as an administrator under N.C.G.S. § 153A-219, but the operating local governments would retain responsibility and liability for minimum standards. A private enterprise could not independently operate the facility because the statutory definition required operation by a local government. The AG said a statutory change would be needed to allow independent private operation.

Simply renaming the existing Wake and Durham county jails as one district facility would not work. The opinion says a genuine district facility must be established under the statute, and that if the two counties did so, one of their existing confinement facilities would have to close. Durham County and the City of Durham could also make a district-facility agreement under the cited interlocal provisions.

Currency note

This opinion states the AG's reading of the statutes in 1995. Check current jail, district-facility and personnel laws before applying it to a present arrangement.

Background and statutory framework

The county's general power to contract for public purposes under N.C.G.S. § 153A-449 did not, in the AG's view, override the sheriff's specific jail duties. The opinion also discusses the detention-officer certification requirements in Chapters 17C and 17E. It says those provisions contemplated government or sheriff employees and that statutory modification would be required to cover personnel employed by a private operator. The Department of Human Resources' minimum standards would apply to private facilities if the General Assembly authorized them, absent a specific exemption.

Common questions

Could a sheriff and county agree to let a company run their county jail?

The AG said no. The sheriff's care-and-custody duty could not be delegated to a private entity under the statutes then in force.

Could the sheriff appoint a private contractor as the jail's keeper while retaining final responsibility?

The AG said no. The opinion treats an appointed keeper as an assistant employed and supervised by the sheriff, and says a private contractor does not fit that description.

Could a contractor administer a district confinement facility?

The opinion says a private contractor did not appear barred from serving as its administrator. It separates that role from independent private operation, which it says the statute did not permit. The local governments would remain responsible for required standards.

Could Wake and Durham keep both existing jails and call them a district facility?

No. The opinion says the district-facility statute calls for an actual combined facility; if the counties established one, one existing facility would have to close.

Source

• Landing page: https://ncdoj.gov/opinions/private-operation-of-county-jails/

Citations

• N.C.G.S. §§ 162-22 and 162-24 (sheriff's jail duties)
• N.C.G.S. §§ 153A-217 and 153A-219 (district confinement facilities)
• N.C.G.S. § 153A-449 (county contracting)
• N.C.G.S. § 153A-216(4) (personnel standards)
• Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899)
• Parnell v. Waldrep, 538 F. Supp. 1203 (W.D.N.C. 1982)

Original opinion text

• Under existing North Carolina law, can an essential governmental function such as law enforcement or the care and custody of a jail be "privatized" [by] utilizing the services of a nongovernmental private company?
• Can the sheriff be forced to privatize the county jail?
• Can the sheriff and county agree to privatize the county jail?

The answer to each of the foregoing questions is no.

N.C.G.S. § 162-22 states that the sheriff "shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof." N.C.G.S. § 162-24 provides that "the sheriff may not delegate to another person the final responsibility for discharging his official duties . . . ." Reading these two statutes together, it is clear that the General Assembly has established as the policy of this State that the sheriff has the non-delegable duty and responsibility for the care and operation of county jails.

The provisions of N.C.G.S. § 153A-449 do not alter the foregoing conclusion. N.C.G.S. § 153A-449 provides that "[a] county may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the county is authorized by law to engage in." This statute does not in any way modify the sheriff's statutory responsibilities and duties specifically assigned by the General Assembly and, therefore, is not authority for a county to unilaterally "privatize" a local confinement facility. Given the General Assembly's express statutory scheme and intent, it necessarily follows that since the sheriff cannot delegate to another his responsibility and duty to be the keeper of the jail, the county is similarly limited.

The public has an interest in the proper performance of their duties by public officers, and would be prejudiced by agreements tending to impair a public officer's efficiency or in any way to interfere with or disturb the due execution of the duties of the office. See Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899). This office, in a formal opinion addressed to the Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge for Mecklenburg County, concluded that the transfer of supervisory authority over a criminal intake center from the sheriff to the county was not permissible. See 58 N.C.A.G. 30 (1988). Absent specific legislative authorization, the essential law enforcement function of the care and custody of a county jail cannot be "privatized."

Therefore, neither the sheriff nor the county may delegate to a private entity the obligation for discharging the responsibilities and duties of providing the care and custody of the county jail nor can the county force the sheriff to privatize the jail. Accordingly, the county and the sheriff could not, under the present statutory scheme, enter into an agreement to "privatize" the Wake County jail.

2. If the counties of Wake and Durham entered into an agreement to call the Wake and Durham County jails a district confinement facility, would this actually be a district confinement facility subject to the appointment of a district confinement administrator as contemplated by the enabling statute, N.C.G.S. § 153A-219?

No.

N.C.G.S. § 153A-219 permits two or more units of local government to enter into and carry out an agreement to establish, finance, and operate a district confinement facility. An existing facility may be designated as a district confinement facility. It is clear from the language of this statute that the General Assembly chose to permit two or more units of government to establish a single district confinement facility in order to minimize the expenditure of resources by such units. If the Wake and Durham county jails were to continue to be operated as independent entities, and were in fact district confinement facilities in name only, then certainly the General Assembly's intent would be contravened. Additionally, the scenario set forth above could be construed to constitute an unlawful delegation of authority vested in the sheriff in violation of N.C.G.S. §§ 162-22 and 162-24. While a county is not required by statute to maintain a county jail, to the extent one is established, the General Assembly has specifically delegated the operation of such jail to the sheriff.

3. Currently there are apparently no privately operated jails and only two multi-county district confinement facilities in North Carolina. Jails which are staffed by employees of a sheriff are required to have those employees certified by Sheriffs' Standards Division as detention officers. District confinement facilities which are staffed by an "administrator and other custodial personnel" are also currently required to have those employees certified by the Criminal Justice Standards Division as detention officers. Given the apparent requirement of certified detention officers in both county jails and district confinement facilities, could a private company operate a jail or district confinement facility employing civilians who are not certified detention officers?

• N.C.G.S. § 153A-216(4) provides, in pertinent part, that the State "shall establish entry level employment standards for jailers and supervisory and administrative personnel of local confinement facilities to include training as a condition of employment in a local confinement facility pursuant to the provisions of Chapter 17C [North Carolina Criminal Justice Education and Training Standards Commission] and Chapter 17E [North Carolina Sheriffs' Education and Training Standards Commission] and the rules promulgated thereunder." N.C.G.S. § 17C-2(c) sets forth those personnel subject to the certification standards under that Chapter. These personnel, denominated "criminal justice officers," include, among others, "officers, supervisory and administrative personnel of local confinement facilities" of criminal justice agencies. Criminal justice agencies are defined as state and local law enforcement agencies, state correctional agencies, and other correctional agencies maintained by local government. N.C.G.S. § 17C-2(b).
• N.C.G.S. § 17E-2(3) sets forth those personnel subject to the certification standards of that Chapter. These personnel, deemed justice officers, include persons who have been duly appointed as jailers by the sheriff. Those subject to the certification standards of N.C.G.S. Chapters 17C and 17E are contemplated to be employees of the local units of government. Employees of a private enterprise hired to oversee the operations of a legitimate district confinement facility would not, in our opinion, fall within the scope of either Chapter 17C or Chapter 17E.

It is clear that the General Assembly by enacting N.C.G.S. § 153A-216(4) intended to require certification of all persons working in a confinement facility. A specific statutory modification would be required to include any confinement facility personnel employed by a private entity.

4. Can a non-governmental private company be appointed as the "keeper . . ." of the jail within the meaning of N.C.G.S. § 162-22 or as a district confinement facility administrator within the meaning of N.C.G.S. § 153A-219?

No.

As set forth above, the sheriff is assigned by statute the "care and custody of the jail . . . and shall be, or appoint, the keeper thereof" and may not delegate to another person the final responsibility for discharging his official duty. N.C.G.S. §§ 162-22; 162-24.

While a sheriff may employ a deputy or deputies to assist him, he may not delegate this authority to another. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899). The phrase "or appoint the keeper thereof" refers to the authority of the sheriff to appoint assistants in his employ and under his supervision to carry out the operations of the jail. These assistants, or jailers, are of common law origin, and are recognized as public officers. State v. Jones, 41 N.C. App. 189, 254 S.E.2d 234 (1979). Since private contractors would not be in the employ or under the supervision of the sheriff, the sheriff could not appoint them consistent with N.C.G.S. §§ 162-22 and 162-24.

The administrator of a district confinement facility need not be the sheriff or any other official of a participating local governmental unit. N.C.G.S. § 153A-219. Therefore, it appears that a private contractor would not be precluded from serving as an administrator of a district confinement facility. However, it should be noted that the responsibility and liability for ensuring that minimum statutory and constitutional standards exist at such a facility remains with the operating unit(s) of government. Parnell v. Waldrep, 538 F.Supp. 1203 (WDNC 1982).

A district confinement facility could not be turned over for independent operation by a private enterprise since N.C.G.S. § 153-217(5) defines such facilities as those "operated by a local government." Therefore, the General Assembly has made no statutory allowance for facilities operated by a private contractor.

5. Can a private company operating a jail in North Carolina employ detention officers certified under either Sheriffs' Standards or Criminal Justice Standards?

No.

As set forth above, a private company may not independently operate a jail or district confinement facility in North Carolina under the present statutory provisions. Detention officers certified under either Chapter 17C or Chapter 17E are defined as employees of either a unit of local government or a sheriff. Specific statutory authority would have to be granted by the General Assembly in order for a private company to operate a local confinement facility.

6. Would the North Carolina Department of Human Resources, Division of Facility Services, rules, standards and regulations for the operation of local and district confinement facilities apply to privately operated jails?

Yes, if the General Assembly authorizes private companies to operate Jails.

Absent statutory authorization, it is our opinion that county jails and district confinement facilities cannot be independently operated by private companies. However, if the General Assembly authorized such operations, absent a specific exemption, the minimum standards promulgated by the Department of Human Resources would be applicable. See N.C.G.S. § 153A-221.

Sheriff Hill's Request

1. Considering the fact that the City of Durham does not have a municipal lock-up and now uses the Durham County Jail facility, are Durham County and Durham City two units of local government within the intent and meaning of N.C.G.S. § 153A-219 so that they could enter into, and carry out, an agreement to establish, finance, and operate a district confinement facility?

Yes.

Two or more counties or cities may enter into and carry out an agreement to establish, finance, and operate a district confinement facility. N.C.G.S. §§ 153A-217(7); 153A-219. Durham County and Durham City constitute two units of local government and could enter into an agreement to operate a district confinement facility. We emphasize that a district confinement facility is a separate and independent facility from that of a county jail which must be operated under the authority of the sheriff. In exercising the powers to enter into such an agreement, the units are required to proceed under the procedures and provisions of Chapter 160A, Article 20.

2. Should Wake and Durham Counties enter into an agreement to operate a district confinement facility, could both the existing Wake and Durham facilities be used for this purpose or would either Durham or Wake be forced to close its existing facility so that there is only one jail in either Wake or Durham Counties?

Either the Wake or Durham County Facility would have to be closed. N.C.G.S. § 153A-219 provides that an existing facility may be designated as a district confinement facility. Reading this statute as a whole leads to the conclusion that the establishment of a district confinement facility is intended to minimize the expenditure of resources by units of local government. Once a district confinement facility has been established, any other confinement facility operated by the participating units of local government must be closed.

If the Wake and Durham County jails were to continue to be operated as independent entities and were district confinement facilities in name only then certainly the intent of this legislation would be contravened. While a county is not required to maintain a county jail, to the extent one is established, the General Statutes specifically delegates its operation to the sheriff. N.C.G.S. §§ 162-22; 162-24.

3. Should Durham County along with another unit of local government establish a district confinement facility, would the Durham County Sheriff be then relieved of any and all responsibility for a jail in his county?

No, unless the county jail is abolished.

If Durham County and another unit of local government establish a district confinement facility, the sheriff would still maintain his responsibilities for the operation of the county jail so long as it is in existence. If a separate district confinement facility is established, the units of local government may, but are not required to appoint the sheriff to operate the facility pursuant to N.C.G.S. 153A-219.

John R. McArthur Chief Counsel

John R. Corne
Special Deputy Attorney General

John J. Aldridge, III Assistant Attorney General