When a small NC town contracts with a private 'special police' company instead of hiring its own officers, can those private officers enforce traffic laws on town streets?

Plain-English summary

District Attorney G. Dewey Hudson asked about company police officers patrolling around Newton Grove under a contract between the town and North Carolina Special Police (NCSP). This March 2001 opinion supplements an earlier February advisory opinion. It distinguishes a town's ability to contract with a company police agency from the officers' authority while performing that contract. The AG said G.S. § 160A-20.1 made such a contract possible, but the contract could not give NCSP officers broader police powers than state law allowed.

The opinion reads § 74E-6(c) as limiting company police authority to their employer's real property, apart from continuous and immediate pursuit for an offense committed there. It concluded that NCSP officers serving under the town contract lacked law-enforcement authority on Newton Grove's streets and in private businesses.

Could the individual officers instead act as town police? G.S. § 160A-281 contemplates direct city employment of officers. The AG examined the NCSP agreement and actual working arrangement and found no direct employment relationship with the town. NCSP paid the officers; the town lacked hiring, firing, supervision, scheduling, and pay authority. Providing uniforms and patrol cars did not change that conclusion.

Nor did the auxiliary-police argument succeed. The AG found no evidence that Newton Grove had enacted an ordinance creating an auxiliary department under § 160A-282(a). Even assuming an ordinance, the paid NCSP officers were not volunteers as that provision required.

The opinion concluded that citations issued by NCSP officers outside their territorial jurisdiction were unlawful. It said an illegal arrest might not prevent a later lawful prosecution, but another lawful way to charge the individuals would have to be developed.

Currency note

This opinion was issued in 2001. Check the current statutes and the actual status of officers before applying its analysis to a present-day arrangement.

What this means for you

If you advise a town: A company police contract and direct employment of individual town police officers are different arrangements in the opinion. The contract itself did not expand NCSP officers' jurisdiction, and the facts did not establish direct town employment.

If you review citations: The AG called citations outside NCSP officers' territorial jurisdiction unlawful while leaving open the possibility of later prosecution through a lawful charging method.

Common questions

Did the AG say Newton Grove could contract with NCSP?
Yes. It said a contract was possible under G.S. § 160A-20.1. It separately held the contract could not enlarge statutory company police authority.

What facts led the AG to reject town-employee status?
The agreement was between the town and NCSP, not the individual officers. The opinion also cites the town's lack of hiring, firing, supervision, scheduling, employment records, and pay control.

Could these NCSP officers serve as auxiliary police?
The AG said the record showed no ordinance creating an auxiliary department, and the paid officers were not volunteers under § 160A-282(a).

Did a private-property security contract make NCSP officers town police?
The opinion did not decide a hypothetical private-property contract. Its conclusion addresses NCSP officers serving Newton Grove under the town agreement.

Were the earlier citations automatically the end of any prosecution?
No. The opinion calls out-of-jurisdiction citations unlawful but says an illegal arrest may not prevent later lawful prosecution. Another lawful charging method would be needed.

Citations

• G.S. § 160A-20.1: town contracting authority discussed in the opinion.
• N.C.G.S. § 74E-6(c): company police territorial limits analyzed by the AG.
• G.S. § 160A-281: direct city employment of police officers.
• G.S. §160A-282(a): auxiliary police ordinance and volunteer-member requirement.
• State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7 (1982): specific statute controls over general statute in the AG's analysis.
• North Carolina v. Matthews, 40 N.C. App. 41, 251 S.E.2d 897 (1979): cited concerning illegal arrests.

Source

• Landing page: https://ncdoj.gov/opinions/territorial-jurisdiction-of-company-police-officers/

Original opinion text

FIRST CLASS MAIL

March 6, 2001

Mr. G. Dewey Hudson, District Attorney, Fourth Prosecutorial District, Sampson County Courthouse, Clinton, NC 28328

Re: Advisory Opinion: Territorial Jurisdiction of Company Police Officers

Dear Dewey:

Thank you for your letter of February 9, 2001, concerning the territorial jurisdiction of the company police officers patrolling in and around the town of Newton Grove (Town). We are happy to respond. This letter will also serve to compliment our previous Advisory Opinion of February 7, 2001 on this topic.

At the outset, it is important to distinguish between the two issues presented in this matter. The first concerns the ability of the Town to contract with North Carolina Special Police (NCSP) for law enforcement services. The second issue concerns the Town employing individual law enforcement officers pursuant to N.C.G.S. § 160A-281.

North Carolina Special Police officers hold commissions as company police officers under Chapter 74E of the General Statutes and may serve the Town under contract with NCSP. This option however presents significant jurisdiction limitations. Conversely, these officers, as individuals, may be certified as law enforcement officers for the town of Newton Grove pursuant to Chapters 17C and 160A of the General Statutes. The jurisdiction and authority of these officers in any particular situation is, therefore, derived from the capacity in which they are working at the time.

Contracting with Company Police Agencies

North Carolina G.S. § 160A-20.1 allows towns to enter into contracts with corporations to carry out any public purpose that the town is authorized to perform. Accordingly, it is possible for the Town to enter into a contract with NCSP. However, the power and authority of the police officers pursuant to this contract is determined by State law and the Town cannot grant greater authority than that provided by statute. N.C. CONST. Art. VII, §1. "[W]here one statute deals with a subject in detail with reference to a particular situation . . . and another statute deals with the same subject in general and comprehensive terms . . ., the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto." State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7 (1982), cert. denied, 307 N.C. 272, 299 S.E.2d 218 (1982). In this case, N.C.G.S. § 74E-6(c) specifically describes the authority and jurisdiction of company police officers. There is no evidence to suggest that the General Assembly intended the general authority granted by N.C.G.S. §160A-20.1 to trump the specific authority set forth in § 74E-6(c).

It is clear from N.C.G.S. § 74E-6(c) that company police officers are limited to exercising law enforcement authority only on the real property of their employer. Unless the company police officers are in continuous and immediate pursuit of a person for an offense committed upon this real property, the officers lack the territorial jurisdiction to take law enforcement actions on the streets and highways in and around this real property. Thus, assuming the agreement between NCSP and the Town is lawful, the NCSP officers lack law enforcement authority on the streets and private businesses in the Town.

For the officers in question to have the jurisdiction and authority to operate as Newton Grove police officers, as they are currently holding themselves out, they must do so as police officers certified pursuant to Chapters 17C and 160A of the General Statutes.

Employing Law Enforcement Officers

North Carolina G.S. § 160A-281 authorizes a city to "appoint a chief of police and employ other police officers." (Emphasis added). This office has consistently interpreted this language to contemplate a direct employer-employee relationship between the officers and the town. N.C.G.S. §17C-2(b) and (c) supports this interpretation. N.C.G.S. §17C-2(b) defines "criminal justice agency" as "[t]he State and local law-enforcement agencies." "Criminal justice officers" are specifically defined as "[t]he administrative and subordinate personnel of . . . criminal justice agencies who are sworn law-enforcement officers, both State and local . . ." (emphasis added).

Therefore, we are left to determine whether the officers in question are truly employees of the Town as contemplated by N.C.G.S. § 160A-281. In making this determination, we looked at the nature of the relationship between the Town and the individual officers.

No employment contract exists between the Town and the officers. The only existing agreement appears to be between the Town and NCSP. This in itself seems to refute a direct employer-employee relationship and therefore denies the officers of the jurisdiction allowances of municipal police officers. The purported "contract" itself is poorly drafted and vague regarding the nature of the relationship between the Town and the officers. While the agreement alone is not determinative of the issue of employment status, it does provide some insight into the parties' intent.

Paragraph (b) of the agreement states that the Town "[f]ully and forever release(s) and discharge(s) (NCSP), its' agents and employees, from any and all claims . . . arising out of (the Town) receiving services of (NCSP)". (emphasis added). Pursuant to paragraph (c), the Town agrees to indemnify and hold harmless NCSP, "its' agents and employees, for any acts or conduct . . . while in, on or about . . . the premises or property . . . of (the Town) . . ." (emphasis added). Paragraph (e) grants authority to "any sworn officer of (NCSP) . . . to execute any duty or authority empowered . . . by law upon any property owned by, or in the possession and control of (the Town) . . ." Pursuant to paragraph (g), the parties agree that any "external request for information received by (the Town) concerning (the) relationship between (NCSP) and (the Town), shall be referred to (NCSP) for resolution, unless the (Town) is otherwise compelled by law." In addition, paragraph (f) clearly provides for compensation for services rendered by these officers to be to NCSP and not the individual officers.

The agreement does not state, or even imply, that the Town will have any supervisory authority or control over the officers. In fact, the agreement goes to some lengths to distance the "agents and employees" of NCSP from the Town. As shown above, the agreement goes so far as to release these officers from all claims associated with the performance of their duties and the Town agrees to hold harmless the employees of NCSP for any conduct while on the job. Certainly, these provisions are not indicative of an employment relationship.

The agreement aside, we are left to examine the nature of the relationship, and any indications of employee status, between the Town and the individual officers. In determining the proper indications of an employment relationship we reviewed several authorities, including the Internal Revenue Service Classification Training Manual and North Carolina Workers' Compensation case law.

These authorities set out that a totality of the circumstances need to be evaluated to determine if an employment relationship exists. Reviewing the circumstances as they now exist in Newton Grove, we are unable to discern an employer-employee relationship using any criterion. In fact, the circumstances and contract indicate that the Town and NCSP intended not to create an employer-employee relationship. Consequently, the officers are serving as NCSP officers and not municipal police officers.

It is true the Town provides the officers with uniforms and patrol cars. However, all other objective factors that would go to show an employment relationship are absent. For example, based on the information we have, the Town has no power to hire or fire the officers who patrol Newton Grove. The Town does not supervise the officers in the performance of their duties, nor does the Town supervise or control the officers work schedules. The Town does not maintain any employment records for the officers or determine the rate or method of payment of the officers.

The officers are not dependent on the Town for continued employment. Their primary source of income is NCSP. In fact, under the terms of the above-referenced agreement, it does not appear that the Town even has control over which officers from NCSP are assigned to patrol Newton Grove.

NCSP Officers as Auxiliary Police

The Town's attorney, Mr. Sutton, analogizes the NCSP officers as auxiliary or reserve police officers for the Town. This position, in our opinion, is not supported in fact or law.

North Carolina G.S. §160A-282(a) states that "[a] city may by ordinance provide for the organization of an auxiliary police department made up of volunteer members." However, even reserve or auxiliary police officers are responsive to and report to municipal officials.

Presently, we do not have any information which indicates that the Town has, by ordinance, established an auxiliary police department. A review of the minutes from the Newton Grove Board of Commissioners meetings from May 2000 to the present, failed to disclose that the Board of Commissioner has ever discussed establishing an auxiliary police department.

Assuming arguendo, that the Town did enact the necessary ordinance, the officers do not, in our opinion, qualify as auxiliary police officers. Black's Law Dictionary defines volunteer as "[a] person who give his services without any express or implied promise of remuneration." The officers in question are, most assuredly, not volunteers. They do not serve Newton Grove out of some sense of civic pride or duty. To the contrary, they serve Newton Grove pursuant to a contract between the Town and NCSP and are paid for their services by NCSP. The fact that the Town does not write these officers a check does not mean they work for free. If anything, this arrangement highlights the lack of any employment relationship between the Town and the officers.

Conclusion

In summary, it is our opinion the officers serving the Town are employees of NCSP and are therefore limited in their territorial jurisdiction to those areas espoused in N.C.G.S. § 74E-6. The officers are not properly municipal police officers of the Town as envisioned by N.C.G.S. §§ 160A-281, 282, 284 and 17C-2. Therefore, the officers may not hold themselves out as Town officers or enforce State law on the streets and highways of the Town.

The officers' status as NCSP officers impacts on the validity of any citations they have issued. As a general rule, "where arrests are regulated by statute, an arrest which does not comply with the statute is illegal." North Carolina v. Matthews, 40 N.C. App. 41, 251 S.E.2d 897 (1979), cf. State v. Williams, 31 N.C. App. 237, 229 S.E.2d 63 (1976). The courts have ruled however that an illegal arrest may not prevent the subsequent lawful prosecution of the defendant.

Therefore, any citations issued by the NCSP officers outside their territorial jurisdiction as set out in N.C.G.S. § 74E-6 are unlawful. A prosecution of the charges may be subsequently possible, but another method of lawfully charging the individuals will have to be developed.

We hope you find this letter responsive to your inquiry. This is an Advisory Opinion. It has not been reviewed and approved in accordance with the procedures for issuing a formal Attorney General's Opinion.

Very truly yours,

James J. Coman, Senior Deputy Attorney General, Law Enforcement and Prosecutions Division

John J. Aldridge, III, Assistant Attorney General, Law Enforcement Liaison Section

JJC/pa