Could school crossing guards or state constables direct traffic near Horry County schools?

Official title

As to whether the Horry County School District (the “District”) may use either Adult Uniformed Security Guards or State Constables to direct traffic on and around school property.

Requester

Saundra Rhodes, Chief, Horry County Police Department; and Dr. Cynthia Elsberry, Superintendent, Horry County School District

Plain-English summary

Horry County police and school officials asked who could direct traffic around congested schools. The Attorney General said uniformed adult crossing guards could stop vehicles so children walking to or from school could cross safely. The office said that authority did not extend to controlling public-road traffic just to reduce pickup and drop-off congestion.

For advanced state constables, the office deferred to the state law-enforcement division on whether they could direct traffic and how closely a certified officer had to supervise them. It also said state constables could not receive pay for those services, though the policy discussed allowed reimbursement of out-of-pocket expenses.

Currency note

This opinion was issued in 2014. 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

Q: Could a school crossing guard stop cars for children walking across a street? A: Yes. The opinion recognized that limited traffic-control authority for safe crossings near school.

Q: Could crossing guards direct traffic to shorten school pickup lines? A: The office said no on public roads; reducing congestion was outside the crossing authority it identified.

Q: Could a state constable be assigned and paid to direct school traffic? A: The opinion left assignment and supervision to the state law-enforcement division and said constables could not be paid for their services.

Background and statutory framework

The office compared school crossing-guard provisions and earlier opinions about directing traffic. It treated constables separately because their duties and supervision were controlled by the state law-enforcement division's authorization and policies.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-15-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/01/rhodes-s-elsberry-c-os-9693-1-15-14-uniformed-crossing-guard-or-state-constable-directing-school-traffic-00158832xD2C78.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

January 15, 2014

Saundra Rhodes, Chief
Horry County Police Department
2560 North Main Street, Suite 7
Conway, S.C. 29526
Dr. Cynthia Elsberry
Superintendent, Horry County School District
P.O. Box 260005
Conway, S.C. 29528
Dear Chief Rhodes and Dr. Elsberry,
You both seek an opinion of this Office as to whether the Horry County School District (the "District") may use either Adult Uniformed Security Guards or State Constables to direct traffic ·on and around school property. By way of background, the request letter provides: The Horry County Police Department and the Horry County School District recognize that there are excessive traffic issues and delays at several schools within Horry County where vehicles entering and exiting schools become congested.during the drop-off and pick-up hours, often disrupting the travels of members of the public who have no business with the particular school. At one time, the School District addressed this issue with the use of Adult Uniformed Security Guards; however, the School District does not currently use such security guards for directing traffic due to differing opinions on their legal authority to perform the function. The Horry County Police Department provides officers for school security pursuant to a contract. One of the aspects of the contract is that the assigned Class I officer acting as a School Resource Officer (SRO) does not maintain a predictable schedule while patrolling the school property; it is preferred that the SRO not be in the individual directing traffic in the public roadways near the school, as security is their primary tasking. With the above in mind, the request letter specifically presents the following questions:

REMBERT

c. DENNIS BUILDING • POST 0FACE Box l l 549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Chief Rhodes
Dr. Elsberry
Page2
January 15, 2014

1) Can the [District] resume the use of Adult Uniformed Security Guards to direct traffic on school properties, at the school-related intersections, and on the public roadways affected by school-generated traffic? 2) Can State Constables be used to direct school traffic on and around the school property without being accompanied by a Class I Police Officer certified in the State of South Carolina? 3) Can State Constables be paid for directing traffic at the schools if they can be used?

Law/Analysis
There are only a couple of statutory provisions concerning uniformed school crossing guards. One provision in Title 59 of the S.C. Code concerning education states: No person charged with the responsibility of assisting school children to cross streets near schools shall engage in such activity unless he is attired with some type of garment or equipment that can be clearly seen by the driver of an approaching motor vehicle. The school district official of each school district who is responsible for supervising such personnel shall be responsible for seeing that such persons within his district are furnished with the articles required by this section.
§ 59-63-60 (emphasis added).
The other provision is part of the Uniform Act Regulating Traffic on Highways (the "UTA"), §§ 56-5-10 et seg., and provides: No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer, fireman or uniformed adult school crossing guard invested by law with authority to direct, control or regulate traffic.

§ 56-5-740 (emphasis added).
While we are aware of no South Carolina case specifically discussing either statutory section, prior opinions of this Office have generally addressed § 56-5-740. In a 1983 opinion, we were asked whether a school crossing guard's instruction to a driver to pull over to the side of the road to let her children out constituted the "lawful order or direction" of a school guard for purposes of§ 56-5-740. Op. S.C. Att'y Gen., 1983 WL 181701 (Jan. 5, 1983). We responded as follows:

[We are] generally unfamiliar with any state statute giving a school crossing guard the authority to cause drivers to stop for purposes of being instructed where children are to be let out of cars.

Chief Rhodes
Dr. Elsberry
Page3
January 15, 2014

As to your more general question of what constitutes lawful orders or directions of a school guard, ... there must be some specific authority duly enacted which may be relied upon as the basis for such order or direction or the guard must be especially vested with authority to require an individual to refrain from doing what is otherwise lawful. As to the latter part of such statement, [we are]

generally unfamiliar with any state statutes vesting school crossing guards with such authority or, in fact, any authority to direct, control, or regulate traffic. Id. (emphasis added); see also § 56-5-420 (defining "police officer" for purposes of UTA as "[e]very officer authorized to direct or regulate traffic or to make arrests for violations of vehicular and traffic laws
.... ").
However, in a subsequent opinion addressing the question of "whether a school crossing guard is authorized to order compliance with traffic laws," we stated: It is apparent that Section 56-5-740 provides uniformed adult school crossing guards with the authority to "direct, control or regulate traffic." Therefore, to avoid a violation of such provision, there must be compliance with any lawful order or direction of a crossing guard.

Op. S.C. Att'y Gen., 1989 WL 406178 (Sept. 5, 1989).
While there appears to be some conflict in the above opinions as to the authority, or lack thereof, of uniformed adult crossing guards to direct, control, or regulate traffic, we believe the conclusions of each can be read together so as to achieve one logical, coherent result. As indicated in the September 5, 1989 opinion, uniformed adult crossing guards have at least some lawful authority as to the control or direction of traffic pursuant to § 56-5-740. Consistent with the plain language of § 59-63-60, however, any such authority is limited to "assisting school children to cross streets near schools." Thus, as indicated in the January 5, 1983 opinion, the authority of a uniformed adult crossing guard to direct or control traffic does not extend to instructing drivers as to where to stop for the purpose of dropping children off at school. Accordingly, we believe it can reasonably be stated that the authority of a uniformed adult crossing guard to direct or control traffic is limited to ordering vehicles to stop so that children can safely cross the street when walking to or from school. Such crossing guards do not have the authority to direct or control traffic on public roadways near schools for the purpose of reducing traffic congestion caused by vehicles dropping children off or picking them up from school. As to the questions concerning the potential use of state constables to direct or control traffic around schools, we note that State constables are appointed by the Governor pursuant to § 23-1-60. As we noted in a prior opinion, such appointments are made without compensation. Op. S.C. Att'y Gen., 2012 WL 440545 (Jan. 6, 2012). We also advised that pursuant to executive orders issued by the Governor, "no person shall be appointed a constable except in accordance with the policies and procedures adopted by SLED." Id. Furthermore, we stated that "SLED has regulatory authority over all commissioned state constables." Id.

Chief Rhodes
Dr. Elsbeny
Page 4
January 15, 2014

Consistent with the above, the authority granted a state constable is generally within the discretion of SLED. We have been adv ised by SLED that an advanced state constable may be used for the control or regu lation of traffic if express authorization to do so is given by the Chief of SLED and certain conditions are complied with. Generally, such conditions include the supervision of a certified law enforcement officer. The degree of supervision required (e.g., the requirement that a ce1tified law enforcement officer actually accompany the state constable or the requ irement that the constable simply have rad io contact with a nearby officer) is also within the discretion of the Ch ief of SLED. This is consistent with the policies and procedures adopted by SLED which provides that an advanced state constable may perform law enforcement activ ities if, inter alia, such activities have been specifically approved by SLED and the constable is acting "under the supervision of and in proximate contact with a fulltime on-duty law enforcement officer." 1 These policies also reaffirm that "[s]tate constables may not accept payment for serv ices," but may only accept reimbursement for out-of-pocket expenses. Conclusion lt is the opinion of this Office that the authority of adu lt uniformed crossing guards to direct or control traffic is limited to ordering vehicles on public roadways to stop so that children walking to or from school may safely cross the street. Such crossing guards do not have the authority to direct or control traffic on public roadways near a school for the purpose for the purpose of reducing traffic congestion, and thus should not be used for such purposes. Whether a state constable may be used to direct traffic on public roadways near a school for the purpose of reducing traffic congestion and the req ui site degree of supervision any such constable must receive from a certified law enforcement officer are matters within the discretion of the Chief of SLED. Thus, we must defer to SLED on any questions concerning· such matters. ln any event, prior opinions of this Office as well as the policies and procedures adopted by SLED indicate a state constable may not be paid or compensated fo r their services.

"""".6..~~'fV.S~i:_,c~ewre~
Harrison D. Brant
Assistant Attorney General
REVIEWED AND APPROVED BY:

. ,kv,~

4tobe1t D. Cook
So licitor General

The policies and procedures concerning advanced state constables are http://www.sled.sc.gov/Constables.aspx?Menu!D=Constables under "Advanced Requirements."

available

at