Whose approval does an off-duty Tennessee officer need to direct traffic in a construction work zone for a private contractor?

Plain-English summary

Tennessee's Private Protective Services Licensing and Regulatory Act (Tenn. Code Ann. § 62-35-101 et seq.) generally requires anyone doing security-guard work for hire to be licensed by the Commissioner of Commerce and Insurance. The Act contains a narrow exemption (§ 62-35-103(a)(15)(B)) for commissioned, uniformed peace officers who direct traffic in temporary work zones or for incident management, "upon departmental approval." The Tennessee Department of Commerce and Insurance asked whose approval that meant, whether the rule reached part-time or reserve officers, and who has to notify the local chief LEO when an officer works outside their home jurisdiction.

The AG's answers:

1. "Departmental approval" means approval from the officer's own primary-jurisdiction law enforcement agency, not the state Commissioner. The Act consistently uses "commissioner" for the Department of Commerce and Insurance and "department" for local law enforcement agencies.
2. The exemption applies equally to part-time and reserve officers, with or without POST (Peace Officer Standards and Training) certification. The statute draws no distinction.
3. The notification duty under § 62-35-141(a), telling the chief LEO of the temporary jurisdiction that an officer will be working there, falls on the licensed contract security company employing the officer. The Commissioner can discipline the company for failure to notify.
4. The notification requirement only applies to full-time sworn peace officers. The Act does not require notification when part-time or reserve officers work outside their home jurisdiction, regardless of POST status or services provided.

Currency note

This opinion was issued in 2016. 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: Why does "departmental approval" mean the officer's own department, not the state Commissioner?
A: The Act consistently labels the state agency as the "Commissioner" of Commerce and Insurance and uses "department" only when referring to local law enforcement. Where the legislature wanted state-level approval, it said "Commissioner." Reading "departmental approval" to mean the Commissioner would also undermine the carve-out, since § 62-35-103(a)(15)(B) explicitly exempts these officers from the Act and therefore from the Commissioner's regulatory authority. The harmonized reading is that "department" here means the officer's local department.

Q: Does the exemption cover part-time or reserve officers?
A: Yes. The statute exempts "commissioned, uniformed peace officers." It does not distinguish between full-time and part-time. Other parts of the Act do draw that distinction explicitly (e.g., § 62-35-103(a)(7) covers only full-time sworn officers), so the absence of the distinction in (a)(15)(B) is meaningful, the legislature intended to include part-time officers.

Q: What about POST certification?
A: It does not matter. The exemption is silent on certification. The legislature knew how to require POST certification when it wanted to (see § 62-35-141(b), which references § 38-8-101 et seq.). Its silence in (a)(15)(B) means certification is irrelevant to this exemption.

Q: Who notifies the local chief LEO?
A: Under § 62-35-141(a), the licensed contract security company that employs the officer outside their home jurisdiction must notify the chief LEO of the temporary jurisdiction in writing, at least five days before first service (unless other arrangements are made). The officer's home department does not have a notification duty. The Commissioner can discipline the security company for failing to notify.

Q: Does the notification rule apply to part-time officers?
A: No. § 62-35-141(a) speaks specifically about "the full-time sworn peace officer." Part-time and reserve officers are not covered by this notification requirement, regardless of POST status or services performed.

Q: Can the Commissioner discipline an officer who skips departmental approval?
A: Not for that. The Commissioner's disciplinary authority under the Act runs to licensees, registrants, and applicants under the Act. The officer's own department is not a licensee. If an officer takes a traffic-direction side job without departmental approval, that is an internal personnel matter for the officer's home department, not a Commissioner action.

Background and statutory framework

The Private Protective Services Licensing and Regulatory Act covers "contract security companies" providing security guard and patrol services on a contract basis. Licensing is required by default, with various carve-outs in § 62-35-103. Subsection (a)(15)(B) is the carve-out at issue: commissioned uniformed officers, with departmental approval, may direct traffic in temporary work zones or for incident management on any Tennessee public roadway, regardless of their primary jurisdiction.

Section 62-35-141 handles the secondary employment of full-time sworn officers and requires their licensed employer to notify the chief LEO of the temporary jurisdiction. The opinion reads each provision against the Act as a whole, applying the canon that statutes should be read coherently (Lee Medical, Inc. v. Beecher) and the canon that explicit mention of one thing implies exclusion of others (Carver v. Citizens Utilities Co.).

Citations

• Tenn. Code Ann. § 62-35-101 et seq. (Private Protective Services Licensing and Regulatory Act)
• Tenn. Code Ann. § 62-35-103(a)(15)(B) (officer traffic-direction exemption; "departmental approval")
• Tenn. Code Ann. § 62-35-141(a) (notification requirement, full-time sworn officers)
• Tenn. Code Ann. § 62-35-141(b); § 38-8-101 et seq. (POST certification)
• Tenn. Code Ann. § 62-35-130 (Commissioner disciplinary authority)
• Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010) (harmonizing statutes)
• Carver v. Citizens Utilities Co., 954 S.W.2d 34 (Tenn. 1997) (expressio unius)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-043.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 14, 2016
Opinion No. 16-43

Secondary Employment of Uniformed Police Officers as Security Personnel

Question 1
Does "departmental approval" as used in Tenn. Code Ann. § 62-35-103(a)(15)(B) refer to the primary jurisdiction of the individual commissioned, uniformed police officer, state trooper, or sheriff's deputy (collectively "peace officer") or the Department of Commerce and Insurance ("Commissioner")?

Opinion 1
"Departmental approval" refers to the law enforcement agency of the peace officer's primary jurisdiction.

Question 2
Does Tenn. Code Ann. § 62-35-103(a)(15)(B) apply to a part-time or reserve peace officer who is commissioned by a Tennessee law enforcement agency but not certified by the Tennessee Peace Officer Standards and Training Commission ("POST")? If not, can the Commissioner bring disciplinary action against that part-time or reserve peace officer for engaging in a type of secondary employment described in Tenn. Code Ann. § 62-35-103(a)(15)(B)?

Opinion 2
Yes. Tenn. Code Ann. § 62-35-103(a)(15)(B) applies to part-time or reserve peace officers who are commissioned by a Tennessee law enforcement agency but not certified by POST.

Question 3
Does the responsibility for notifying the chief law enforcement officer under Tenn. Code Ann. § 62-35-141(a) fall upon the primary jurisdiction of the individual peace officer who engages in secondary employment as security personnel or the licensed contract security company that employs the peace officer? Against which parties, if any, can the Commissioner bring disciplinary action for failing to provide such notification?

Opinion 3
Under Tenn. Code Ann. § 62-35-141(a), the licensed contract security company that employs the peace officer outside his or her primary jurisdiction is responsible for notifying the chief law enforcement officer of the jurisdiction in which the peace officer is temporarily employed. The Commissioner may pursue disciplinary action against the licensed contract security company if it violates the notification requirement.

Question 4
Does the notification requirement under Tenn. Code Ann. § 62-35-141(a) apply to a part-time or reserve peace officer who provides security services to another in a secondary jurisdiction? Does the answer change if that part-time or reserve peace officer is certified by POST? Does the answer change depending on the types of services provided by that part-time or reserve peace officer?

Opinion 4
No. Tennessee Code Annotated § 62-35-141(a) applies only to full-time peace officers. The notification requirement under Tenn. Code Ann. § 62-35-141(a) does not apply to part-time or reserve officers regardless of their certification status with POST or the types of services they provide.

ANALYSIS

The Private Protective Services Licensing and Regulatory Act ("Act"), Tenn. Code Ann. § 62-35-101 et seq., governs the licensing and conduct of "contract security companies." A "contract security company" is defined as "any person engaging in the business of providing or undertaking to provide a security guard and patrol service on a contractual basis for another person." Tenn. Code Ann. § 62-35-102(6). A "person" is defined as "any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity." Tenn. Code Ann. § 62-35-102(8). Therefore, any individual or entity that provides security services to another for compensation must comply with the provisions of the Act. The Act is administered by the Commissioner of Commerce and Insurance ("Commissioner"), who is authorized to take disciplinary action against those who violate the Act. See Tenn. Code Ann. § 62-35-102(5) and § 62-35-130.

A person must be licensed by the Commissioner to provide security services to another. "Except as otherwise provided in this chapter, it is unlawful for any person to act as a contract security company without having first obtained a license from the commissioner." Tenn. Code Ann. § 62-35-104. The Act lists persons who are exempt from its provisions. See Tenn. Code Ann. § 62-35-103. Unless specifically exempted by the Act, any individual or entity that provides security services to another for compensation must be licensed by the Commissioner.

Commissioned, uniformed peace officers are authorized, regardless of their primary jurisdiction, to direct traffic in temporary work zones or for incident management purposes upon any public roadway located in Tennessee.

Commissioned, uniformed police officers, state troopers, and/or sheriff deputies, upon departmental approval, are authorized, regardless of primary jurisdiction, to direct traffic in departmental approved uniforms or utilizing other governmental equipment, as may be required, in temporary work zones or for incident management purposes, to meet the needs of and control all road users, whether motorists, bicyclists, or pedestrians, within the highway, including persons with disabilities in accordance with the Americans with Disabilities Act of 1990 (ADA), Title II, Paragraph 35.130, upon any public roadway located within the state.

Tenn. Code Ann. § 62-35-103(a)(15)(B) (emphasis added).

1. Departmental Approval.

The Act requires the individual peace officers to seek "departmental approval" before commencing secondary employment as private security personnel directing traffic in temporary work zones or for incident management purposes. The Act does not define "department." In the context of the Act, however, it is clear that the departmental approval required under Tenn. Code Ann. § 62-35-103(a)(15)(B) refers to approval from the law enforcement agency of the individual peace officer's primary jurisdiction, not to approval from the Commissioner.

First, the Act mentions the "commissioner" in all references to the Department of Commerce and Insurance. See e.g., Tenn. Code Ann. § 62-35-104 ("Except as otherwise provided . . . a license from the commissioner"); § 62-35-129(a) ("The commissioner shall be responsible for administering and enforcing this chapter."); § 62-35-130(a) ("The commissioner may take disciplinary action against a licensee, registrant or applicant . . . ."). In contrast, the Act mentions the "department" only in reference to local law enforcement agencies. See, e.g., § 62-35-141(a)(1) (identifying the chief law enforcement officer of each jurisdiction for notification purposes). Had the legislature intended to require approval by the Commissioner under Tenn. Code Ann. § 62-35-103(a)(15)(B), it would have referred specifically to the Commissioner, since the Act otherwise consistently mentions the "Commissioner" when it refers to the Department of Commerce and Insurance.

Second, Tenn. Code Ann. § 62-35-103(a)(15)(B) specifically exempts from the Act commissioned, uniformed peace officers when they are employed to direct traffic in temporary work zones or for incident management purposes. In other words, the legislature carved out an exception to the Commissioner's regulatory authority for peace officers who are employed to direct traffic under Tenn. Code Ann. § 62-35-103(a)(15)(B). Requiring the Commissioner's approval for an activity that the legislature specifically identified as exempt from the Act would be self-contradictory and would violate the rule of construction that a statute should be read as a coherent whole. See Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010) ("The court's goal is to construe a statute in a way that avoids conflict and facilitates the harmonious operation of the law.").

2. Application of Exemption to Part-Time Peace Officers.

The exemption in Tenn. Code Ann. § 62-35-103(a)(15)(B) applies to part-time or reserve peace officers who are commissioned by a Tennessee law enforcement agency but not certified by POST. Section 62-35-103(a)(15)(B) authorizes commissioned, uniformed peace officers to direct traffic in temporary work zones or for incident management purposes upon any public roadway located in Tennessee. Unlike other parts of the Act, § 62-35-103(a)(15)(B) does not specifically distinguish between full-time and part-time officers. For example, the Act specifically exempts from its scope full-time sworn peace officers who are receiving compensation for services as a guard, patrol, or watchperson under a contract with a private business that is properly licensed by the State. See Tenn. Code Ann. § 62-35-103(a)(7). The absence of a similar distinction in § 62-35-103(a)(15)(B) indicates that the legislature intended the exemption to include part-time commissioned, uniformed peace officers. See Carver v. Citizens Utilities Co., 954 S.W.2d 34, 35 (Tenn. 1997) (recognizing the general rule of statutory construction "that the mention of one subject in a statute means the exclusion of other subjects that are not mentioned").

The application of the Act does not turn on whether a part-time or reserve officer is commissioned by a Tennessee law enforcement agency but not certified by POST. Tennessee Code Annotated § 62-35-103(a)(15)(B) simply exempts commissioned, uniformed peace officers. It is silent on the officers' certification by POST. As noted above, the provision's omission of any reference to POST certification indicates that the legislature did not intend to give POST certification any significance with respect to that exemption. Cf. Tenn. Code Ann. § 62-35-141(b) (specifically referring to Tenn. Code Ann. § 38-8-101 et seq.). Therefore, a part-time or reserve officer's certification status with POST does not affect his or her exemption under § 62-35-103(a)(15)(B).

3. Notification

Under Tenn. Code Ann. § 62-35-141(a), the licensed contract security company that employs the peace officer outside his or her primary jurisdiction is responsible for notifying the chief law enforcement officer of the jurisdiction in which the peace officer is employed. "Notice shall be provided in writing by the employer of the full-time sworn peace officer within five (5) days prior to the date of first service, unless other arrangements are made with the chief law enforcement officer of the jurisdiction." Tenn. Code. Ann. § 62-35-141(a)(2) (emphasis added).

The Commissioner may pursue disciplinary action against a licensed contract security company if it violates the notification requirement. Under Tenn. Code Ann. § 62-35-130, the Commissioner has the discretion to take disciplinary action for violation of any provision of the Act. The Commissioner's disciplinary authority, however, is limited to those within the Act's purview. The law enforcement agency of the individual peace officer's primary jurisdiction is not a licensed contract security company. Thus, the Commissioner may not pursue disciplinary action against that agency. The peace officer's secondary employer is, however, a licensed contract security company. Accordingly, the Commissioner may pursue disciplinary action against the contract security company that employs the peace officer if it fails to give notice as required by Tenn. Code Ann. § 62-35-141(a).

4. Application of Notification Requirement to Part-Time Peace Officers.

The notification requirement under Tenn. Code Ann. § 62-35-141(a) applies only to full-time sworn peace officers. The Act does not require the employers of part-time or reserve peace officers to notify the chief law enforcement officer of the jurisdiction where such officers are employed as security personnel. In fact, the Act does not exempt from its provisions part-time or reserve peace officers except under very limited circumstances as described in Tenn. Code Ann. § 62-35-103(a)(15)(B). Therefore, unless a part-time or reserve officer is employed to direct traffic in temporary work zones or for incident management purposes, he or she is subject to all other provisions of the Act. Because the provision specifically mentions only full-time officers, Tenn. Code Ann. § 62-35-141(a) does not apply to part-time or reserve peace officers regardless of their POST status or the types of services they provide.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

S. JAE LIM
Assistant Attorney General

Requested by:
The Honorable Brian McCormack
Assistant Commissioner for Regulatory Boards
Tennessee Department of Commerce and Insurance
Davy Crockett Tower
Nashville, Tennessee 37243