Are juvenile probation and parole officers in Virginia treated as law-enforcement officers for the enhanced VaLORS retirement plan?

Plain-English summary

The director of a Court Services Unit in a juvenile and domestic relations district court asked whether his juvenile probation and parole officers, the ones described in Va. Code § 16.1-237, should be enrolled in the Virginia Law Officers' Retirement System (VaLORS) instead of the regular Virginia Retirement System. Senator Harry Blevins forwarded the question to the AG. The answer, in 2008, was no.

The reasoning is mechanical. VaLORS lives in Chapter 2.1 of Title 51.1. Section 51.1-213 says membership is "compulsory" for "all employees." Section 51.1-212 then defines "employee" by listing eight specific categories: Capitol Police, certain campus police officers, conservation police officers, ABC special agents, VMRC law-enforcement officers, correctional officers (including those at juvenile correction facilities under § 66-25.3), parole officers appointed under § 53.1-143, and commercial vehicle enforcement officers. Juvenile probation and parole officers are not on that list.

Under the expressio unius canon of statutory construction (the express mention of certain items implies the exclusion of others), the General Assembly's silence is read as a deliberate omission. The AG concluded the juvenile probation and parole officers do not qualify, however dangerous or difficult their day-to-day work may be.

Currency note

This opinion was issued in 2008. 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. The General Assembly has periodically expanded the VaLORS eligibility list since 2008; anyone asking the same question today should consult the current version of Va. Code § 51.1-212.

Background and statutory framework

VaLORS exists because the General Assembly decided certain law-enforcement and correctional positions warranted enhanced retirement benefits compared to ordinary state employees. The system has compulsory membership rules tied directly to a closed list of statutory eligibility categories. If your job title and statutory appointment route appear in § 51.1-212's list, you're in VaLORS. If not, you're in the regular Virginia Retirement System (VRS).

The list, as it stood in 2008, included parole officers appointed under § 53.1-143 (adult parole) and correctional officers at juvenile correction facilities under § 66-25.3 (institutional staff working with committed juveniles). It did not include the community-based juvenile probation and parole officers who supervise youth on probation or parole in the community under § 16.1-237.

The opinion's analytical move is the expressio unius canon and the Virginia Supreme Court's approach to statutory specifications. The AG cites Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., Inc. for the plain-meaning rule and a string of older AG opinions for the proposition that when the General Assembly creates a specific grant of authority, that authority exists only to the extent specifically granted.

What the AG concluded, point by point

The statutory text is the controlling authority. § 51.1-212 lists who counts as an "employee" for VaLORS, and the AG did not look beyond it.

Juvenile probation and parole officers are absent from the list. Their selection statute (§ 16.1-235) and their powers/duties statute (§ 16.1-237) are not cross-referenced in § 51.1-212. They are not "parole officers appointed pursuant to § 53.1-143," because § 53.1-143 governs adult, not juvenile, parole. They are not "correctional officer[s] as the term is defined in § 53.1-1, and including correctional officers employed at a juvenile correction facility as the term is defined in § 66-25.3," because that subsection captures institutional staff, not community-based supervisors.

The legislature knows how to add classes if it wants to. The opinion cites a 2005 AG opinion observing that the General Assembly "knows how to express its intention" when it intends to impose particular treatment. The absence of juvenile probation and parole officers from the list is, in the AG's reading, deliberate.

No "law-enforcement officer" category exists outside the listed groups. Even though juvenile probation and parole officers do field work that resembles law enforcement (supervising youthful offenders, conducting home visits, sometimes participating in arrests), the retirement-system status is determined by the statutory list, not by job-duty resemblance.

What this meant at the time

For Court Services Unit directors and juvenile probation officers (as of 2008)

If your retirement records had erroneously placed you in VaLORS, this opinion supported correcting them back to regular VRS. Conversely, if your administrators argued you should be in VaLORS based on the nature of your work, this opinion was the answer telling them: only the General Assembly can add your position, and it has not done so.

For HR and retirement-plan administrators (as of 2008)

The opinion is a clean line for enrollment classification. Use the list in § 51.1-212 verbatim; do not add categories by analogy. Document the position's statutory appointment authority on the enrollment file.

For legislators and policy advocates (as of 2008)

If the goal was to give juvenile probation and parole officers VaLORS-level benefits, the route was a statutory amendment, adding § 16.1-237 to the list in § 51.1-212. Anything short of that would not move them in.

Common questions

Q: What's the practical difference between VaLORS and VRS membership?
A: VaLORS generally offers enhanced benefits tied to the higher physical demands and earlier retirement profiles of law enforcement and corrections work, including enhanced creditable service for hazardous duty and earlier service-retirement age in some circumstances. VRS is the broader plan for non-law-enforcement state employees. Specific benefit differences have changed over time; current VRS / VaLORS documentation is the authoritative source.

Q: What about juvenile correctional officers who work inside DJJ facilities?
A: They are explicitly included in VaLORS through the cross-reference to § 66-25.3 in § 51.1-212(vi). The opinion focused on community-based juvenile probation and parole officers, not facility staff.

Q: Could a CSU director enroll their officers in VaLORS anyway?
A: No. Section 51.1-213 makes membership compulsory for those who fit the definition of "employee" in § 51.1-212. Conversely, those who do not fit are not eligible to join. There is no opt-in election.

Q: Does this opinion bind a court?
A: No, AG opinions are persuasive, not precedential. But on a question of statutory construction this clean, courts often follow AG reasoning, especially when the statute is unambiguous as written.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. § 51.1-212
• Va. Code Ann. § 51.1-213
• Va. Code Ann. § 16.1-235
• Va. Code Ann. § 16.1-237

Case:

• Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., Inc., 271 Va. 304 (2006), plain-meaning rule

Other authority:

• Sutherland on Statutory Construction § 47:23 (7th ed. 2007), expressio unius est exclusio alterius

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-075-Blevins.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

October 30, 2008

The Honorable Harry B. Blevins
Member, Senate of Virginia

Dear Senator Blevins:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether juvenile probation and parole officers, as described § 16.1-237, are "law-enforcement officers" for purposes of the Virginia Law Officers' Retirement System.

Response

It is my opinion that the probation and parole officers described in § 16.1-237 are not "law-enforcement officers" for purposes of the Virginia Law Officers' Retirement System.

Applicable Law and Discussion

Chapter 2.1 of Title 51.1, §§ 51.1-211 through 51.1-221, governs the Virginia Law Officers' Retirement System (the "Retirement System"). Section 51.1-213 mandates compulsory membership in the Retirement System "for all employees." Section 51.1-212 defines the term "employee," which[1] governs the law-enforcement officers eligible to participate in the Retirement System, as

any (i) member of the Capitol Police Force as described in § 30-34.2:1, (ii) campus police officer appointed under the provisions of Chapter 17 (§ 23-232 et seq.) of Title 23, (iii) conservation police officer in the Department of Game and Inland Fisheries appointed under the provisions of Chapter 2 (§ 29.1-200 et seq.) of Title 29.1, (iv) special agent of the Department of Alcoholic Beverage Control appointed under the provisions of Chapter 1 (§ 4.1-100 et seq.), (v) law-enforcement officer employed by the Virginia Marine Resources Commission as described in § 9.1-101, (vi) correctional officer as the term is defined in § 53.1-1, and including correctional officers employed at a juvenile correction facility as the term is defined in § 66-25.3, (vii) any parole officer appointed pursuant to § 53.1-143, and (viii) any commercial vehicle enforcement officer employed by the Department of State Police.

The juvenile probation and parole officers you describe are selected pursuant to § 16.1-235 and have the powers, duties, and functions set forth in § 16.1-237. You indicate that the Director of the Court Services Unit in one of the Juvenile and Domestic Relations Courts questions whether such probation and parole officers should be included in the Virginia Law Officers' Retirement System.

When a statute is clear and unambiguous, the rules of statutory construction dictate that the statute is interpreted according to its plain language.[2] When a statute creates a specific grant of authority, the authority exits only to the extent specifically granted in the statute.[3] Where a statute specifies certain things, the intention to exclude that which is not specified may be inferred.[4] Employees qualified to participate in the Retirement System specifically are defined in § 51.1-212. Because juvenile probation and parole officers are not included in the statutory definition of an "employee," I must conclude that the General Assembly did not intend for such officers to be included in the Retirement System.[5]

Conclusion

Accordingly, it is my opinion that the probation and parole officers described in § 16.1-237 are not "law-enforcement officers" for purposes of the Virginia Law Officers' Retirement System.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. I note that state police officers have a separate retirement fund. See VA. CODE ANN. §§ 51.1-200 to 51.1-210 (2005 & Supp. 2008).

2. Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006).

3. See 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47:23 (7th ed. 2007) (explaining maxim of statutory construction, "expressio unius est exclusio alterius"); Op. Va. Att'y Gen.: 2002 at 117, 118; 1992 at 145, 146; 1989 at 252, 253; 1980-1981 at 209, 209-10.

4. See id.; 1999 Op. Va. Att'y Gen. 215, 217-18.

5. Had the General Assembly intended that juvenile probation and parole officers be included in the Retirement System, it could have so specified. See, e.g., 2005 Op. Va. Att'y Gen. 78, 79 n.6 and opinions cited therein (noting that when General Assembly intends statute to impose requirements, it knows how to express its intention).