Can a Virginia sheriff assign deputies to work full-time security at a private hospital if the hospital pays the county for the cost?

Plain-English summary

A private not-for-profit hospital in Washington County, Virginia, made what looked like a tidy arrangement: dedicate several new sheriff's deputies to full-time hospital security, and the hospital would donate the money to cover the cost. The deputies would have full law-enforcement authority and benefits, but their only job would be securing the hospital.

Washington County Attorney Lucy Phillips asked the Attorney General whether this was legal. Attorney General Herring's answer was no, twice over.

First, a sheriff's powers under Virginia's Dillon Rule are limited to those granted by statute, expressly or by necessary implication. A sheriff's duty under Va. Code § 15.2-1609 is to provide public law-enforcement services for the population at large. Routine, occasional patrol assistance to a business is fine, but full-time security for one private business is a "private" function, not a "public" function. Herring relied on a 1991 AG opinion that came to the same conclusion about deputies serving as full-time corrections officers at a private prison.

Second, because the underlying contract is invalid, the county cannot accept the hospital's funds to facilitate it. The money isn't really a donation; it's payment under an unauthorized contract. Localities can generally accept donations on behalf of the sheriff (Va. Code § 15.2-1613), but not when the donation funds something the sheriff is legally barred from doing.

Herring made sure to draw a careful line. The opinion does not affect:

• Occasional patrol services at private business premises
• Crowd control, traffic control at accidents, funeral escorts, emergency response
• Limited "extra-duty" security arrangements at private businesses
• Sheriff response in a public emergency that requires temporarily concentrating personnel at a hospital

The line is drawn at long-term, dedicated, full-time deployment to a private business.

Currency note

This opinion was issued in 2015. 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 the current scope of sheriff authority and locality contracting limits before relying on any specific rule mentioned here.

Common questions

Can a sheriff have a deputy ever step foot on private property as part of their job?

Of course. Sheriffs respond to calls at private homes and businesses constantly. The opinion is about full-time, dedicated assignment to one private business as a long-term arrangement. Occasional patrols and emergency response are different.

What about "extra-duty" security at concerts, sporting events, weddings?

Allowed. Herring explicitly preserved the ability of sheriffs to provide limited extra-duty security arrangements with private businesses. Those are different from a permanent assignment of dedicated deputies.

Why does it matter that the hospital was offering to pay?

Because someone offering to pay isn't enough. The sheriff has to be legally authorized to perform the service in the first place. If it's a private function, no amount of payment makes it lawful.

What if the county wanted to use county funds (not hospital funds) to pay for the deputies?

Still no. The County could in theory fund additional deputy positions beyond the Compensation Board's allotment, but only if those deputies would be performing services the sheriff is legally authorized to provide. Full-time security for one private business doesn't qualify.

Could the hospital just hire its own private security guards?

Yes. The opinion expressly recognizes that the hospital can contract with private security companies. The issue is only with using sworn sheriff's deputies for the role.

Background and statutory framework

The Virginia sheriff is a constitutional officer (Va. Const. art. VII, § 4). The number of deputies is fixed by the State Compensation Board under Va. Code § 15.2-1609.1, with one exception: a county or city may employ "a greater number of law-enforcement deputies than fixed by the Compensation Board, provided . . . the county or city shall pay the total compensation."

That extra-deputy authority hinges on the deputies providing "law-enforcement" services, a public function. A sheriff has exclusive control over the day-to-day operations of his office and can assign deputies as he sees fit, but his discretion is bounded by the Dillon Rule. Sheriffs may only perform duties conferred expressly or by necessary implication.

A 1991 AG opinion (1991 Op. Va. Att'y Gen. 218) concluded that full-time deputies cannot serve as correctional officers for a private corporation because that service "is beyond the scope of those duties imposed on a sheriff." Herring extended that reasoning to private hospital security. The 1987-88 AG opinion (1987-88 Op. Va. Att'y Gen. 221) had drawn the line by distinguishing "public" functions like patrolling music festivals (preserving peace and order) from "private" functions like dedicated security for a single business.

The 1984-85 AG opinion (1984-85 Op. Va. Att'y Gen. 73) had also said that a sheriff "does not . . . have the authority to allow the use of publicly owned property solely for private purposes," which Herring read as a related principle: public resources, including the sheriff's office and deputies, cannot be turned over to serve a private interest exclusively.

Citations

• Va. Const. art. VII, § 4 (sheriff as constitutional officer)
• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 15.2-1603 (deputies as agents of the sheriff)
• Va. Code Ann. § 15.2-1609 (sheriff's general law-enforcement duties)
• Va. Code Ann. § 15.2-1609.1 (Compensation Board allotments and locality-funded extra deputies)
• Va. Code Ann. § 15.2-1613 (locality may accept donations for sheriff's office)
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975)
• Hilton v. Amburgey, 198 Va. 727 (1957)
• Narrows Grocery Co. v. Bailey, 161 Va. 278 (1933)
• 1991 Op. Va. Att'y Gen. 218 (full-time deputies as private corrections officers, impermissible)
• 1987-88 Op. Va. Att'y Gen. 221 (extra-duty music festival security, permissible)
• 1984-85 Op. Va. Att'y Gen. 73 (public property cannot be devoted solely to private purposes)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/Phillips_15-009.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

July 10, 2015

The Honorable Lucy E. Phillips
Washington County Attorney
County Administrative Offices
1 Government Center Place, Suite A
Abingdon, Virginia 24210

Dear Ms. Phillips:

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 a sheriff may dedicate several deputies to serve as full-time security at a privately owned hospital in exchange for the hospital's agreement to donate funding to the county sufficient to cover the cost of employing the deputies.

Background

You relate that the private owner of a local, not-for-profit hospital has asked the sheriff to dedicate several deputies to serve as full-time security. The deputies would serve in newly created positions, not through a reassignment of existing positions. The new positions are not presently authorized by the State Compensation Board. The new deputies would remain under the supervision of the sheriff, with all the legal authority and employment benefits otherwise available to his employees, but the only service they would perform would be providing security for the hospital. The hospital would donate funds to the county sufficient to cover the cost of the deputies.

Applicable Law and Discussion

The number of deputies of a sheriff is normally determined by the State Compensation Board. The only exception is that the governing body of a county or city may "employ a greater number of law-enforcement deputies than fixed by the Compensation Board, provided . . . the county or city shall pay the total compensation and all employer costs for such additional deputies." Accordingly, the new deputies could not be hired unless the county, in its sole discretion, agreed to pay their total compensation. However, even if the county were willing to pay this cost, it could not fund the new positions unless they would be providing services the sheriff is legally authorized to provide. Thus, the essential question is whether a sheriff is authorized to dedicate deputies to provide full-time security services at a private hospital.

A sheriff possesses "exclusive control over the day-to-day operations of his office" and is therefore authorized to assign specific duties and responsibilities to the deputies under his command. He is free "to discharge his prescribed powers and duties in a manner he deems appropriate." However, his duties and powers are limited to those conferred expressly or by necessary implication by statute. Thus, despite a sheriff's discretion in assigning duties, he may not assign duties that do not fall within the scope of his authority.

There is no statutory provision that would permit a sheriff to dedicate deputies to provide full-time security services at a private hospital in the manner you describe. A 1991 Opinion of this Office concludes that individuals appointed as full-time deputies cannot serve as correctional officers for a private corporation because such service "is beyond the scope of those duties imposed on a sheriff." The same reasoning applies to the scenario you present. Under existing statutes, a sheriff is generally charged with providing public law-enforcement services within his jurisdiction for the benefit of the population at large. Although conducting routine patrols of business premises at the request of a private owner is permissible in most circumstances, guarding a private business on a full-time basis is a private, rather than public, function. I therefore conclude that a sheriff is not authorized to dedicate deputies to provide ordinary, full-time security services for a private hospital.

I also note that because a sheriff may not legally provide the services in question, the county could not accept funds offered by the hospital to cover the cost of the services. Although local governing bodies are not, as a general rule, barred from accepting donations on behalf of the sheriff, the funds in the scenario you present would not constitute a true "donation." Rather, they would in effect be compensation paid under a contract with the hospital to provide full-time security services, which I have concluded is not legally authorized. Because the underlying contract would not be legal, a local governing body cannot accept funds that would facilitate it.

There are numerous occasional community services sheriffs may legally provide as part of their law enforcement responsibilities, such as crowd control, traffic control at accidents, funeral escorts, and services at other emergencies. These legal additional services could also include arrangements to provide limited "extra-duty" security to private businesses. The conclusion I reach in this opinion does not in any way affect or restrict the ability of sheriffs to provide those routine, occasional community services.

Conclusion

Accordingly, it is my opinion that a sheriff may not employ and dedicate deputies to provide full-time security services at a private hospital, and the local governing body may not accept funds from the hospital to cover the cost of doing so.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General