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

Washington County asked whether its sheriff could dedicate new deputies to full-time security at a privately owned hospital if the hospital supplied the county with enough money to cover the positions. The AG answered no. He also concluded that the county could not accept those funds to facilitate the arrangement.

The opinion explains that a sheriff may assign duties to deputies but may exercise only powers conferred by statute, expressly or by necessary implication. No statute permits the full-time private hospital security described in the request. The AG distinguished public law-enforcement services for the population at large from guarding one private business full time. He wrote that "guarding a private business on a full-time basis is a private, rather than public, function."

The AG also rejected the proposed funding. The hospital's payment would be compensation for an unauthorized security contract, not a true donation. Because the underlying arrangement would be unlawful, the county could not accept funds to carry it out.

The opinion preserves routine, occasional community services, including crowd control, traffic control at accidents, funeral escorts, emergency response, and limited extra-duty security for private businesses. It does not discuss whether the hospital may hire a private security company.

What this means for you

If you administer a sheriff's office

The sheriff cannot dedicate deputies to ordinary full-time security at the private hospital described in the request. The AG's conclusion does not prevent routine, occasional law-enforcement services or limited extra-duty security arrangements.

If you work for the county

The county cannot accept hospital funds to pay for the unauthorized full-time arrangement. The opinion explains that the payment would compensate the county for an unlawful contract, not constitute a donation.

Currency note

The opinion was issued in 2015. Check current law and later authority before applying its conclusions to a present arrangement.

Common questions

Could the county pay for additional deputies itself?
The opinion says the county may fund additional law-enforcement deputies beyond the State Compensation Board's number, but only for services the sheriff is authorized to provide. It concludes that the proposed full-time hospital security is outside that authority.

Does the opinion bar deputies from responding to a private business?
No. It expressly distinguishes routine patrols and occasional community services from a full-time assignment to guard a private business.

Does it authorize private security contracts for the hospital?
The opinion does not address contracts between the hospital and a private security provider.

Background and statutory framework

The State Compensation Board normally fixes the number of sheriff's deputies. The opinion quotes an exception allowing a county or city to employ more law-enforcement deputies if it pays their full compensation and employer costs. That funding authority does not give a sheriff power to assign deputies to services outside the sheriff's lawful duties.

The AG drew on an earlier opinion about full-time deputies serving a private corporation and applied the same public-function distinction to the proposed hospital arrangement. The conclusion was limited to ordinary full-time security at this private hospital and left routine, occasional services unaffected.

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