Can a Virginia sheriff assign deputies to act as full-time security at a private school?

Plain-English summary

Northampton County Sheriff David Doughty asked the AG whether his office could honor a private school's request to assign a deputy for continuous security during the school's nine-month session, with the school reimbursing the county for salary, benefits, supplies, and other costs. Outside the school year, the deputy would return to general sheriff's office duties.

AG Mark Herring split the answer:

• On-duty deputy assignment: no. A sheriff's core duty is preservation of peace "owed to the public at large, as opposed to any particular individual or group." The AG had reached the same conclusion in 2015 with respect to dedicating deputies to a private hospital. There's no statute authorizing a sheriff to assign on-duty deputies to permanent dedicated security for a private institution.

• Off-duty deputy employment: yes, if the locality adopts the ordinance. Section 15.2-1712 expressly permits a locality to adopt an ordinance that lets law enforcement officers and deputy sheriffs "engage in off-duty employment which may occasionally require the use of their police powers." Under that authority, the private school can hire off-duty deputies directly, subject to whatever reasonable rules the locality adopts (or, if the locality delegates rulemaking, that the sheriff promulgates).

The opinion expressly overruled a contrary 2013 AG opinion to the extent of any inconsistency. A footnote made clear that nothing in the opinion limits the sheriff's authority to respond to emergency calls from the school in the normal course.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Virginia is a Dillon Rule jurisdiction; constitutional officers like sheriffs have only the powers expressly granted, those necessarily implied, and those essential and indispensable. The sheriff's duties are set out under Va. Const. art. VII, § 4 and § 15.2-1609. The latter directs that the sheriff "shall enforce the law or see that it is enforced in the locality from which he is elected." Commonwealth v. Malbon, 195 Va. 368 (1953), confirms the sheriff is a conservator of the peace.

The public-duty doctrine treats peacekeeping as a duty owed to the public at large, not to a specific individual or institution. The AG drew on 70 Am. Jur. 2d § 36, an opinion of the California AG (68 Op. Cal. Att'y Gen. 175 (1985)), and the Virginia circuit court decision in Whitaker v. Estate of Murphy, 12 Va. Cir. 490 (Henrico Cty. Cir. Ct. 1982), for the proposition that the obligations of police are public, not contractual to private parties.

Section 15.2-1712 is the workaround: a locality may adopt an ordinance permitting law enforcement officers and deputy sheriffs "to engage in off-duty employment which may occasionally require the use of their police powers." The ordinance may include reasonable rules, or delegate rulemaking to the police chief or sheriff. Off-duty work under such an ordinance is the deputy's own engagement, not an assignment from the office.

Common questions

Q: Why can't a sheriff just bill the private school and assign deputies?
A: Because the sheriff's statutory job is to enforce the law for the locality as a whole. Dedicating on-duty deputies to a single private institution is not within the powers expressly granted to or necessarily implied by the sheriff's office.

Q: What's an example of permissible off-duty deputy work?
A: Working private security at events, weddings, malls, sporting events, etc., where the deputy is paid by the private hirer rather than the sheriff. Section 15.2-1712 contemplates these arrangements.

Q: Does the deputy keep police powers when working off-duty?
A: Yes, that's the whole point of § 15.2-1712: the statute recognizes the off-duty work may "occasionally require the use of their police powers." That's why the locality has the option to set reasonable rules around such employment.

Q: Does the locality have to adopt the ordinance?
A: Yes, § 15.2-1712 is the enabling statute, but a deputy can only do off-duty police-power work if the locality has actually adopted an ordinance authorizing it. Without the ordinance, the off-duty work falls outside the statutory permission.

Q: Can the private school still hire a school resource officer the regular way?
A: The opinion did not address school resource officer (SRO) arrangements, which are typically run as MOUs between school boards and law enforcement agencies and have their own statutory basis. The opinion was about a private school dedicating on-duty deputies.

Q: What about the school just hiring a private security company?
A: That's outside the opinion. Private security companies are not deputies and don't have police powers. The school's choice was to use off-duty deputies (now confirmed available under § 15.2-1712 with a local ordinance) or hire commercial security.

Q: Was a prior 2013 AG opinion overruled?
A: Yes, in part. The opinion explicitly says that "[t]o the extent this conclusion is inconsistent with that of a prior opinion of this Office, 2013 Op. Va. Att'y Gen. 96 (July 19, 2013), the conclusion of the prior opinion is overruled."

Q: Does the school still get sheriff response to emergencies?
A: Yes. A footnote made the point explicit: nothing in the opinion affects the sheriff's authority to respond to emergency law enforcement calls from the school.

Citations

The opinion is built on Va. Const. art. VII, § 4; § 15.2-1609; § 15.2-1712; Commonwealth v. Malbon, 195 Va. 368 (1953); Whitaker v. Estate of Murphy (Va. Cir. 1982); 1991 Op. Va. Att'y Gen. 218 (use of deputies as private correctional officers prohibited); 2002 Op. Va. Att'y Gen. 151; 2012 Op. Va. Att'y Gen. 110; 2015 Op. Va. Att'y Gen. 93 (private hospital security); and the overruled 2013 Op. Va. Att'y Gen. 96.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/19-005-Doughty-issued.pdf

Original opinion text

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

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

August 23, 2019

The Honorable David L. Doughty Jr.
Northampton County Sheriff
5211 The Hornes
Post Office Box 68
Eastville, Virginia 23347-0068

Dear Sheriff Doughty:
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, at the request of a private school, employ a deputy to provide continuous security for the school during its session each year.

Background
You relate that a private school has requested that you employ a deputy to provide regular, continuous security for the school during its session each year, which lasts for nine months. For the three months that the school is out of session, the deputy would be under the direction of the sheriff for other assignments. The private school has agreed to reimburse the county for any local funds needed to fulfill the request, including funds needed to cover salary, benefits, uniforms, mileage, police supplies, meals and lodging, and vehicle supplies. Under this proposal, Northampton County would invoice the private school for costs associated with the deputy position during the nine-month period.

Applicable Law and Discussion
A sheriff in Virginia is a constitutional officer whose duties are prescribed in general law or special act.[1] A sheriff may exercise all powers that are conferred upon him expressly in the law, as well as all powers that are necessarily implied from expressly-conferred powers,[2] and he is free to discharge the duties of his office in the manner he deems appropriate.[3] A sheriff may not, however, exercise powers that have not been conferred upon him under law.[4]

An essential duty of a sheriff is the preservation of peace and order in the jurisdiction he serves.[5] This is a duty that is owed to the public at large, as opposed to any particular individual or group.[6] Accordingly, a prior opinion of this Office concluded that in the absence of a statute authorizing such an action, a sheriff is not permitted to dedicate deputies to provide full-time security services at a private hospital.[7] A similar analysis applies in the scenario you present, such that a sheriff is not authorized under existing law to assign on-duty deputies to provide dedicated security for a private school in the manner you describe.[8]

Notwithstanding this limitation for on-duty deputies, the locality in which the sheriff serves may adopt an ordinance that allows deputy sheriffs to engage in off-duty employment occasionally requiring the use of police powers.[9] Where permitted under the scope of such an ordinance, a private school may employ off-duty deputy sheriffs to provide security at the school, subject to such reasonable rules as may be adopted by the locality or promulgated by the sheriff pursuant to § 15.2-1712.[10]

Conclusion
Accordingly, it is my opinion that while a sheriff is not authorized under existing law to assign on-duty deputies to provide dedicated security for a private school in the manner you describe, a locality may adopt an ordinance that allows deputy sheriffs to engage in off-duty employment that occasionally requires the exercise of police powers. Where permitted under the scope of such an ordinance, a private school may employ off-duty deputy sheriffs to provide security at the school, subject to such reasonable rules as may be adopted by the locality or promulgated by the sheriff pursuant to § 15.2-1712.[11]

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. VA. CONST. art. VII, § 4 (providing that the duties of constitutional officers "shall be prescribed by general law or special act"); VA. CODE ANN. § 15.2-1609 (2018) (providing that sheriffs shall exercise all powers conferred and perform all duties imposed by general law).
2. 2015 Op. Va. Att'y Gen. 93, 94 (stating that a sheriff's duties are limited to those conferred expressly or by necessary implication); 2012 Op. Va. Att'y Gen. 110, 111 (noting that under the Dillon Rule, constitutional officers "have only those powers expressly granted, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable"); 2002 Op. Va. Att'y Gen. 151, 153.
3. 2015 Op. Va. Att'y Gen. 93, 94; 2002 Op. Va. Att'y Gen. 151, 153.
4. See 1991 Op. Va. Att'y Gen. 218, 220 (concluding that the use of deputy sheriffs as correctional officers for a private entity is not permitted because such service is beyond the scope of duties imposed on a sheriff by law).
5. VA. CODE ANN. § 15.2-1609 (providing that a sheriff "shall enforce the law or see that it is enforced in the locality from which he is elected"); Commonwealth v. Malbon, 195 Va. 368, 371, 78 S.E.2d 683, 686 (1953) (stating that a sheriff is a conservator of the peace).
6. 68 Op. Cal. Att'y Gen. 175, 180-82 (1985); 70 AM. JUR. 2D § 36; cf. Whitaker v. Estate of Murphy, 12 Va. Cir. 490, 494 (Henrico Cty. Cir. Ct. 1982) (providing that the obligations of a police officer are of a public nature).
7. 2015 Op. Va. Att'y Gen. 93.
8. To the extent this conclusion is inconsistent with that of a prior opinion of this Office, 2013 Op. Va. Att'y Gen. 96 (July 19, 2013), the conclusion of the prior opinion is overruled.
9. VA. CODE ANN. § 15.2-1712 (2018) (providing that "any locality may adopt an ordinance which permits law-enforcement officers and deputy sheriffs in such locality to engage in off-duty employment which may occasionally require the use of their police powers in the performance of such employment").
10. Id. ("Such ordinance may include reasonable rules to apply to such off-duty employment, or it may delegate the promulgation of such reasonable rules to the chief of the respective police departments or the sheriff of the county or city.").
11. Further, irrespective of the employment of off-duty deputy sheriffs in this manner, a sheriff retains full authority to respond to calls for emergency law-enforcement assistance from the private school, and nothing in this opinion should be construed to affect this authority in any way.