Can a Virginia sheriff use civilian employees or private process servers to serve civil court papers, instead of sworn deputies? What training is required, and what's the sheriff's liability if something goes wrong?

Subject

Except where civil process is statutorily required to be served by a sheriff or one of his deputies, a sheriff may engage non-sworn, civilian personnel or private process servers to execute such process. Although a sheriff's potential exposure to liability would depend on the particular facts and circumstances, in general a sheriff would not be liable for the discretionary acts of his civilian employees, and a sheriff would generally be exposed to minimal risk of liability for the actions of private process servers engaged as independent contractors.

Plain-English summary

Franklin County Sheriff Overton wrote to the Attorney General with a practical staffing problem. Sworn deputy positions were hard to fill. Pulling a deputy off patrol to serve "simple papers" (routine civil court filings like subpoenas and notices) was inefficient. Could he use a civilian employee (not a sworn officer) or contract with a private process server to do this work? If so, what training is required, and what liability is the sheriff taking on?

The opinion (issued by AG Jason Miyares in June 2022, after the change in administration from Mark Herring) gave a green light with limits.

Va. Code § 8.01-293(A) lets a sheriff, anyone 18 or older not a party to the action, or a private process server, serve civil process. So civilian employees who are 18 and not parties can serve. Private process servers and process-server companies can be contracted. But certain papers are statutorily reserved for sheriffs, high constables, or other public officers: writs of possession and eviction (only sheriffs or high constables), capias and show cause (sheriff, high constable, or law enforcement), levy on property (sheriff, certain high constables, treasurers), and service on teachers/school personnel on school property in custody cases (sheriff or deputy).

No statute requires training for civilian process servers. The Department of Criminal Justice Services (DCJS) sets training standards for deputy sheriffs serving civil process (§ 9.1-102(8)), but those standards don't legally bind civilian employees. The AG still recommended training using the DCJS standards as a baseline.

A key evidentiary point: a return of service by a sheriff is "prima facie evidence" of the facts in the return (§ 8.01-326). A return by a non-sheriff is just "evidence." Because of that difference, the AG advised that civilian-employee process servers should be limited to cases where the filer consents to non-sworn service.

On liability, the AG distinguished between discretionary and ministerial acts. Sheriffs generally aren't liable for discretionary acts by civilian employees within scope. Ministerial acts (like driving while serving process) can create sheriff liability. Private process servers contracted as independent contractors are not entitled to sovereign immunity, but the AG noted it's hard to imagine a scenario where the sheriff would be liable for an independent contractor's process-server actions.

What this means for you

For Virginia sheriffs facing staffing constraints

The opinion concludes a sheriff may use a civilian employee (18 or older, not a party to the action) or contract with a private process server or company to serve "simple papers," meaning papers not enumerated in § 8.01-293(B) or otherwise reserved by the Code to a sheriff, high constable, or other public officer. It states no statute requires training of civilian process servers, but that providing it (using the DCJS deputy standards as a resource) would be good practice. It also says a sheriff must be cognizant of using a competitive procurement process when contracting with private servers, and that proof of appropriate insurance coverage would be advised.

On evidentiary value

The opinion draws the distinction in § 8.01-326: a sheriff's return is "prima facie evidence" of the facts stated, while a return by a qualified non-sheriff under § 8.01-293(A)(2) is only "evidence." Because of that difference, the opinion states a sheriff must limit civilian-served simple papers to cases where the plaintiff or filer has consented to non-sworn service and is aware of it.

For private process servers and litigants

The opinion confirms a sheriff may lawfully contract with private process servers, who it assumes would be independent contractors not entitled to sovereign immunity. For a litigant, the opinion's evidentiary distinction means a return executed by a sheriff or deputy carries prima facie weight, while a civilian or private server's return carries the lower "evidence" weight if service is later challenged.

On the sheriff's liability

The opinion concludes a sheriff generally would not be liable for the discretionary acts of civilian employees carried out within the scope of employment (sovereign immunity), but that immunity does not attach to ministerial acts, such as driving while serving process, so liability for those is possible depending on the facts. For private process servers engaged as independent contractors, the opinion says it is difficult to conceive a scenario in which their service actions would render the sheriff liable.

Common questions

Who can serve civil process in Virginia?
Per § 8.01-293(A): a sheriff (within statutory territorial limits), any person age 18 or older who is not a party or interested in the case, or a private process server.

Are there papers only the sheriff (or sworn deputy) can serve?
Yes. Writs of possession or eviction, capias and show-cause documents, levies on property, and service on teachers/school personnel on school grounds in custody cases. § 8.01-293(B) and various other sections list these specifically.

Does a civilian process server have to be trained?
No statute requires it. But the AG recommended adopting DCJS-equivalent training as good practice.

What's the difference in evidentiary value?
A sheriff's return is prima facie evidence of the facts in the return under § 8.01-326. A civilian's or private process server's return is only "evidence." That difference can matter if service is challenged later.

Can a sheriff contract with a private process-server company?
Yes, subject to competitive procurement principles and the same statutory carve-outs that apply to civilian employees.

Is the sheriff liable if a civilian employee or private process server causes harm while serving process?
For discretionary acts within scope of employment by civilian employees: generally no (sovereign immunity covers it). For ministerial acts (like driving): potentially yes. For independent-contractor private process servers: generally no, because independent contractors are not extensions of the sheriff for liability purposes (Ogunde v. Prison Health Servs., 274 Va. 55 (2007)).

What's the difference between discretionary and ministerial acts?
Discretionary acts involve judgment or choice. Ministerial acts are mechanical, leaving no room for individual judgment. Driving a vehicle while serving process has been treated as ministerial under Heider v. Clemons, 241 Va. 143 (1991). The line varies by context.

Background and statutory framework

Section 8.01-293(A) lists three categories authorized to serve process: sheriffs (within § 8.01-295 territorial bounds), anyone 18+ not interested in the matter, and private process servers. The statute defines "officer" and "sheriff" in process-service references to include any authorized person under the section.

Statutory carve-outs for sheriffs (or specific officers):

• Writs of possession or eviction (unlawful entry and detainer, ejectment) (§ 8.01-293(B)): only sheriff or high constable.
• Capias and show-cause documents: sheriff, high constable, or law-enforcement officer.
• Levy on property: only sheriff, high constable of Norfolk or Virginia Beach, or treasurer.
• Service on teachers/school personnel on school property in child custody/visitation cases (§ 8.01-293(A)(2)): only sheriff or deputy.
• Various other matters under §§ 16.1-253(G), 16.1-279.1(C), 19.2-152.8(E), 19.2-152.9(B), 19.2-152.10(D), 20-103(D).

Section 8.01-326 distinguishes evidentiary value: sheriff's returns are prima facie evidence; returns of "a qualified individual under subdivision 2 of § 8.01-293" are just "evidence."

Section 9.1-102(8) charges DCJS with establishing training standards for "deputy sheriffs designated to serve civil process." No analog for civilian employees.

The sovereign immunity framework distinguishes between discretionary and ministerial acts. Burns v. Gagnon, 283 Va. 657, 676-77 (2012), and Heider v. Clemons, 241 Va. 143, 145 (1991), are the canonical cites. Independent contractors aren't covered by sovereign immunity per Ogunde v. Prison Health Servs., 274 Va. 55, 60-63 (2007).

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 8.01-293 (who may serve process)
• Va. Code § 8.01-295 (territorial bounds for sheriff)
• Va. Code § 8.01-326 (evidentiary value of returns)
• Va. Code § 9.1-102(8) (DCJS training standards for deputies)
• Va. Code § 16.1-253(G); § 16.1-279.1(C) (juvenile and domestic relations)
• Va. Code § 19.2-152.8; § 19.2-152.9; § 19.2-152.10 (protective orders)
• Va. Code § 20-103 (domestic relations)
• Moore's Adm'r v. Dawney, 13 Va. 127 (1808) (sheriff liability for deputies)
• Burns v. Gagnon, 283 Va. 657 (2012) (employee immunity within scope)
• Heider v. Clemons, 241 Va. 143 (1991) (driving as ministerial act)
• Ogunde v. Prison Health Servs., 274 Va. 55 (2007) (independent contractors not entitled to sovereign immunity)
• 1987-1988 Op. Va. Att'y Gen. 172
• 2002 Op. Va. Att'y Gen. 156
• 2010 Op. Va. Att'y Gen. 104

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-091-Overton-Opinion-Issued.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

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

June 13, 2022

The Honorable W.Q. Overton Jr.
Franklin County Sheriff
70 East Court Street
Rocky Mount, Virginia 24151

Dear Sheriff Overton:

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

Issues Presented

You pose several questions regarding the potential use of civilian personnel to assist with serving "simple papers" for civil process. Specifically, you ask whether a civilian employee of the sheriff, without sworn duties, may serve civil process; and if so, what kind of training the civilian employee must receive. You further ask whether a sheriff may contract with either private process servers or a private process service company to serve process. Additionally, you ask what liability might accrue to the sheriff based on the actions of a civilian employee or private process server during the course of carrying out service.

Response

It is my opinion that subject to the exceptions specified in § 8.01-293 and exceptions elsewhere in the Code, a civilian employee of the sheriff who is eighteen years of age or older and not a party to or otherwise involved in the action may serve process; and no training is required of civilian employees who serve civil process. It is my further opinion that a sheriff may contract with private process servers or a private process server company to serve process. Finally, although a sheriff's exposure to liability would depend on the particular facts and circumstances, in general a sheriff would not be liable for the discretionary acts of his civilian employees, and a sheriff would generally be exposed to minimal risk of liability for the actions of private process servers engaged as independent contractors.

"Simple papers" are those that are not enumerated in § 8.01-293(B) or otherwise listed in the Code as requiring only certain process servers.

Facts

You relate that it is difficult to fill a sworn deputy position. You further relate that you are trying to avoid having to remove a sworn deputy from patrol to serve papers through use of a civilian process server. Finally, you relate that the Department of Criminal Justice Services does not certify civilian personnel in the service of process, and you are concerned about lack of training.

Applicable Law and Discussion

Pursuant to § 8.01-293(A), the following persons are authorized to serve process: (1) "[t]he sheriff within such territorial bounds as described in § 8.01-295," (2) "[a]ny person of age eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy," or "(3) [a] private process server." Section 8.01-293(A) further specifies that whenever the Virginia Code uses the term "officer" or "sheriff" to refer to persons authorized to make, return or do any other act relating to service of process, such term shall be deemed to refer to any person authorized by this section to serve process.

Various provisions of the Code, however, set out certain instances in which civil process may only be served by a sheriff, a high constable, or other public officer. For instance, "only a sheriff or high constable may execute an order or writ of possession for personal, real or mixed property, including a writ of eviction arising out of an action in unlawful entry and detainer or ejectment." Service of a capias or show cause is limited to any sheriff, high constable, or law-enforcement officer; and "only a sheriff, the high constable for the City of Norfolk or Virginia Beach or a treasurer may levy upon property." In addition, only a sheriff or a sheriff's deputy may serve process on a teacher or other school personnel in a case in which child custody or visitation is at issue, where the summons is served upon school property. This list is not intended to be exhaustive, as the Code sets out further instances in which civil process must be executed by a sheriff, high constable, or other public officer.

In my opinion, a sheriff may employ civilian personnel without sworn duties to serve process, limited to "simple papers" not required to be served by a sheriff, high constable, or other public officer. Such civilian personnel must meet the qualifications set out in § 8.01-293(A), that is, they must each be 18 years of age or older, and not be a party or otherwise interested in the subject matter in controversy.

You further inquire what training civilian employees serving civil process should receive. Virginia Code § 9.1-102(8) requires that the Department of Criminal Justice Services ("DCJS") establish training standards for deputy sheriffs designated to serve civil process. No statute, however, requires civilian process servers in Virginia to receive training. Although civilian employees serving civil process are not required by statute to receive training, it would be a good practice to provide training. For example, the DCJS standards used for training deputy sheriffs on how to serve civil process could be tailored as a resource for training civilian employees in serving civil process.

You additionally ask whether the sheriff can contract with private process servers or a private process service company to serve process. You may, subject to the same limitations relative to a civilian employee process server, contract with private process servers or a private process service company to assist. In contracting with private process servers or private process service companies, you must be cognizant of utilizing a competitive procurement process.

Having determined that a sheriff may engage a civilian, non-sworn employee, a private process server or a private process service company to serve simple papers, it is important to note that returns executed by such individuals carry a lower evidentiary value than those executed by a sheriff or a sheriff's deputy. Section 8.01-326 of the Code provides that proofs of return by a sheriff "shall be prima facie evidence of the facts therein stated," but "the return of a qualified individual under subdivision 2 of § 8.01-293 [i.e., an individual not a sheriff or a sheriff's deputy] shall be evidence of the facts therein stated." Because of this difference in evidentiary value, in my opinion a sheriff must ensure that any civilian personnel who are engaged to serve simple papers are limited to the service of papers where the plaintiff/filer has consented to such service and is aware that a non-sworn individual will be effectuating service.

Your final inquiry has to do with what liability might accrue to a sheriff based on actions of a civilian employee or private process server while serving process. It is well settled that a sheriff may be held liable for actions taken by his deputies. However, a sheriff's deputies generally are entitled to immunity for discretionary acts carried out within the scope of their employment. This immunity extends to other employees of the Sheriff. Nevertheless, such immunity does not attach to ministerial acts of employees. For example, the Supreme Court of Virginia has found that in ordinary circumstances, the act of driving while serving process is a ministerial act to which sovereign immunity does not attach. Thus, it is possible that a sheriff may be liable for ministerial acts committed by non-sworn, civilian employees serving process. The determination of potential liability would depend on the facts and circumstances of each particular case.

With respect to private process servers and private process server companies, I will assume a sheriff would engage such entities as independent contractors. Independent contractors are not entitled to sovereign immunity. Although a private process server or a private process service company would not be entitled to sovereign immunity, it is difficult to conceive a scenario by which their actions in serving process would render the sheriff potentially liable. However, when contracting with a private process server or private process service company, proof of appropriate insurance coverage would be advised.

Conclusion

It is my opinion that subject to the exceptions specified in § 8.01-293 and exceptions elsewhere in the Code, a civilian employee of the sheriff who is eighteen years of age or older and not a party to or otherwise involved in the action may serve process; and no training is required of civilian employees who serve civil process. It is my further opinion that a sheriff may contract with private process servers or a private process server company to serve process. Finally, although a sheriff's exposure to liability would depend on the particular facts and circumstances, in general a sheriff would not be liable for the discretionary acts of his civilian employees, and a sheriff would generally be exposed to minimal risk of liability for the actions of private process servers engaged as independent contractors.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General