Can Virginia jail inmates work outside the sheriff's county or on private nonprofit land?

Plain-English summary

In December 2011, Sheriff Kenneth Stolle of Virginia Beach asked the AG three connected questions about using inmate labor outside the city's lines. Could inmate crews work on land outside the sheriff's own jurisdiction? Could they tend a garden on private land leased to a nonprofit if the produce went back to feed jail inmates? Could they maintain trails on land leased to a charity that ran disabled hunting programs and donated venison to another nonprofit?

The AG's answer turned on a careful distinction between two authority sources for inmate labor: court orders under § 53.1-129 and local-government workforce authorizations under § 53.1-128. The two statutes draw different geographic lines.

Court orders under § 53.1-129 carry no geographic limit baked into the text. Drawing on a previous opinion of the office that the General Assembly never overrode, the AG concluded that a judge can order inmate workers to perform tasks "on state, local and city property located outside the city." § 53.1-129 also authorizes orders to allow inmates to work on private property utilized by a 26 U.S.C. § 501(c)(3) nonprofit and on private property that is part of a community improvement project sponsored by the locality. Once the court orders, the sheriff's jurisdictional ceiling is effectively lifted by the order.

Local governing-body workforce authority under § 53.1-128 is different. That statute lists three categories of property where the locality can authorize inmate work (public property; certain charitable use; and "any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) or (c)(4) ... whether the same is located within such county, city or town, or elsewhere"). Only that nonprofit-owned category includes the "or elsewhere" phrase. Applying the canon that explicit inclusion implies exclusion, the AG concluded that local governing bodies can only send work crews beyond their jurisdiction to qualifying nonprofit-owned property, not to other property types.

Applied to the three scenarios: out-of-jurisdiction work was permissible if a court ordered it, or if the locality authorized it and the property was owned by a 501(c)(3) or (c)(4). The vegetable garden on land merely leased to a nonprofit, where harvests went to inmates, could be permitted only by court order under § 53.1-129's "utilized by a nonprofit" prong; the local governing body could not authorize it on its own because § 53.1-128's nonprofit-property clause requires ownership, not just use. The trail maintenance on leased nonprofit-used land was the same: court-authorized only, provided the nonprofit qualifies under § 501(c)(3) and any other statutory conditions are met. On the garden scenario, the AG added that the facts provided did not show how extensively the nonprofit used the property, so he could not respond definitively to that part of the request.

Currency note

This opinion was issued in 2011. 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 gives two separate authorities for using inmate labor outside the jail:

• § 53.1-128 permits the local governing body of any county, city or town to "establish workforces in the county, city or town under such conditions as it may prescribe" and lists where they can work: (i) public property of the Commonwealth or the locality, with other clauses for certain leased properties, and (iii) "any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) or (c)(4) and that is organized and operated exclusively for charitable or social welfare purposes whether the same is located within such county, city or town, or elsewhere."

• § 53.1-129 authorizes circuit and district courts to enter orders allowing prisoners to work on state, county, city or town property; private property that is part of a community improvement project sponsored by a locality; or "any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3)."

The AG applied three interpretive canons: plain meaning unless ambiguous; in pari materia (statutes on the same subject read together); and the superfluous-language principle (reading § 53.1-128 to allow out-of-locality work on other property types would render the "or elsewhere" clause meaningless). The Dillon Rule, requiring strict construction of local authority, was also central.

On jurisdiction generally, the opinion states that sheriffs serve the city or county that elected them and their jurisdiction is limited to that particular locality.

Common questions

Q: Could a Virginia sheriff send an inmate crew across the city line on his own authority?
A: Not by himself, per the opinion. The sheriff's authority is geographic, tied to his locality. Out-of-jurisdiction work required either a court order under § 53.1-129 or a local governing-body authorization under § 53.1-128 that fit the nonprofit-property exception.

Q: Did the property need to be owned by a 501(c)(3)/(c)(4), or could it just be leased?
A: That was the distinction at the heart of the opinion. § 53.1-128's out-of-jurisdiction clause requires ownership by a qualifying nonprofit. § 53.1-129 uses "utilized by a nonprofit," which the AG read as broader, covering leased property the nonprofit actually uses.

Q: Could inmates grow food on private land leased to a nonprofit and feed it back to the jail?
A: Per the opinion, that needed a court order under § 53.1-129, plus enough facts to confirm the nonprofit "utilized" the property and qualified as a 501(c)(3). The local governing body could not authorize this on its own because the land was not owned by the nonprofit.

Q: What about community improvement projects on private property?
A: § 53.1-129 lets a court authorize inmate work on private property that is part of a "community improvement project sponsored by a locality." The AG noted this as an alternative path for the trail-maintenance scenario, but said the facts in the request did not show the project was sponsored by Virginia Beach.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-109-Stolle.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

Kenneth T. Cuccinelli, II
Attorney General

December 16, 2011

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Kenneth W. Stolle
Sheriff/High Constable for Virginia Beach
Post Office Box 6098
Virginia Beach, Virginia 23456-9073

Dear Sheriff Stolle:

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 inquire regarding the permissibility of employing inmate labor in three scenarios. First, you ask whether inmate crews may work on property located outside the jurisdiction of the sheriff. Second, you inquire whether it is permissible to use inmates on private property, leased to a non-profit organization, for the purpose of cultivating a garden where all the vegetables harvested will benefit inmates housed in the Virginia Beach Correctional Center. Finally, you ask whether inmates may maintain trails on private property leased to a non-profit charitable foundation that uses the land to allow disabled children and veterans to hunt for deer and then donates the deer meat to another non-profit for distribution.

Response

It is my opinion that inmate crews may work on property outside the jurisdiction of the sheriff when authorized by court order or, if the workforce is established by the local governing body, only when the property is owned by a tax-exempt nonprofit organization that is organized and operated exclusively for charitable or social welfare purposes. It is further my opinion that, assuming all other statutory provisions are met, upon a proper court order, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). Finally, it is my opinion that, assuming all other statutory provisions are met, inmate crews, pursuant to a court order, may maintain trails on private property leased to a nonprofit organization provided the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3).

Applicable Law and Discussion

Pursuant to § 53.1-128 of the Code of Virginia,

The local governing body of any county, city or town may establish workforces in the county, city or town under such conditions as it may prescribe. Such workforces are authorized to work on:

(i) public property or works owned, leased or operated by the Commonwealth or the county, city or town;...

(iii) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) or (c)(4) and that is organized and operated exclusively for charitable or social welfare purposes whether the same is located within such county, city or town, or elsewhere . . .

Section 53.1-129 further authorizes, in relevant part, district and circuit courts to allow prisoners to work on 1) state, county, city or town property; 2) private property that is part of a community improvement project sponsored by a locality; and 3) any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3).

As an initial matter, I note the following legal principles that apply to each of your scenarios. First, absent an ambiguity, statutes are to be interpreted according to their plain meaning; however, they are not to be read in isolation. Rather, statutes concerning the same subject matter are to be construed in pari materia. Additionally, the Dillon Rule of strict construction limits the powers of local governing bodies and constitutional officers to those conferred expressly by state statute or by necessary implication from such expressed powers.

Turning specifically to your first question, I note that sheriffs serve the city or county that elected them and their jurisdiction is limited to that particular locality. Your inquiry, as applied to you, therefore asks whether inmate works crews you supervise can perform tasks on municipal property outside the City of Virginia Beach.

A previous Opinion of this Office addresses this question as it relates to court orders entered pursuant to § 53.1-129. It concluded that, because there is no jurisdictional limitation included in the statute, "pursuant to § 53.1-129, prisoner-workers from the [] city jail may work on state, local and city property located outside the city." Because the General Assembly has made no subsequent amendments to this section that are relevant to your inquiry, I affirm the prior Opinion here.

Nevertheless, § 53.1-128, which authorizes local governing bodies to establish workforces to work on "public property or works owned, leased or operated by . . . the county, city or town[,]" is worded differently. Although there similarly is no express limitation restricting the authorized work zones to the jurisdictional limits of the locality, in one instance, the Code provides that the workforce may work on "(iii) any property owned by a nonprofit organization . . . whether the same is located within such county, city or town, or elsewhere[.]" This is the only instance in which the General Assembly expressly has authorized inmate work crews on property outside a locality's jurisdiction. Reading § 53.1-128 to allow localities to authorize workforces on other properties located outside the locality would render this language superfluous. Because the General Assembly clearly knows how to express its intention when it desires to permit workforces beyond the territorial limits of the locality, I conclude that localities may permit inmate work crews to perform tasks on any property outside the jurisdiction only when the property is "owned by a nonprofit organization that is exempt from taxation under [federal law] and that is organized and operated exclusively for charitable or social welfare purposes[.]"

You next ask whether inmates can cultivate a garden on property leased to a nonprofit organization when all the food harvested will be consumed by the inmates. Section 53.1-129 explicitly provides that the judges of circuit and district courts may enter an order allowing inmates to work on "any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3)[.]" Based on the facts provided, I am unable to determine the extent to which the organization uses the property, other than holding the lease and permitting the inmates to cultivate it for their own usage. As such I am unable to respond definitively to this inquiry. I can conclude, however, that the local governing body does not have the authority to create a workforce to work on such property in this instance. Under § 53.1-128 and in accordance with the Dillon Rule, a locality's authority, as opposed to that of a court, is limited to permitting work crews to work on property owned by a qualifying nonprofit organization. Moreover, as stated above, I reiterate that the property must be located within the territorial limits of the locality.

In response to your third question, I conclude that § 53.1-129 authorizes courts to permit inmates to maintain trails on private property leased to a nonprofit that uses the land to allow disabled persons to hunt deer whose meat is then donated to another nonprofit organization. In this scenario, the organization is clearly "utilizing" the property. Thus, the use of inmate labor is permissible here, provided the organization qualifies for the tax exemption under the federal law and any other statutory conditions are satisfied. Maintaining the trails also may fall under § 53.1-129 if they are part of a community improvement project sponsored by the City of Virginia Beach, but I lack sufficient facts to make such a determination. Again, I note that the local governing body has no authority to authorize work crews for this purpose because the land is not owned by the nonprofit.

Conclusion

Accordingly, it is my opinion that inmate crews may work on property outside the jurisdiction of the sheriff when authorized by court order or, if the workforce is established by the local governing body, only when the property is owned by a tax-exempt nonprofit organization that is organized and operated exclusively for charitable or social welfare purposes. It is further my opinion that, assuming all other statutory provisions are met, upon a proper court order, inmate crews may cultivate a garden on private property leased to a nonprofit organization so long as the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3). Finally, it is my opinion that, assuming all other statutory provisions are met, inmate crews, pursuant to a court order, may maintain trails on private property leased to a nonprofit organization provided the nonprofit organization qualifies as exempt from taxation under 26 U.S.C. § 501(c)(3).

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General