Can a Virginia sheriff assign a deputy to provide full-time security at a community services board facility that serves students from local public schools?

Plain-English summary

A Virginia sheriff asked whether he could assign one of his deputies, full time, to a facility operated by the Highlands Community Services Board (HCSB). The facility, called The Children's Campus, takes referrals from public school divisions in Bristol and Washington County to provide academic and mental health services to children. The community services board planned to reimburse the county for the cost of the deputy.

The Attorney General said yes. Two earlier opinions had warned that a sheriff cannot assign a deputy to provide security at a private facility, because that falls outside the scope of statutory sheriff duties. But this facility was a public one, operated by a public body in cooperation with two public school divisions. Protecting public facilities is at the heart of what sheriffs do. The Constitution of Virginia establishes the office of sheriff, and a sheriff is a conservator of the peace with broad authority to protect public safety. Code § 15.2-1609 also lets a sheriff perform other duties at the request of the governing body, including security at jails, courthouses, and other public facilities. Because the children's program was a public facility, the assignment was within the sheriff's authority.

Currency note

This opinion was issued in 2017. 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

Two threads of Virginia law collide in this opinion. The first is the Dillon Rule, which restricts a local officer's powers to those expressly granted or necessarily implied by statute. Under the Dillon Rule, a sheriff cannot freely volunteer his deputies for any task that interests him; the assignment has to fit within the office's statutory scope. The Attorney General had already applied that constraint in 2015 to bar a sheriff from assigning a deputy to provide full-time security at a private facility, and in 1991 to bar a deputy from serving as a correctional officer in a privately owned correctional facility.

The second thread is the sheriff's long-recognized role as a conservator of the peace. The Supreme Court of Virginia said in Commonwealth v. Malbon (1953) that this role exists even without specific statutory authority. Sheriffs operate jails, secure courthouses and courtrooms (with sole responsibility for who guards the courtroom under Code § 53.1-120), and can also contract with school boards to provide security at school board meetings. The constitutional foundation is Article VII, § 4, which establishes the elected office and provides for its duties.

The Children's Campus is licensed as a mental health school-based therapeutic day treatment service under 12 Va. Admin. Code § 30-60-61(D). Children remain enrolled in their home public schools while attending the program. Because the facility is operated by a public body for a public purpose, in cooperation with public schools, the AG concluded it is the same kind of public facility that sheriffs already protect, just under a different label.

Common questions

Can a Virginia sheriff assign deputies to private facilities for security?
According to this opinion, no. Earlier AG opinions concluded that providing full-time security at a private facility, or staffing a privately owned correctional facility with deputies, falls outside the scope of a sheriff's statutory authority. The opinion drew a clean line: public facility, yes; private facility, no.

What makes a facility "public" for this purpose?
The opinion treated The Children's Campus as public because it was operated by a community services board, a public body established under Code § 37.2-501, in cooperation with two local public school divisions. The students were referred by public schools and remained enrolled in those schools. No tuition was charged.

Did it matter that the community services board would reimburse the county?
The AG did not flag the reimbursement arrangement as a problem. The county and HCSB had agreed that HCSB would pay the county quarterly to fund the deputy's position. The opinion turned on whether the assignment fit within the sheriff's authority, not on who paid for it.

Did the AG address whether the deputy qualifies as a School Resource Officer for grant funding?
No. In a footnote, the AG declined to address whether the deputy would qualify the localities for matching grants under the School Resource Officer Grants Program and Fund (Code § 9.1-110), because the question of authority was answered on independent grounds.

Does this opinion authorize a sheriff to provide security at every public building?
The opinion confirms that protecting public facilities is one of the foremost duties of a sheriff, but it does not say a sheriff must do so or that every assignment is automatically valid. The opinion suggests the analysis still depends on whether a specific assignment can be characterized as a public-facility security function rather than something else.

Citations

• Va. Const. art. VII, § 4 (constitutional establishment of office of sheriff)
• Va. Code § 15.2-1609 (sheriff may perform other duties at request of governing body)
• Va. Code § 53.1-116.2; § 53.1-120; § 53.1-125 (sheriff duties regarding jails and courthouses)
• Va. Code § 37.2-501 (community services boards)
• Commonwealth v. Malbon, 195 Va. 368 (1953) (sheriff as conservator of peace)
• McClannan v. Chaplain, 136 Va. 1 (1923) (territorial reach of conservator's authority)
• 2015 Op. Va. Att'y Gen. 93 (private facility security falls outside sheriff's scope)
• 1991 Op. Va. Att'y Gen. 218 (deputy cannot serve as correctional officer at private facility)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-012-Phillips---school-resource-officer---ISSUED.pdf

Original opinion text

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

November 16, 2017

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

Lucy E. Phillips, Esquire
Washington County Attorney
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 assign a deputy to provide full-time security at a facility operated
by a community services board. The facility is designed for children and adolescents who are referred
there by one of two local school divisions.

Background
The facility, named The Children's Campus, is operated by the Highlands Community Services
Board[1] ("HCSB") for the City of Bristol and the County of Washington.[2] Students are referred there by
the public school divisions of those localities for the purpose of receiving a variety of services, including
academic and mental health services. The students remain enrolled in their public school divisions of
origin, with their attendance at the facility considered a temporary enrollment oriented toward their re-entry into their regular school systems. The facility has two full-time classroom teachers. The two
participating school divisions provide student transportation to and from the facility, and students are
given breakfast and lunch. Students are not charged tuition.

To enhance the safety of students and staff at the facility, HCSB has entered into an agreement
with the Washington County Sheriff for the Sheriff to provide a properly trained and qualified deputy
sheriff to be present at the facility. The HCSB intends to make quarterly reimbursement payments to the
county in order to fund the deputy's position. Your inquiry is whether this assignment is legally
permissible.

Applicable Law and Discussion

A prior opinion of this Office states that a sheriff is "authorized to assign specific duties and
responsibilities to the deputies under his command.... However, his duties and powers are limited to
those conferred expressly or by necessary implication by statute: despite a sheriff's discretion in assigning
duties, he may not assign duties that do not fall within the scope of his authority."[3] For example, prior
opinions of this Office have concluded that providing full-time security at a private facility does not fall
within the scope of a sheriff's authority and is impermissible for that reason.[4] Thus, the question
presented is whether assignment of a deputy sheriff to enhance and ensure security at a public facility
such as The Children's Campus is within a sheriff's duties and powers.

The office of the sheriff is established in the Constitution of Virginia, which provides in Article
VII, § 4 that "[t]here shall be elected by the qualified voters of each county and city ... a sheriff ...
[whose] duties ... shall be prescribed by general law or special act." It is well-established that a sheriff is
a conservator of the peace, even in the absence of specific statutory authority to that effect.[5] "The office
of conservators of the peace is a very ancient one, and their common law authority ... extends throughout
the territory for which they are elected or appointed ...."[6] In addition to his other powers and duties, a
sheriff, "may perform such other duties, not inconsistent with his office, as may be requested of him by
the governing body,"[7] to include providing security to various public facilities, most notably including
jails[8] and courthouses;[9] and a public school division may contract with the local sheriff for the
assignment of officers to provide security during school board meetings.[10]

It is thus clear that one of the foremost duties and powers of a sheriff is to protect public safety at
public facilities. That conclusion is manifestly evident from multiple statutory and inherent common law
powers of sheriffs, some of which are noted above. I therefore conclude that providing security for
students and faculty at The Children's Campus, a public facility, is within the scope of a sheriff's
authority and is thus permissible.[11]

Conclusion
Accordingly, it is my opinion that a sheriff may assign a deputy to provide full-time security at a
public facility such as a program for students that is operated by a community services board in
cooperation with a local public school system.
With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] A "community services board" is "a public body established pursuant to § 37.2-501 of the Code of Virginia that provides mental health, mental retardation, and substance abuse services to individuals within each city or county that established it." 12 VA. ADMIN. CODE § 35-180-10.

[2] The facility is a therapeutic day treatment program regulated by the Virginia Department of Behavioral Health and Developmental Services and licensed as a mental health school-based therapeutic day treatment service for children and adolescents with serious emotional disturbance. See 12 VA. ADMIN. CODE § 30-60-61(D).

[3] 2015 Op. Va. Att'y Gen. 93, 94-95 (internal citations and quotation marks omitted).

[4] Id. at 95. See also 1991 Op. Va. Att'y Gen. 218, 220 (stating that a sheriff may not assign a deputy to function as a correctional officer in a privately owned correctional facility, because such service "is beyond the scope of those duties imposed on [the] sheriff").

[5] Commonwealth v. Malbon, 195 Va. 368, 371 (1953).

[6] McClannan v. Chaplain, 136 Va. 1, 12 (1923), cited in 2004 Op. Va. Att'y Gen. 108, 109 n.4.

[7] VA. CODE ANN. § 15.2-1609 (2012).

[8] Section 53.1-116.2 (2013) ("The sheriff of each county or city shall be the keeper of the jail thereof ...."); see § 53.1-125 (2013) (indicating that sheriffs are charged with the operation and management of local jails); see also 2006 Op. Va. Att'y Gen. 162.

[9] Section 53.1-120 (2013) ("Each sheriff shall ensure that the courthouses and courtrooms within his jurisdiction are secure from violence and disruption and shall designate deputies for this purpose .... The sheriff shall have the sole responsibility for the identity of the deputies designated for courtroom security.").

[10] See Davison v. Rose, No. 1:16cv0540 (AJT/IDD), 2017 U.S. Dist. LEXIS 120176, at *6 (E.D. Va. 2017).

[11] Because a sheriff has inherent power to protect public facilities as he sees fit, I need not reach the question of whether a deputy sheriff who is so assigned qualifies the school systems or their localities for matching grants under the School Resource Officer Grants Program and Fund, as per § 9.1-110 (Supp. 2017).