DCJS announced at the Private Security Services Advisory Board (PSSAB) meeting on Monday December 03, 2012, that in the future it would both attempt to clarify existing regulations on the SCOP and seek some changes to the SCOP sections of the Code of Virginia and regulations in part as follows:
Unfortunately, the reasoning that the Department has provided for the new interpretations and procedures are either mildly problematic or directly inconsistent with the SCOP Code and inconsistent with the Department’s interpretation of SCOP policy for about the past eight years. This Open Letter attempts to address some of the more problematic parts of the Department’s announcement at the latest PSSAB meeting about SCOP issues.
On the New Interpretations of SCOP by DCJS
DCJS is empowered by the Code of Virginia with regulation of SCOPs (see §9.1-150.2, §9.1-150.3). And when courts are called upon to determine and interpret the law, great deference is given to regulatory governmental agencies within their respective subject-matter areas. Additionally, the public (business owners and persons in the private security services industry in particular) make plans around how DCJS regulates the industry. And that isn’t simply a matter of convenience. The way DCJS regulates effectively constitutes a legal precedent. Since changes to the law were made to the SCOP process around 2004, DCJS apparently has not interfered with private security services businesses providing SCOPs for hire and for profit—despite the Department’s authority and power to do so. Unless there is a change to the law (or new case law) that justifies new policy, the public relies on the Department’s prior decisions and practices.
Only very recently has the Department articulated an opinion that it’s “illegal” for SCOPs to be for hire or for profit. But why? The Department hasn’t provided any data to support its position—as was done in 2003 with the Virginia State Crime Commission Report on “Special Conservators of the Peace and Special Police” for other issues that resulted in substantial changes to the SCOP Code. Additionally, no changes have been made to the SCOP Code by the General Assembly and no recent case law appears to be a motivation. So, the public is left to wonder if recent organizational changes or personal leanings of newer personnel or something unknown might now account for the new direction of DCJS policy in the absence of all these other usual factors. And where the Department appears to be willing to indicate that it has allowed private security businesses to conduct “illegal” practices for the past several years, public confidence and the long-standing work of the DCJS as an institution is potentially undermined.
On the Wording of the Law.
There’s been a lot of mention about what “intentions” were behind the codification of the SCOP process. The underlying assumption appears to be that in order to have an understanding about what the law is you have to know what was intended by those who worked on it. Of course, that is not so.
The law is exactly the plain and ordinary meaning of the words that were enacted by the General Assembly.
Here are two Virginia court cases where that issue was raised and clarified:
[BEGIN CITATION] If the language of a statute is clear and unambiguous, a regulatory interpretation by the Department that is in conflict with the plain language of the statute cannot be sustained. See Carr v. Forst, 249 Va. 66, 71, 453 S.E.2d 274, 276 (1995). General Motors Corporation v. Commonwealth Dept. Of Taxation, 268 Va. 289, 602 S.E.2d 123 (2004).
The Commonwealth also contends our interpretation misses entirely the intent of the statute, which is to impose an enhanced punishment on those who assault law-enforcement officers and thereby deter violence against them. Here again, we do not in the slightest denigrate this perceived legislative purpose. But the "question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406 (1963). When it chooses to do so, the General Assembly includes "law-enforcement agents of the Armed Forces of the United States" and other federal officers within the statutory meaning of "law-enforcement officer." See, e.g., Code 18.2-308(M); Code 18.2-433.1. It simply did not choose to do so in Code 18.2-57(E). Holly Jo South v. Commonwealth, 46 Va. App._ S.E.2d __ (2005). [END CITATION]
No contextual knowledge is required to follow the law. One need not be an attorney (or even to have the advice of an attorney) to follow the law—and, in fact, ignorance of the law is not an excuse if you fail to follow it. Having a better idea of legislative intent may help when there seems to be ambiguity. But even if challenged in a court of law, the plain and ordinary meaning of the words are first given their due, and then if there’s reasonable ambiguity the legislative record may be examined as a persuasive indicator of intent. Even then, it’s not entirely determinative. And, just so there’s no confusion here, reasonable ambiguity cannot be manufactured by people either feigning ignorance or actually so.
So, when the Department claims that private security services business have, for several years now, been “operating illegally” in providing SCOPs for hire (because it was the intent of the SCOP legislation to have SCOPS work only as employees of owners of real property or as employees of some governmental agency), this assertion must be checked against the General Assembly’s enacted language.
The Code of Virginia §19.2-13 (in conjunction with other sections of the Code, such as §9.1-101, §9.1-141, §9.1-150.1, §9.1-150.2, §9.1-150.3, §9.1-150.4, §19.2-12, etc.) establishes and mandates a particular process for the appointment and regulation of the SCOP. And §19.2-13 contains at least three indications that the law anticipates and allows private security businesses offering SCOP services.
First, any Virginia business (as well as any other businesses authorized to do business within the Commonwealth) can seek to have someone appointed as a SCOP:
[BEGIN QUOTE] Upon the application of [1] any sheriff or [2] chief of police, any [3] county, [4] city,[ 5] town or [6] any corporation authorized to do business in the Commonwealth or [7] the owner, proprietor or authorized custodian of any place within the Commonwealth, a circuit court judge of any county or city shall appoint special conservators of the peace…
[Code of Virginia §19.2-13(A) with numbers in brackets added for clarity below.] [END QUOTE]
That’s at least seven different types of entities that can make an application to have a SCOP appointed. It includes certain public officials (1-5), corporations (6), and the “owner,” “proprietor,” or “authorized custodian” of a place (7). Note that there is no language here that indicates that SCOP appointments must be limited to government agencies and owners of real property. Had the intent been to limit SCOPs as suggested by the Department, then the list of public officials and “owner,” “proprietor,” or “authorized custodian of a place” would have been enough.
Second, the Code specifically makes mention of SCOPS not only as an employee but also in conducting a business:
[BEGIN CITATION] Each person registered as or seeking registration as a special conservator of the peace shall be covered by (i) a cash bond, or a surety bond… not to be less than $10,000, conditioned upon the faithful and honest conduct of his business or employment…. [Code of Virginia §19.2-13(C) emphasis added.] [END CITATION]
If the SCOP can only be an employee of a government agency or the owner of real property, then why does the Code contemplate a SCOP’s conduct of “business or employment?” This language by itself shows that the Department’s new interpretation of the SCOP is inconsistent with the law of the Commonwealth.
Third, the Code specifically contemplates circumstances where the SCOP is not an employee:
[BEGIN CITATION] If any such special conservator of the peace is the employee, agent or servant of another, his appointment as special conservator of the peace shall not relieve his employer, principal or master, from civil liability to another arising out of any wrongful action or conduct committed by such special conservator of the peace while within the scope of his employment. [Code of Virginia §19.2-13(E) emphasis added.] [END CITATION]
The law simply doesn’t require SCOPs to be employees and that’s abundantly evident where the Code uses the language “if any such special conservator of the peace is an employee” and there is specific recognition of the SCOP as an “agent” or “servant of another” within the language of the Code itself.
In fairness, no section of Code is meant to be read in a vacuum. And the SCOP process requires a combined view of all the parts of §19.2-13 and even other parts of the Code of Virginia. That can sometimes result in some confusion. But no part of the Code can invalidate another part—and, as such, the Department is left to reconcile its new interpretation (that SCOPs must be employees and cannot be offered as a service for hire or profit) against the Code referring to the SCOP’s conduct of “business” and being an “agent.”
On The 2003 Virginia State Crime Commission Report on “Special Conservators of the Peace and Special Police” Senate Document No. 12 (SD#12).
The Department has suggested several times that SD#12 (2003) is supportive of the policy changes the Department desires to make to the SCOP process and that SD#12 explains how it is that the SCOP process has been abused. But such assertions are entirely inaccurate. The now eight year old SD#12 does not offer any information, rationale, analysis, or authority that bolsters the Department’s current position or that would support more changes to the SCOP process.
First, the report is now largely historical—an assessment of statistical information available on SCOPs (and the now defunct “Special Police”) from around 1999 to 2001. The recommendations that were made in the report were put into place by changes to the Code of Virginia since 2004—presumably to good effect.
Second, the report is otherwise no more than a mini-white paper with a couple of pages of perfunctory substance. (This Open Letter is a treatise in comparison.) The report contains no legal analysis whatsoever and only minimal presentation of the background of SCOPs . No analysis is conducted concerning the issues now being discussed by the Department. No mention is made on better defining government agencies and no mention is made of any legislative intent about how SCOPs are to be employed (or otherwise utilized). The report does contain a recommendation that a model application form for SCOPS be used in the circuit courts, and that model form has since been created and is available on the internet. Its use is encouraged by the courts but apparently not required because both tradition and the rules of civil procedure preclude the court from requiring particular drafting language in a petition to the court. A petitioner and his attorney are generally given the leeway to petition the court using the language they (the attorney) see fit even where the minimum content of the request may be prescribed (as it is for a SCOP petition).
Third, since the data provided in the SD#12 report is now over a decade old and it predates the SCOP law that was established based on its recommendations, none of the data presented is relevant to an examination of current circumstances or trends.
If one removes the outdated material (attachments of the text of the resolution, copies of the Code, and data), then all that’s left is two or three pages of material that is neither substantial nor particularly dispositive of the issues at hand (then or now).
The Department does a disservice to everyone—and itself—when it suggests that SD#12 provides any support or authority for the changes the Department appears to now favor for the SCOP process.
On the Intentions of Having the SCOP
The Department has claimed that the intent of the SCOP Code is exclusively for proprietary organizations to allow their own proprietary security force to have law enforcement powers for specific boundaries of real property. Further, the Department appears to believe that any other SCOP appointments not matching that description have been obtained through a “loophole” that needs to be closed. (Closing that “loop hole” would prevent private security services businesses from offering the services of SCOPs for hire or for profit.) But neither the history of the Conservator of the Peace (and the now defunct Special Police Officer) nor the language of the SCOP Code support the Department’s assertions.
Without getting into the full history behind the Conservator of the Peace (in the Commonwealth or elsewhere in the U.S.), the function has historically included individuals who performed SCOP duties either as employees within a proprietary force or as individuals performing SCOP duties for clients (either with the SCOP as a business or for some other business). And the SCOP Code is entirely supportive of both arrangements where the Code contemplates applications for SCOP Appointments by any corporation authorized to do business in Virginia and by owners, proprietors or authorized custodians of any place. The Code is also supportive of both possibilities where bond or insurance is required conditioned upon the faithful and honest conduct of a SCOP’s “business or employment.” (Other parts of the Code also supportive of each of these approaches and the issue of “geographical boundaries,” “jurisdiction,” and “property” are not discussed here for sake of brevity.)
And again, the Department is trying to close the barn door after the horse is already out. Several years have passed since the most recent SCOP Code was enacted, and businesses regulated by the Department have publically advertised and provided the services of SCOPs for hire and for profit without the Department acting to curtail that activity. Businesses are entitled to rely on the Department’s policy decisions that have been ongoing for nearly a decade—particularly where the Department’s interpretations certainly appeared to be consistent with the Code of Virginia all that time.
On the Issue of liability.
The Department mentioned that because they administer the SCOP process that they might somehow be held liable for the acts or omissions of the SCOPs. Although it’s always possible for a party to file a lawsuit against another party—including DCJS and the Commonwealth—there shouldn’t be much concern on this issue.
First, the Department surely has sovereign immunity from such liability. Although sovereign immunity is not absolute, the administration of a regulatory program imposed by the Commonwealth for purposes of public safety is not likely to present any liability for the Department or the Commonwealth.
Second, like other law enforcement officers, it appears that the SCOP has some limited immunity from liability in the performance of duties related to law enforcement for the public good, and that, in turn, would prevent such liability from being visited upon the Department (again, assuming that the Department didn’t already have the sovereign immunity that it does have).
Third, the Department does not empower SCOPs or manage the activities of SCOPs. Suggesting that DCJS would somehow be liable for the actions of a SCOP is like suggesting that agents of the Department of Alcohol Beverage Control are somehow responsible when bartenders serve customers who are underage. Regulatory bodies are not held liable for the acts or omissions of those they regulate. Again, even if the Department didn’t have sovereign immunity, showing that the policies of the Department were the cause of an act or omission on the part of a SCOP would be quite a feat—and so unlikely as to be a negligible consideration that shouldn’t take up our time.
On Where to Go From Here.
The Conservator of the Peace is an office that has been around for hundreds of years. It is not perfect, but it is also not obsolete. Particularly in these times of economic sluggishness, shrinking federal, state, and municipal budgets, and continued need for widely-inclusive homeland security, the Department should not advocate new interpretations of the law that reverse several years of its own policies, reduce the number of qualified public safety personnel in our communities, and prevent legitimate and responsible private security business within the Commonwealth.
Commendably, DCJS staffers have set up meetings with various constituencies and crisscrossed the Commonwealth to include many voices and viewpoints about how DCJS should be doing business. But the latest approach to the SCOP process contradicts several years of prior DCJS policy and the law itself. Although this Open Letter has focused on just a few points related to the changes that the Department seems inclined to make, other new interpretations of the SCOP process from the Department are problematic as well. And some of the biggest issues (like inadequate training requirements for SCOPs) have not yet been addressed at all.
The Department should “take a step back” from current attempts to implement changes to the SCOP policy (Code or regulations), examine the past several years of DCJS policy that the public has relied upon, and continue to engage members of the industry and other stakeholders in formulating a better SCOP process that addresses the problems and improvements that appear to be a concern.