North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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W. Dale Talbert Correction Section Telephone: (919) 716-6525 Facsimile: (919) 716-6765

October 22, 2001

Theodis Beck, Secretary

N.C. Department of Correction 214 West Jones Street Raleigh, North Carolina 27699-4201

Re: Advisory Opinion -- Private Correctional Facilities and Officers; “An Act to Authorize Certain Private Correctional Officers to Use Force and Make Arrests Consistent With North Carolina Law” (Session Laws 2001, ch. 387)

Dear Secretary Beck:

The Department of Correction is required to implement recently enacted legislation entitled “An Act to Authorize Certain Private Correctional Officers to Use Force and Make Arrests Consistent With North Carolina Law.” Session Laws 2001, ch. 387 (effective August 18, 2001) (hereinafter “Act”). This Advisory Opinion responds to questions you ask about the meaning of certain provisions of the Act.

The Act provides in part:

Correctional officers and security supervisors employed at private correctional facilities . . . may, in the course of their employment . . . , use necessary force and make arrests consistent with the laws applicable to the North Carolina Department of Correction, which force shall not exceed that authorized to Department of Correction officers, provided that the Department of Correction determines that as of the effective date of this act, the employment policies of such private corporations meet the same minimum standards and practices followed by the Department of Correction in employing its correctional personnel . . . .

Session Laws 2001, ch. 387 s. 1.

QUESTION 1. You first ask whether this provision requires a private correctional services provider to embrace: (1) “all statutory rights and requirements imposed upon state government with respect to employees and personnel procedure;” (2) “all requirements of the North Carolina Criminal Justice Education and Training Standards Commission;” (3) “all policies of the Office of State Personnel applicable to the Department of Correction;” and, (4) “all internal policies of the Department of Correction governing personnel matters.”

For the reasons which follow, we conclude the Act requires private correctional services providers to adopt the same or equivalent minimum pre-employment and training standards for its correctional officers and security supervisors as are required for State correctional officers whether those standards are established by the Department of Correction, the North Carolina Criminal Justice Education and Training Commission (CJETSC), the State Personnel Commission, or other authority. We also conclude the Act requires private correctional services providers to establish employment policies incorporating those practices used by the Department of Correction in employing State correctional officers which the Department determines are essential to ensure only persons meeting the minimum pre-employment and training standards are hired as private correctional officers and security supervisors.

The intent of the legislature controls the interpretation of a statute. Housing Authority of Greensboro v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973); Ellis v. N.C. Crime Victims Compensation Comm., 111 N.C. App. 157, 163, 432 S.E.2d 160, 164 (1993). In determining legislative intent, the language of the statute, the spirit of the act, and what it seeks to accomplish should be considered. Stevenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1971). There is no ambiguity or uncertainly in the language under consideration. It clearly reflects the primary goals the General Assembly sought to achieve in enacting the legislation were to ensure private correctional services providers operating in North Carolina employ as correctional officers and security supervisors only persons who: (1) meet or exceed the minimum pre-employment standards for employment as State correctional officers, and (2) timely complete the same or equivalent training as is required of State officers. Therefore, we conclude that to comply with the Act, private correctional services providers must adopt and impose every pre-employment and training standard, or their equivalents, on applicants for its correctional officer and security supervisor positions as the Department of Correction requires of its correctional personnel.

The Act also requires that the employment policies of a private correctional services provider reflect the practices followed by the Department of Correction in employing its own correctional personnel. However, not all the practices followed by the Department of Correction in hiring State correctional officers are appropriate to impose on a private sector employer. Some of the practices required of State agencies by law or regulation exist only to address circumstances unique to the process of recruiting and selecting applicants for State employment. Others are imposed primarily to create consistency among State agencies’ hiring practices and are not essential to ensure employees meet minimum pre-employment or training standards. Neither is compliance with all internal administrative practices of the Department of Correction required to accomplish the goal of hiring only qualified private correctional officers. Some practices are imposed by policy to comply with court orders applicable only to the Department and otherwise would not exist. Others reflect a subjective policy decision to use one of several equally effective methods of selecting qualified applicants for employment. Nevertheless, the language chosen by the General Assembly clearly reflects its intention that the essential elements of the Department’s correctional officer applicant selection practices are to be adopted and utilized by private correction services providers in selecting their correctional officers and security supervisors. Therefore, we conclude that to comply with the Act, private correctional services providers must establish employment policies adopting all hiring practices the Department determines are essential to employing only qualified persons as private correctional officers and supervisors.

QUESTION 2. You also ask the meaning of the Act’s language granting private correctional officers the authority to use necessary force and make arrests “provided that the Department of Correction determines that as of the effective date of this act, the employment policies of such private corporations meet the same minimum standards and practices followed by the Department of Correction in employing its correctional personnel.” Session Laws 2001, ch. 387 s.

1. (emphasis added.)

RESPONSE. We believe this language is ambiguous. It reasonably can be construed to require private correctional services providers meet the minimum standards and practices being followed on the Act’s effective date by the Department of Correction. It also reasonably can be construed to require that on the effective date of the Act a private correctional services provider then have in place employment policies incorporating the Department’s practices.

If the Act was interpreted so as to require a private correctional services provider to be utilizing on the Act’s effective date all standards and practices followed by the Department, the employees of an existing correctional services provider which was not doing so would be forever foreclosed from using force and making arrests as the General Assembly clearly intended to allow. Such an interpretation also would effectively prohibit new private correctional services providers from operating in the State. This would be so even if their employees otherwise fully complied with the individual requirements the Act imposes upon them to become eligible for the legislative grant of authority. This interpretation of the provision would contravene the Act’s central purpose and the General Assembly’s intention.

When a statute is ambiguous it must be construed to accomplish the General Assembly’s intention. See, e.g., State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985). Applying this cardinal rule of statutory interpretation, it is our opinion that the provision of the Act in question must be construed to allow a private correctional services provider to adopt the Department’s minimum employment standards and practices after the Act’s effective date. Having reached this conclusion, the question becomes how does the Department of Correction implement the Act if a provider desires to qualify its incumbent and future employees for the legislative grant of authority but has not, by the Act’s effective date, adopted the required employment policies.

In our opinion, compliance with the Act may be accomplished by a private correctional services provider only by: (1) adopting the employment standards and policies required by the Department of Correction, including minimum pre-employment and training standards, in a timely fashion after the Department adopts rules implementing them, and thereafter applying those standards and policies in hiring its correctional officers and security supervisors; and (2) requiring incumbent employees a provider has hired under non-conforming employment policies, and whom the provider desires to qualify for the legislative grant of authority, to meet the established minimum pre-employment and training standards before they are vested with the powers authorized by the Act.

The first requirement for compliance needs no explanation. The second requirement can be met only by requiring persons currently employed as private correctional officers who do not meet one or more of the minimum pre-employment or training standards to comply with the standard before being empowered to use the legislative grant of authority. Most deficiencies in standards or training likely can be cured. However, there may be situations in which no remedial action can cure a deficiency.

QUESTION 3. In addition to requiring private correctional service providers to adopt certain employment policies, the Act allows private correctional officers and security supervisors to be granted the powers authorized thereunder only if they also are “certified as correctional officers as provided under Chapter 17C of the General Statutes” or “have completed a training curriculum that the Department of Correction has determined meets or exceeds the standards required by the North Carolina Criminal Justice Education and Training Standards Commission for correctional personnel.” Session Laws 2001, ch. 387 s. 1(1) and (2). You ask whether this language imposes upon the Department a responsibility to determine, person by person, whether individual private correctional officers have been certified by the CJETSC as state correctional officers or have completed an approved training curriculum. If so, you ask whether private correctional officers already employed by a private correctional services provider may be exempted from the individual requirements set out in Sections 1(1) and 1(2) of the Act.

RESPONSE. The provisions establishing the two alternate methods by which an individual may be vested with the legislative grant of authority are sub-sections of a preceding main section containing the qualifying language “provided that the Department of Correction determines . . . .” Session Laws 2001, ch. 387 s. 1. Relative and qualifying words, phrases, and clauses like this one ordinarily are applied to the words and phrases in immediate proximity to them. See, e.g. HCA Crossroads Residential Centers v. North Carolina Dept. of Human Resources, 327 N.C. 573, 398 S.E.2d 466 (1990). Applying this rule of statutory construction, we conclude the Act requires the Department to determine whether each private correctional officer and security supervisor is individually qualified in one of the two ways permitted by the Act. Therefore, unless the Department of Correction determines that a private correctional officer or security supervisor has qualified for the legislative grant of authority in one of the two ways allowed by the Act, he or she may not be authorized to use force or make arrests as provided by the Act. And, for the reasons explained earlier, we also conclude this determination must be made for incumbent employees.

QUESTION 4. You also ask, provided all corporate and individual requirements for private correctional officers to use the authority conditionally granted by the Act are met, what is the nature and extent of the power conferred on these persons.

RESPONSE. The Act states:

The authority set forth in this act to use necessary force and make arrests shall be in addition to any existing authority set forth in the statutory or common law of the

State but shall not exceed the authority to use necessary force and make arrests set

out in Section 1 of this act.

Id. sec. 5. (emphasis added). This language makes clear the authority of private correctional officers to use force and make arrests is, except as enlarged by the Act, no greater than what existing statutory and common law allow any other citizen.

It has long been the law in this State that citizens lawfully may use force against another only in defense of self or property. State v. Lee, 258 N.C. 44, 46-47, 127 S.E.2d 774, 776 (1962); State

v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895, 897 (1949). No citizen may arrest another person except when a law enforcement officer requests assistance “in effecting arrests and preventing escapes from custody.” N.C. Gen. Stat. §15A-405. All other citizen initiated arrests are illegal. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954). Although a private citizen may not lawfully arrest another person, he temporarily may detain others under limited, statutorily authorized circumstances using only “reasonable force.” N.C. Gen. Stat. §15A-405. Except as specifically expanded by the Act, the foregoing statutory limitations on a person’s authority to use force against or arrest another are applicable to private correctional officers and security supervisors acting in the course and scope of their employment.

The additional grant of authority found in the Act for private correctional officers to use force and make arrests is limited specifically to “that authorized to Department of Correction officers.” Session Laws 2001, ch. 378 sec. 1. Department of Correction officers “have all the authority of peace officers for the purpose of transferring prisoner from place to place in the state as their duties might require and for apprehending, arresting, and returning to prison escaped prisoners . . . .” N.C. Gen. Stat. §148-4. By application of this statutory provision, a private correction officer only has the authority to arrest a prisoner who the officer has probable cause to believe has escaped or is attempting to escape from custody. He or she may effect no other arrests.

In addition to what has been said about the common law authority to defend one’s self and property, a state correctional officer, and thus a private correctional officer, is statutorily justified in using physical force upon an inmate under the law of this State only when, and to the extent that it is authorized by N.C. Gen. Stat. §15A-401 and §148-46.

The foregoing establish the limits of a private correctional officer’s or security supervisor’s authority to use force and make arrests under the State’s statutory and common law as broadened by the Act. However, it must be emphasized that the authority described herein is limited to actions taken by private correctional officers and security supervisors within the course and scope of their employment and within the territorial boundaries of the State. It does extend to action taken while off the job or outside the State.

QUESTION 5. You also ask what is the minimum amount of liability insurance the Act requires a private correctional services provider to maintain.

RESPONSE. The Act requires a provider to indemnify and hold harmless the State “from any claims arising out of the operation of a private correction facility, or the granting of the powers authorized under this act.” Session Laws 2001, ch. 387 s. 2. To satisfy any indemnification which may be required, a provider must maintain in force liability insurance in the minimum amount of ten million dollars “per occurrence” and twenty-five million dollars “aggregateperoccurrence.” Session Laws 2001, ch. 387 s. 3.

In the context of liability insurance, the term “occurrence” usually is defined specifically in the policy but generally refers to an event or series of events for which an insurer is liable to provide specified limits of coverage. See Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351

N.C.
293, 224 S.E.2d 558 (2000); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315
N.C.
688, 340 S.E.2d 374 (1986). Thus, a limitation of liability “per occurrence” provides the stated maximum coverage for all damage to all persons proximately resulting from each occurrence which creates the liability. However, “aggregate per occurrence” is an equivalent term also referring to a limit on liability coverage for multiple claims arising out of the same incident. See Ohio Casualty Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647 (1990). Thus, the Act appears to be inconsistent because it uses two terms which have the same meaning yet establishes different minimum limits of liability coverage for each. The question then is what did the General Assembly intend when it established both a ten million dollar “per occurrence” and a twenty-five million dollar “aggregate per occurrence” limit on liability.

Legislative intent may be determined, in part, from the Act’s legislative history and the circumstances surrounding its adoption. State ex rel. North Carolina Milk Com. v. National Food Stores, Inc., 270 N.C. 323, 332, 154 S.E.2d 548, 555 (1967); Multimedia Publ'g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 525 S.E.2d 786 (2000). The circumstances surrounding the adoption of the provision in question show the original Senate bill contained only a general requirement that a private correctional services provider “shall certify at least annually to the Department of Correction that it maintains liability insurance of an amount sufficient for a correction facility of its size and security level.” Senate Bill 137, Edition 1, Section 3. Thus, under the original bill, no minimum amounts of liability coverage were specified as being required on either a “per occurrence” or “aggregate per occurrence” basis. Senate Bill 137, Edition 1. The Senate Judiciary II Committee substituted the original bill with its own version which required private correctional services providers to maintain liability insurance in the amount of “ten million dollars ($10,000,000) per occurrence.” Senate Bill 137, Second Edition, Section 3 (emphasis added). The description of the minimum amount of liability insurance required under the Act remained unchanged through the Third Edition of the Bill. However, the House Judiciary II Committee Substitute amended the provision by setting the minimum amount of liability insurance at “ten million dollars ($10,000,000) per occurrence, and twenty-five million dollars ($25,000,000) aggregate per occurrence.” Senate Bill 137, Fourth Edition, Section 3 (emphasis added). The ratified bill approved by the Governor contains this language. Session Laws 2001, ch. 387 s. 3.

In our opinion, the legislative history of the Act establishes the addition of the term “aggregate per occurrence,” with a higher liability limit than required “per occurrence,” was intended to increase from ten million dollars to twenty-five million dollars the minimum amount of liability coverage which must be maintained to pay multiple claims arising out of the same incident. Said differently, we conclude the provision in question requires a private correctional services provider to maintain in force liability insurance in the minimum amount of twenty-five million dollars to compensate all persons for all damage proximately resulting from each occurrence which creates the liability.

QUESTION 6. You ask whether the Act imposes upon the Department of Correction “any legal obligation, authority, or jurisdiction in the event of an escape from the private facility.”

RESPONSE. Nothing in the Act specifically requires the Department of Correction to provide any assistance to a private correctional services provider in searching for or apprehending an escaped inmate. The Act requires a private correctional services provider to immediately notify the county sheriff and the Department of Correction upon the escape of any inmate from its facility. Session Laws 2001, ch. 387 s. 2.1. In turn, the Department is required to cause an entry to be made in the State Bureau of Investigation Division of Criminal Information Network. Id. However, this is the Department’s only statutory responsibility. Under the Act, the sheriff of the county in which the private correctional facility is located is the “lead law enforcement officer in connection with the pursuit and apprehension of an escaped inmate from the facility.” Id. We also note that under State law, the Secretary of the Department of Correction has been empowered only to “. . . recapture . . . any prisoners escaping from or leaving without permission any of the State prisons, camps, or farms.” N.C. Gen. Stat. § 148-41 (emphasis added). On these authorities, we conclude the Act does not impose upon the Department of Correction any legal obligation to provide either personnel or material resources to a private correctional services provider in support of the pursuit or apprehension of an inmate who has escaped from a private correctional facility.

QUESTION 7. Finally, you inquire about the meaning of the Act’s directive that “[t]he Department of Correction shall adopt rules to implement the provisions of this act.” Session Laws 2001, ch. 387 s. 4. (emphasis added). Specifically you ask whether the provision requires the Department to utilize the formal rule making process established in N.C. Gen. Stat. §§ 150B-18 et seq. In construing a statute, it will be presumed the legislature comprehended the import of words employed by it to express its intent. State v. Baker, 229 N.C. 73, 48 S.E.2d 61 (1948). Accordingly, technical terms must be given their technical connotation in the interpretation of a statute. Henry

v. A.C. Lawrence Leather, Co., 234 N.C. 126, 66 S.E.2d 693 (1951). The term “adopt rules” has acquired a technical meaning in the jurisprudence of this State and refers to the formal rule making process required by Chapter 150B. See Barrett v. N.C. Psychology Board, 132 N.C. App. 126, 510 S.E.2d 189 (1999); Whittington v. N.C. Department of Human Resources, 100 N.C. App. 603, 398 S.E.2d 40 (1990). For this reason, we conclude the Department must implement the Act by establishing formal rules pursuant to the provisions of Chapter 150B. Although this may be a timeconsuming process, the law provides for expeditious establishment of temporary rules carrying the legal force and effect of permanent rules. N.C. Gen. Stat. § 150B-21.1.

We trust this Advisory Opinion has been responsive to your inquiries. Should you require further clarification of the responses provided herein or additional guidance concerning the meaning of the Act or the Department of Correction’s responsibilities to implement it, we are available to

provide you counsel and guidance.

cc: LaVee Hamer, General Counsel Department of Correction

Senator Frank W. Ballance, Jr. 523 Legislative Office Building Raleigh, North Carolina 27601

Representative Howard J. Hunter, Jr. 613 Legislative Building Raleigh, North Carolina 27601-1096

Sincerely,

William N. Farrell, Jr. Senior DeputyAttorney General

W. Dale Talbert SpecialDeputyAttorneyGeneral

Buren R. Shields, III Assistant Attorney General