June 8, 1994
Ms. Carolyn Crouch Staff Attorney Catawba County 100-A South West Boulevard
P.O. Box 389 Newton, North Carolina 28658-0389
Re: Advisory Opinion: Status of Communicators and Jailors Employed by the Catawba County Sheriff’s Office as "Law Enforcement Officers" in the North Carolina Local Governmental Employees’ Retirement System and in the Supplemental Retirement Income of North Carolina (the State 401(k) Plan). G.S. 128-21(11b); G.S. 143-166.50(a)(3).
Dear Ms. Crouch:
We are in receipt of your June 2, 1994, letter concerning the participation of communicators and jailors employed by the Catawba County Sheriff’s Office as "law enforcement officers" in the Supplemental Retirement Income of North Carolina (the State 401(k) Plan) and the North Carolina Local Governmental Employees’ Retirement System, and are writing in response to that letter. We are also in receipt of a June 2, 1994, letter from Janith J. Huffman, Personnel Director for Catawba County, to which we are responding by copy of this letter.
In January of 1992, Sheriff Huffman of Catawba County contacted the Sheriff’s Standards Section of this Office seeking an opinion as to whether certain of his employees should be considered "law enforcement officers" within the meaning of the retirement statutes. On January 10, 1992, Mr. Peters wrote to Sheriff Huffman indicating his understanding that Sheriff Huffman would be sending job descriptions of the relevant jobs; Mr. Peters also indicated the Retirement Systems Division’s willingness and his willingness to provide Sheriff Huffman with the requested opinion. A copy of this letter is enclosed for your convenience. By letter of January 21, 1994, Coleen J. Rhodes, Personnel Services Supervisor of Catawba County, forwarded to the Retirement Systems Division 25 position descriptions for communicators and jailors in the Sheriff’s Department. Ms. Rhodes stated in that letter that "it is our understanding that the Attorney General’s recent opinion is that jailors and radio telecommunicators are considered custodial and not eligible for LEO/401k retirement benefits." Ms. Rhodes asked for an opinion on whether "these job descriptions . . . are eligible to continue under LEO and to receive the 401k contribution." The Retirement Systems Division asked that Mr. Peters, as its counsel, review the job descriptions submitted. Mr. Peters provided his response to that request by his letter of April 22, 1994.
In your letter, you take exception to the determination contained in Mr. Peters’ April 22 letter by stating that every affected employee is a certified sworn law enforcement officer. Ms. Huffman makes a similar point in her letter. As is made clear in both G.S. 143-166.50(a)(3) and G.S. 12821(11b), however, simply being a sworn law enforcement officer is not sufficient to meet the statutory definition of a "law enforcement officer." In order to meet that definition, an employee must also be "serving in a position with assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process." G.S. 143-166.50(a)(3); G.S. 128-21(11b). Please note that these statutes do not state that the test is met if the employee occasionally performs these duties or is certified or authorized to perform these duties. Rather, the statutes require that the position occupied by the employee must have these duties assigned as primary functions of the position. In other words, the majority of the sworn employee’s work time must be spent in the prevention or detection of crime, the general enforcement of the criminal laws, or the serving of civil process.
In this connection, you also take issue with Mr. Peters’ assessment of the duties of these positions based only on the job descriptions and without any knowledge of the actual tasks performed by the employees. You also state that you will provide all necessary documents to show that these employees meet the statutory requirements. Catawba County is, of course, free and welcome to provide any relevant information to the Retirement Systems Division. We must note, however, that the determination that these employees do not meet the statutory definition of law enforcement officers was based upon position descriptions supplied by the Personnel Services Supervisor of Catawba County in support of her request for an opinion on the status of these employees. Each of these job descriptions appears to have been completed by the employees occupying the positions in the latter part of 1993; they also appear to have been approved by the appropriate supervisors and by Sheriff Huffman as accurate reflections of the duties and responsibilities of the positions.
Under these circumstances, it hardly seems unreasonable to assume that if these positions had assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process, then these recently completed and approved position descriptions would give some indication of that fact. Likewise, it hardly seems unreasonable to have relied on these position descriptions in reviewing this matter, because the position descriptions were supplied by Catawba County for that very purpose.
The recommendation made in the April 22 is quite consistent with long-standing interpretations of this statute. Both the Retirement Systems Division and its counsel in this Office have consistently determined that positions that only require the usual duties of jailors and communicators or dispatchers do not meet the statutory definition of law enforcement officers. We are enclosing for your information five letters on this subject as follows:
- a.
- letter dated February 23, 1990, from Norma S. Harrell, Assistant Attorney General, to Dennis Ducker, Director of the Retirement Systems Division;
- b.
- Letter dated December 6, 1988, from Norma S. Harrell to E. T. Barnes, Director of the Retirement Systems Division;
- c.
- Letter dated March 25, 1988, from Dennis Ducker to Sheriff George Garner of Duplin County;
- d.
- Letter dated October 12, 1987, from Norma S. Harrell to Sheriff Preston Oldham of Forsyth County;
- e.
- Letter dated August 31, 1987, from Norma S. Harrell to the Sheriff George Garner of Duplin County.
Each of these letters contains the opinion that while being a sworn officer with power of arrest is required to meet the statutory definition of "law enforcement officer," it is not all that is required. An employee must also be "serving in a position with assigned primary duties and responsibilities for the prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil process."
We are also enclosing a copy of a January 30, 1992, memorandum from the North Carolina Association of County Commissioners to all county managers. This memorandum, of course, was generated without the request, direction, supervision, approval, or review of the Retirement Systems Division or the State 401(k) Plan. It does, however, clearly and correctly state the requirements for meeting the statutory definition of law enforcement officer.
The statutory definition has for many years also been clearly stated at the beginning of the handbook Your Retirement Benefits – For Local Law Enforcement Officers, promulgated by the Retirement Systems Division on a regular basis for distribution to Retirement System members.
Given the statutory definition of law enforcement officer, neither the Retirement Systems Division nor the State 401(k) Plan makes blanket determinations as to whether employees in certain jobs, such as jailors, dispatchers, or bailiffs, may or may not be considered law enforcement officers within the meaning of the retirement statutes. While generalizations can be made about such positions, the duties actually assigned to them can vary greatly. Accordingly, the Retirement Systems Division and the State 401(k) Plan must rely on employers to make determinations, subject to review by the Retirement Systems Division and the State 401(k) Plan, of the status of their employees. No "litmus test" has been set forth for making such determinations because the statutory definitions themselves are clear and unambiguous.
Nothing that has been provided to the Retirement Systems Division would indicate that the employees in question meet the statutory definition of law enforcement officers. Accordingly, these employees are not entitled to participate in the Local Governmental Employees’ Retirement System or the State 401(k) Plan as law enforcement officers, and contributions made to the State 401(k) Plan on their behalf by Catawba County were made improperly. Unless and until some evidence to the contrary is provided, or until you can provide us with some other legal basis for your argument, the State 401(k) Plan has no alternative but to prohibit any withdrawals from or loans against the accounts in question until proper adjustments can be made.
Finally, you suggest in your letter that we should advise our client not to rely on the April 22 letter because it is only an advisory letter. Pursuant to the Policies and Procedures Manual of the Attorney General’s Office, formal opinions and advisory opinions are provided to State of local governmental officials or their attorneys upon written request for such opinions and only when the questions involved have statewide interest, involve many state agencies, or involve legal issues significant to the operation or administration of State or local governments. Specific review processes are provided for both formal and advisory opinions. Inquiries from State or local government officials regarding routine legal matters are answered with an advisory letter. No specific review process is required for advisory letters, except that Section Heads must assure that all advisory letters are clear and accurate. In no way does this distinction detract from the fact that advisory letters constitute advice to State officials from their counsel in this Office. We will not advise our client to disregard our opinion as its counsel, especially when that opinion is consistent with the long-standing interpretation of the statutes in question. However, the opinion expressed in the April 22 letter has since been reviewed and approved as required for an advisory opinion and now constitutes the opinion of the Attorney General.
Briefly summarized, it is our opinion that, based upon all of the information suppled to us by Catawba County, the employees in question do not meet the statutory definition of "law enforcement officers."
Ann Reed Senior Deputy Attorney General
Alexander McC. Peters
Assistant Attorney General