Virginia’s Attorney General, Mark R. Herring, published an advisory opinion concerning private security forces used by community associations (the “Opinion”). These security forces often act as quasi-police departments and help relieve localities by providing routine patrols in private communities. In the Williamsburg area, the local police often defer to HOA security forces for regular patrols, and health and safety checks. When it comes to more serious police action, like issuing traffic tickets and arresting homeowners, the roles and authority of HOA security forces becomes less clear. This blog post discusses the role of private security forces in homeowners’ associations and the Opinion that addresses some of these concerns.

Where do the officers get their authority?

In Virginia, the officers who serve on HOA and other private security forces are individually appointed by the local circuit court as special conservators of the peace (“SCOP”). In order to qualify as a SCOP, a person must meet all of the prerequisites and complete all requirements of the Department of Criminal Justice Services (“DCJS”). Because individuals obtain these appointments, as opposed to security forces as a whole, DCJS contains a by-name list of all individual SCOPS that currently hold an active appointment. Individual appointment orders can also be found at the locality’s circuit court.

What did the Opinion say?

In response to a query as to what extent could property owner associations regulate traffic on privately owned streets,  the Opinion stated that a homeowner association’s private security officers can only compel a driver to stop if the officer is licensed by the DCJS and has been appointed as a  SCOP. HOAs can still keep privately owned streets safe by requesting local law enforcement to enforce traffic laws or have the private roads designated as “highways” for the purpose of law enforcement. The Opinion also clarified that private patrol vehicles cannot use flashing blue lights, which are reserved for law enforcement, or green lights, which are reserved for vehicles at the scene of emergency incidents. Patrol vehicles may use amber lights if the operator is a licensed private security business or an approved neighborhood watch group.

Is the Opinion binding on Virginia courts?

Although Virginia law permits the Attorney General to issue these types of opinions, Virginia’s courts do not have to abide by them. Virginia Code § 2.2-505 requires the Attorney General to give his advice and render official advisory opinions in writing only when requested in writing so to do by one of the following: the Governor; a member of the General Assembly; a judge of a court of record or a judge of a court not of record; the State Corporation Commission; an attorney for the Commonwealth; a county, city or town attorney in those localities in which such office has been created; a clerk of a court of record; a city or county sheriff; a city or county treasurer or similar officer; a commissioner of the revenue or similar officer; a chairman or secretary of an electoral board; or the head of a state department, division, bureau, institution or board.

What does this mean for me and my association?

With that backdrop, the impact of the Opinion probably will not be significant. Larger HOAs that use private security forces have taken the necessary steps to ensure the officers on their security forces that will be performing police duties are properly licensed by the DCJS and designated as special conservators of the peace, pursuant to Virginia Code § 19.2-13. However, the HOAs and their security forces may have to revisit the issue regarding the propriety of “blue” vs. “amber” flashing lights!

Homeowner association boards should work closely with their experienced HOA attorney to review any private security measures and to ensure that your association board of directors follows the law correctly.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

This blog post was co-written by Meaghan Griffith, currently a third-year law student at the William & Mary Law School. Thanks Meaghan!

For additional viewpoints, read this Virginia Lawyers Weekly article.

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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