S T A T E   O F   T E N N E S S E EOFFICE OF THEATTORNEY GENERALPO BOX 20207NASHVILLE, TENNESSEE 37202February 25, 2003Opinion No. 03-022Licensure Requirements and Powers of Private Security Officers Who Work for a Security CompanyContracting With Federal, State or Local Governments.QUESTIONS1.

Is a private

who is employed by a contract security company, paid bythe company, and under the direct supervision of the company, but who is providing services tofulfill a contract between the company and the local, state, or federal government for the provisionof security services, exempt from the licensing requirements of Tennessee Code Title 62, Chapter35?  2. Is it legal for a Tennessee licensed security officer to direct traffic in the public streetsif he uses the proper safety devices? OPINIONS1. No.  Private security officers who are employed by a contract security company arenot exempt from Title 62, Chapter 35, even if they are assigned by the contract security company toprovide services for the local, state, or federal government.2. No.

 The Private Protective Services Licensing and Regulatory Act authorizeslicensed security officers to direct traffic on private property, but not in the public streets.  In otherparts of the Code, “police officers” are identified as the persons who can enforce the traffic laws andwhose orders must be obeyed.  The various statutes considered in toto make it clear that privatesecurity officers, regardless of what they may be called, are not police officers with power to enforcethe traffic laws and direct traffic on public streets.ANALYSIS(1)This request consists of two questions regarding private security officers or “security guards.”Title 62, Chapter 35 of the Tennessee Code, the Private Protective Services Licensing andRegulatory Act, specifies the licensing and registration requirements for private security companiesPage 2The “commissioner” in this statute and all other parts of the Act is the Commissioner of Commerce and1Insurance.and private security guards.

 Tenn. Code Ann. § 62-35-104 provides “[e]xcept as otherwise providedin this chapter, it is unlawful for any person to act as a contract security company without having firstobtained a license from the commissioner.”  Tenn. Code Ann. § 62-35-115(a) provides “[e]xcept1as otherwise provided in this chapter, it is unlawful for any individual to act as an armed or unarmedsecurity guard/officer without having first obtained the appropriate registration card from thecommissioner.”

 However, the Act declares that “the provisions of this chapter do not apply to . . .[a] government officer or employee performing official duties . . . .” Tenn. Code Ann. § 62-35-103(a)(1).  Thus, to answer the first question, it must be determined whether the contemplated securityofficers are government officers or employees.  The question as submitted states that the securityofficers are ones who are “working for a contract security company, paid by the contract securitycompany, and . . . under the supervision of the contract security company and who [are] not paid bythe local government, state government or federal government [that] has contracted the . . . securitywork . . .”  Based upon the description of the security officers as persons “working for” private security companies.

This Office assumes that they are employees of private security companies and notemployees of the local, state, or federal government. Yet, it is instructive to consider the commonlaw analysis used to distinguish between employees and independent contractors. As previouslynoted by this Office, Tennessee case law utilizes the common law definition of employee in a varietyof contexts, including liability for employment taxes.   See Op. Tenn. Atty. Gen. 99-186 (Sept. 17,1999).  Under the common law analysis, the trier of fact considers several different factors  indetermining an independent contractor, as opposed to employer-employee, relationship.  BeareCompany v. State of Tennessee, 814 S.W.2d 715, 718 (Tenn. 1991).  

These factors include the rightto control the conduct of the work, the right of termination, the sources and means of payment, thefreedom to select and hire helpers, the furnishing of tools and equipment, the self-scheduling ofhours, and freedom to offer services to other persons or entities.  Id.   The Tennessee legislature has emphasized the source of payment in its definition of  “stateemployee” in Tenn. Code Ann. § 8-42-101(3)(A): Any person who is a state official, including members of the general assembly, orany person who is employed in the service of and whose compensation is payable bythe state, or any person who is employed by the state whose compensation is paid inwhole or in part from federal funds, but does not include any person employed on acontractual or percentage basis.  

Under the common law, however,  the issue of who pays an employee is not conclusive, and theTennessee courts appear to put greater emphasis on who has the right of control over the employee’swork.  See Youngblood v. Wall, 815 S.W.2d 512 (Tenn. Ct. App. 1991), perm. app. denied (Tenn.1991).  Under the facts presented, these security officers are under the supervision of the contractsecurity company, are paid by that company, and thus are clearly its employees.  Thus, based uponthe facts presented, these security officers are not employees of any government or governmentagency.  Consequently, they are not exempted by Tenn. Code Ann. § 62-35-103(a)(1).  

This analysisdoes not change merely because the security officer is assigned by his employer to work on thepremises of a government agency, or otherwise to help fulfill a contract for services between a local,state, or federal agency and a contract security company.  The law focuses on the security officer’semployment relationship, not on the location of a work assignment.In Sitton v. Fulton, 566 S.W.2d 887, 889 (Tenn. App. 1978), citing 67 C.J.S. Officers § 2,the Tennessee Court of Appeals defined a “public officer” as “an incumbent of a public office; anindividual who has been appointed or elected in a manner prescribed by law, who has a designationor title given him by law, and who exercises the functions concerning the public assigned to him bylaw.”  

Thus, the security officers that are the topic of this opinion request  are not “officers” of anygovernment, just as they are not employees of any government, since they  are neither appointed norelected to their positions pursuant to an applicable law.  Accordingly, they are not exempt fromlicensure as government officers.(2)  This request also inquires whether a private security officer may direct traffic in the publicstreets so long as he uses the proper equipment.  There are several relevant statutory definitions thataid in answering this question.  A security guard or security officer is a person employed by acontract security company who performs any of the functions of  a “security guard and patrolservice.”  Tenn. Code Ann. § 62-35-102(15).  

This term is further defined in Tenn. Code Ann. § 62-35-102:  (16)  “Security guard and patrol service” means protection ofpersons and/or property from criminal activities, including, but notlimited to:(A) Prevention and/or detection of intrusion, unauthorizedentry, larceny, vandalism, abuse, fire or trespass on private property;(B) Prevention, observation or detection of any unauthorizedactivity on private property;(C) Enforce rules, regulations or local or state laws on privateproperty;Page 4(D) Control, regulation or direction of the flow or movementsof the public, whether by vehicle or otherwise on private property; or(E) Street patrol service . . . .

All of these activities take place on private property with the exception of street patrol service,which is defined in Tenn. Code Ann. § 62-35-102(17) as  the utilization of foot patrols, motor patrols, or any other means oftransportation in public areas or on public thorough fares in order toserve multiple customers or facilities.  “Street patrol service” does notapply to:(A) A management supervisor moving from one (1) customeror facility to another to inspect personnel; or(B)  A security guard/officer traveling from one (1) facility toanother to serve the same customer with multiple facilities.“

Street patrol service” obviously contemplates the use of the public streets for transportation andcourier service, not for directing traffic. Thus, the legislature has included the directing of traffic onprivate property in the description of a security officer’s activities, but has not authorized securityofficers to direct traffic on public streets.  Pursuant to Tenn. Code Ann. § 55-8-104, “[n]o person shall willfully fail or refuse to complywith any lawful order or direction of any police officer invested by law with authority to direct,control or regulate traffic.”  A police officer is “every officer authorized to direct or regulate trafficor to make arrests for violations of traffic regulations.”  

Tenn. Code Ann. § 55-8-101(42).  Privatesecurity officers are not authorized to direct traffic in the public streets by the Private ProtectiveServices Licensing and Regulatory Act or any other law known to this office.This office is mindful of the legislature’s attempts to eliminate any confusion the publicmight have as to whether or not a person is a police officer.  Security officers are prohibited fromwearing or displaying any badges or insignia that would indicate they are a police officer or thatcontain the words “police,” “law enforcement officer,” or similar terms.  Tenn. Code Ann. § 62-35-127.  

Additionally, security officers are prohibited from wearing “military or police-style uniforms”unless steps are taken to distinguish the uniform.  Tenn. Code Ann. § 62-35-128.  A police officerand private security officer operate in different realms.  The right and obligation to direct traffic isone that is given to police officers.  Private security officers can not add to their list of activities apower not granted to them by the legislature.The directing of traffic on Tennessee’s public streets and roads is the duty and prerogativeof  police officers who have been invested with that power by law.  Private security officers may onlyPage 5direct traffic on private streets and private property.  PAUL G.  SUMMERSAttorney General and ReporterMICHAEL