TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
CRIMINAL JUSTICE SERVICES BOARD
Fast-Track Regulation
Title of Regulation: 6VAC20-70. Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections (repealing 6VAC20-70-10 through 6VAC20-70-130).
Statutory Authority: § 9.1-102 of the Code of Virginia.
Public Hearing Information: No public hearing is currently scheduled.
Public Comment Deadline: February 14, 2024.
Effective Date: March 1, 2024.
Agency Contact: Kristi Shalton, Law-Enforcement Program Coordinator, Department of Criminal Justice Services, 1100 Bank Street, Richmond, VA 23219, telephone (804) 786-7801, FAX (804) 786-0410, or email kristi.shalton@dcjs.virginia.gov.
Basis: Section 9.1-102 of the Code of Virginia provides the Department of Criminal Justice Services, under the direction of the Criminal Justice Services Board, duties and powers, including the authority to promulgate regulations; however, none of that authority is applicable to Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections (6VAC20-70).
Purpose: The purpose of this regulatory change and the repeal of 6VAC20-70 is to eliminate confusion and unnecessary regulations. DCJS and the Office of the Attorney General concur that DCJS does not have the statutory authority to regulate the compulsory minimum training standards for noncustodial employees with the Department of Corrections. The repeal of this regulation in its entirety provides better clarity for the Department of Corrections (DOC) and to members of the public who may inquire as to the role of DCJS and its regulatory responsibilities. The repeal of the regulation will have no impact on the health, safety, or welfare of citizens.
Rationale for Using Fast-Track Rulemaking Process: The repeal of 6VAC20-70 is expected to be noncontroversial because all parties involved, including DOC, are in favor of this regulatory change.
Substance: The action repeals 6VAC20-70 in its entirety.
Issues: The primary advantage of the repeal of 6VAC20-70 to DCJS, the public, and DOC is better clarity in the roles and responsibilities of those agencies. There are no known disadvantages of the repeal to the public, DCJS, DOC, or the Commonwealth.
Department of Planning and Budget's Economic Impact Analysis: Summary of the Proposed Amendments to Regulation. The Criminal Justice Services Board proposes to repeal Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections (6VAC20-70).
Background. According to the Department of Criminal Justice Services (DCJS), these regulations have been in place since 1987. However, both the Attorney General's Office and DCJS currently believe the agency does not have statutory authority for the regulation. Thus, the board proposes the repeal.
As the title of the regulation indicates, the regulation contains the compulsory minimum training standards for noncustodial employees of the Department of Corrections (DOC). Noncustodial employees are DOC employees who are not correctional officers, but nevertheless are required by the DOC Director to carry a weapon. Examples of noncustodial employees would include the DOC director, chief of correctional operations, deputy director, wardens, and regional administrators.1 The compulsory minimum training standards for noncustodial employees consist of: (i) firearms training and evaluation, (ii) training on corrections and related law, and (iii) training on legal responsibility and authority of employees.2
Estimated Benefits and Costs. Section 53.1-29 of the Code of Virginia,3 allows noncustodial employees who complete the basic course in firearms for correctional officers "to carry and use sufficient weapons to prevent escapes, suppress rebellion, and defend or protect himself or others in the course of his assigned duties."4 This statute applies regardless of whether or not the regulation is repealed. Moreover, DOC reports that the agency plans to continue to use internal training to meet or exceed all requirements currently found in the compulsory minimum training standards, including the non-firearms training, and would not change any of their training if the regulation is repealed. To the extent that noncustodial employees continue to be required to receive training that is at or above the current standards, the proposed repeal of the regulation does not appear to have substantive impact on training of noncustodial employees.
In repealing the regulation, however, there would be less transparency for the public to be knowledgeable about the training of noncustodial employees. Although the firearms training required by § 53.1-29 is available online,5 DOC reports that the internal training they require of noncustodial officers is not publicly available. In addition, by repealing the regulation there would be less opportunity for public participation in determining the training requirements. The Administrative Process Act requires public notice of proposed changes to regulations and the opportunity for public comment; these requirements would not apply to internal training. Similarly, the Executive Order on Rulemaking6 requires all regulations to be reviewed every four years, a process that would not be applicable to internal training. Thus, to the extent that the board's review of the training undertaken by DOC has been beneficial, the repeal of the regulation would diminish the external oversight of the training taken by noncustodial officers.
Businesses and Other Entities Affected. The regulation affects the Department of Corrections.
Small Businesses7 Affected. The proposal does not appear to adversely affect small businesses.
Localities8 Affected.9 The proposed repeal of the regulation does not disproportionately affect particular localities or affect costs for localities.
Projected Impact on Employment. The proposed repeal of the regulation does not appear to affect total employment.
Effects on the Use and Value of Private Property. The proposed repeal of the regulation does not appear to affect the use and value of private property or real estate development costs.
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1 Source: DOC
2 See https://law.lis.virginia.gov/admincode/title6/agency20/chapter70/section20/
3 See https://law.lis.virginia.gov/vacode/53.1-29/
4 See the following for correctional officers' firearms training: https://law.lis.virginia.gov/admincode/title6/agency20/chapter30/section80/
5 See https://www.dcjs.virginia.gov/law-enforcement/manual/standards-performance-outcomes/basic-corrections-officer/basic-corrections-officer-firearms-training
6 See https://townhall.virginia.gov/EO-14.pdf
7 Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."
8 "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.
9 Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Department of Corrections, which currently employs 32 noncustodial officers, is in agreement with the Department of Criminal Justice Services (DCJS) and the Office of the Attorney General that DCJS does not have statutory authority to establish training standards for these individuals. As stated in the Department of Planning and Budget's Economic Impact Analysis, the Department of Criminal Justice Services concurs that this action to repeal Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections (6VAC20-70) in its entirety does not adversely affect small businesses. Similarly, the proposed repeal does not disproportionately affect localities or affect costs for localities and does not affect total employment or the use or value of private property or real estate development costs. The regulation only pertains to a very small population within the Department of Corrections.
Summary:
This action repeals in entirety Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections (6VAC20-70), which, upon review by the Office of the Attorney General and in concurrence with the Department of Criminal Justice Services (DCJS), DCJS does not have the statutory authority under § 9.1-102 of the Code of Virginia to regulate.
Chapter 70
Rules Relating to Compulsory Minimum Training Standards for Noncustodial Employees of the Department of Corrections
6VAC20-70-10. Definitions.
The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise.
"Approved training school" means a training school which provides instruction of at least the minimum training standards as mandated by the board and has been approved by the department for the specific purpose of training criminal justice personnel.
"Board" means the Criminal Justice Services Board.
"Department" means the Department of Criminal Justice Services.
"Director" means the chief administrative officer of the department.
"Noncustodial employee" includes those employees specifically designated by the director of the Department of Corrections who, by their appointment, must carry a weapon.
"School director" means the chief administrative officer of an approved training school.
6VAC20-70-20. Compulsory minimum training standards for noncustodial employees.
Pursuant to the provisions of §§ 18.2-308 (5), 19.2-81.2, 9-170 and 53.1-29 of the Code of Virginia, the board establishes the following as the compulsory minimum training standards for noncustodial employees of the Department of Corrections:
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Hours
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1. General
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1
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a. Orientation
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b. Evaluation
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2. Skills
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4
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a. Firearms (Four hours classroom plus range firing)
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3. Legal Matters
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3
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a. Corrections and Related Law
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1
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b. Legal Responsibility and Authority of Employees
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2
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TOTAL
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8 plus range
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6VAC20-70-30. Applicability.
Every person employed in a noncustodial position who by appointment to that position has been designated by the Director of the Department of Corrections to carry a weapon must meet the compulsory minimum training standards herein established.
6VAC20-70-40. Time required for completion of training.
A. Every noncustodial employee, so designated, shall not carry a weapon until the compulsory minimum training standards as set forth in 6VAC20-70-20 have been satisfactorily completed.
B. Every noncustodial employee, so designated, shall satisfactorily complete the compulsory minimum training standards for noncustodial employees within 120 days of assuming a position which is designated as a noncustodial position.
6VAC20-70-50. How compulsory minimum training standards may be attained.
A. The compulsory minimum training standards shall be attained by attending and satisfactorily completing an approved training school.
B. Noncustodial employees attending an approved training school are required to attend all classes and should not be placed on duty or on call except in cases of emergency.
6VAC20-70-60. Approved training schools.
A. Noncustodial employees training schools must be approved by the department prior to the first scheduled class. Approval is requested by making application to the director on forms provided by the department. The director may approve those schools which on the basis of curricula, instructors, facilities, and examinations, provide the required minimum training. One application for all mandated training shall be submitted prior to the beginning of each fiscal year. A curriculum listing the subject matter, instructors, dates and times for the entire proposed training session shall be submitted to the department 30 days prior to the beginning of each proposed session. An exemption to the 30 day requirement may be waived for good cause shown by the school director.
B. Each school director will be required to maintain a current file of all current lesson plans and supporting material for each subject contained in the compulsory minimum training standards.
C. Schools which are approved will be subject to inspection and review by the director or staff, or both.
D. The department may suspend the approval of an approved training school upon written notice, which shall contain the reason(s) upon which the suspension is based, to the school's director. The school's director may request a hearing before the director or his designee. The request shall be in writing and must be received by the department within 15 days of the date of the notice of suspension. The school's director may appeal the decision of the director or his designee to the board. Such request shall be in writing and must be received by the board within 15 days of the date of the decision of the director or his designee.
E. The department may revoke the approval of an approved training school upon written notice, which shall contain the reason(s) upon which the revocation is based, to the school's director. The school's director may request a hearing before the director or his designee. The request shall be in writing and must be received by the department within 15 days of the date of the notice of revocation. The school's director may appeal the decision of the director or his designee to the board. Such request shall be in writing and must be received by the board within 15 days of the date of the decision of the director or his designee.
6VAC20-70-70. Grading.
A. All written examinations shall include a minimum of two questions for each hour of mandatory instruction. This requirement likewise includes the classroom instruction on performance-oriented subject matter.
B. All noncustodial employees shall attain a minimum grade of 70% in each grading category to satisfactorily complete the compulsory minimum training standards. Any noncustodial employee who fails to attain the minimum 70% in any grading category will be required to take all subjects comprising that grading category in a subsequent approved training school. A noncustodial employee may be tested and retested as may be necessary within the time limits of 6VAC20-70-40 and each academy's written policy. A noncustodial employee shall not be certified as having complied with the compulsory minimum training standards unless all applicable requirements have been met.
C. Approved noncustodial employee training schools shall maintain accurate records of all tests, grades and testing procedures. Academy training records must be maintained in accordance with the provisions of these rules and §§ 42.1-76 through 42.1-91 of the Code of Virginia.
6VAC20-70-80. Firearms.
The following firearms training will be applicable to noncustodial employees of the Department of Corrections who have been designated to carry a weapon:
1. Classroom - Service handgun, shotgun and special weapons (four hours).
a. Nonmenclature and Care of Weapons
b. Safety
c. Legal Aspects of Firearms Use
d. Principles of Shooting
e. Special Weapons (as utilized by the Department of Corrections) - Familiarization, no firing
2. Range.
a. Service Handgun.
(1) combat course (double action)
60 rounds
Silhouette Target
Qualification - 70% (5 points per hit on silhouette)
(Minimum 210 points out of a possible 300 points)
(2) Course.
7 yards - two handed crouch - 6 rounds (one on whistle)
7 yards - two handed crouch - 6 rounds (two on whistle)
7 yards - two handed crouch - 12 rounds (30 seconds from whistle)
15 yards - two handed point shoulder - 6 rounds (one on whistle)
15 yards - two handed point shoulder - 6 rounds - (two on whistle)
15 yards - two handed point shoulder - 12 rounds (30 seconds from whistle)
25 yards - two handed point shoulder - 6 rounds (10 seconds/right hand)
25 yards - two handed point shoulder - 6 rounds (10 seconds/left hand)
b. Shotgun
10 rounds
Bobber Target
No. 4 Buck
Qualification - 80% (10 points per hit on bobber target)
25 yards - shoulder position - 10 rounds
6VAC20-70-90. Recertification.
A. All noncustodial employees shall recertify every other calendar year by satisfactorily completing the firearms training set forth in 6VAC20-70-80. The specific time frame for compliance by currently certified noncustodial employees is enumerated in subsections C and D. Any noncustodial employee who does not comply as set forth below in subsections C and D shall be subject to the provisions of § 9-181 of the Code of Virginia.
B. All noncustodial employees shall be required to qualify annually with service handgun and shotgun in accordance with 6VAC20-70-80.
C. All noncustodial employees whose recertification due date is in 1987 shall comply with the recertification requirements by December 31, 1987, and thereafter by December 31 of every other calendar year.
D. All noncustodial employees whose recertification due date is in 1988 shall comply with the recertification requirements by December 31, 1988, and thereafter by December 31 of every other calendar year.
6VAC20-70-100. Failure to comply with rules and regulations.
A. Noncustodial employees attending an approved training school shall comply with the rules and regulations promulgated by the department and any other rules and regulations within the authority of the school director. The director of the school shall be responsible for enforcement of all rules and regulations established to govern the conduct of attendees. If the school director considers a violation of the rules and regulations detrimental to the welfare of the school, the school director may expel the noncustodial employee from the school. Consistent with Department of Corrections' policy, notification of such action shall immediately be reported in writing to the supervisor of the individual expelled and the appropriate Department of Corrections Division Director.
6VAC20-70-110. Administrative requirements.
A. Reports will be required from the school director on forms approved by the department and at such times as designated by the director.
B. The school director shall, within 30 days upon completion of an approved training school, comply with the following:
1. Submit to the department a roster containing the names of those noncustodial employees who have satisfactorily completed all training requirements and, if applicable, a revised curriculum for the training session.
C. The school director shall furnish each instructor with a complete set of course resumes and objectives for the assigned subject matter.
6VAC20-70-120. Effective date.
These rules shall be effective on and after July 1, 1987, and until amended or repealed.
6VAC20-70-130. Adopted: October 12, 1979.
Amended: April 1, 1987.
FORMS (6VAC20-70)(Repealed)
Criminal Justice Training Roster, Form 41, eff. 1/93.
VA.R. Doc. No. R24-6814; Filed December 18, 2023