Request By:
Mr. Don R. McCormick, Commissioner
Department of Fish and Wildlife Resources
Arnold L. Mitchell Building
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an opinion from this Office on the legality of two policies that the Department of Fish and Wildlife Resources proposes to institute for Conservation Officers. Taking the policies in reverse order, first, you propose that every conservation officer shall maintain a primary residence within the boundaries of his county of assignment. You point out that the home residence is the official work station for field employees. Each officer serves a specific county, and shall be available for emergencies, by telephone, or in person. In many cases, you added, local telephone service exists only within a particular county, which can affect the availability of the officer. Therefore, you consider the matter of residency to be of paramount importance. Second, you propose that every officer shall have a working telephone, in his name, at his expense, to handle official calls while on duty at his residence.
The questions that you present encompass two separate issues: to what extent does the Department have the responsibility and authority to set work stations for Conservation Officers, or, alternatively, to impose residency requirements and to impose requirements that Conservation Officers who work out of their homes purchase telephone service to be available for use while on duty.
In answer to your first question, it is the Opinion of this Office that the Department of Fish and Wildlife Resources has the authority, under personnel regulations, to set the work station for Conservation Officers at a location convenient to the agency, in the county of assignment. Under that authority, the Department also has the right to set the terms necessary for selection of a work station. The Department of Fish and Wildlife Resources does not have the authority to impose a residency requirement on Conservation Officers. Nevertheless, the appointing authority may enter into an agreement with employees that is mutually satisfactory, such as allowing employees to work out of their homes in exchange for agreeing to live in the county of assignment.
In answer to your second question, it is also the opinion of this Office that the appointing authority, in setting the terms necessary for selection of a work station, may require that Conservation Officers who are on duty at home, be available, by telephone, when not out in the field making site visits. Except in the context of setting the terms under which an officer's home may be his workplace, the Department does not have the authority directly to impose a requirement that every officer shall have a working telephone, in his name, at his expense, to handle official calls from his residence.
Two personnel regulations address work stations of state employees. Personnel Board regulation, 101 KAR 1:335 Section 1(2) states:
The official work station of a field employee is that address to which the employee is assigned at the time of appointment to the employee's current position.
Department of Personnel regulation, 101 KAR 2:095 Section 2 states:
Each employee shall be assigned a work station by the appointing authority. A work station may be changed to better meet the needs of the agency. An employee may be temporarily assigned to a different work station in a different county for a period of up to sixty (60) calendar days, provided that such employee is reimbursed for his travel expenses in accordance with regulatory provisions and the appointing authority notifies the employee in writing prior to the effective date of the action. Nothing within this regulation shall be construed as prohibiting an appointing authority from assigning an employee to work in a different site within the county of employment.
These regulations make it clear that the Department of Fish and Wildlife Resources determines the official work place of an employee at the time of employment. The official work place is subject to change, based on the needs of the agency. This may result in the location changing, permanently, inside a county, or temporarily, up to 60 days, outside of the county
While the appointing authority may assign a work station anywhere within the county, the Department does not have the authority directly to impose a residency requirement on conservation officers. The ability to require officers to reside within their assigned district is limited by Section 234 of the Constitution of Kentucky which states:
All civil officers for the State at large shall reside within the State, and all district, county, city or town officers shall reside within their respective districts, counties, cities or towns, and shall keep their offices at such places therein as may be required by law.
Kentucky courts have held that this constitutional provision, which requires state officers to reside within their respective districts, counties, cities, or towns, only pertains to those officers who are directly named and designated in the
Constitution. Bogard v. Com., Ky.App., 687 S.W.2d 533 (1984).
City of Newport v. Schindler, KY., 449 S.W.2d 17 (1970). A conservation officer for the Department of Fish and Wildlife Resources is not such an officer. While certain statutes exist that set residency or voting eligibility requirements for law enforcement officers, none exists for conservation officers. Without statutory authority, the Department may not impose a residency requirement by policy. KRS 13A.120(2)(b).
This Office has previously addressed the question of residency requirements in the context of city officers. OAG 84-12 states in part:
The only city officers required to reside in the city are members of the city legislative body and the mayor under the terms of KRS 83A.040 mentioned previously. Thus, there is no requirement that either nonelective city officers or employees must live within the city. As to whether or not the city can legally enact an ordinance requiring residence in the city for employees is a question for the courts to determine and would raise a constitutional issue.
In a miscellaneous letter of August 7, 1990, this Office examined whether a city may require its police chief, a nonelected city officer, to live within the corporate boundaries of the city. We concluded that it could not, without statutory authority, based, in part, on OAG 84-12 and for reasons set forth in McQuillin Mun. Corp. (3rd Ed.) Vol. 3, Section 12.59, which states as follows:
It has been held, however, that a requirement that all classified employees of a city, including school teachers, be or become, within a specified time of their employment, residents within the boundaries of the city unless granted a special permit for certain specified reasons, would be invalid as placing a restriction on a fundamental right of its employees to live where they wish, unless the requirement that the employees live within the city serves a public interest which is important enough to justify the restriction on private right.
While, arguably, the Department of Fish and Wildlife Resources might be able to establish a public interest important enough to justify a residency requirement for Conservation Officers, that should be carried out by statute.
In summary, while we find no authority for the Department of Fish and Wildlife Resources to enforce a residency requirement on conservation officers, the Department may assign a work station within the county where the officer must report for duty. The work place may be a state office building, which provides telephone service necessary to the officer to perform his job. The workplace may also be the officer's residence based on an agreement between the appointing authority and the employee. Under the terms of the mutual agreement, the employer may require that the residence of the employee be located in the county where the employee is assigned to work, and that the employee provide telephone service at the employee's expense in order for the residence to qualify as a workplace.