Request By:
C. Thomas Bennett, Commissioner, Kentucky Department of Fish & Wildlife
Opinion
Opinion By: Albert B. Chandler III, Attorney General; T. Scott White, Assistant Deputy Attorney General
Opinion of the Attorney General
C. Thomas Bennett, Commissioner, Kentucky Department of Fish and Wildlife, (hereinafter "KDFWR") has requested an opinion of the Office of the Attorney General to clarify two issues. The first issue centers on whether officers of the former Division of Water Patrol, who are sworn under KRS 235.310, have the equal law enforcement authority as officers who are sworn under KRS 150.090.The second issue to be examined in this opinion concerns what is the proper designation of law enforcement officers of the KDFWR.
LEGAL ANALYSIS
Before addressing the issue of the law enforcement authority of officers of the former Division of Water Patrol, it is necessary to review the exact law enforcement authority of the officers of the KDFWR who are sworn under KRS 150.090. This question has been visited previously by both this Office and the courts of the Commonwealth. KRS 150.090(1) states:
Conservation Officers appointed by the Commissioner shall have full powers as peace officers for the enforcement of all laws of the Commonwealth, except that they shall not enforce laws other than this Chapter and the administrative regulations issued thereunder or to serve process unless so directed by the Commissioner in life threatening situations or when assistance is requested by another law enforcement agency.
Questions concerning the KDFWR's "peace officer" authority were first addressed by this Office in 1989. The concerns were resolved through the issuance of OAG 90-3. The opinion reviewed the statute, KRS 150.090, which granted officers of the KDFWR their "peace officer" authority. Since this enabling language has not been amended, the dicta of OAG 90-3 is still persuasive and should provide guidance in addressing the issue of the former Division of Water Patrol's "peace officer" authority under KRS 235.310. Accordingly, it is necessary to review the text of OAG 90-3.
In OAG 90-3, the Attorney General reasoned that when the General Assembly amended KRS 150.090 (1), the arrest powers of the officers of the KDFWR had also been expanded. The opinion recognized that a case-by-case request would be impractical. In light of this, OAG 90-3 concluded that, contingent and upon request from law enforcement agencies, officers of the KDFWR may exercise full "peace officer" authority, and further approved a comprehensive request for assistance.
Thereafter, on August 28, 1990, Commissioner Michael Troop of the Kentucky State Police made such a request to the Commissioner of the KDFWR. As a result of and in response to the request, the KDFWR developed policies, procedures and guidelines for when its officers were to use this "peace officer" authority. The Commissioner of the KDFWR issued this directive authorizing the use of "peace officer" authority to officers of the KDFWR on November 23, 1992. Commissioner Rose reissued and reaffirmed the State Police's request for assistance from the officers of the KDFWR on June 6, 1997.
The issue of a KDFWR's officer to act as a "peace officer" in enforcing all laws of the Commonwealth was challenged in 1994.
The Court of Appeals in Mercer v. Kentucky, Ky. App., 880 S.W.2d 899 (1994), held that, for the purposes of general law enforcement in the Commonwealth of Kentucky, Conservation Officers have full peace officer authority. Following this ruling, this Office again reviewed the KDFWR's "peace officer" authority. OAG 95-30 concluded that except where specifically limited by statute, or until the General Assembly amends the KDFWR's authority, officers of the KDFWR have the ability to enforce all criminal laws of Kentucky. The Supreme Court of Kentucky affirmed the holding of Mercer and adopted the conclusions of OAG 90-3 and OAG 95-30 in
Howard v. Transportation Cabinet, Ky., 878 S.W.2d 14, 17 (1994), by its ruling that, for the purposes of general law enforcement, Conservation Officers have full peace officer authority.
OAG 90-3, OAG 95-30 and both court opinions hinge on the fact that the state police formally requested the assistance of the KDFWR in enforcing all laws of the Commonwealth. In the event that the request is withdrawn or the statutes are amended, then officers of the KDFWR will be bound by the constraints of KRS 150.090(1), and will only be able to enforce the provisions of this Chapter and the regulations adopted pursuant thereto. Until either of these events occur, officers of the KDFWR have full "peace officer" authority which they may exercise to enforce all criminal laws of Kentucky in the manner as directed by the Commissioner of the KDFWR in his role as appointing authority.
Following the court cases of Mercer and Howard, the Division of Water Patrol was transferred from the Natural Resources and Environmental Protection Cabinet to the Department of Fish and Wildlife Resources in 1994. The authority of Water Patrol Officers to act as peace officers is found in KRS 235.310(1) , which states:
The Commissioner of the Department of Fish and Wildlife Resources shall designate the officers and employees of the Division to enforce the provisions of this Chapter and these officers when duly authorized by the Commissioner shall have the general powers of peace officer for the enforcement of other offenses against the Commonwealth. . . .
But for the change of language substituting the Commissioner of the KDFWR as appointing authority for the Secretary of Natural Resources Cabinet, this enabling statute affecting Water Patrol's "peace officer" authority was not changed. Since Water Patrol is now an integral part of the KDFWR's Division of Law Enforcement, the same principle holds true for Water Patrol Officers as it does Conservation Officers. Based upon opinions of the Attorney General and the Kentucky cases of Mercer and Howard, as long as the Commissioner has been requested by the KSP for assistance in enforcing all laws of the Commonwealth, Water Patrol Officers have full "peace officer" authority, but the Commissioner 's ability to issue such an order is contingent upon the KSP's request for assistance. As appointing authority under both KRS 150.090 and KRS 235.310, the Commissioner of the KDFWR may, in his discretion, direct when, where, how, and why all law enforcement officers of the KDFWR are to exercise this "peace officer" authority.
In summary, the principles enunciated in OAG 90-3 which apply to KDFWR officers sworn under KRS 150 are applicable to officers sworn under KRS 235.310 for the reasons set forth above. When these principles are applied, the outcome is the same. Officers of the KDFWR, regardless whether sworn under either KRS 150 or 235, have equal "peace officer" authority. To decide differently would lead to an illogical or unreasonable conclusion.
The second issue to be addressed is whether the designation of "Wildlife and Boating Safety Officer"is proper for officers of the KDFWR who are sworn under KRS 150.090 and KRS 235.310. Since the Division of Water Patrol was tranferred from the Natural Resources and Environmental Protection Cabinet to the KDFWR, all law enforcement officers of the KDFWR have been cross-trained under the provisionns of both KRS Chapters 150 and 235. This was done in an effort to increase the numbers of KDFWR law enforcement officers in the field. Through this stepped-up presence, the KDFWR would be better serving the sportsmen, women and boaters and protecting the resources of Kentucky by providing over 170 sworn law enforcement officers whose primary statutory duty is to enforce the hunting, fishing and boating laws of this state. In keeping with this mission, the Commissioner of the KDFWR, in his role as appointing authority has bestowed the law enforcement officers of the KDFWR with the moniker of "Wildlife and Boating Safety Officer."
When Water Patrol was a part of the Natural Resources and Environmental Protection Cabinet, the officers carried the markings "Water Patrol Police". Since the Division was transferred, there is no reason to analyze whether these markings were appropriate, however there is some issue as to whether officers of the KDFWR should also be designated or marked as "police" instead of "Wildlife and Boating Safety Officer." Very simply put the answer is no.
Officers of the KDFWR have been granted "peace officer" authority by the General Assembly. As "peace officers, " the officers of the KDFWR fall within the class "peace officers" as set forth in KRS 446.010 (24) and vested with the abilities to make arrests and issue citations as per KRS 431.005 and KRS 431.015. KRS 446.010 (24) provides that "Peace Officer" includes sheriffs, constables, coroners, jailers, metropolitan and urban-county government correctional officers, marshals, policemen and other persons with authority to make arrests as allowed by enabling statutes. The term is one which encompasses all units of law enforcement officers.
On the other hand, "police" is a term used to designate specific units of law enforcement officers. "Policeman" is defined in KRS 95.010 as a member of a city or county police department. Even the statues of the KSP recognize that "peace officer" is the general term used to define a law enforcement officer's authority. KRS 16.010(4) defines an officer of the KSP as a member of the state police who possess the powers of a "peace officer. " This provision acknowledges that the troopers or policemen of the KSP are "peace officers. " In essence, all police are "peace officers, " but not all "peace officers" are policemen.
To review, unless KRS 150.090 and KRS 235. 310 are amended, or the State Police request for assistance is withdrawn, Conservation Officers and Water Patrol Officers will be governed by both the same case law and will posses equal "peace officer" authority. In light of the fact that the Division of Water Patrol has been merged with the KDFWR and has equal law enforcement authority with other officers of the KDFWR, the Commissioner of the KDFWR, as appointing authority, has chosen to designate the Department's law enforcement officers as "Wildlife and Boating Safety Officers." Since the officers of the KDFWR are charged with the primary duty to enforce the hunting, fishing and boating laws contained in KRS Chapters 150 and 235, and there salaries are paid solely by monies from the fish and game fund (KRS 150.150), this is the most appropriate designation designed to achieve the legislative intent set forth in KRS 446.080(1). It further accomplishes the legislative mandate of placing a law enforcement unit whose primary obligation is the enforcement of that agencies statutes and regulations.
There has been no detrimental impact on a Wildlife and Boating Officer's peace officer authority since the merging of Water Patrol into the Division of Law Enforcement. On the contrary, there has been an enhancement of a Water Patrol Officer's authority. By cross training and incorporation into the Division of Law Enforcement, former Water Patrol Officers have gained additional peace officer authority and enforcement obligations through the federal commissions which Conservation Officers possess. (See 16 USC Section 4721) All KDFWR officers have the ability to enforce certain federal laws as well as all laws of the Commonwealth. This did not exist until Water Patrol Officers received the same commission as Conservation Officers.
CONCLUSION
All law enforcement officers of the KDFWR, regardless of whether they were sworn under KRS 150.090 or KRS 235.310 , have the authority to act as "peace officers" to enforce all criminal laws of the Commonwealth. There is no distinction or disparity between the abilities or authority of officers sworn under each respective statute. The Commissioner of the KDFWR, as appointing authority, has the ability and discretion to develop and implement procedures and guidelines directing how and when the officers of the KDFWR are to utilize their "peace officer" authority.
Lastly, since the officers of the KDFWR are charged primarily with the enforcement of KRS Chapters 150 and 235, the proper and appropriate designation of these officers is "Wildlife and Boating Safety Officer." The General Assembly has never chosen to assign the officers of the KDFWR any other title, as they have with other "peace officer. " Accordingly, the designation of "Wildlife and Boating Safety Officer" placed on the officers of the KDFWR by the Commissioner of the KDFWR in his role as appointing authority is appropriate.