Request By:
Maurice A. Byrne, Jr.
Counsel, Pleasure Ridge Park Fire Protection District
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Matt James,Assistant Attorney General
Opinion of the Attorney General
Maurice A. Byrne, Jr., counsel for the Pleasure Ridge Park Fire Protection District ("District"), has requested an opinion of this office regarding the authority of a fire protection district to enact regulations requiring firefighter-peace officers to be certified as peace officers before performing the duties of a firefighter-peace officer, and to regulate the carrying of firearms by its members or employees. We advise that a fire protection district may enact regulations requiring regular firefighters to be certified as peace officers before engaging in the duties of a firefighter-peace officer. A fire protection district may not generally restrict the ability of all of its employees or members to otherwise lawfully possess firearms.
The Pleasure Ridge Park Fire Protection District enacted regulations governing its firefighters on January 14, 2013. Regulation 5 requires all firefighter-peace officers to be certified as peace officers by the Department of Criminal Justice Training before performing any of the duties of a peace officer, "including making any arrest, carrying a weapon, or performing any of the function[s] of a Peace Officer. " Regulation 6 requires that certification to be at the person's own time and expense. Regulation 7 forbids the exercise of police powers without certification. Specifically, Regulation 7 provides that "a Firefighter, paid or volunteer, employee or other Member of the Pleasure Ridge Park Fire Protection District, without a valid and current certification . . . as a Certified Peace Officer . . . (d) shall not at any time while on duty carry or possess a firearm or deadly weapon. " One of the firefighters questioned the authority of the District to enact the regulations on the grounds that they are barred by KRS 65.870, forbidding local regulation of firearms. At issue is whether a fire protection district may require its firefighter-peace officers to be certified as peace officers consistent with KRS 65.870, including the regulation of carrying firearms.
KRS 75.120(1) provides that the board of trustees of a fire protection district "shall control the fire department or departments within their district." KRS 75.130(1) provides that no employee of a fire protection district shall be punished "for any reason except inefficiency, misconduct, insubordination, or violation of law or of the rules adopted by the board of trustees of the fire protection district." The board of trustees of a fire protection district is required to adopt rules to govern employees of the fire district, and an employee may only be punished for inefficiency, misconduct, insubordination, or violation of law or of the rules. A fire protection district thus has authority to adopt rules or regulations to govern its employees.
KRS 15.400(2) provides that "any peace officers employed after December 1, 1998, shall comply with all minimum standards specified in KRS 15.380 to 15.404," which are the requirements for certification as a peace officer. KRS 15.310(9) provides that "'peace officer' means a person defined in KRS 446.010," which in turn provides that "'peace officer' includes sheriffs, constables, coroners, jailers, metropolitan and urban-county government correctional officers, marshals, policemen, and other persons with similar authority to make arrests. " KRS 446.010(31).
KRS 75.160(2) expressly provides that regular firefighters in a fire protection district are peace officers:
The regular members of the fire department in fire protection districts, except volunteer firemen, shall have the same powers of arrest as now given by law to sheriff's of this Commonwealth and they are hereby expressly declared conservators of the public peace whose duties, in addition to their other prescribed duties, are to conserve the peace, enforce all laws and preserve order, and they shall have and are hereby expressly given the same right and the same power to arrest, search and seize as is now given by law to sheriff's of this Commonwealth . . . .
In OAG 72-339, we reaffirmed that "the regular members of the fire department in the fire protection district have the authority to conserve the peace and enforce all laws and preserve order" and are peace officers. 1 Since regular firefighters are peace officers, and are therefore required to be certified by KRS 15.400(2), a fire protection district may require that its regular firefighters be certified as peace officers prior to performing the functions of a peace officer. 2 Regarding the portions of the regulations concerning the carrying of firearms, KY. CONST. § 1, cl. 7 protects "the right to bear arms . . . subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. " See also U.S. CONST. amend. II. KRS 65.870(1) prohibits local regulation of firearms:
No existing or future . . . special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of . . . ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.
"It is clear from this statute that the Legislature has set forth their intent that no form of local government is permitted to regulate in the area of firearm possession." OAG 96-39; see also OAG 99-10; OAG 93-71. KRS 65.870(1) includes fire protection districts, which are local public agencies. See generally OAG 80-240.
Regulation 5 requires firefighter-peace officers to be certified before carrying a weapon, and Regulation 7 specifically restricts all employees or other members from carrying a firearm on duty unless they are certified as peace officers. While a fire protection district may require its regular firefighters to be certified before engaging in any of the duties of a firefighter-peace officer, it may not generally forbid all of its employees or other members from carrying firearms unless certified, where the carrying of such weapons would otherwise be lawful. Accordingly, the provisions of Regulations 5 and 7 barring all employees or members of a fire protection district from carrying firearms unless certified as peace officers are void as in conflict with KRS 65.870(1).
In summary, a fire protection district may enact regulations requiring all firefighter-peace officers to be certified as peace officers, and may forbid them from engaging in the duties of firefighter-peace officers until certified. A fire protection district may not generally restrict the right to bear arms of all its employees or other members.
Footnotes
Footnotes
1 But see OAG 90-145 ("While this statute clearly delegates certain peace officer duties to regular members of the fire department in fire protection districts (except volunteer firemen), it does not delegate general police powers to a fire protection district . . . .").
2 At the request of this office, the Justice and Public Safety Cabinet provided its analysis. It concurs that "firefighter peace officers are required to be certified pursuant to KRS 15.400." It further states that it "does not have any issue with the Fire Protection District's authority to establish rules over the fire protection district, its members, employees, and their peace officer powers pursuant to KRS 75.100, et seq."