Residence requirements for public officers

Residence requirements for public officers
Informal Opinions of the Attorney General 2008-10

Public Officers Law §3 generally requires that a public officer reside in the political subdivision or municipality in which he or she holds such public office, i.e., the incumbent of a local office “must be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him [or her] reside, or within which his [or her] official functions are required to be exercised ….”

One of the exceptions to this general rule permits police officers to reside in a county in New York State that is contiguous to the county in which the political subdivision or municipality is located. Police officers are public officers for the purposes of Public Officers Law Section 3. Although not all public employees are public officers, all public officers are public employees.

With respect to police officers, other than police officers employed by the City of New York, POL Section 3.2 provides as follows:

2. Neither the provisions of this section or of any general, special or local law, charter, code, ordinance, resolution, rule or regulation, requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall apply to the appointment of a person as a member of the police force of any political subdivision or municipal corporation of the state if such person resides (a) in the county in which such political subdivision or municipal corporation is located; or (b) in a county within the state contiguous to the county in which such political subdivision or municipal corporation is located; or (c) in a county within the state contiguous to such political subdivision or municipal corporation; or (d) in a county within the state contiguous to a county described in item (c) hereof where the former is less than fifteen miles from such political subdivision or municipal corporation, measured from their respective nearest boundary lines; or (e) in a county within the state contiguous to a county described in item (d) hereof where the former is less than thirty miles from such political subdivision or municipal corporation, measured from their respective nearest boundary lines. [N.B. Subdivision 19 of Section 3 sets out provisions applicable to police officers of the City of New York, i.e., a city of over one million population.]

Is it lawful for a municipality to permit a police officer to reside in a county that is not contiguous with the county in which the municipality is located? No, advised the Attorney General.

According to the Informal Opinion, “Contiguous” as used in Public Officers Law §3.2 means “sharing a border” or “touching.” In this instance the Attorney General said that police officers employed by the City of Syracuse may not live in Oneida County because that Oneida County is not contiguous to Onondaga County.

Failing to observe the mandates of Public Officers Law Section 3.2 could have other adverse consequences. For example, Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to Section 30.1.(d) of the Public Officers Law because O'Connor "ceased to be an inhabitant within the geographical restrictions" set by law. Public Officers Law Section 30.1(d) provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.

Although Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located, O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.

In O’Connor v Police Commission of the Town of Clarkstown, [221 A.D.2d 444], the Appellate Division said that there was ample evidence to support the Commission's determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Commission's decision terminating O'Connor from his position was neither arbitrary nor capricious.

Another issue involved O'Connor's receiving disability benefits pursuant to Section 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County. Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable."

In a case involving disability benefits under General Municipal Law Section 207-a, which provides firefighters injured on the job with benefits similar to those available to police officers pursuant to Section 207-c, the court decided that Section 207-a benefits were only available to firefighters while they remain members of the fire department. Payments are not made if a disabled firefighter ceases to be an employee of the fire department [Robinson v Cole, 193 Misc.717].

The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."

The Informal Opinion is posted on the Internet at:
http://www.oag.state.ny.us/bureaus/appeals_opinions/opinions/2008/Informal/I%202008-10%20pw.pdf