Residence requirements for public officers

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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 thepolitical subdivision or municipality in which he or she holds such publicoffice, i.e., the incumbent of a local office “must be a resident of thepolitical subdivision or municipal corporation of the state for which he shallbe chosen, or within which the electors electing him [or her] reside, or withinwhich his [or her] official functions are required to be exercised ….”

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

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

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

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

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

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

Although Section 3.2 of the Public Officers Law permits a police officer toreside in the same or a contiguous county in which the political subdivisionemploying the officer is located, O'Connor had moved to Warren County.Clarkstown is in Rockland County. Warren and Rockland Counties are notcontiguous.

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 theCommission's determination that O'Connor had ceased to be an inhabitant of thegeographical area required for members of the Clarkstown Police Department.Accordingly, the Commission's decision terminating O'Connor from his positionwas neither arbitrary nor capricious.

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

In a case involving disability benefits under General Municipal Law Section207-a, which provides firefighters injured on the job with benefits similar tothose available to police officers pursuant to Section 207-c, the court decidedthat Section 207-a benefits were only available to firefighters while theyremain members of the fire department. Payments are not made if a disabledfirefighter 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 Section3.2's residence requirement because he "occasionally stayed" at anin-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