Can a Kentucky city ban its employees from carrying guns at work?

Plain-English summary

Several City of Ashland employees asked the city manager for permission to carry firearms (open or concealed) while on duty. The city attorney then asked the Attorney General two questions: can the city, through its employee policies, bar non-police employees from carrying firearms on duty without the city manager's written permission, and can the city make a no-firearms rule a condition of continued employment?

The Attorney General's answer is that the city's power here is very limited. Kentucky has a strong firearms-preemption statute, KRS 65.870, which says no city may occupy "any part of the field" of regulating the possession or carrying of firearms, and declares any conflicting ordinance, policy, or procedure null and void. So as a general matter, a city cannot regulate whether its employees carry firearms. The opinion noted a city's home-rule power under KRS 82.082 does not extend to actions that conflict with a statute.

There is one narrow exception. KRS 237.115(2) lets a city, "by ordinance," prohibit the carrying of concealed deadly weapons inside a building the city owns, leases, or controls, and it may discipline employees who violate that ordinance. The opinion stressed two limits the city asked about. First, this must be done by ordinance, not just by an internal employment policy. Second, the exception is narrow: it reaches only concealed carry, only inside buildings. The city cannot ban open carry, cannot regulate firearms on public property that is not a building (like a park), and cannot prohibit employees from keeping or carrying firearms in their personal or even city-owned vehicles. Other statutes (KRS 527.020 and related provisions) reinforce the vehicle protections.

What this means for you

City officials and city attorneys

Under this opinion, a city may regulate employee firearms only by ordinance and only to prohibit concealed carry inside buildings the city owns, leases, or controls. An internal employee policy or a blanket on-duty ban would conflict with KRS 65.870 and be unenforceable.

Public employees and gun owners

The opinion holds that a city may not prohibit employees from open carrying inside city buildings, from carrying firearms (open or concealed) on non-building public property, or from possessing or keeping firearms in their personal or city-owned vehicles.

Human resources administrators

The opinion explains that KRS 237.115(2) allows employee discipline for violating a properly enacted concealed-carry-in-buildings ordinance, but the underlying rule has to be an ordinance and is confined to concealed weapons inside city buildings.

Common questions

Q: Can a Kentucky city ban employees from carrying guns while on duty?
A: Not broadly. The opinion concludes state preemption (KRS 65.870) bars a city from prohibiting employees from carrying firearms at all times and places on duty.

Q: Is there any firearm rule a city can impose on employees?
A: Yes, one. Under KRS 237.115(2), a city may, by ordinance, prohibit concealed carry inside buildings it owns, leases, or controls, and discipline employees who violate that ordinance.

Q: Can the city do this through an employee handbook instead of an ordinance?
A: No. The opinion is explicit that the regulation must be enacted "by ordinance," not merely adopted as employment policies and procedures.

Q: Can a city stop employees from keeping guns in their cars?
A: No. The opinion concludes the city may not prohibit possessing, carrying, or keeping firearms in personal vehicles, or in city-owned vehicles, citing KRS 527.020 and Mitchell v. University of Kentucky.

Background and statutory framework

Cities exercise home-rule power under Ky. Const. § 156b and KRS 82.082, which does not authorize ordinances that conflict with a statute. KRS 65.870(1) preempts the field of firearms regulation, and KRS 65.870(2) voids conflicting ordinances, policies, and procedures, subject to the exception in KRS 65.870(7) for statutes that specifically authorize regulation. KRS 237.115(2) is that exception, letting a city by ordinance prohibit concealed weapons in buildings it owns, leases, or controls and impose employee discipline for violations. The opinion relied on prior opinions (OAG 93-71, OAG 18-003, OAG 96-39) and on Ky. Concealed Carry Coalition v. City of Hillview, and explained that vehicle-related protections in KRS 527.020(4) and (8), KRS 237.110(17), and KRS 237.106(1), along with Mitchell v. Univ. of Ky., bar the city from prohibiting firearms in personal or city-owned vehicles.

Citations and references

Constitution and statutes:
- Ky. Const. § 156b; KRS 82.082
- KRS 65.870 (preemption); KRS 237.115(2) (concealed carry in buildings)
- KRS 237.104(1); KRS 527.020(4), (8); KRS 237.110(17); KRS 237.106(1)

Cases:
- Ky. Concealed Carry Coalition, Inc. v. City of Hillview, 2017 WL 3833253 (Ky. App. Sept. 1, 2017)
- Mitchell v. Univ. of Ky., 366 S.W.3d 895 (Ky. 2012)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2021-10.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
October 6, 2021
OAG 21-10
Subject: 1. Can the City of Ashland adopt as part of its employment policies and procedures a regulation prohibiting City employees, other than sworn law enforcement officers, from possessing or carrying firearms, either concealed or open carry, while on duty as a City employee without the express, written permission of the City Manager and discipline employees for a violation of such a policy?
2. Can the City of Ashland, as a condition of continued employment, ban City employees, other than sworn law enforcement officers, from possessing or carrying firearms while on duty as a City employee?
Requested by: James H. Moore, III, City Attorney, City of Ashland
Written by: Aaron J. Silletto, Assistant Attorney General
Syllabus: 1. Under KRS 65.870(1) and KRS 237.115(2), local governments, including cities, may prohibit the carrying of concealed weapons in the portion of any building owned, leased, or controlled by that unit of government, but may do so only "by ordinance."
2. Under KRS 237.115(2), the City may, by ordinance, prohibit its employees from possessing or carrying concealed firearms inside buildings owned, leased, or controlled by the City. However, the City may not prohibit the "open" carrying of firearms, nor may it prohibit the carrying of firearms by employees while they are outside any building owned, leased, or controlled by the City, including in any vehicle.

Opinion of the Attorney General

Several employees of the City of Ashland ("City") have petitioned the City Manager for permission to carry firearms—either concealed or open carry—while on duty as City employees. In that context, the City has asked for the Attorney General's opinion on the two questions outlined above.

Under Section 156b of the Kentucky Constitution, the General Assembly has broad authority to confer "home rule" powers upon cities. It has done so in KRS 82.082, which provides that "[a] city may exercise any power and perform any function within its boundaries . . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute." KRS 82.082(1).[1] An ordinance is "in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes." KRS 82.082(2). Thus, the City may not enact any ordinance that conflicts with any constitutional provision or state statute.

The General Assembly has enacted several statutes governing the authority of local governments to regulate firearms. The starting point in this analysis is KRS 65.870, which provides that "[n]o existing or future city . . . may occupy any part of the field of regulation of the . . . possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof." KRS 65.870(1). "Any existing or future ordinance, executive order, administrative regulation, policy, procedure, rule, or any other form of executive or legislative action in violation of this section or the spirit thereof is hereby declared null, void, and unenforceable." KRS 65.870(2).

In OAG 93-71, this Office found that KRS 65.870 "prohibits local governments from enacting firearms control ordinances," and that "any doubt concerning the breadth of the legislative grant of power contained in [the applicable home rule statute] should in this case be resolved against the municipal ordinance and in favor of KRS 65.870." See Ky. Concealed Carry Coalition, Inc. v. City of Hillview, 2015-CA-000304, 2017 WL 3833253, *3 (Ky. App. Sept. 1, 2017) ("KRS 65.870(1) seeks to preempt local jurisdictions by declaring that the General Assembly has occupied the entire field related to firearm regulation."). As a general proposition, then, the General Assembly has preempted the field of firearms regulation in the Commonwealth, and the City may not adopt any ordinance, policy, or procedure that is "any part of the field of regulation" of the possession or carrying of firearms or ammunition, whether by a City employee or otherwise.[2] For this reason, this Office opined in OAG 18-003 that a "local public agenc[y]" may not, consistent with KRS 65.870(1), "generally forbid all of its employees or other members from carrying firearms unless certified [as peace officers], where the carrying of such weapons would otherwise be lawful."

KRS 65.870 recognizes, however, that there may be exceptions to this general rule because it "shall not apply where a statute specifically authorizes or directs an agency or person specified in subsection (1) of this section to regulate a subject specified in subsection (1) of this section." KRS 65.870(7). As a result, the answers to the City's questions turn on whether the General Assembly has delegated to a city in another statute the authority to regulate the possession or carrying of firearms by its employees.

KRS 237.115 provides that "the legislative body of a . . . city . . . may, by . . . ordinance, prohibit or limit the carrying of concealed deadly weapons in that portion of a building owned, leased, or controlled by that unit of government." KRS 237.115(2). The ordinance "shall not specify any criminal penalty for its violation but may specify that persons violating the statute or ordinance may be denied entrance to the building, ordered to leave the building, and if employees of the unit of government, be subject to employee disciplinary measures for violation of the provisions of the . . . ordinance. The provisions of this section shall not be deemed to be a violation of KRS 65.870 if the requirements of this section are followed." Id.

KRS 237.115(2) is a specific exception to the general rule laid down by KRS 65.870, and permits local governments, including cities, to prohibit the carrying of concealed weapons under some circumstances. But the City may do so only "by ordinance," and not simply (as the City suggests in the first question it asks) as part of its employee policies and procedures.

But the scope of regulatory authority granted to cities and other local governments by KRS 237.115(2) is limited, not plenary. First, a city ordinance enacted under that statute may only regulate "the carrying of concealed deadly weapons." The statute therefore does not allow a city to prohibit or limit the open carrying of weapons.

Second, the statute only allows the city to regulate concealed weapons "in that portion of a building owned, leased, or controlled by" the city. It does not allow for prohibitions by cities on the carrying of weapons—whether open or concealed—in a public park or other government property that is not a "building." OAG 96-39. Thus, KRS 237.115(2) would not permit the City to prohibit its employees from open carrying of firearms, even in government buildings, or from carrying firearms in any manner outside its buildings.

Additional statutory provisions also restrict the scope of the city's regulatory authority over firearms.[3] For example, public employers, such as the City, may not prohibit their employees from keeping firearms in their vehicles: "No person or organization, public or private, shall prohibit a person from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.109, 237.110, and 237.115." KRS 527.020(4). Under KRS 237.110(17), "[a] private but not a public employer" may prohibit its employees from carrying concealed deadly weapons in vehicles owned by the employer. In addition, "[n]o person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection." KRS 527.020(8);[4] see also KRS 237.106(1) (providing that an owner, lessee, or occupant of real estate may not prohibit any person who is legally entitled to possess a firearm from possessing a firearm or ammunition in a vehicle on the property). Thus, the City may not prohibit the possession or carrying of a firearm by an employee in a vehicle, Mitchell v. Univ. of Ky., 366 S.W.3d 895, 899 (Ky. 2012), including in City-owned vehicles.

Synthesizing these statutory provisions, it is the Attorney General's opinion that the City may not prohibit its employees from carrying firearms "at all times and places" while on duty as a City employee. Even though KRS 237.115(2) recognizes that a City employee may be subject to disciplinary measures for violating a City firearms ordinance, the City's power to regulate firearms is limited to an ordinance that prohibits its employees from possessing or carrying concealed firearms inside buildings owned, leased, or controlled by the City. But the City may not prohibit its employees from: (a) open carrying firearms inside City-owned buildings; (b) possessing or carrying any firearms, whether concealed or carried openly, on public property that is not a "building"; (c) possessing, carrying, or keeping firearms in their personal vehicles; or (d) possessing or carrying any firearms in City-owned vehicles.

Daniel Cameron
ATTORNEY GENERAL
Aaron J. Silletto
Assistant Attorney General

[1] KRS 82.082(1) is nearly identical to Section 156b of the Kentucky Constitution.
[2] See also KRS 237.104(1) ("No person, unit of government, or governmental organization shall, . . . at any [] time, have the right to revoke, suspend, limit the use of, or otherwise impair the validity of the right of any person to . . . possess [or] carry . . . a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument.").
[3] These additional statutory restrictions are somewhat redundant because, as explained above, KRS 65.870 already broadly prohibits the political subdivisions of the Commonwealth from regulating the "possession, carrying, storage, or transportation of firearms." KRS 65.870(1).
[4] KRS 527.020(8) also provides that "[a] loaded or unloaded firearm or other deadly weapon shall not be deemed concealed on or about the person if it is located in any enclosed container, compartment, or storage space installed as original equipment in a motor vehicle by its manufacturer, including but not limited to a glove compartment, center console, or seat pocket, regardless of whether said enclosed container, storage space, or compartment is locked, unlocked, or does not have a locking mechanism."