TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________ OPINION : : No. 97-816 of :

: February 13, 1998 DANIEL E. LUNGREN : Attorney General :

: ANTHONY Da VIGO : Deputy Attorney General :

:

______________________________________________________________________ THE DEPARTMENT OF TOXIC SUBSTANCES CONTROL has requested an opinion on the following question: May the Director of Toxic Substances C ontrol prohibit a non-peace officer employee from carrying a firearm while at work, including an employee who has a license to carry a firearm?

CONCLUSION The Director of Toxic Substances Control may prohibit a non-peace officer employee from carrying a firearm while at work, including an employee who has a license to carry a firearm.

ANALYSIS The Department of Toxic Substances Control ("Department") is a part of the California Environmental Protection Agency (Health & Saf., Code § 58000) Footnote No. 1 and is under the control of the Director of Toxic Substances Control ("Director"). Section 58002 provides in part: "The Department of Toxic Substances Contro l is under the control of an executive officer known as the Director of Toxic Substances Control, who shall be appointed by the Governor, subject to confirmation by the Senate, and hold office at the pleasure of the Governor."In order to accomplish the purposes of the Depart ment, the Director has all of the powers of a head of a department, includi ng the power to appoint offi cers and employees, who unless expressly excepted are members of the state civil service. (§§ 58003, 58006, 58008.) The inquiry presented for resolution is wh ether the Director may prohibit a non-peace officer employee from carrying a firearm wh ile on duty, including an employee who has a license to carry a firearm. We conclude that he may do so. Preliminarily, we note that an officer of th e state has only such powers as have been conferred by law, expressly or by necessary implication. (75 Ops.Cal.Atty.Gen. 1, 5 (1992) [Secretary of State]; 69 Ops.Cal.Atty.Gen. 168, 183- 184 (1986) [Director of Fish and Game]; 67 Ops.Cal.Atty.Gen. 325, 330 (1984) [Director of I ndustrial Relations]; 65 Ops.Cal.Atty.Gen. 467, 468 (1982) [Governor]; 63 Ops.Cal.Atty.Ge n. 840, 841 (1980) [State Treasurer].) As the head of the Department, the Director controls the actions of Department employees since the Department has no other means of functioning. (See, e.g., Gov. Code, §§ 19990 Director may determine those activities wh ich, for employees under his jurisdiction, are inconsistent, incompatible or in conflict with their duties as state offi cers or employees], 19570, 19572, 19574 [Director may dismiss, demote, or su spend an employee for designated causes, including willful disobedience or any other failure of good behavior either during or outside of duty hours that is of such a nature that it cau ses discredit to the appoi nting authority or the person's employment].) In different contexts, the Legislature has defined th e term "employee" as ". . . a public officer and any individual who pe rforms services subjec t to the right of the employer to control both what shall be done and how it shall be done." (Code Civ. Proc., § 706.011, subd. (c); see 75 Ops.Cal. Atty.Gen. 149, 151 (1992).)

We entertain no doubt that the Director is fully authorized to regulate the conduct and comportment of the Department's employees. (See also Gov. Code, § 11152; Gilmore v. State Personnel Board (1958) 161 Cal.App.2d 439, 448; 39 Ops.Cal.Atty.Gen. 261, 264 (1962); 36 Ops.Cal.Atty.Gen. 43, 44 (1960).) A. License To Carry a Firearm The present inquiry refers speci fically to a Department employee who is licensed to carry a firearm. Do the statutes under which licenses ar e granted contain a limita tion upon the Director's authority to prohibit his employees from carryin g firearms while on duty? Penal Code section 12050 Footnote No. 2 provides in part as follows: "(a)(1) The sheriff of a county or the chief or other head of a municipal police department of any city or city and county, upon proof that th e person applying is of good moral character, that good cause exists for the issuance , and that the person applying is a resident of the county, may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person . . . ." Footnote No. 3Having a license issued pursuan t to section 12050 exempts th e individual from criminal prosecution for carrying a concea led weapon or loaded firearm. (See 80 Ops.Cal.Atty.Gen. 100 (1997).) Subdivision (a) of section 12025 provides in part as follows: "A person is guilty of carrying a concealed firearm when he or she does any of the following: "(1) Carries concealed within any vehicle . . . any . . . firearm capable of being concealed upon the person. "(2) Carries concealed upon his or her person any . . . firearm capable of being concealed upon the person." Subdivision (j) of section 12027 exempts from th e section 12025 prohibition any person who has a license issued pursuant to secti on 12050. Similarly, section 12031 states: "(a)(1)A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(b) Subdivision (a) shall not apply to any of the following:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(6) The carrying of pistols, revolvers, or other firearms capable of being concealed upon the person by persons who are authorized to carry those weapons pursuant to . . . Section 12050

. . . . ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." More specifically, s ection 171b provides in part as follows: "(a) Any person who brings or possesses within any state or lo cal public building . . . any of the following is guilty of a public offense punishable by imprisonment in a county jail for not more than one year, or in the state prison: "(1) Any firearm.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(b) Subdivision (a) shall not apply t o, or affect, any of the following:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."(3) A person holding a valid license to carry the firearm pursuant to . . . Section 12050 . . . ." While a license exempts the holder from criminal prosecution under sections 12025, 12031, and 171b, it does not purport to exempt the holder from reasonable restrictions imposed by lawful civil authority. In 80 Op s.Cal.Atty.Gen. 191 (1997), for example, we concluded that the presiding judges of the superior court and municipal court coul d not prohibit the possession of firearms by deputy district attorn eys going to and from their offices located in a criminal justice facility that included courtrooms, where the depu ties were licensed to carry such firearms and would not be carrying the firearm on any floor of the facility containing a courtroom. In effect, we observed that while the judges could control their own courtroom floors regardless of the licenses held by the deputies ( id ., at pp. 194-195), it would be the district attorney who would have control over the offices of the deputies, agai n regardless of their indi vidual licenses to carry firearms. Moreover, In 63 Ops.Cal.Atty.Gen. 24, 27-28 (1 980), we noted in a different context: "It is manifest that the relationship between a public employer and its employees affects the fundamental purposes and functions of the governmental body. [Citati ons.] It has been stated in this regard that governments perform their func tions through their officers and employees elected or appointed for that purpose . . . .

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "The policy of the State of Ca lifornia in the matter of its employees is reflected in its constitution and in a comprehensive system of la ws pertaining specifically to state employment. [Citation.] Such an integral, comprehensive regulatory scheme is, in itself, an indication that the provisions of a general statute were not intended to apply. [Citation.]" As section 12050 makes no express reference to the carrying of firearms by public employees while on duty, and since a construction that would secure such a right would impair the state's power to regulate such conduct by its employees, the statute may not be so construed. (Cf. Regents of the University of California v. Superior Court (1976) 17 Cal.3d 533, 536; City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 276-277; 66 Ops.Cal.Atty.Gen. 217, 218 (1983); 65 Ops.Cal.Atty.Gen. 267, 272-273 (1982).) Nothing in the statutes governing the issuan ce of licenses to carry weapons precludes the Director from prohi biting his employees from carrying firearms while on duty.

B. Constitutional Considerations Having concluded that a Depart ment employee may not assert a statutory right to carry a firearm while at work, we next consider whethe r any constitutional righ t may be asserted to overcome the Director's prohibition. 1. Property InterestIn Erdelyi v. O'Brien (9th Cir. 1982) 680 F.2d 61, the court held that an individual did not have a property or liberty inte rest in obtaining a license to carry a concealed weapon in California. The court stated in part: "Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise whenever a person has only 'an abstract needor desire for,' or 'unilateral expectation of,' a benefit. [Citation.] Rather, they arise from 'l egitimate claim[s] of entitlement . . . defined by existing rules or understandings that stem from an independent source such as state law.' [Citations.] "Concealed weapons are closely regu lated by the State of California. See Dangerous Weapons Control Law, Cal. Penal Code §§ 12000-12094. Whether the statut e creates a property interest in concealed weapons licenses depends 'largely upon the extent to which the statute contains mandatory language th at restricts the discretion of the [issuing authority] to deny licenses to applicants who claim to meet th e minimum eligibility re quirements.' [Citation.] Section 12050 explicitly grants disc retion to the issuing officer to issue or not issue a license to applicants meeting the minimum statutory requ irements. Where state law gives the issuing authority broad discretion to grant or deny license applications in a closel y regulated field, initial applicants do not have a property right in such licenses protected by the Fourteenth Amendment. [Citation.] Erdelyi therefore did not have a prope rty interest in a concealed weapons license." ( Id. , at p. 63.) In discussing the concept of liberty within the purview of the constitutional due process clause, the court noted that the concept includes the right to be free from actions that impose a stigma or other disability that would foreclose one's freedom to take advantage of employment opportunities. ( Ibid. ; see also Soderback v. Siler (9th Cir. 1979) 610 F.2d 643, 646.) Here, the prohibition against carrying a c oncealed firearm would not eff ectively preclude employment with the Department. On the contrary, employees of the Department have been and are functioning effectively without fi rearms in their possession. Nor would the prohibition be based upon some charge to which would be attach ed a stigma impairing other employment opportunities.

O'Brien , as noted above, involved an applicati on for a concealed weapons license. The principle that there is no propert y or liberty interest in a gun license applies as well to an acquired permit. In Gross v. Norton (8th Cir. 1997) 120 F.3d 877, an assistant city attorney named Gross contended that the city deprived him of a property or lib erty interest in violation of due process by adopting and enforcing a policy prohibiting city employees other than police officers from carrying dangerous weapons at work. "Because local authorities have broad statutory discretion to withhold a permit to carry a pistol in public [citation], Gross has no constitutionally protected property interest in his pe rmit under Minnesota law." ( Id. , at p. 878.) Similarly, here, a Department employee may not assert a constitutionally protected property interest in carrying a firearm while on duty by virtue of possessing a license. 2. Right To Bear ArmsA constitutionally protected interest in lib erty or property may also stem from a constitutional source. The Second Amendment to the Constitution of the United States provides: "A well regulated Militia, being nece ssary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In United States v. Miller (1939) 307 U.S. 174, the United States Supreme Court sustained a co nviction under the Natio nal Firearms Act for interstate transportation of a sawed-off shot gun. It was contended that the possession of the weapon was authorized by the Seco nd Amendment. The court reject ed the argument, stating: "In the absence of any evidence tending to s how that the possession or use of a 'shotgun having a barrel of less than ei ghteen inches in length' at th is time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the ri ght to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." ( Id. , at p. 178.) The rule resulting from Miller is that "absent a showing that the possession of a certain weapon has 'some reasonable relationship to the preservati on or efficiency of a well-regulated militia,' the Second Amendment does not guarantee the right to possess the weapon." ( United States v. Hale (8th Cir. 1992) 978 F.2d 1016, 1019; see also Cases v. United States (1st Cir. 1942) 131 F.2d 916, 922, cert. den. 319 U.S. 770 (1943).) Here, the possess ion by employees of the Department of firearms is not reasonably related to a well-regulated militia. (See United States v. Hale , supra , 978 F.2d at 1020.) The Second Amendment thus pr ovides no impediment to the Director's proposed prohibition.

3. Substantive Due Process It is well established, as a matter of substantiv e due process, that no person may be denied government employment because of factors unco nnected with the res ponsibilities of that employment. ( Pickering v. Board of Education (1968) 391 U.S. 563, 572; Morrison v. State Board of Education (1969) 1 Cal.3d 214, 234; 77 Ops.Cal.Att y.Gen. 1, 2 (1994) [race, ethnicity, gender]; 66 Ops.Cal.Atty.Gen. 486, 487 (1983) [se xual orientation]; 66 Ops.Cal.Atty.Gen. 367, 370 (1983) [outside employment]; 64 Ops.Cal.A tty.Gen. 837, 842 (1981) [physical fitness]; 63 Ops.Cal.Atty.Gen. 583, 586 (1980) [sexual pr eference]; 62 Ops.Cal.Atty.Gen. 180, 181-182 (1979) [physical disability].) The prohibition against the carrying of firearms by employees of the Department while on duty has a rational basis in the Director's legitima te interest in preservi ng public safety during the course of employee interaction with members of the public, as well as safety in the workplace. (See Gross v. Norton , supra , 120 F.3d at 879; Love v. Pepersack (4th Cir. 1995) 47 F.3d 120, 123; Baer v. City of Wauwatosa (7th Cir. 1983) 716 F.2d 1117, 1123.) Hence, no denial of substantive due process may be assert ed here by a Department employee. C. Restrictions Upon Peace Officer Employees Finally, we note that a contrary result would be incongruous vis-a-vis employees of the Department who are peace officers. Sec tion 830.3 provides in pertinent part:"The following persons are peace officers . . . for the purpose of performing their primary duty . . . . These peace officers may carry firearms only if authorized and under those terms and conditions as specified by their employing agencies:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(h) All investigators of . . . the Department of Toxic Substances Control . . . provided that the primary duty of these peace officers shall be the enforcement of the law relating to the duties of his or her department . . . ." (Italics added.) Consequently, even an employee of the Depart ment who is a peace officer may not carry a firearm while on duty unless expressly authorized by the Director. It would be irrational to suggest that a state agency ha s less authority over its non-peace officer empl oyees than over its peace officer employees with respect to the carrying of firearms while on duty. It is concluded that the Director may prohi bit a non-peace officer employee from carrying a firearm while at work, includi ng an employee who has a license to carry a firearm.

* * * * *

Footnote No. 1 All section references prior to footnote 2 are to the Health and Safety Code unless otherwise expressly designated. Footnote No. 2 All section references hereafter are to the Pena l Code unless otherwise expressly designated. Footnote No. 3 We reject the suggestion that a Department employee is exem pt from the necessity of licensure by virtue of section 12026, subdivision (b), which states:

"No permit or license to . . . carry, either openly or con cealed, shall be required of any citizen . . . to . . . carry, either openly or concealed, a . . . firear m capable of being concealedupon the person within the citizen's . . . place of residence, place of business , or on private property owned or lawfully possessed by the citizen . . . ." (Italics added.) An employee's workplace is generally not his "place of business" within the meaning of section 12026. ( People v. Barela (1991) 234 Cal.App.3d Supp. 15, 20 [only employees with a possessory interest in their workplace "who have the right to control activities there, may carry conc ealed weapons at work withou t a permit or license"].).