Judge Johnstone completed this opinion prior to being sworn1 in as Justice of the Supreme Court on November 25, 1996. Release of this opinion was delayed by administrative handling.

RENDERED: December 6, 1996; 10:00 a.m.

NOT TO BE PUBLISHED

NO. 95-CA-1631-MR DAN C. FERGUSON APPELLANT

APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE WILLIAM T. JENNINGS, JUDGE

ACTION NO. 94-CI-0039

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and EASTERN KENTUCKY UNIVERSITY APPELLEES

OPINION AFFIRMING

* * * * * * *

BEFORE: JOHNSTONE , KNOPF, and MILLER, Judges.1 JOHNSTONE, JUDGE. This appeal centers upon the determination that appellant's relocation of his residence to a locale outside "thirty (30) minutes normal driving distance" from the campus of Eastern Kentucky University ("EKU") constitutes misconduct so as to disqualify him from receiving unemployment compensation benefits. Reluctantly, we affirm.

The facts are not complex. Appellant was employed as a police officer by Eastern Kentucky University which had a policy stating that its security personnel must establish a residence within thirty minutes normal driving distance of the campus. After moving to London, Kentucky, which is not within thirty minutes driving distance from EKU, appellant was notified that he had fifteen days to comply with the requirement. He failed to do so and was subsequently dismissed from his employment with EKU.

Appellant's claim for unemployment compensation benefits was denied on the basis that he had been discharged for misconduct related to his employment. The Madison Circuit Court upheld this determination, precipitating the instant appeal.

Appellant presses three arguments for reversal: 1) that the regulation in question runs afoul of KRS 15.335; 2) that the policy was not uniformly enforced; and 3) that he was denied due process in the administrative hearing. We perceive no reversible error in any of these contentions.

First, the policy in question does not conflict with KRS 15.335, which states:

No person shall be disqualified from a position as a peace officer by reason of his residence or voting eligibility, except as provided by the Constitution.

As noted by the Court in City of Ashland v. Ashland F.O.P. #3, Inc., Ky., 885 S.W.2d 667 (1994), the rationale underlying the classification set out by the statute is that the "safety of the police requires the most competent and qualified individuals available from the largest possible applicant pool." That is an entirely different concept from requiring security personnel to reside within thirty minutes driving time from the campus. There is no requirement of residing in any particular political subdivision and no violation of KRS 15.335.

Furthermore, there can be no doubt that this is a reasonable rule directed at security personnel being able to arrive on campus expeditiously in emergency situations. Thus, the question becomes whether appellant's failure to adhere to this policy constituted misconduct as defined in KRS 341.370(6). While standing alone appellant's act of moving outside the "thirty minute" radius would not appear to be the kind of misconduct at which the statutory disqualification is aimed, it is nevertheless a "knowing violation of a reasonable . . . rule of an employer." Given our statutory framework and case law interpreting this particular provision, we are constrained to agree that appellant's conduct constituted "misconduct" for purposes of KRS 341.370(6). See Douthitt v. Kentucky Unemployment Insurance Commission, Ky. App., 676 S.W.2d 472 (1984).

Next, appellant asserts that his conduct cannot be labeled misconduct because the policy was not uniformly enforced as required by KRS 341.370(6). We disagree.

In support of this contention, appellant argues that he can point to "twenty-five different policies in the EKU policy manual which are routinely ignored." The fact that other policies were not strictly enforced is of no consequence. The essential question is whether this particular policy is being uniformly enforced and appellant himself admitted on cross-examination that he knew of no other cases in which the thirty minute call in time was not being enforced.

Finally, we are not persuaded that appellant suffered any deprivation of procedural due process. The components of that concept in the context of administrative proceedings are well settled and, in this Commonwealth, are outlined in the following terms by Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189, 192 (1954):

In order that the requirements of due process of law be satisfied, the litigant must be afforded procedural due process as well as substantive due process. This includes a hearing, the taking and weighing of evidence, if such is offered, a finding of fact based upon consideration of the evidence, the making of an order supported by substantial evidence, and, where the party's constitutional rights are involved, a judicial review of the administrative action. (Citations omitted).

Appellant fails to specify in what way EKU's failure to provide the materials he sought in a more timely fashion undermined his ability to participate in the hearing in a meaningful manner. Accordingly, we must conclude he was afforded all that due process affords in the administrative setting.

The judgment of the Madison Circuit Court is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT: Samuel E. Begley London, KY

BRIEF FOR APPELLEES: Beverly Haverstock General Counsel

Timothy A. Sturgill Office of General Counsel Frankfort, KY

Giles T. Black University Counsel Richmond, KY