From: Melissa A. Ashburn, Legal Consultant
Date: Jan. 5, 2012
Re:
Charter residency requirement
You have informed me that the Mayor has suspended the Fire Chief and Public Works Director,
and perhaps another officer, due to the failure of these department heads to reside in the city
limits. His decision is apparently based on language found in the city’s Charter at section 13,
stating that each of these officers “must reside within the corporate City limits.” It is my
understanding that this language was added to the Charter in 2008, at which time these officers
were already employed by the City and the governing body was aware at that time of their
residences being outside city limits. The new Mayor has now decided to enforce this charter
provision against these officers. Other language found in the same Section 13 of the Charter
states that these officers shall work “until removed from the office for cause or resignation.”
This language effectively grants these officers a property right in their positions, removing them
from at-will status. You have asked if the Mayor’s actions are legal, and if the Board should
terminate these officers for failure to reside inside City limits.
Two questions presented by this situation are:
1. May a residency requirement for city officers apply retroactively, to those holding office
at the time the requirement is adopted?
2. Does the failure of these officers to reside in City limits constitute “cause” for which they
may now be terminated?
Residency requirements for city employees and officers are generally legal and may be adopted
and enforced by cities. City of Memphis v. Int'l Broth. of Elec. Workers Union, Local 1288.,
545 S.W.2d 98 (Tenn. 1976). This is true in most all states in our country. Below is an excerpt
from the legal treatise McQuillin’s Law of Municipal Corporations explaining the broad view of
courts on the subject, and various issues raised:
When municipal residency requirements are challenged on equal protection grounds the
requirement need only be shown to have a rational relationship to a legitimate
government purpose in order to pass constitutional muster.
Direct public employment is not a fundamental right protected by the privileges and
immunities clause. Thus, a residency requirement that all nonexempt permanent
employees live within the city limits is constitutional because those paid with tax dollars
should support the tax base and city employees should be part of the community they
serve in order to understand and identify with its problems. Such a residency rule does
not become irrational because some employees are exempt. Legislation may address one
aspect of a situation at a time as long as the classifications are not based on individual
discrimination. Accordingly, police and firefighters may be exempt due to provisions in
their collective bargaining agreements and the grandfathering of other employees based
on the length of their employment as a constitutional means to gradually achieve a
workforce that resides in the city. The Supreme Court has distinguished legislation that
differentiates based on becoming a resident before a particular time or that requires long
periods of residency before becoming eligible for benefits, from legislation that merely
requires that a person establish residency.
Under an ordinance providing for a waiver of the residency requirement and requiring the
civil service commission to base its determination as to waiving the requirement on the
nature of the work, location of the work and all other pertinent facts concerning
employment, personal hardship factors must be considered even though the best interests
of the city are paramount. However, an employee has no due process right accruing from
the grant of previous exemptions and where shown to be in violation of a residency
requirement will be considered as an employee at will subject to dismissal.
An ordinance requiring all officers and employees of city to be bona fide residents, but
which exempts police and firefighters from residency ordinance and which permits the
director of any department to permit an employee to remain in the employ of the city
without complying with the residency provisions has been found, as applied, not to deny
equal protection to those municipal employees required to reside within the city. Also
held valid has been an ordinance requiring certain classes of city employees to reside
within a “residency area” which is peripheral to the municipal boundaries insofar as its
purpose was to require the city's public safety employees to live at places from which
they could effectively be called to duty when needed. On the other hand, violation of a
requirement that police officers reside within the municipality has been held insufficient
as cause for termination where no showing is made that the violation has caused the
police department to be less efficient or has impaired its protection capabilities.
3 McQuillin Mun. Corp. § 12.59.10 (3rd ed.)
In the Tennessee case City of Memphis v. Int'l Broth. of Elec. Workers Union, Local 1288., 545
S.W.2d 98 (Tenn. 1976), the Tennessee Supreme Court upheld a Memphis Charter provision that
required employees to reside in Shelby County. No facts are provided in the case explaining
when the employees were hired in relation to the enforcement of the charter provision. Although
Tennessee cases are clear that residency requirements are enforceable against city employees and
officers, there is no case examining retroactive application, or whether failure to establish
residency constitutes cause for termination when an employee or officer has a property interest in
their position. Cases from other jurisdictions are helpful in the analysis.
The Seventh Circuit U.S. Court of Appeals has held that failure to establish residency results in
an employee being “at-will” and provides grounds upon which he may be terminated. The Court
held:
If plaintiff had a property interest in his job, it would have entitled him not to be
dismissed absent a fair determination of his place of residence. Once it was fairly
determined that plaintiff was in violation of the residency rule, he was in the same
position as an “at-will” employee: his employer could dismiss him at that point or, in the
employer's unfettered discretion, exercise any clemency with respect to the dismissal.
Brockert v. Skornicka, 711 F.2d 1376, 1386-87 (7th Cir. 1983)
It is important to note, however, that in this case the ordinance adopted by the city of Madison,
Wisconsin provided a time period for compliance, a potential waiver, and further specifically
stated that failure to comply constitutes grounds for termination. The ordinance states:
Every person appointed to a position in the classified civil service shall at the time of his
appointment be a citizen of the United States and shall within sixty days after the
completion of his probationary period establish residence within the City of Madison. He
shall maintain such residence during the period of his employment unless permission to
reside outside the city shall be expressly granted by the Mayor for such appointee. In case
any employee of the City of Madison shall cease to maintain his residence within the city,
his position or employment shall be deemed automatically vacated.
... No person shall be eligible for election, appointment or employment to any position as
an officer, department head, employee or member of a board or commission unless he
shall reside in the City of Madison unless permission to reside outside of the City of
Madison shall be expressly granted by the Mayor. In the event that any such City officer,
department head, employee or member of a board or commission shall cease to reside in
the City of Madison, his office, position or employment shall be automatically forthwith
vacated....
Brockert v. Skornicka, 711 F.2d 1376, 1378-79 (7th Cir. 1983)
The plaintiff in this case had been granted a waiver twice, and his application for a waiver was
denied the third time. It was after the waiver expired that his termination occurred. The
differences between the charter language adopted by your City and the ordinance at issue in the
Brockert case are substantial. The ordinance clearly provided notice to employees that failure to
comply would result in termination. The ordinance also provided a period of time to come into
compliance, as well as potential waivers. No notice, time for compliance or potential waiver is
provided by the Charter provision, and no statement about the impact of failure to comply is
made. It is unclear to me if the Brockert case would have resulted in the same decision if the
ordinance merely stated what the Charter states regarding the residency requirement.
In an Illinois case, the Court held the city could not apply a residency requirement retroactively
to dismiss an employee, despite the fact he moved his residence outside city limits after the
requirement was adopted. The ordinance states:
“Persons receiving an appointment by the city as full time or temporary employee after
the effective date of the Resolution shall, within six months after appointment, establish
and maintain a residency within the City Limits of Highland, Illinois. This rule does not
apply to those presently employed by the city of Highland at the time of the effective
adoption of this resolution. All full time employees living outside the City by reason of
marital status, i.e. single and living with parents, will obtain residency within the City
when that status changes.”
Plocher v. City of Highland, 59 Ill. App. 3d 697, 698, 375 N.E.2d 1016, 1018 (1978)
The Illinois Court interpreted the ordinance as written, and concluded the plaintiff had the right
to move outside city limits, as the requirement did not apply to him as he was an existing
employee at the time the ordinance was adopted. Again, this case is distinguished you’re your
City’s situation as the charter provision at issue fails to state it does not apply to those officers
employed by the city when the charter language was adopted.
The Sixth Circuit U.S. Court of Appeals, which includes Tennessee in its jurisdiction, upheld
residency requirements adopted by the City of Cleveland, Ohio in Ass'n of Cleveland Fire
Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 547 (6th Cir. 2007). However, as in the other
cases discussed above, the charter provision at issue only applied to officers and employees hired
or appointed after the date of adoption. The provision further gave new hires or appointees 6
months to move within city limits.
Considering my extensive research in this area of law, it appears there are no clear answers to the
questions posed by this situation in your City:
1. May a residency requirement for city officers apply retroactively, to those holding office
at the time the requirement is adopted?
Answer: Generally yes, although when the officer has a property right in his employment, or can
only be dismissed for cause, and that portion of the charter is not altered when residency
requirements are adopted, it is unclear to me that the requirement may apply to such officers
retroactively. It is very unfortunate that the charter amendment adopted in 2008 did not specify
its application to existing officers, or did not remove or otherwise alter the language stating these
officers can be dismissed “for cause.” Add to that the fact the City did nothing to enforce the
requirement against these officers for more than 3 years, and it is likely a judge would find such
application presently to be arbitrary.
2. Does the failure of these officers to reside in City limits constitute “cause” for which they
may now be terminated?
Answer: There is no clear answer to this provided by Tennessee cases, or cases from other
jurisdictions. In those cases I reviewed, constituting the bulk of case law in this area, the
ordinance or charter provision at issue specifically provided either that failure to move within the
city constituted cause for purposes of termination, or exempted employees or officers working
for the city at the time of adoption. As the charter language for your City fails to state that
failure to reside in the city amounts to cause for termination, and further fails to limit or qualify
the provision concerning cause for removal, it is unclear whether or not a court would consider
such failure to be cause.
Although the residency requirement contained in the Charter is legal, its application in this
situation is problematic. Due to the lack of any cases on point to guide us, I must advise the City
that they face potential liability if these officers are terminated due to their failure to reside in
city limits. The facts which weigh against the City include the failure of the charter language to
state it applies to officers employed by the City before the date of adoption, the failure of the
charter provision to give existing officers a period of time to come into compliance after notice,
the failure of the charter provision to specify that noncompliance equals cause for which these
officers may be removed, and the failure of the City to enforce this charter provision against
these officers for more than 3 years. The general acceptance of residency requirements by
Tennessee Courts weigh in the favor of the City, as well as the history of the Courts giving cities
broad leeway on this issue.
I suggest that if these officers are indeed being removed simply due to the fact they have failed to
move into city limits, the City should instead give them a period of time to come into compliance
and establish residences within the City. If they fail to do so within the prescribed period of
time, there will be virtually no liability for the City, as the record will show the City acted
reasonably and provided adequate notice of application of this requirement to these officers. If,
however, this action is merely a pretext to remove these officers so that others may be hired in
their positions, then it is more likely that a court will be sympathetic to these officers. In that
situation, in my opinion the city’s potential liability may be substantial.