February 2, 1998
You have the following question: Is it legal to require police officer candidates to move into the city if they are hired? As I understand the facts, the board of mayor and aldermen wanted to extract an agreement from two candidates that they would move into the city if they were hired.
The answer is yes. However, any such requirement should obviously be adopted by ordinance or resolution. If that is not done, three problems immediately come to mind: (1) Police officers have no written notice of the requirement; (2) The requirement might be an “agreement” between the police officers and the present board that a new board cannot enforce. In fact, I suspect the present board might have difficultly enforcing it; (3) The requirement is more likely to be haphazardly applied.
The U.S. Supreme Court and the lower federal courts, including the U.S. Sixth Circuit of which Tennessee is a part, have almost universally held that continuing residency requirements (residency requirements which require an employee to live in the political subdivision as a condition of continued employment, as opposed to durational residency requirements, which require a person to live in a political subdivision for a certain period before he or she is eligible to become an employee of the political subdivision) for city employees are legal. Most of those cases involve police officers and fire fighters. [See McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976) (Per curium); Andre v. Board of Trustees, 561 F.2d 48 (7th Cir. 1977); Detroit Peace Officer Association. v. City of Detroit, 190 N.W.2d 97 (Mich. 1971) (which the U.S. Supreme Court cited with approval in McCarthy); Wardell v. Board of Education, 522 F.2d 625 (6th Cir. 1976); Wright v. City of Jackson, Miss., 506 F.2d 900 (5th Cir. 1975); Cook County Teachers’ Union Local 1600 v. Taylor, 432 F.Supp. 270 (N.D. Ill. 1977); Salem Blue Collar Workers Association v. City of Salem, 63 LW 2134, 1994 U.S. App. Lexis 23251 (3rd Cir.).]
Even the California Supreme Court upheld a city’s continuing residency requirement against a librarian’s challenge that it violated her right to privacy, the right to marry and establish a home, the right to raise and educate one’s children, and the right to associate with the neighbors of her choice. Calling her arguments “esoteric,” and “Thoreauvian,” it applied the rational basis test to the requirement and cited a multitude of governmental purposes to support the requirement. [Ector v. City of Torrence, 514 P.2d 433 (Calif. 1973).]
The recent case of Campbell v. City of Allen Park, 829 F.2d 576 (6th Cir. 1987), reflects the U.S. Sixth Circuit’s attitude toward continuing residency requirements. There a male fire fighter for a Michigan city and a female radio alarm operator for a neighboring city got married. However, both cities had a continuing residency requirement. The continuing residency requirement in the city for which the bride worked was a charter provision that required employees to reside in the city unless granted a specific exemption by the city council. She had applied for, but the city had not approved, an exemption at the time of the marriage. The bride and groom moved into the groom’s house in the city for which he worked, obviously putting the bride in violation of the continuing residency requirement of the city for which she worked. Her request for an exemption was subsequently denied and she was fired.
Her termination was upheld by a civil service commission to which she appealed under Michigan law. She sued in both state and federal court, alleging in state court that she had been denied the right to put on certain evidence, including evidence that she was terminated for applying for a pregnancy leave, and in federal court that the city’s refusal to grant an exemption was a denial of equal protection and due process because it interfered with the right to travel and marry. She conceded the right of a city to enact a continuing residency requirement.
The state court reversed the civil service commission on procedural grounds and granted her back pay. The city then granted her an exemption. The Sixth Circuit Court of Appeals affirmed the U.S. District Court’s dismissal of her federal suit on the city’s motion for summary judgment, on the twin grounds that she had prevailed in state court, and that there had been no violation of her constitutional rights. With respect to the second ground for dismissal of her case, the Court said:
In conceding the validity of the residency requirement--in concluding, that is, that the municipality could uniformly terminate the employment of workers who did not meet the municipal residency requirement--the plaintiffs were reading the case law correctly.
In support of that “correct reading” the Court pointed to McCarthy. Since the plaintiff could cite no federal or state law basis to her claim, “... whether the City Council acted arbitrarily or not in refusing to grant an exemption, no violation of the Fourteenth Amendment had occurred.” But the city had not acted arbitrarily, continued the Court:
The decision is not an arbitrary one, moreover, as it rejected the availability of an exemption for the most common argument against all such regulations: a preference in family housing. To grant plaintiff’s request would have required the granting of numerous others.
The Catch 22 in which the bride and groom found themselves upon their marriage, “does not significantly interfere with the right to marry....” Finally, concluded the Court, “The City’s denial of the exemption was not irrational, and we are unwilling to hold it unconstitutional.”
Campbell indicates that continuing residency requirements will be upheld even if they create hardship for a government’s employees and prospective employees.
Sidney D. Hemsley
Senior Law Consultant