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Opinion No. 5228

September 19, 1977


Residency requirements for governmental employees


Residency requirements for governmental employees


Residency requirements as subject of mandatory collective bargaining

A city ordinance imposing residency requirements on employees of the city is valid in the absence of a circumstance which would make enforcement of the residency requirement unreasonable such as insufficient adequate housing in the city or detrimental reliance upon an existing rule permitting non-residents to be employed.

Residency requirements are the subject of mandatory collective bargaining despite the enactment of a residency ordinance.

Honorable Anthony A. Derezinski

State Senator

33rd District

The Capitol

Lansing, Michigan

You have asked my opinion on two questions pertaining to residency requirements for municipal employees. To facilitate discussion, I have rephrased and reordered your question as follows:

1. May a city ordinance establish residency requirements for city employee to include the following language: 'Any Department Head employed by the city who is not now a resident of the city shall extablish city residency within one year of the effective date of this ordinance?'

2. May a residency ordinance be retroactive for Department Heads only and not retroactive for other employees?

OAG, 1959; 1960, No 3324, p 211 (November 13, 1959) stated:

'. . . The law is well settled that public employment is not a 'right but a privilege.' Consequently, a city civil service employee does not have a vested right in or contract right to his position and the city may say at any time upon what terms and conditions his employment can be continued. Such terms and conditions are invalid only if arbitrary or in excess of the powers granted. The terms and conditions should be such as to secure efficient public service for the city. . . .' [Citations omitted] [Emphasis added]

The Michigan Supreme Court in Williams v Civil Service Commision of the City of Detroit, 383 Mich 507, 517; 176 NW2d 593, 598 (1970) noted that the question of residency as a condition of public employment may best be dealt with by the municipal legislative process; i.e., the discretion of the city council. See McCarthy v Philadelphia Civil Service Commission, 424 US 645; 96 S Ct 1154; 47 L Ed 2d 366 (1976) (no constitutional right to be employed by a city while living elsewhere) and Detroit Police Officers Association v City of Detroit, 385 Mich 519; 190 NW2d 97 (1971), appeal dismissed, 405 US 950; 92 S Ct 1173; 31 L Ed 2d 277 (1972). Hence, a residency ordinance, if reasonable, will be upheld. It must also be recognized that, pursuant to the Public Employee Relations Act, 1947 PA 336, as amended by 1965 PA 379; MCLA 423.201 et seq; MSA 17.455(1) et seq, residency requirements are the subject of mandatory collective bargaining despite the enactment of residency ordinances. Detroit Police Officers Association v City of Detroit, 391 Mich 44; 214 NW2d 803 (1974).

Circumstances, unique to some employees and separate from the ordinance itself may, however, render the ordinance unreasonable and invalid as applied. Two Michigan cases are in point. State, County & Municipal Employees Local 339 v City of Highland Park, 363 Mich 79; 108 NW2d 898 (1961), struck down a residency ordinance as it applied to 163 non-resident employees of Highland Park because there was insufficient adequate housing in the city to accommodate them. Similarly, Detroit Police Lieutenants and Sergeants Association v City of Detroit, 56 Mich App 617; 224 NW2d 728 (1974), relying on Highland Park, supra, held a residency ordinance invalid as applied to certain non-resident police officers who had received and relied upon an express written waiver of the residency rule. In each of these cases, the courts enjoined enforcement of the residency requirements due to the hardship engendered by the exceptional circumstances involved.

In view of the board authority generally given to municipal legislative bodies to set, alter or abolish terms and conditions of public employment, it is my opinion that a residency ordinance may validly contain the language quoted in your question. Barring circumstances such as those involved in Highland Park and Police Lieutenants, supra, the ordinance is enforceable against all present non-resident employees.

Additionally, the one-year grace period gives notice to those affected and evidences the prospective effect of the ordinance. This provision saves it from imposing a penalty, i.e., discharge, for antecedent conduct which was previously lawful. See Park v Lansing Board of Education, 32 Mich App 752; 189 NW2d 60 (1971), post remand, 62 Mich App 397; 233 NW2d 592 (1975), US cert den, 424 US 904; 96 S Ct 1494; 47 L Ed 2d 754 (1976) (one-year grace period upheld); Miller v Krawczyk, 414 F Supp 998 (ED Wis 1976) (one-month grace period upheld). Compare Groehn v Corporation and Securities Commission, 350 Mich 250; 86 NW2d 291 (1957) (discharge for past conduct previously condoned); Fraternal Order of Police v Hunter, 36 Ohio Misc 103; 303 NE2d 103 (Court of Common Pleas, 1973) (no grace period; non-resident employees subject to dismissal immediately upon adoption of the rule).

In response to your second question, Michigan law will allow disparate treatment if the classification bears a reasonable relation to the intended purpose of the residency rule.

The equal protection test adopted by the Michigan Supreme Court is stated in Detroit Police Officers Association v City of Detroit, supra, 385 Mich at 522; 190 NW2d at 103, as follows:

"'These constitutional provisions [Federal and state equal protection clauses] do not mean that there can be no classification in the application of statutes and ordinances, but only that the classification must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the legislation." Cook Coffee Co. v Village of Flushing (1934), 267 Mich 131, p 134.'

There, the court found 'natural distinguishing characteristics' of police officers, allowing a residency waiver clause to be effective for other city employees but not for policemen.

In Park v Lansing Board of Education, supra, the plaintiffs challenged a grandfather clause excluding from the residency requirement administrative personnel hired prior to certain dates. In disallowing their challenge, the court said that to be successful in such a case, one must show that '. . . the rule extends a privilege to 'an arbitrary or unreasonable class' . . . and that there is no conceivable set of facts that can justify the distinction made in the rule. . . .' 62 Mich app 397, 400. The court found that plaintiffs did not carry this rather heavy burden.

In the case posed, municipal department heads may be treated differently from other employees because of their supervisory functions. Under the equal protection test laid out above, this classification in the residency ordinance is allowed because it is based upon 'natural distinguishing characteristics' and can be reasonably justified as supportive of the purposes of the ordinance.

Frank J. Kelley

Attorney General