HomeMy WebLinkAbout10-315AUGUST 24, 2010 SEPTEMBER 28, 2010 10 -279 10 -315 ORDINANCE
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PURPOSE: CREATE RESIDENCY REQUIREMENT
INITIATED BY: MAYOR ESSLINGER
A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING SECTION 2 -23(B)
PERTAINING TO A RESIDENCY REQUIREMENT FOR DEPARTMENT HEADS
The Common Council of the City of Oshkosh does ordain as follows:
SECTION 1. That Section 2 -23(B) of the Oshkosh Municipal Code pertaining to
Residency Requirements for Departments Heads is hereby created to read as follows:
(B) All Department Heads shall be residents of the City within twelve (12) months of the
date of their hiring or appointment and maintain residency in the City while under the
employment or service of the City. If any such City department head does not meet this
requirement, his /her office or position shall be vacated and such vacancy shall be filled in
the manner prescribed by law or ordinance. The residency deadline may be extended with
the recommendation of the City Manager and approval of the Common Council. This
section does not apply to persons in the employment or service of the City on the date of
the adoption of the ordinance from which this section was derived.
SECTION 2. This ordinance shall be in full force and effect from and after its
passage and publication.
SECTION 3. Publication Notice. Please take notice that the City of Oshkosh
enacted ordinance #10 -315 A GENERAL ORDINANCE OF THE CITY OF OSHKOSH
CREATING SECTION 2 -23(B) PERTAINING TO A RESIDENCY REQUIREMENT FOR
DEPARTMENTS HEADS, on September 15, 2010. The ordinance would require
department heads hired after the date of passage of the ordinance to become residents of
the City within 12 months of the date of hire.
The full text of the ordinance may be obtained at the Office of the City Clerk, 215
Church Avenue and through the City's website at www.ci.oshkosh.wi.us Clerk's phone
920/236-5011.
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, W
549 - 13 -1 130 City of Oshkosh
130
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QIHKQIH
MEMORANDUM
Date: August 18, 2010
To: Mayor & City Council
From: Mark A. Rohloff, City Manager .►�C ` 044
Subject: PROPOSED RESIDENCY ORDINANCE
BACKGROUND
As the Council is aware, Mayor Esslinger brought forth an item at the August 10 Council Meeting,
proposing that the city adopt a residency requirement for department heads. Following the meeting,
Mayor Esslinger forwarded Attorney Lorenson and me an excerpt of an ordinance from the City of
Appleton regarding residency. He asked that the Appleton ordinance be incorporated into an
ordinance that could be woven into our own municipal code. The only changes made to the Appleton
ordinance were removing the residency requirement for boards and commissions, as this is already a
requirement in the Oshkosh Municipal Code. The other change is that the City Manager would
recommend requests to extend the deadline, with approval of Council. The draft ordinance presented
before Council merely takes the Appleton ordinance and places it in the context of the city's municipal
code. Staff made no other changes to the Appleton ordinance, per the Mayor's direction.
The Oshkosh Municipal Code currently does not have a residency requirement for department heads.
However, it has been strongly recommended by myself and previous City Managers that department
heads reside in the city. Currently, all department heads under the City Manager's direction are
residents of the city, with one exception. That department head is a recent hire and has a timeline in
place for establishing Oshkosh residency. Without a provision in the municipal code, we have
achieved the objective of all department heads being residents of the city at some point in the future.
By way of additional background, City Attorney Lorenson conducted additional research and came
across an Attorney General's opinion from 2006, which was provided to the City of Fond du Lac.
Fond du Lac, like Oshkosh, is a city that operates under Chapter 64 of Wisconsin Statutes (City
Manager form of government). The nature of this opinion is narrow in that it only pertains to Chapter
64 cities. It should be noted that while Attorneys General's opinions are often referred to in policy
analysis, and have been considered persuasive by the courts, they do not have the effect of law. They
only serve as a guide for people who have questions about how a certain law may apply to them.
0
Mayor & City Council
August 18, 2010
Page 2
In the case of Chapter 64 cities, it was the AG's opinion, at that time, that any city organized under
Chapter 64 may not require the City Manager or any other city employee to reside within the city as a
condition of employment, and that such a city may not elect to impose a residency requirement by
charter ordinance. While this opinion suggests to prohibit a Chapter 64 city from enacting any such
ordinance, the fact that all department heads are residents of Oshkosh, or will be in the near future,
demonstrates that we are achieving the objective of the proposed ordinance, even though it is not
formally on the books.
ANALYSIS
As previously explained, staff copied the Appleton ordinance and incorporated it into the proposed
ordinance that is before the Council. With respect to some of the details contained in this draft
ordinance, the first requirement in the ordinance is that a department head shall reside within 12
months of the date of their hiring or appointment, and maintain residency in the city while under the
employment or service of the city. The ordinance also states that this section does not apply to persons
in the employment or service of the city on the date of the adoption of the ordinance. Because of this
"grandfather clause ", it is unclear as to how any circumstances that may change an existing employee's
residency would affect to existing employees.
Aside from the practical side of implementing and administering this ordinance, there remains the
basic policy issue of a residency requirement's application. As I have stated previously, municipal
residency ordinances and requirements have typically been brought up as the economy changes. In
other words, as the economy improves, residency is not as significant an issue for some municipalities
as when the economy experiences a downturn. In difficult, economic times, it is often discussed that
preference should be given to city residents when making employment decisions.
From a practical standpoint, our goal is to secure the best employees regardless of their current
residency situation. Furthermore, in today's dual income households, residency requirements often
become more difficult if spouses work in other communities. In addition, the challenges represented
by family situations make residency requirements for one spouse impractical for the remainder of that
person's family. The current economy has further complicated this issue as employees are
experiencing more difficulty selling their homes in their previous communities. In the long run, a rigid
residency requirement may deter the best qualified employees from accepting positions with the City
of Oshkosh if they feel that they cannot put themselves and their families at financial risk in order to
accept a position, even at a higher rate of pay.
For the above reasons, and others previously discussed, I do not believe it is necessary for the Council
to enact a residency ordinance at this time. Aside from the AG opinion and the strong opinions that
exist on both sides of this issue, I believe that I have adequately addressed the residency issue by
making this a requirement of all department heads under my control. With the various imperfections I
have seen in residency requirements for other communities, I believe that I have been able to
effectively deal with this issue without making it a part of the city's ordinance. As long as I have the
authority to do so, I will continue to strongly encourage residency a condition of city employment
whenever practicable.
Mayor & City Council
August 18, 2010
Page 3
Thank you for the opportunity to provide the Council with my thoughts on this matter. I am certainly
available to answer any questions you may have in advance of Tuesday's Council Meeting, or at the
Council Meeting itself.
MAR/j do
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE _
PEGGY A. LAUTENSCHLAGER 114 East, State Capitol
ATTORNEY GENERAL 1 Box 7857
Dan] el P. Bach Madison, Wl 53707 -7857 .
Depnly Attorney General
December 29, 2006
Mr. James A. Flader
City Attorney
City ofFond du Lac
Post Office Box 150
Fond du Lac, WI 54936 -0150
Dear Mr. Flader:
You request an opinion of the Attorney General upon the following two questions:
1. May a city organized under a city manager plan of government, as
described in Wisconsin Statutes, Sections 64.01 through 64.14, require its city
manager, department heads and other employees, or any of them, to reside in the
city as a condition of that employment? For purpose of clarification, the question
is not whether such persons can be required to be residents when interviewed, but
rather whether that condition can be imposed as a condition of hire and continuing
employment.
2. If the answer to question 1 is "No," may such city adopt a residency
requirement by charter ordinance, or is the matter not a lawful subject of a charter
ordinance.
It is my opinion that a city organized under the city manager form of government is
prohibited by Wis. Stat. §§ 64.09(3) and 64.11(6) from requiring the city manager or any of the
city's other employees to reside within the city as a condition of employment and that such a city
may not elect to impose a residency requirement by charter ordinance.
Wisconsin Stat. § 17.03 provides in part:
Vacancies, how caused. Except as otherwise provided, a public office is
vacant when:
(4) The incumbent ceases to be a resident of:.
(a) This state; or
r.
Mr. James A. Flader
Page 2
(d) If the office is local and appointive, and residency is a local
requirement, the county, city, village, town, district or area within which the
duties of the office are required to be discharged.
Wisconsin Stat. § 64.09, which governs the appointment of the city manager by the city
council, provides in part:
(1) The council first elected after the reorganization of a city under the
provisions of ss. 64.01 to 64.15 shall as soon after the reorganization as possible
engage for an indefinite term a city manager who shall have charge of the
executive side of the city government and who shall be responsible for the
efficiency of its administration.
(2) The city manager shall be elected purely on merit. In electing the city
manager the council shall give due regard to training, experience, executive and
administrative ability, and efficiency and general qualifications and fitness' for
performing the duties of the office, and no person shall be eligible to the office of
city manager who is not by training, experience, ability, and efficiency well
qualified and generally fit to perform the duties of such office. No weight or
consideration shall be given by the council to nationality, political, or religious
affiliations, or to any other considerations except merit and direct qualifications
for the office.
(3) Residence in the city or state shall not be a qualification for the
office of city manager.
Wisconsin Stat. § 64.11, which governs the appointment of employees other than the city
manager in cities with the city manager form of government, provides in part:
(1) The city manager shall be the chief executive officer of the city and
head of the city administration and shall possess and exercise all the executive
and general administrative powers imposed and conferred by general law or
special charter upon the mayor and common council and upon the various boards,
commissions and officers and in force in such city at the time of its reorganization
under ss. 64.01 to 64.15, and such additional powers as are herein imposed and
conferred.
(2) The city manager shall have the power to create minor administrative
offices and positions and to discontinue such offices and positions according to
the city manager's judgment of the needs of the city.
Mr. James A. Flader
Page 3
(3) The city manager shall have the power to appoint all heads of
departments, all subordinate city officials and all city employees and to remove
such appointees at any time their services or the conduct of their offices becomes
unsatisfactory to the city manager. This subsection shall not be construed as
depriving the board of fire and police commissioners or the-chiefs of fire or police
departments of any city of all the powers conferred by s. 62.13.
(4) No head of a department, city official, or city employee shall be
appointed for a fixed term, but during good behavior and satisfactory service.
(5) All appointments shall be purely on merit and with a view to securing
the best available appointee for the place. Duo consideration shall be given to
training, experience, ability, and general qualifications and fitness for performing
the duties of the office and no weight or consideration shall be given to
residence, nationality, or to political or religious affiliations.
(6) Residence in the city or state shall not be a qualification for any
such appointment.
(7) Except as provided in s. 19.36(7), the applications, records,
recommendations and qualifications of all applicants shall be immediately placed
and thereafter kept on file and shall be matters of public record subject to the
examination and inspection of the public at all reasonable times.
(8) In the event that such a city has established under the provisions of
s. 66.0509 a civil service system, then the powers and duties of the city manager
as provided in this section shall be limited and governed by such rules and
regulations as maybe promulgated under such civil service system. -
Wisconsin Stat. § 62.11(5) provides for the exercise of statutory-home rule authority by
cities:
POWERS. Except as elsewhere in the statutes specifically provided, the
council shall have the management and control of the city property, finances,
highways, navigable waters, and the public' service, and shall have power to act
for the government and good order of the city, for its commercial benefit, and for
the health, safety, and welfare of the public, and may carry out its powers by
license, regulation, suppression, borrowing of money, tax levy, appropriation,
fine, imprisonment, confiscation, and other necessary or convenient means. The
powers hereby conferred shall be in addition to all other grants, and shall be
limited only by express language.
Mr. James A. Hader
Page 4
Wisconsin Stat. § 66.0101(4) provides that a city.may exercise its constitutional home
rule authority under Wis. Const, art. XI, § 3 by enacting a charter ordinance that contains specific
provisions:
A city or village may elect under this section that any law relating to the
local affairs and government of the city or village other than those enactments of
the legislature of statewide concern as shall with uniformity affect every city or
every village shall not apply to the city or village, and when the election takes
effect, the law ceases to be in effect in the city or village:
I. STATUTORY LIMITATION ON RESIDENCY REQUIREMENTS.
Wisconsin Stat. § 64.09 governs appointments by the city council to the office of city
manager. Wisconsin Stat. § 64.09(2) provides that "[njo weight or consideration shall be given
by the council to nationality, political, or religious affiliations, or to any other considerations
except merit and direct qualifications for the office [of city manager]." Wisconsin
Stat. § 64.09(3) provides that "[r]esidence in the city or state shall not be a qualification for the
office of city manager."
Wisconsin Stat. § 64.11 governs the city manager's selection of virtually all city
employees. Wisconsin Stat. § 64.11(3) provides that "[t]he city manager shall have the power to
appoint all heads of departments, all subordinate city officials and all city employees . . . ."
Wisconsin Stat. § 64.11(5) provides that "[a]ll (such) appointments shall be purely on merit and
with a view to securing the best available appointee for the place" and that "no weight or
consideration shall be given to residence, nationality, or to political or religious affiliations."
Wisconsin Stat. § 64.11(6) provides that "[r]esidence in the city or state shall not be a
qualification for any such appointment."
Because related statutes are to be construed together, Wis. Stat. § 64.09 must be
considered in conjunction with Wis. Stat. § 64.11. See State v. Clausen, 105 Wis. 2d 231, 244,
313 N.W.2d 819 (1982). Each of these statutes should mesh with the other so as to produce a
harmonious whole. See In re Marriage of Levy v. Levy, 130 Wis. 2d 523, 530, 388 N.W.2d 170
(1986). Wisconsin Stat. §§ 64.09(3) and § 64.11(6) both provide that "[r]esidence in the city or
state shall not be a qualification for ... " appointment by the council to the office of city manager
and for appointment by the city manager to any.other position of employment. p yment. Sinc6 these
statutes contain nearly identical language, they must be construed to impose the same limitation.
Moreover, under Wis. Stat. § 64.11(5), the city manager may not even consider residence at the
time of appointment in connection with his selection of employees, which must be based "purely
on merit and with a view to securing the best available appointee for the place."
Mr. James A. Flader
Page 5
In State ex rel. Evjue v, Weatherly, 255 Wis. 225, 229, 38 N.W.2d 472 (1949), the court
held that, in a city operating under the city manager form of government, the provisions of Wis.
Stat. §§ 64.11(5) and 64,11(6) are applicable to the employment of the chief of police by the
police and fire commission and that the appointment of a chief of police who was a resident of
Texas at the time of his appointment was lawful: "[T)here is no reason for giving any other
interpretation than its natural meaning, and that is that residence in the city or state shall not be a
qualification for any appointment by the city manager or by the board of police and fire
commissioners ... in cities operating under the city manager form of government[.]" In Evjue,
the court quoted both Wis. Stat. § 64.1](5) and Wis. Stat. § 64.11(6) but did not expressly
consider whether a city with a city manager form of government could impose a residency
requirement as a condition of continued employment.
The phrases "qualification for the office" in Wis. Stat. § 64.09(3) and "qualification for
.. appointment" in.Wis. Stat. § 64.11(6) should be accorded their "natural meaning" Evjue,
255 Wis. at 229. See also, Wis. Stat. § 990.01(1). It is my opinion that each of those phrases
precludes imposition of a residency requirement both prior to and after appointment to office.
Compare Wis. Const. art. 1, § 19, which provides that "(n]o religious -tests shall ever be required
as a qualification for any office. . . . " A city organized under a city manager plan of government
is therefore prohibited by Wis. Stat. §§ 64.09(3) and 64.11(6) from requiring the city or any of
the city's employees to reside within the city as a condition of employment.
II. EXERCISE OF HOME RULE POWERS.
Your second question is whether a city with a city manager form of government may
exercise its constitutional or statutory home rule authority to adopt a residency requirement by
charter ordinance.
In my opinion, the answer is no.
Whether a city may use its constitutional home rule authority and adopt a charter
ordinance under Wis. Stat. § 66.0101(4) to elect against the residency requirement limitations
contained in Wis. Stat. §§ 64.09(3) and 64.11(6) depends upon whether the statutory residency
requirement limitations involve an item or items that are primarily of statewide concern:
In Van Gilder v. Madison, supra, we concluded that, when the legislature
deals with matters that are primarily of statewide concern, it may deal with them
free of any restriction contained in the home -rule amendment. The Iegislature can
thus make effective a law touching on a matter of statewide concern in one city
and not in another, provided that the classification is proper. The home -rule
amendment does not limit the right of the legislature to deal with matters of
statewide concern, even if, in so dealing, some cities and not others are affected.
If, however, the matter enacted by the legislature is primarily of local concern, a
, e .
Mr. James A. Flader
Page 6
municipality can escape the strictures of the legislative enactment unless the
enactment applies with uniformity to every city and village.
West Allis v Milwaukee County, 39 Wis. 2d 356, 365 -66, 159 N.W.2d 36 (1968). See also,
Anchor Savings & Loan Ass'n v Madison BOC, 120 Wis. 2d 391, 395, 355 N.W.2d 234 (1984);
State ex rel. Michalek v LeGrand, 77 Wis. 2d 520, 529,253 N.W.2d 505 (1977).
The Wisconsin Constitution recognizes that the Legislature has an interest in the
appointment of city officers:
All city, town and village officers whose election or appointment is not provided
for by this constitution shall be elected by the electors of such cities, towns and
villages ... or appointed by such ' authorities thereof as the legislature shall
designate for that purpose. All other officers whose election or appointment is not
provided for by this_ constitution ... shall be elected by the people or appointed,
as the legislature may direct. '
Wis. Const. art. XIII, § 9. In addition, Wis. Stat. ch. 66, subch. V contains a number of
provisions that are applicable to municipal officers and employees. Notably, Wis.
Stat. § 66.0509 authorizes cities, villages and towns to establish civil service systems for the
appointment and selection of employees and specifies conditions under which such systems must
operate.
In Van Gilder v. Madison, 222 Wis. 58, 83, 267 N.W. 25, on reh., 268 N.W. 108 (1936),
the court held "that the matter of the compensation of the police officers of the city is a part of a
matter of state -wide concern and not a local affair within the meaning of the home -rule
amendment" and that "the city [therefore) may not by a charter ordinance supplant the act of the
legislature." The court reasoned as follows:
To carry out its functions, the constitution provides for the creation of municipal
corporations by the state. These from the beginning have been held to be
agencies of the state with respect to these primary functions. While they may in
many respects serve the locality in these highly important respects, they also
discharge state functions, and the discharge of these functions is not a local affair
or a matter of local government, but is a matter of state -wide concern and of state
government.
Van Gilder, 222 Wis. at 88 -89.
At a minimum, Van Gilder and Weatherly indicate that it is a matter of statewide concern
whether residency requirements should. exist for city employees performing state functions. The
state also does have an interest in ensuring that the imposition of residency requirements by
Mr. James A. Flader
Page 7
similarly situated political subdivisions of the state, including cities, is uniform and based upon
merit. See e.g., Wis. Stat. §§ 17.03(4) and 66.0509. I therefore conclude that a'city with a city
manager form of government may not exercise its constitutional home rule authority under Wis.
Const. art, XI, § 3 so as to impose a residency requirement as a condition of continued
employment for its city manager or for other city employees.
A city may exercise its statutory home rule authority under Wis. Stat. § 62.11(5) even as
to matters that are primarily of statewide concern.. Anchor Savings & Loan Assn, 120 Wis. 2d at
395. When matters that are primarily of statewide concern are involved, the question is whether
the ordinance is preempted:
A municipal ordinance is preempted if (1) the legislature has expressly withdrawn
the power of municipalities to act; (2) it logically conflicts with state legislation;
(3) it defeats the purpose of state legislation; or (4) it violates the spirit of state
legislation. Should any one of these tests be met, the municipal ordinance is void.
DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651 -52, 547 N.W.2d 770 (1996)
(footnotes omitted).
Wisconsin Stat. §§ 64.09(3) and 64,11(6) expressly withdraw power from cities operating
under a city manager form of government to adopt residency requirements as a condition of
continued employment. Imposing such requirements also would conflict with and defeat the
purpose of such legislation because the basic premise underlying the city manager form of
government is that employees must be selected "purely on merit and with a view to securing the
best available appointee for the place." Wis. Stat. § 64.11(5). Imposition of a residency
requirement for continued employment would be inconsistent with that basic premise. I
therefore conclude that a city with a city manager form of government may not exercise its home
rule authority under Wis. $tat. § 62.11(5) so as to impose a residency requirement as a condition
of continued employment for its city manager or for other city employees.
1 . . .
in
Mr. James A. Flader
Page 8
In summary, a city organized under the city manager form of government is prohibited by
Wis. Stat. §§ 64.09(3) and 64.11(6) from requiring the city or any of the city's employees to
reside within the city as a condition of employment and such a city may not elect to impose a
residency requirement by charter ordinance.
Very truly yours,
P gy . Lautenschlagcr
Attorney General
PAL:FTC:cla