Month: August 2018

Residency Requirements for Municipal Employees

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

In most cases, a municipality can chose whether to mandate that its employees reside within the municipality’s corporate limits.   Special rules, however, apply to police officers, firefighters and appointed officers of a municipality.

Municipalities that have chosen to impose employee residency requirements have sometimes faced constitutional challenges to their policies.  These challenges seldom succeed in the courts.  All that is needed for an employee residency requirement to be constitutional is that the municipality had a “rational basis” for adopting the requirement.  This standard can be easily met.  The Seventh Circuit Court of Appeals (the federal appeals court that sits in Chicago) has noted, for example, that a city’s need to have its employees sometimes available on short notice is a sufficient, rational reason for a residency requirement to make it constitutional.  Gusewelle v. City of Wood River, 374 F.3d 569, 578 (7th Cir. 2004.)

Although municipalities may choose to impose residency requirements on employees, the Municipal Code provides that certain appointed municipal officers must be residents. The default rule is that all appointed officers must be residents of the municipality in which they serve. (65 ILCS 5/3.1-10-6.) However, the Municipal Code exempts from this residency requirement “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge.”  There are no reported court cases giving guidance on this point, but it appears that a city council or village board could not adopt an ordinance imposing a residency requirement on “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge,” where such an ordinance would probably constitute an unlawful restriction on the mayor’s or village president’s authority to appoint officers of his or her choosing to these offices.

Police officers and firemen are considered officers, and per default rule, they must be residents of their municipality.  But, unlike the case for other officers, the Municipal Code expressly provides that a municipality can adopt an ordinance that changes this default rule and not require that its police officers and firemen be residents.  It is our opinion that a municipality could also exclude its police chief or fire chief from any residency requirements.  Note that for municipalities whose police officers of firemen are appointed by a board of police and fire commissioners, residency requirements for police officers or firemen cannot be made more restrictive for any individual during his or her period of service, nor can residency be made a condition of promotion, except for the rank or position of fire or police chief.  (65 ILCS 5/10-2.1-6.)

Who is an officer of a municipality, as opposed to a mere employee, is not always clear.  The Municipal Code lists the following positons, which may be filled by the mayor or village president with the advice and consent of the city council or village board, as being appointive offices:  “(1) a treasurer (if the treasurer is not an elected position in the municipality), (2) a collector, (3) a comptroller, (4) a marshal, (5) an attorney or a corporation counsel, (6) one or more purchasing agents and deputies, (7) the number of auxiliary police officers determined necessary by the corporate authorities, (8) police matrons, (9) a commissioner of public works, (10) a budget director or a budget officer, and (11) other officers necessary to carry into effect the powers conferred upon municipalities.”  (65 ILCS 5/3.1-30-5.)  This last category is vague, but the courts have provided some guidance in its interpretation.  In determining whether a person is an employee or an officer, the courts look at whether appointment is for a certain term, whether an oath of office is required, and whether the person has the supervisory and discretion to act on behalf of the municipality.   Rinchich v. Village of Bridgeview, 235 Ill. App. 3d 614, 628, 601 N.E.2d 1202, 1211 (1st Dist. 1992).

If a position is held by an appointed officer, as opposed to a hired employee, and if there is no statutory exception that allows or requires the officer to be a non-resident, the Municipal Code requires that the person to be a resident.  For example, an appointed city administrator, who exercises a large amount of discretion in the performance of his or her duties, would likely be an officer, and without an applicable exception to the default rule that appointed officers must be residents, the city administrator would be required to be a city resident.

In summary:

  1. A municipality can choose whether to require residency of its “ordinary” employees.
  2. A municipality can choose whether to require residency of its police officers and firemen.  However, if there is no ordinance providing otherwise, police officers and firemen must be residents of the municipality.
  3. A city council or village board likely lacks the authority to require residency of the municipality’s attorney, engineer, or any officer required to have technical training or knowledge. Imposing a residency requirement improperly limits the mayor’s or village president’s power to make appointments to these offices.
  4. Other appointed officers of a municipality may be required by statutes to be residents of the municipality. Consult with your attorney if you have questions whether an appointed officer can reside outside of your municipality’s corporate limits.

Miller Hall & Triggs closes on two RAD Low Income Housing Tax Credit Transactions in June 2018

Richard M. Joseph with Miller, Hall & Triggs, LLC closed on two RAD Low Income Housing Tax Credit Transactions resulting in the conversion of all 390 public housing units of the Housing Authority of the City of Texarkana, Arkansas.

The RAD program,  administered by HUD,  was established in order to give public housing authorities a powerful tool to preserve and improve public housing projects and address issues of deferred maintenance by providing for the voluntary conversion of public housing and other HUD-assisted properties to long-term, project-based Section 8 rental assistance, utilizing either project-based vouchers or project-based rental assistance contracts. RAD allows public housing agencies to leverage public and private debt and equity to help ensure that the units remain affordable to low income households.

The Texarkana RAD Conversion project made possible the conversion and rehabilitation of 335 units in eight separate apartment complexes through the use of 4% low income housing tax credits generating $6,356,897 in equity, $13,100,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority, $10,000,000 non-recourse loan through the HUD 221(d)(4) program, and use of Public Housing Operating Reserve Funds.

The Housing Alliance 2 project made possible the conversion and substantial rehabilitation of 55 units in two separate apartment complexes and five single-family homes through the use of 4% low income housing tax credits generating $1,234,370 in equity, $2,900,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority and use of Public Housing Operating Reserve Funds and Public Housing Capital Funds.