By: Robert B. McCoy
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.
- A municipality can choose whether to require residency of its “ordinary” employees.
- 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.
- 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.
- 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.