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February 22, 2013

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"
Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals

These three appeals stem from a residency policy that required employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy's effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment.

The policy's implementing regulations define "residency" as "an individual's actual principal domicile* at which he or she maintains usual personal and household effects."

Essentially all three individual had signed affirmations signifying their understanding that they were required to become domiciled with in the City  in accordance with the District’s residency policy. Subsequently the District's School Board, after an investigation, concluded that three employees were not domiciled in Niagara Falls and terminated their respective employments with the District.

Supreme Court, in an Article 78 action involving two of the three employees,** characterized the District’s policy's definition of residency as creating a "vague and ambiguous" standard which, coupled with the Superintendent's failure to develop adequate procedures and guidelines, "resulted in varied and subjective interpretations leading to disparate results." The court held that the residency requirement was unenforceable, and that any termination of the two individuals involved in this phase of the litigation based on it was therefore arbitrary and capricious. Supreme Court directed the reinstatement of the two individuals with full back pay and benefits.

Different panels of the Appellate Division considered these appeals. One panel reversed the Supreme Court’s judgment as to one of the individuals (92 AD3d 1272), holding that the District established that the individual was not domiciled in Niagara Falls, and therefore the Board's determination was not arbitrary and capricious. The Court of Appeals affirm this ruling.

A second panel sustained the Supreme Court’s ruling with respect to the second individual without opinion (92 AD3d 1276) which ruling the Court of Appeals reversed.

The Court of Appeals explained that a residency policy for municipal workers serves "the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]."

Addressing the implementing regulations, the court noted that the regulation define "residency" as "an individual's actual principal domicile at which he or she maintains usual personal and household effects." This definition, said the court, may be criticized for redundancy or surplusage, but not ambiguity. The word "domicile" alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls "with intent to make it a fixed and permanent abode."

As to “administrative due process” issues advanced by the individuals, the Court of Appeals pointed out that the regulations “provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a "seven-day letter" to afford an employee the opportunity to respond to allegations of non-compliance; include a hardship waiver; and exempt non-administrative employees hired prior to the policy's effective date, subject to certain conditions.”

The regulations, said the court, “also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.”

As to claims advanced by two of the individual’s contending that they were entitled to pre-termination hearings in the nature of a disciplinary proceeding as a condition precedent to their termination, the Court of Appeals indicated that it had previously held that a residency requirement defines eligibility for employment, and so is "unrelated to job performance, misconduct or competency." Thus said the court, the individuals were not entitled to a pre-termination hearing such as set out Education Law  §§2509(2), 3020 or 3020-a, which deal with teacher discipline, explaining that in this instance “due process mandates only notice and some opportunity to respond.”

Finally, the court addressed the proper standard for judicial review in these cases, concluding that the standard is whether the Board's determination was arbitrary and capricious or an abuse of discretion. 

Conceding that this standard is ‘an extremely deferential one,” the Court of Appeals said that "The courts cannot interfere [with an administrative body's exercise of discretion] unless there is no rational basis for [its] exercise . . . or the action complained of is arbitrary and capricious, [a test which] chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact," citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222," [emphasis supplied by the court].

The bottom line: the Court of Appeals held that in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

* In Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385, a case involving which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother, the Court of Appeals explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

** Supreme Court transferred the petition filed by the third individual, Luchey, to the Appellate Division, which ruled in favor of the former employee. The Court of Appeals reversed this determination by the Appellate Division.

The decision is posted on the Internet at:

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