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Published: Thursday, 6/11/2009

Ohio court rejects rules on residency

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS For decades, Toledo officials demanded that municipal employees live in the city, with some fired for refusing. The Ohio Supreme Court said yesterday that had to stop.

In a case that pitted cities against the state, the court upheld the constitutionality of a 2006 state law prohibiting cities from requiring their employees to live within their borders.

The 5-2 decision relates directly to challenges brought by Lima and Akron, but it also affects cities such as Toledo with similar appeals in the pipeline. After the decision, Mayor Carty Finkbeiner s office announced that it would no longer enforce Toledo s residency mandate.

We are disappointed with [Wednesday s] ruling and believe it will adversely affect all Ohio cities rights of self-government, the city s administration said in prepared statement. Nevertheless, the court has spoken, and the city will abide by its ruling.

Toledo s residency requirements have been watered down over time through labor negotiations. Employees with 10 or more years of service may receive waivers.

Don Czerniak, president of the 860-member American Federation of State, County, and Municipal Employees-Local 7, applauded the decision. A heavy equipment operator for water distribution, he has a waiver but chooses to live in Toledo. I ll be very curious to see what could happen with the people who have been disciplined over this, he said. People sold their houses. There were people fired over this. This could be a dream come true for some attorneys.

The court decision does not address whether it could be applied retroactively or whether previously disciplined employ-ees may have legal recourse.

Justice Terrence O Don-nell insisted the ruling is not about cities constitutional right to home rule but rather the state s right to enact laws relating to the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, and general welfare of all employees.

Nothing more, he wrote. It is neither an expansion of language nor an undercutting of dual sovereignty.

But Chief Justice Thomas Moyer disagreed, questioning the court s reasoning in this case and last year s ruling involving the Sandusky County city of Clyde. The ruling in the latter case struck down the city s ordinance prohibiting concealed firearms in public parks because it conflicted with a state law.

The balance struck in the Ohio Constitution between the officials of local government determining those issues that have no statewide application and the General Assembly determining issues of general public interest is now tipped dramatically against the authority of local elected officials under the new conception of home rule, the chief justice wrote.

Justice Robert Cupp, a Lima resident, joined Justices O Donnell, Paul Pfeifer, Evelyn Lundberg Stratton, and Maureen O Connor in upholding the state law.

Justice Judith Lanzinger of Toledo joined Chief Justice Moyer in siding with the cities. She wrote that the court s majority opened the door for the General Assembly in a conceivably limitless variety of situations to eviscerate municipal home rule.

There is no constitutional right to be employed by a municipality, let alone to be so employed while living elsewhere, she wrote. Municipalities clearly have a strong interest in the qualifications of their employees and the makeup of their work forces.

Although the 2006 state law invalidated existing city residency requirements, city voters could via the ballot box enact a requirement that employees live either in the county or an adjacent county. Some 125 cities and 13 villages have some form of requirement in their charters, ordinances, or collective bargaining contracts.

They have argued that having their employees, especially police and firefighters, live within their borders was critical to a quick response in emergencies.

Nick DiMarco, state president of the Fraternal Order of Police, called such rules antiquated.

Not only did they decrease the pool of quality employees within a city for hiring, but they also created numerous hardships on families trying to make an honest living in Ohio, he said.

While stressing that this decision was not decided along home-rule lines, Justice O Donnell defended the court s prior ruling for the state in the Clyde firearms case. He noted that the court applied the same test when it upheld automated red-light and speed camera programs operated by cities such as Toledo, finding they were not superseded by state traffic law.

Thus, despite claims tothe contrary, constitutional home-rule authority retains its vitality in Ohio, he wrote.

Contact Jim Provance at:jprovance@theblade.comor 614-221-0496.



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