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2. Residency Requirements for City EmployeesCity of Kalispell Charles A. Harball Office City Attorney y City Attomey 312First Avenue East P.O. Box 199 Kalispell, MT 59903-1997 MEMORANDUM TO Mayor Pamela B. Kennedy and Kalispell City Council FROM: Charles Harball, City Attorney James H . Patrick, City Manager Tel 406.758.7708 Fax 406.758-7771 cbarball@kalispell.com SUBJECT: Revision of ordinance No. s Kalispell Employee Residency Restrictions MEETING DATE: Monday, July 24, 2006 — Work session BACKGROUND: Council discussed this matter at its work session on July 10, 2006 and tabled the matter on its agenda July 17, 2006 to discuss it more fully on the next work session. Ordinance 847 was enacted in 1975 and sets specific restrictions on the residency of its employees, requiring all employees to live in Flathead County and some employees to live in the City. other employees are exempt from these requirements. No specific policy is expressed in the ordinance and it is virtually impossible to deduce what the policy is, or might be, based upon a. plaiLn reading of the ordinance. Residency requirements set by local governments as qualifications for employment have generally fallen in disfavour by courts around the country. The courts look to vhether or not there is a legitimate policy served by such restrictions. The first question to ash., therefore, is, "What is the city policy?" Two policies that have been voiced by members of council. The first policy is to ensure an adequate response time for emergency service personnel when called in to the City from their residence to a fire or other emergency. This policy has been found to be legally supportable in those local governments In which there are not sufficient numbers of personnel available on shift to adequately cover emergencies, requiring ing the use of on -call personnel. The second policy that has been expressed is to ensure that those city employees who have the responsibility for budgeting and spending of city resources are city taxpayers and are therefore appropriately sensitive to the concerns of the other city taxpayers. This polio iLs not generally Residency Requirements July 21, Zoo 'age - favored by the courts around the country but it has not specifically been addressed y the courts in our jurisdiction. Analysis of Ordinance 847 Section 1. All c1tv e.mpl.ffees must reside in Flathead County. Flathead County is a large land. area. It might be stated that that the policy being served by this restriction is to ensure that employees can reliably report for their regular work duties and not be impeded by excessive travel time or costs. Following this policy may be said to reduce absenteeism or tardiness. Section 2. All e art a.e t heads and their assistants must reside in the.city of Kalispell unless otherwise a.u.thor . ed. by Council.. since the ordinance does not require all employees to reside in the city, it can not be said that the purpose of this restriction is to reduce absenteeism or tardiness, Emergency fire personnel are allowed to live 3 miles or 15 minutes from the fire station separate ordinance for fire personnel) so it can not be said that the purpose of the ordinance is to ensure an adequate response time in emergencies. Unless some other policy can be expressed, the only policy served is to ensure that those city employees who have the responsibility for budgeting and spending of city resources are city taxpayers and are therefore appropriately sensitive to the concerns of the other city taxpayers. This policy is suspect, or the argument for it is at least weakened by the fact that city spending is allowed only within the budget which is prepared and presented b the City Manager, who, by contract, is a resident of the City, and is ultimately approved by the Council. Members who are each, by law, residents of the City. The fact that this section allows Council, on terms it chooses, to authorize exceptions to this restriction is a further concern.. With no policy specifically stated within this section, it is not possible to determine whether the terms chosen by Council are appropriate or not. Section 3, A emto ee current1v residina in the city ma not move his or her residence outside of the c1tv Without the approval of his or her de artet head aid the concurrence of council with whatever terms and conditions that ma be placed upon such ep o+ ee. This section is inconsistent with section 1. This treats existing employees differently than new employees, who may, unless they are department heads or their assistants, live anywhere in Flathead County. It is difficult to imagine what policy is served by this distinction and is therefore likely a violation of an employee's right to equal protection under our laws. Office of City Attorney City of Kalispell Residency Requirements July 21, Zoo Page-3 Section 4. These reside.c re trictio . do no a-pplv to temporary or seasonal � emto ees or rofessio al or technical ems. to eesor elected or ap-pointed officers of the City. The insertion of this section is curious and provides more questions than answers. If the policy of the restriction is to ensure that employees will reliably report to work, why does it not apply to temporary or seasonal employees, unless perhaps they have a seasonal residence within Flathead. County, in which case, why is this not stated' Who are professional or technical employees? Attorneys and engineers have advanced degrees and are generally considered professionals. It can easily be argued that all department heads and their assistants are professional or technical employees. Was the purpose to distinguish contract services? Professional and technical personnel who provide contract services are not city employees and would not be affected by this ordinance in any event. other than the Municipal Judge, whose residency is controlled state statutes, the only other elected officers of the city are the city council who must, by state law, reside within the City. That leaves the only appointed position in the City, which is the City Manager, who by this ordinance may live outside the City. It is only by contract that he is required to live within the City. RECOMMENDATION: Clearly, this ordinance requires a review and thoughtful change. Council should discuss what policies are intended to be served by residency restrictions and instruct stall' to draft appropriate amendments to the ordinance. Respectfully su mitted, ch , City Attorney James H. Patrick, City Manager Office of City Attorney City of Kalispell ORDINANCE N o 847 N ORDINANCE TO PROVIDE FOR THE RESIDENCY REQUIREMENTS OF FULL TIME AND TEMPORARY EMPLOYEES of THE CITY OF KALISPELL E IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELLf N ANA SECTION 1. Every person now emploYed by, or hereafter employed y the City of Kalispell as a full time employee of any depart meat of the City of Kalispell shall, at the time said person is employed, y , and at all timeas thereafter, be requ3.red to maintain his bona fide residence within Flathead. County. SECTION 2. All city employees appointed to a position as head a department of the City, and such assistants to such department heads as the council may from time to time desigante, shall, during the tern of such appointment, maintain a bony. fide residence thin the city limits of the City of KaUs ell unless authorized y the City Council to reside -outside the city limits w such authorization may be given With such conditions as the Council may deem, necessary and impose upon such appointee. SECTION 3. Any present employee of the City residing within the city limits, or any person • .ere after employed y the City o • Ka spe l , who 'is, at the time of such employment-. a resident withJUI the Xa2ispell City Limits, may move his residence to any point outside the limits of the City of Kalispell, but within Flathead county, only with the authorization of the head of the department - whe a In said employee is employed and with the concurrance of the City Council,; such authorization may be given with such conditions a ' the Council may erg 'necessary and impose upon such eip.e 4 SECTION 0 ' This ordiance shall not apply to temporary or seasonal employees of the City of Kalispell, or to persons employed to furnish professional or technical services to the City, or t elected or ap.ed officers of the City. All ordinances r re o. ti n or portions thereof of e hereby � n PASSED THE CITY i THE CITY of KALISPELLf MONTANA, AND APPROd14rBY TffE MAyS Sth DAY of DEC EMBER , 1975, ! r+ f 0=7 Er Happ,, Mayor _ ,