The state’s new law proscribing
political subdivisions from imposing residency
restrictions against their employees is presently being
challenged by cities in numerous courts across Ohio. The
law, R.C. 9.481, provides that no political subdivision
shall require any of its employees, as a condition of
employment, to reside in any area of the state. For
emergency response workers, the law provides that
political subdivisions may restrict residency to
adjacent counties of the political subdivision.
Initially, common pleas courts in Allen, Lucas,
Montgomery, Summit, Cuyahoga and Trumbull Counties
upheld the state statute. These early victories have
been followed by defeat in two appellate courts. At the
time of this publication, only two appellate courts have
ruled on the issue. Both the Ninth District Court of
Appeals and the Third District Court of Appeals have
held R.C. 9.481 to be violative of the Ohio
Constitution. These decisions reversed the trial court
decisions in Summit and Allen Counties. The following
discussion outlines the major legal principles at issue
in these cases.
The argument for upholding the
validity of R.C. 9.481 is fairly simple. Article II,
Section 34 of the Ohio Constitution provides that laws
may be passed by the Ohio General Assembly “fixing and
regulating the hours of labor, establishing a minimum
wage, and providing for the comfort, health, safety and
general welfare of all employees; and no other
provision of the constitution shall impair or limit this
power.” The General Assembly specified with the
passage of R.C. 9.481 that it was passed under such
authority in order to provide for the health, safety and
general welfare of the employees. Therefore, by the
plain language of Article II, Section 34, it is argued
that no other purported constitutional authority can
impair or limit the mandates of R.C. 9.481.
The local political subdivisions
argue against the constitutionality of R.C. 9.481 on the
basis that it was not validly enacted under Article II,
Section 34 of the Ohio Constitution. They argue that
such constitutional provision has implied limits that
are to be checked by the Court.
The Third District Court of Appeals
held that Article II, Section 34 required a showing of
some nexus between a statute and the "working
environment." The Court held R.C. 9.481 to be
unconstitutional by finding that an employee's residency
was not a "working environment" issue. It appears that
the Court restricted its "working environment" test to
the physical location of work. The Ninth District Court
of Appeals did not articulate an explicit standard of
limitation upon the “general welfare” provision but held
that such is not “so broad as to encompass a law that
reinstates a right that employees voluntarily
surrendered upon accepting employment…” Thus, the two
appellate courts addressing the issue have basically
concluded that the “general welfare” provision of
Article II, Section 34 has limits and a law proscribing
residency requirements exceeds those limits.
A second element to the residency
issue concerns municipalities’ “home rule” authority.
Under Article XVIII, Section 3 of the Ohio Constitution,
municipalities have authority to exercise “all powers of
local self-government and to adopt and enforce within
their limits such local police, sanitary and other
similar regulations, as are not in conflict with general
laws.” Cities argue that local residency rules are
validly enacted pursuant to such home rule authority and
that R.C. 9.481 is not a “general law.” Trial courts
upholding the law have maintained Article II, Section 34
of the Ohio Constitution explicitly trumps the purported
authority of a municipality and that the legislature
explicitly passed R.C. 9.481 as a general law of
statewide concern.
The appellate courts in the third and
ninth districts held that R.C. 9.481 is not a general
law under Article XVIII, Section 3. Applying prior
precedent for determining what constitutes a general
law, these appellate courts found that R.C. 9.481 fails
for reason that it prohibits the exercise by a
municipality of its home rule powers without such
statute serving "an overriding statewide interest." The
Third District Court of Appeals noted that the statute
was passed to protect the rights of public employees to
live where they wished. The Court reasoned that citizens
do not have the constitutional right to live where they
want and demand employment with a particular
employer. Upon such, the Court concluded that the
interest to be protected cannot be deemed to rise to the
level of being an “overriding statewide interest.” This
reasoning identifies the basis for enacting R.C. 9.481 –
the absence of an established right of public employees
to live outside their place of employment – to justify
its invalidity. The Court thereby signals that such
protections may only be afforded by constitutional
amendment.
There is not enough space herein to
fully review all the arguments concerning this issue.
Certainly, the Supreme Court will ultimately settle the
matter. This case brings to the surface fundamental
legal principles such as the role and authority of the
judiciary versus the legislature and the limits of local
government versus the Ohio General Assembly. Also,
economic policy concerns are part of the mix as the
local governments make the policy argument that R.C.
9.481 impairs their capacity to govern. Cities argue
that upholding the proscription against residency
requirements will result in an exodus of residents,
diminished housing values and loss of tax receipts. Of
course, from the employees' perspective, any arguable
effect on local tax receipts does not deprive the state
of its authority to protect the rights of public
servants. Like most cases of first impression, there is
room within the framework of analyzing this issue for
the Supreme Court of Ohio to go either way.
