Massachusetts Civil Service Residency Amended
The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.
C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.” It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.
What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.” For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.
Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain case addressed the conflict between the 2 statutes and stated that:
“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”
However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.
When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community. The Court made no reference to c. 31 sec 58.
Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation. At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58. However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.
In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters. Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes. Stay tuned..
Is the 10 miles from town border of town where residence is to town of employment (border to border) OR is is your actual address (from your driveway) to the town border where you work? Thank you
It’s border to border, or perimeter to perimeter to use the statutory language. Statute states officer must “establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town.”
Thank you for your response. I was led to believe it was from my driveway to the town border.
What about distance that would put you over the state borders of say NH or RI? Ex: bargaining increases distance to 35 miles. This would be a concern for border cities and towns. Perhaps the reason Gov.Patrick vetoed sec 110 in budget , which was overturned by the legislature on July 30 , where he states in comments that sec 110 inadvertently would allow residence outside the Commonwealth. Any clarification or tips would be helpful.
I know “ignorance of the law is no excuse”. When both parties are guilty of ignorance, the town not enforcing and employees living beyond the 10 miles. Now that it can be negotiated, shouldn’t it be a housekeeping issue? Instead of our side giving up something to allow our members to stay where they live?
This is in response to the question as to whether the amendment to MGL c. 31 sec 58 allows police officers or firefighters to live outside the Commonwealth.
MGL c. 31 sec 58 provides that,
“any person who receives an appointment to the police force or fire force of a city or town shall within nine months after his appointment establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town.”
The important segment of this provision for your question is where it says “or any other place in the Commonwealth that is within ten miles of the perimeter of such city or town.
The recent amendment in the budget provides that “after” the word “town” is added “provides however a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E.”
The amendment does not specifically remove the reference to residing “in the Commonwealth” but it does allow collective bargaining that “may increase the 10 mile residency limit.” Therefore the amendment allows cities and towns and public safety unions to bargain to “increase the 10 mile limit.” There is nothing in the amendment which specifically removes the requirement that the person reside in the Commonwealth.
However, as the question states, when the Governor originally vetoed this amendment he stated,
“I am vetoing this section because although I approve Section 50, which allows collective bargaining agreements to extend the present requirement that police officers and firefighters reside within 10 miles of the employing municipality, this additional unnecessary section inadvertently allows such agreements to prevail over other existing statutory provisions that employees must reside in the Commonwealth and that prefer municipal residents on civil service eligible lists.”
In this veto message the Governor states that he thinks the amendment “inadvertently allows such agreements to prevail over other existing statutory provisions that employees must reside in the Commonwealth…” Therefore the Governor believes that allowing the increase of the 10 mile limit through collective bargaining also allows the bargaining to allow police officers and firefighters to reside outside the Commonwealth. Since it was after this comment by the Governor and while the General Court overturned the veto, that the Legislature stated “notwithstanding the governor’s concerns,” we are passing this amendment, it can be interpreted that the Legislature did intend to allow residence outside the Commonwealth, as a result of this amendment.
Therefore it can certainly be argued that this legislative history supports a claim that the intent of the legislature was to allow bargaining to increase the 10 mile limit to also include bargaining to allow residence outside the Commonwealth. This would be consistent with MGL c. 41 sec 99A which allows residence outside the Commonwealth provided it is within 15 miles of the limits of said city or town.
In addition, there are arguably some serious constitutional issues with any state statute which prohibits municipal employees from living out of state. The residency distance requirements have passed constitutional challenges because the courts recognize a legislative municipal interest in having public safety employees residing within a reasonable distance from which the employee can quickly respond to an emergency. There does not appear to be any legitimate local interest served by requiring that they live within the Commonwealth. If someone works in a border community he/she could certainly be even within the 10 mile limit and live in Rhode Island or New Hampshire.
In the case of Massachusetts Council of Construction Employees Incorporated, 384 Mass 466 (1981) the Court found that a state statute which mandates that private contractors on state funded projects give preference to Commonwealth residents in hiring for certain positions violates the privileges and immunities clause of the U.S. Constitution. There is an argument that MGL c. 31 sec 58 violates the privileges and immunities clause as well. The privileges and immunities clause of the U.S. Constitution protects the right of a citizen of one state to pass through or to reside in any other state, for purposes of trade, agriculture, professional pursuits or otherwise. Since limiting work opportunities because of a person’s place of residence impinges on a fundamental right, limiting employment to those who reside in the Commonwealth violates the purposes of the privileges and immunities clause. This finding establishes that a state may not use its control over a resource to create an absolute employment preference for its own residents.
Therefore, once this amendment to c. 31 sec 58 takes effect, you can argue based upon the Governor’s remarks and the Legislature’s overturning of his veto that the amendment allows the parties to bargain to increase the 10 mile limit and also allows bargaining to allow residence outside the Commonwealth. You can also continue to argue that MGL c. 41 sec 99A continues to supersede c. 31 sec 58 based upon the earlier Mulrain decision and that since 99A does not require residence in the Commonwealth so long as you reside within the 15 mile limit you are in compliance. Finally, if all else fails you can take the position that requiring residence in the Commonwealth violates the U.S. Constitution.
Thank you for the detailed response, very informative and cleared up some other questions.
In response to Paul, it’s hard to say how bargaining over extending residency will play out. Depending on the community, the interests of the parties are not obvious. Many towns will not be looking to maintain 10 miles – it is likely in the interest of the town to extend it to attract or retain qualified candidates. Or maybe the Town is represented by a law firm that likes to run the bill and will fight any change for the sake of fighting (we all know which ones I’m talking about). At the same time, individual union members may also have conflicting interests. One officer may desire an extension of the limit, while another who lives in town may selfishly wish to limit the “competition” for promotion (“Solidarity Forever” notwithstanding). So, how “hard” it will be to extend the limits will vary from town to town.
Question: I took Police Test in June. Bought house in town I claimed residential preference in December. House was a forclusure and I had to pay 2 real estate tax bills that covered six months. 7 months in town at time of test and the 2 tax bills am I covered when it comes to residential preference….If it matters, my previous address was less than a mile from town.
To be eligible to be appointed off a residents’ list, you need to have resided in the city or town for one year prior to the date of the examination. Here’s the language from Mass. Gen. Laws Chapter 31, Section 58:
No applicant for examination for original appointment to the police force or fire force of a city or town shall be required by rule or otherwise to be a resident of such city or town at the time of filing application for such examination; provided, however, that notwithstanding the provisions of any general or special law to the contrary, any person who receives an appointment to the police force or fire force of a city or town shall within nine months after his appointment establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town; provided, however, that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. If any person who has resided in a city or town for one year immediately prior to the date of examination for original appointment to the police force or fire force of said city or town has the same standing on the eligible list established as the result of such examination as another person who has not so resided in said city or town, the administrator, when certifying names to the appointing authority for the police force or the fire force of said city or town, shall place the name of the person who has so resided ahead of the name of the person who has not so resided; provided, that upon written request of the appointing authority to the administrator, the administrator shall, when certifying names from said eligible list for original appointment to the police force or fire force of a city or town, place the names of all persons who have resided in said city or town for one year immediately prior to the date of examination ahead of the name of any person who has not so resided.
Mass. Gen. Laws Ann. ch. 31, § 58
Is mgl 31 58 town line to town line or residence to town line.
Scott:
“Said distance shall be measured from the closest border limits of said city or town in which said member is employed to the closest border limits of the city or town in which said member lives…” Mulrain v. Bd. of Selectmen of Leicester, 13 Mass. App. Ct. 48, 49, 430 N.E.2d 831, 832 (1982).
You measure the two closest points, by air miles, of the city/town in which you live and the one where you reside.
Alan Shapiro