This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58. Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately. Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.
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13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain case addressed the conflict between the 2 statutes and stated that: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..