Ohio Residency Law (Revised Code §9.481) Upheld;

Home Rule Challenges Rejected

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

The Ohio Supreme Court, on June 10, 2009, upheld Ohio’s public employee residency law, ruling that the state law precludes Ohio cities from requiring that their employees reside within the city limits. In Lima v. State, Slip Opinion No. 2009-Ohio-2597, the Court by a 5-2 majority rejected arguments advanced by the cities of Lima and Akron that in barring enforcement of local residency requirements the General Assembly exceeded its authority and violated the cities’ home rule authority to “exercise all powers of local self-government” under Article XVIII of the Ohio Constitution. Writing for the majority, Justice Pfeifer cited specific language in Section 34, Article II of the Ohio Constitution stating that the General Assembly may enact laws “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” in upholding the state law.

REVISED CODE SECTION 9.481

Senate Bill 82, passed by the Ohio General Assembly and signed by then Governor Taft, deals with residency requirements imposed on employees by political subdivisions. The Act, which creates a new section of the Ohio Revised Code, §9.481, generally prohibits political subdivisions from requiring any of its employees to reside in any specific area of the State. The Act does allow political subdivisions to make an exception to this general prohibition. Political subdivisions, through an initiative petition passed by the voters, or by an ordinance or resolution passed by the legislative authority of the political subdivision, may require that employees who are responsible for responding to emergencies or disasters reside in the county where the political subdivision is located or in any adjacent county in Ohio. The law became effective May 1, 2006.

HOME RULE CHALLENGES

Some Ohio cities have charter provisions or ordinances that restrict the freedom of their employees when it comes to their residential choices. Those cities dictate that their employees must live within the city boundaries, infringing upon the employees’ right to choose where they live and significantly limiting the employees’ residential options and negatively impacting important issues such as economic matters, family relations, and school choices. A number of those cities (including Lima, Dayton, Akron, Cleveland, Toledo and others) filed lawsuits asking the courts to declare that, despite the state law, the cities’ home rule provisions allowed them to infringe upon the rights of their employees to reside in another jurisdiction.

Those cities were generally unsuccessful at the trial court level. The courts of common pleas ruled that local provisions impinging on employees’ right to choose where they live had to yield to the state law allowing employees to reside in any area of the State.

The cities, however, found more success in the courts of appeals. Courts of appeals in Allen, Cuyahoga and Stark counties held that cities could ignore the state law and continue to tell their employees where to live, while the Montgomery County court upheld the state law.

OHIO SUPREME COURT

Appeals were taken to the Ohio Supreme Court, and the validity of the state residency law has now been decided by the Supreme Court. On June 10, 2009, the Court held that the explicit language in Section 34 of Article II of the Ohio Constitution prevails over the home rule provisions of Lima and other cities and, as a result, Revised Code §9.481 is constitutional and municipalities may not require their employees to reside in a particular municipality, other than as provided in §9.481(B)(2)(b). The Court’s decision should put an end to cities’ attempts to force their employees to live within the city limits.