Appointments & Vacancies FAQ 2
Does a council member or village trustee vacate their office by temporarily moving out of the district or village they represent?
Members of municipal governing bodies and other local elected officers must, at the time of their election, be resident electors of the municipality and in the case of common council members, residents of the district from which elected.1 A local elective office is vacated when the incumbent ceases to be a resident of the municipality or district from which he or she was elected.2 In addition, a local appointive office is vacated when the incumbent ceases to be a resident of the municipality if residency is a local requirement for appointive offices.3
Because of this, questions relating to the residency of municipal officers often arise. For example, some elected municipal officers may maintain two dwelling places, one inside and one outside the municipality. Others may be forced by circumstances to temporarily move outside of the municipality or district from which they were elected. Determining whether elected officers in these and similar situations have ceased to be residents of the municipality or district from which elected is important because if they have, the office is vacant.
Standards For Determining Residency
No definition of “residence” is provided in Wis. Stat, chs. 17, 61 or 62. Most case law discusses residency in the context of municipal employees but is nonetheless helpful in determining what “residence” means. In Eastman v. City of Madison,4 the court of appeals referred to the definition of “residence” in Black’s Law Dictionary when interpreting a City of Madison ordinance requiring city employees to “reside” in the city. According to the court, Black’s Law Dictionary defines “residence” as “[p]ersonal presence at some place of abode with no present intention of definite and early removal . . . Residence implies something more than mere physical presence. . . .5
In Eastman, a Madison police officer and firefighter sought reinstatement as Madison employees after their positions of employment were vacated for failure to comply with an ordinance requiring them to reside in Madison. The employees claimed, among other things, that they complied with the ordinance even though they had homes outside the city.
The Eastman court, in its analysis of the residency issue, apparently relied on the definition of “residence” in Black’s Law Dictionary to initially declare that “[c]ontinuous personal presence and intention establish residency.”6 The court also stated, however, that the employees’ “declarations of intent are not conclusive ... [since] ... [s]uch declarations are only evidence of state of mind and ‘may be suspect because of their self-serving nature.’”7 “The self-serving declaration cannot be conclusive but must yield to the intent which the acts and conduct of the person clearly indicate.”8 In addition, the court of appeals expressed the view that “the location of immediate family, and the site of children’s schooling is significant in determining residency.”9
In Eastman, the employees kept apartments in Madison and Madison mailing addresses, telephone numbers, automobile and voter registrations. However, the court noted that the employees’ spouses and families lived exclusively outside Madison and their children went to school outside of Madison. Moreover, the employees spent most of their off-duty time in their homes outside of Madison. Thus, the Eastman court concluded that the fact that the employees maintained apartments and voter registrations in Madison, “in light of the totality of the circumstances, establishes neither the intent nor the presence necessary for residency” under the Madison ordinance.10
When dealing with residency questions, in addition to relying on the Eastman case for guidance, it may be helpful to refer to the following standards governing residency for voting purposes listed in Wis. Stat. sec. 6.10:
1) The residence of a person is the place where the person’s habitation is fixed, without any present intent to move, and to which, when absent, the person intends to return.
2) When a married person’s family resides at one place and that person’s business is conducted at another place, the former place establishes the residence. If the family place is temporary or for transient purposes, it is not the residence.
4) The residence of an unmarried person sleeping in one ward and boarding in another is the place where the person sleeps....
5) A person shall not lose residence when the person leaves home and goes into another state or county, town, village or ward of this state for temporary purposes with an intent to return.
6) As prescribed by article III of the constitution, no person loses residence in this state while absent from this state on business for the United States or this state; and no member of the armed forces of the United States gains a residence in this state because of being stationed in this state.
8) No person gains a residence in any ward or election district of this state while there for temporary purposes only.
10) If a person moves to another state with intent to make a permanent residence there or exercises the right to vote as a citizen of that state by voting, the person loses Wisconsin residence.
11) Neither an intent to acquire a new residence without removal, nor a removal without intent, shall affect residence.
It is evident from Eastman and the standards listed above that determinations of residency must be made on a case-by-case basis. In general, temporary absences from one’s residence do not result in the loss of residence. In addition, a person’s intention is important, but it must be supported by and not contradicted by the facts.
A very important factor in determining residency is continuous personal presence at a particular location. In other words, a key inquiry in determining the residency of a municipal officer is where does the person spend most of his or her non-working time? For example, when a person maintains two dwellings, one outside and one inside the municipality, the question to ask is which one does the person spend the most time at. If the person spends most of his or her non-working time at the family dwelling outside the municipality, as was the case in Eastman, then chances are good a court would probably find that the person is not a resident of the municipality.
Other relevant considerations in determining the residency of a person dividing time between two dwellings are the location of the person’s immediate family, and the site of the children’s schooling, if any. In addition, other facts should be taken into account when determining the residency of a person, such as: where the person is registered to vote, the person’s mailing address, and what address appears on the person’s driver’s license, car registration, bank accounts and tax returns.11
Who Determines the Residency of a Municipal Officer?
When questions are raised concerning the residential status of a municipal officer, who or what body is authorized to make a determination concerning the officer’s residency? With regard to municipal governing body members, each city and village governing body may determine the residency of its members. This is because village boards and common councils have the power to judge the qualifications of their members.12 Municipal governing bodies should not, however, make a determination regarding a member’s residency until after a due process hearing. Also, such a determination would be subject to judicial review.
In addition to the ability of municipal governing bodies to determine the residency of their members, any individual who believes that a person holding a local elective office is not a resident of the municipality or district in which he or she serves may file a complaint with the attorney general alleging that the individual is not qualified to hold office because of a failure to meet a residency requirement.13 The attorney general may, when such a complaint is filed, investigate whether the allegations are true. If the attorney general finds that the allegations in the complaint are true, the attorney general may commence an action under ch. 784, Stats., for a writ of quo warranto to have the person’s office declared vacant because of failure to meet a residency requirement.14
If the attorney general refuses to act on a complaint alleging that a particular officer is not a resident of the municipality or district in which the officer serves, the complainant may, on his own, commence a quo warranto action under ch. 784.15 However, only a person who has an interest which is distinct from that of the general public would have standing to commence a quo warranto action. City of Waukesha v. Salbashian.16 But, as the Salbashian court explained, “only a slight interest is necessary to qualify a person to apply for leave to” prosecute a quo warranto action.17
De Facto Officers
When an elective municipal officer, such as a common council member, moves out of the municipality or district from which elected but continues to exercise the powers and duties of the office for the remainder of his or her term, the officer’s votes and any actions taken by the governing body are valid. While an elective municipal officer who ceases to be a resident of the municipality may not be considered a de jure officer, he or she is a de facto officer if “in possession of [the office], performing its duties, and claiming to be such officer under color of an election or appointment.”18 The acts of a de facto officer are valid as to the public and third parties, and cannot be attacked collaterally.19
Occasionally, questions arise concerning the residency of a particular municipal officer. This article has reviewed various factors to consider when attempting to determine the residency of a municipal officer. The residential status of a municipal officer is important because a local elective office is vacated when an incumbent ceases to be a resident of the municipality or district from which he or she was elected. Also, a local appointive office is vacated when the incumbent ceases to be a resident of the municipality if residency is a statutory or local requirement.
- Sections 61.19 and 62.09(2)(a), Stats. Candidates for elective municipal offices must become resident electors of the municipality and district they seek to represent at least 28 days before the election to be eligible for office. See Wis. Stat. sec. 6.02.
- Sec. 17.03(4)(c).
- Sec. 17.03(4)(d).
- 117 Wis.2d 106, 342 N.W.2d 764 (Ct. App. 1983).
- 342 N.W.2d at 769, quoting Black's Law Dictionary 1176 (rev. 5th ed. 1979).
- Id., at 770.
- Id., quoting Restatement (Second) of Conflict of Laws.
- Id., quoting McCarthy v. Phila. Civ. Svc. Comm., 19 Pa. Cmwlth. 383, 339 A.2d 634, 637 (1975), aff'd, 424 U.S. 645 (1976) (per curiam).
- 9. Id.
- See Officers 743.
- Secs. 61.32 and 62.11(3)(a).
- Sec. 8.28(1).
- Sec. 8.28(2).
- Sec. 784.04(2).
- 128 Wis.2d 334, 382 N.W.2d 53, 57 (1986).
- State ex rel. Reynolds v. Smith, 22 Wis.2d 516, 522, 126 N.W.2d 215 (1964).
- Burton v. State Appeal Board, 38 Wis.2d 294, 304-05, 156 N.W.2d 386 (1968); 77 Op. Att’y Gen. 228, 229 (1988).