Employees FAQ 13
Are municipal residency ordinances valid?
It depends. Wisconsin Statute sec. 66.0502, created by the legislature as part of the 2013-2015 biennial state budget and effective July 2, 2013, limits the ability of municipalities to enact residency ordinances. With limited exceptions, sec. 66.0502 states that no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional limits. The law also invalidates and makes unenforceable any local residency requirements in effect on July 2, 2013. Section 66.0502 does not affect state laws requiring residency within the jurisdictional limits of any local governmental unit, or state and local laws requiring Wisconsin residency.
Section 66.0502(4)(b) allows a local governmental unit to impose a residency requirement on law enforcement, fire, or emergency personnel that requires such personnel to reside within 15 miles of the local government’s jurisdictional boundaries. Subsection (4)(c) allows counties to impose a residency requirement on law enforcement, fire or emergency personnel that requires such personnel to reside within 15 mile of the city, village, or town to which the personnel are assigned. The law does not define what constitutes “emergency” personnel. Residency requirements imposed under 66.0502(4)(b) and (c) do not apply to any volunteer law enforcement, fire, or emergency personnel who are employees of a local governmental unit.
Although the legislature has declared in sec, 66,0502(1) that public employee residency requirements are ”a matter of statewide concern,” some municipalities believe local residency requirements are more properly characterized as a matter of “local affairs and government ” and have imposed residency requirements by charter ordinance under Wis. Stat. sec. 66.0101 using the home rule powers granted to municipalities by Art. XI, sec. 3 of the Wisconsin Constitution. If residency requirements are a matter of “local affairs and government” rather than statewide concern, then constitutional home rule prevents the legislature from limiting municipal authority in that area. Unfortunately, the courts have historically viewed municipal constitutional home rule powers very narrowly.
Whether public employee residency requirements are more properly characterized as a matter of statewide concern or a matter of local affairs and government, and therefore something that municipalities can impose by charter ordinance, is a question the courts will have to answer. Although sec. 66.0502 now limits municipal authority to impose residency requirements, prior case law upheld municipal residency ordinances as constitutional and authorized under the broad statutory home rule powers granted to cities under Wis. Stat. 62.11(5) and villages under sec. 61.34. The U.S. Supreme Court upheld the constitutionality of a municipal residency requirement in McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976). In that case, McCarthy, an employee in the Philadelphia fire department, was terminated because he violated the city's residency ordinance when he relocated his family from Philadelphia to New Jersey. In a per curiam decision, the U.S. Supreme Court held that the Philadelphia ordinance did not violate the due process or equal protection clauses of the 14th Amendment to the U.S. Constitution, and did not violate a person's constitutionally protected right of interstate travel.For a more in-depth description of the new residency requirement limitations imposed by sec. 66.0502, see the Wisconsin Legislative Council memorandum online.