Published: September 04, 2008 12:45 am      

Residency at heart of Huntington police, fire dispute

CHARLESTON — A judge that struck down Huntington’s requirement that firefighters and police officers live within the city limits or face “immediate” firing wrongly interpreted the ordinance, the city’s lawyer told the state Supreme Court on Wednesday.

Attorney Scott McClure said the city never meant to deny employees their right to due process with the 2002 residency ordinance.

“It doesn’t say, without liberty of a hearing,” McClure told the justices. “Such language does not appear in the ordinance anywhere.”

But a lawyer for firefighter Jason Eastham and police Officer Josh Coffey, who are challenging the requirement, argued that Judge John L. Cummings correctly concluded that “immediate” meant just that.

Bert Ketchum cited a November 2006 letter from Mayor David Felinton that ordered all workers the law covered to deliver proof of residency to City Hall by the following month or be “dismissed immediately for cause.”

The letter underscored the city’s intent, Ketchum said. The ordinance governs all employees hired after July 1, 2002. The legal challenge is about the right to due process under the state and U.S. constitutions. Civil service employees, including police and firefighters, are also protected by rules that allow them to appeal firings.

“(The ordinance) clearly and unambiguously calls for termination without delay, and without due process,” Ketchum said.

McClure countered that Cummings could have erased the word “immediate” from the ordinance to remedy confusion over the meaning, but he didn’t.

“They’ve construed it for the express purpose of declaring it unconstitutional,” McClure said.

The Supreme Court is expected to rule by the end of the year. Justice Joseph Albright listened in on the hearing as he continues to recover from surgery on his esophagus.

Eastham and Coffey sued over the ordinance before the December 2006 deadline set in Felinton’s letter.

“There has been nobody discharged,” McClure said. “Not a soul.”

The high court affirmed the right of municipalities to enact employee residency requirements in 1999, after Wheeling passed such an ordinance. But Ketchum argued Wednesday that such provisions prevent places like Huntington, with a declining population and a struggling economy, to recruit and keep qualified employees.

“It’s an antiquated law,” he said.

Ketchum also suggested that Huntington may be the only city or town in the state with such a provision.

The West Virginia Municipal League is unaware of how many of the state’s 234 incorporated places have residency rules, executive director Lisa Dooley said. That group’s national counterpart has a similarly hard time tracking such laws.

Some states forbid cities and towns from using them, while others direct them only at police and fire, said Chris Hoene, director of policy and research for the National League of Cities.

Neighboring Ohio blocked such ordinances with 2006 legislation. But some of Ohio’s larger cities, including Cleveland, have asked the state Supreme Court to overturn it.

Huntington was trying to ensure employees had a stake in their community with the law, while also seeking racial diversity and to increase its tax base, McClure told the West Virginia court.

“It’s a policy choice, with all due respect to Mr. Ketchum,” he said. “It’s not up to he and I. It’s up to the elected legislature, the city council.”