Morgan v. City of Wheeling

• Decision Date: 04 June 1999
• Docket Number: No. 25420.,25420.
• Citation: 205 W.Va. 34,516 S.E.2d 48
• Parties: Gary MORGAN, Plaintiff Below, Appellant, v. CITY OF WHEELING and the Police Department of the City of Wheeling, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

516 S.E.2d 48

205 W.Va. 34

Gary MORGAN, Plaintiff Below, Appellant, v. CITY OF WHEELING and the Police Department of the City of Wheeling, Defendants Below, Appellees.

No. 25420.

Supreme Court of Appeals of West Virginia.

Submitted February 16, 1999.

Decided June 4, 1999.

John F. Dascoli, Esq., Andrew J. Katz, Esq., The Segal Law Firm, Charleston, West Virginia, Attorneys for the Appellant.

Ronald M. Musser, Esq., Rosemary J. Humway-Warmuth, Esq., City of Wheeling, Wheeling, West Virginia, Attorneys for the Appellees.

MAYNARD, Justice:

This declaratory judgment action is before this Court upon an appeal from a final order of the Circuit Court of Ohio County entered on April 30, 1998. In that order, the circuit court entered declaratory judgment in favor of the appellees, the City of Wheeling and the Police Department of the City of Wheeling, declaring that W.Va.Code § 8-5-11 (1969) permits municipalities to establish residency requirements for municipal employees, so that Wheeling City Ordinance 9046 which requires all personnel employed by the City of Wheeling to reside in either the City of Wheeling or Ohio County is valid. Specifically, the circuit court's order rejected a challenge to the Wheeling ordinance by the appellant, Gary Morgan, who is employed by the City of Wheeling as a police officer.

This Court has before it the petition for appeal, all matters of record, and the briefs and arguments of counsel. For the reasons that follow, we find that Wheeling City Ordinance 9046 is valid. Accordingly, we affirm.

I. FACTS

The relevant facts of this case are simple and undisputed. The appellant, Gary Morgan, is employed by the City of Wheeling, West Virginia, as a police officer. During his employment, the appellant has maintained his residency in Wheeling.

Wheeling City Ordinance 9046¹ (hereafter "Ordinance 9046") requires all of the city's employees, including police officers, to be residents of either Wheeling or Ohio County.² Specifically, the ordinance provides:

(a) All personnel hereafter employed by the City, whether hourly or salaried, whether full-time or part-time, and whether appointed in the classified civil service or the unclassified positions of the City, must be bona-fide residents of the City or Ohio County except at the time of appointment or employment when they need not be residents of the City or Ohio County, but shall establish residence in the City or Ohio County within six months.

(b) All officers and employees of the City hereafter to be employed by the City are hereby required as a condition of their continued employment to have their place of abode in the City or Ohio County and to be bona-fide residents therein, except as otherwise provided by this section. A "bona-fide resident", for the purpose of this section, means a person having a permanent domicile within the City or Ohio County and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the City or Ohio County limits. The use of a post office box or nonpersonal residence for mailing purposes shall not be considered a bona-fide residence.

(c) All employees or officers now holding positions in the City service not residing within the City or Ohio County shall, if they change their primary place of residence or domicile, establish and maintain their primary place of residence and domicile within the City or Ohio County at all times thereafter during their continued service with the City.

(d) Failure of any officer or employee or appointee in the classified civil service or the unclassified positions of the City to comply with the provisions of this section shall be cause for that employee's removal or discharge from the City service.

By letter dated August 28, 1996, the appellant informed the City of Wheeling of his desire to move to the State of Ohio.³ The appellant requested the position of the city regarding whether Ordinance 9046 prevented such a move. Wheeling's assistant city solicitor replied that Ordinance 9046 requires all employees to be residents of the city or Ohio County within six months of their employment. The assistant city solicitor further informed the appellant that he would be discharged if he took residence in the State of Ohio.

Consequently, the appellant filed a complaint for declaratory judgment in the Circuit Court of Ohio County in which he challenged the validity of Ordinance 9046 on several grounds. By order of April 30, 1998, the circuit court granted the motion for summary judgment of the appellees, the City of Wheeling and the Police Department of the City of Wheeling. The appellant now appeals to this Court.

II. STANDARD OF REVIEW

In Cox v. Amick, 195 W.Va. 608, 612, 466 S.E.2d 459, 463 (1995), this Court stated: because the purpose of a declaratory judgment action is to resolve legal questions, a circuit court's ultimate resolution in a declaratory judgment action is reviewed de novo; however, any determinations of fact made by the circuit court in reaching its ultimate resolution are reviewed pursuant to a clearly erroneous standard.

See also, Stull v. Firemen's Pension & Relief Fund, 202 W.Va. 440, 504 S.E.2d 903 (1998)

. With this standard in mind, we now consider the issues before us.

III. DISCUSSION

The first issue is whether Ordinance 9046 violates W.Va.Code §§ 8-14-6 through 8-14-24. Ordinance 9046 was enacted under the authority of W.Va.Code § 8-5-11 (1969),⁴ which provides:

Subject to the provisions of the Constitution of this State, the provisions of this article, and other applicable provisions of this chapter, any city may by charter provision, and the governing body of any municipality, consistent with the provisions of its charter, if any, may by ordinance, determine and prescribe the officers or positions which are to be filled by election, appointment or employment, the number, method of selection, tenure, qualifications, residency requirements, powers and duties of municipal officers and employees, and the method of filling any vacancies which may occur.

There is no question that W.Va.Code § 8-5-11 expressly authorizes cities to govern the selection of city officers and employees in general which includes the power to enact residency requirements. The power delegated to cities by W.Va.Code § 8-5-11 is not plenary, however. W.Va.Code § 8-5-11 also provides that this power is subject to, inter alia, "other applicable provisions of this chapter."

Other applicable provisions include the police civil service act found in W.Va.Code §§ 8-14-6 through 8-14-24.⁵ According to W.Va.Code § 8-14-6 (1969), in part:

All appointments and promotions to all positions in all paid police departments of Class I and Class II cities⁶ shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided. No individual except the chief of police shall be appointed, promoted, reinstated, removed, discharged, suspended or reduced in rank or pay as a paid member of any paid police department, regardless of rank or position, of any Class I or Class II city in any manner or by any means other than those prescribed in the following sections of this article. (Footnote added.)

This Court has stated that the legislative intent of the police civil service act is "to provide for a complete and all-inclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers (except the chief of police), policemen and other employees of paid police departments" in Class I and Class II municipalities. Syllabus Point 5, in part, Dougherty v. City of Parkersburg, 138 W.Va. 1, 76 S.E.2d 594 (1952). Further, an underlying purpose of the act "is to give security to members of paid police departments of [Class I and Class II] municipalities." Syllabus Point 4, in part, id. In furtherance of this purpose, the act creates a "policemen's civil service commission" to make rules and regulations providing for competitive examinations for appointments and promotions to all positions in city police departments. W.Va.Code § 8-14-11 (1981).

The crux of the appellant's argument is that the police civil service act prevents a city from prescribing a residency requirement applicable to police officers because the provisions of the act governing selection requirements for police officers are exclusive. In support of this contention, the appellant first looks to the language of Dougherty, supra, that the act is "complete and all-inclusive." He also points to the language of W.Va.Code § 8-14-6, quoted above, that the selection of police officers shall be made "only" according to the provisions of the act, as well as the language of W.Va.Code § 8-14-23 that the provisions of the act are "complete and exclusive."

The appellant next cites the case of Bays v. Police Civil Service Com'n, 178 W.Va. 756, 364 S.E.2d 547 (1987). In Bays, this Court was asked to determine the validity of a regulation of the Police Civil Service Commission for the City of Charleston that no applicants whose scores were within the lowest 10 percent of those taking an examination would be eligible for promotion. Those applicants who scored in the lowest 10 percent on the examination challenged the regulation as violative of W.Va.Code § 8-14-17 which requires promotions to be based not only upon a consideration of the results of a written examination but also upon the applicant's previous service and experience. We framed the specific issue as whether the regulation of the Police Civil Service Commission of the City of Charleston conflicted with the police civil service act so as to be invalid. Finding that the regulation was in conflict with the police civil service act, we explained:

W.Va.Code, 8-14-17 [1969, 1986] expressly requires promotions to be based upon merit and fitness as shown by three factors: (1) competitive written examination, (2)...