Las Vegas POA

The Term ‘Residency’ Can Have Many Meanings

Written on 04/08/2021
Will Aitchison

The Charter of the City of Wilm­ington, Delaware requires that officers of the Wilmington Police Department reside in the City for the first five years of their employment. Under Delaware’s unusual system, the Charter was enact­ed by the Delaware legislature, known as the General Assembly. The General Assembly did not expressly define “resi­dence” when enacting the City Charter.

The City mandates that officers fill out a “declaration of residency” form annually. Effective 2018, the City revised this form to impose a more re­strictive definition of residency. Before the revisions, the form required officers to prove that they actually lived at the qualifying residence. As revised, the form required officers to prove that the qualifying residence was their “domi­cile,” defined to mean their “true, fixed, and permanent home” and the place at which “in the absence of marital separation, an employee’s spouse and children, if any, reside.”

FOP Lodge 1 filed a grievance challenging the City’s revisions to the residency form as a unilateral alteration to a condition of employment subject to mandatory bargaining. When an arbitrator upheld the grievance, the City challenged the Arbitrator’s deci­sion in court.

A judge in Delaware’s Chancery Court refused to overturn the Arbitra­tor’s opinion. The Court focused on the City’s argument that the Arbitrator’s opinion violated the Charter provision governing residency. The Court noted that “the foundation of the City’s argu­ment is that Delaware law interprets the term ‘residence’ as used in the Residency Requirement to mean ‘domicile.’ The City acknowledges that neither the City Charter nor the Delaware Code expressly define ‘residence.’ The City thus draws support from decisional and secondary authorities.

“However, the authorities cited by the City reveal that the term ‘residence’ can have multiple meanings. Its mean­ing can range from the more lenient definitions like the Pre-2018 Definition to the more restrictive definitions like the 2018 Definition. The City fails to persuade the Court that the General Assembly intended to impose one fixed definition on this spectrum when enact­ing the Residency Requirement, much less the 2018 Definition. Given that the City applied the Pre-2018 Definition for over a decade, this result should be unsurprising.

“Because the statute lacks one fixed meaning among many possible options, it leaves room to bargain over the mean­ing of ‘residence’ for the purpose of the Residency Requirement. Thus, the Arbitration Award did not run contrary to law by requiring the City to do so.”

City of Wilmington v. Wilmington FOP Lodge No. 1, 2020 WL 8257386 (Del. Ch. 2020).

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