Judges: WINSTON BRYANT, Attorney General
Filed Date: 4/25/1996
Status: Precedential
Modified Date: 7/5/2016
The Honorable Terry Smith State Representative 181 Caroline Acres Road Hot Springs, Arkansas 71913
Dear Representative Smith:
This is in response to your request for an opinion on the following two questions:
1. Does the City of Hot Springs Arkansas have the authority to require all city employees to live in the City of Hot Springs or the County of Garland?
2. If the answer to the above is yes, would current city employees before the passage of such ordinance be grandfathered and only new employees after the passage of the ordinance be required to live in either the city or county?
In my opinion, the answer to your first question is "yes." Each city of the first class, including the City of Hot Springs, is authorized by statute "to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs. . . ." A.C.A. §
To the extent your first inquiry was intended to question the constitutionality of a residency requirement for municipal employees, it is my opinion that such a requirement likely would be upheld against constitutional challenge. Enactments imposing a residency requirement as a condition of public employment have been upheld against challenges based upon the rights to due process, equal protection, and interstate travel. McCarthy v. Philadelphia Civil Serv. Comm'n,
With respect to your second question, it is my opinion that the ordinance itself must be reviewed in order to determine whether it applies to all employees or only to those hired after its enactment. The appropriate scope of a municipal ordinance is a legislative question to be determined by the city.
To the extent your inquiry was intended to question the constitutionality of an ordinance that fails to exempt current employees from the residency requirement, it is my opinion that an ordinance that imposes the requirement upon all employees likely would be upheld against constitutional challenge under the rational basis test, although, depending upon the facts, a given employee might be able to show that application of the requirement to him or her would amount to the unlawful impairment of a preexisting employment agreement. See Op. Att'y Gen.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General J. Madison Barker.
Sincerely,
WINSTON BRYANT Attorney General
WB:JMB/cyh