The City of Wilmington v. Wilmington Fraternal Order of Police Lodge No. 1, Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THE CITY OF WILMINGTON, a )
municipal corporation of the State of )
Delaware, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0506-KSJM
)
WILMINGTON FRATERNAL )
ORDER OF POLICE LODGE )
NO.1, INC., )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: October 5, 2020
Date Decided: January 22, 2020
Aaron C. Baker, Robert M. Goff, Jr., Edward J. Kosmowski, CITY OF
WILMINGTON LAW DEPARTMENT, Wilmington, Delaware; Counsel for
Plaintiff The City of Wilmington.
Jeffrey M. Weiner, JEFFREY M. WEINER, ESQUIRE, Wilmington, Delaware;
Counsel for Defendant Wilmington Fraternal Order of Police Lodge No. 1, Inc.
McCORMICK, V.C.
The Charter of the City of Wilmington (the “City”) requires that officers of
the Wilmington Police Department reside in the City for the first five years of their
employment. The Delaware General Assembly did not expressly define “residence”
when enacting the City Charter. This litigation requires the court to determine
whether Delaware law nevertheless ascribes a fixed meaning to the term so as to
remove it from the subject of collective bargaining under the Police Officers and
Firefighters’ Employment Relations Act (the “Act”).
To ensure compliance with the requirement, the City mandates that police
officers fill out a declaration of residency form annually. Effective in 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 “[i]n the absence of marital separation, . . . an
employee’s spouse and children, if any, reside.”1
The defendant, the exclusive bargaining representative for City police
officers, filed a grievance challenging the City’s revisions to the residency form as
1
C.A. No. 2019-0506-KSJM, Docket (“Dkt.”) 8, Compendium of Docs. Constituting the
Joint Stipulation R. for Cross-Mots. For Summ. J. at JSR056–JSR057, Employee
Declaration Form 2018 (“2018 Annual Declaration”). This decision cites to the
compendium constituting the joint record by “JSR” number.
a unilateral alteration to a condition of employment subject to mandatory bargaining
under the Act. After exhausting contractually-mandated grievance procedures, the
defendant filed a demand for arbitration. The arbitrator awarded judgment in favor
of the defendant.
The City brought this action to vacate the arbitration award. The City argues
that Delaware law equates “residence” with “domicile” and that the revisions
conformed the City’s form to the legal definition of “residence.” The City argues
that it lacks the ability to alter the definition imposed by Delaware law through
collective bargaining or otherwise and that requiring the City to do so is contrary to
law. This decision rejects those arguments and resolves the parties’ cross-dispositive
motions in favor of the defendant.
I. FACTUAL BACKGROUND
The background facts are drawn from the parties’ pleadings and the
documents they incorporate by reference.
A. The Collective Bargaining Agreement
Delaware adopted the Act “to promote harmonious and cooperative
relationships between public employers and their employees,” including police
officers. 2 The Act grants police officers the right to organize and be represented,3
2
19 Del. C. § 1601.
3
Id. § 1601(1).
2
and it obligates public employers to engage in collective bargaining over the terms
and conditions of employment. 4 The Act requires that collective bargaining
agreements be reduced to writing. 5
The City is a “public employer” as that term is defined in the Act. 6 The
Wilmington Fraternal Order of Police Lodge No. 1, Inc. (the “FOP”) is the exclusive
bargaining representative for all City police officers from the ranks of Patrol Person
to Lieutenant. 7 The Act thus obligates the City to negotiate with the FOP toward a
collective bargaining agreement concerning the terms and conditions of FOP
members’ employment.
On February 1, 2018, the City and the FOP entered into a collective
bargaining agreement made effective on July 1, 2016, and continuing until
June 20, 2020 (the “Agreement”).8 Section 5.1 of the Agreement requires that all
conditions of employment, including those not expressly addressed in the
4
Id. § 1601(2); see also id. § 1602(e) (defining “collective bargaining”).
5
19 Del. C. § 1601(2).
6
JSR104, Unfair Labor Practice Charge Complaint ¶ 2; see also 19 Del. C. § 1602(l)
(defining “public employer”).
7
Unfair Labor Practice Charge Complaint ¶ 1; see also 19 Del. C. § 1602(h) (defining
“exclusive bargaining representative”).
8
JSR061–JSR100, City of Wilmington & FOP Lodge #1 Bargaining Agreement.
3
Agreement, be maintained at the highest standards.9 Section 21.1 of the Agreement
provides that it cannot be amended without the written consent of both parties.10
B. The Residency Requirement
The City Charter, which is enacted by the General Assembly, requires that
non-elected City employees become City residents within six months and continuing
for the first five years of their appointment or employment (the “Residency
Requirement”). 11 The Delaware Code, also enacted by the General Assembly,
prohibits the City from requiring that “as a condition of continued employment, an
employee with at least 5 years of service for the [City] be, become or remain a
resident of the [City] during their employment.” 12
In order to secure compliance with the Residency Requirement, the
Wilmington Code of Ordinances (the “City Code”) provides that City employees
9
Id. § 5.1.
10
Id. § 21.1.
11
Wilm. C. (Charter) § 3-304(b).
12
22 Del. C. § 841. Note that 22 Del. C. § 841 applies on its face to any “municipal
corporation with a population exceeding 50,000,” and the court takes judicial notice of the
fact that the City is the only municipality in Delaware with a population exceeding 50,000.
See id.; see also Wilm. C. (Charter) § 3-304(b) (“All officers, regular employees, and
probationary employees of the city shall be residents of the city at the time of their election,
appointment, or employment and remain such during their tenure, except as provided
herein. . . . Employees who are subject to the requirements of Title 22 of the Delaware
Code, Section 841, regarding duration of employment, shall not be subject to the residency
requirement after first meeting the requirements of that section.”).
4
shall file an annual declaration of residency “on a form approved by the
administrative board” (the “Annual Residency Declaration”). 13
Neither the Delaware Code, nor the City Charter, nor the City Code define
“residence” for the purpose of the Residency Requirement.14 The Agreement also
does not define the term. 15 The Annual Residency Declaration, therefore, supplies
the only affirmative definition of residency applied by the City to FOP members.
Beginning in 2005, the Annual Residency Declaration defined “residence” as
follows:
A person’s residence is that dwelling or abode, where one
actually lives. It refers to one’s home, the place that is the
center of the person’s non-working hours. This will
ordinarily be the place where one normally eats, sleeps,
and keeps his or her personal and/or household effects. 16
The City Code also requires that the Wilmington Police Department adopt
internal rules and regulations subject to review by the City’s Administrative Board
and others. 17 One rule and regulation adopted and approved in 2005 pursuant to this
13
Wilm. C. § 2-151(a).
14
See JSR192–214, Arbitration Award at 6; see also 22 Del. C. § 801; Wilm. C. (Charter)
§ 3-304; Wilm. C. § 2-151.
15
See Agreement.
16
See JSR050–JSR051, 2017 Annual Residency Declaration at 1 (stating that the form was
reviewed by the Administrative Board on August 23, 2005). The 2017 Annual Residency
Declaration also states: “Failure to file such declaration or making a false statement therein
shall be cause for disciplinary action up to and including discharge.” Id.
17
Wilm. C. § 40-246 (“The rules and regulations of the police and fire departments as
5
requirement, “Directive 6.56,” uses the same definition of “residence” found in the
2005 Annual Residency Form. 18
C. The City Revises the Annual Residency Declaration.
In October 2016, the City began internal discussions regarding revisions to
the Annual Residency Declaration. 19 The City’s Director of Human Resources,
Charlotte Barnes, testified in the Arbitration proceedings concerning these
discussions.20
The FOP was not invited to participate in those discussions.21 Nor did the
City provide notice of the discussions to the FOP pursuant to Section 22.2 of the
Agreement. 22
On October 12, 2017, Barnes recommended to the City’s Residency Review
Board that the definition of “residence” in the Annual Residency Declaration be
recommended by the chiefs of police and fire, subject to review by the director of personnel
or designee and approved by the administrative board, shall constitute the personnel rules
for uniformed members of the departments.”).
18
See JSR003–JSR006, Wilmington Police Directive 6.56 (“Directive 6.56”) at 1–2 (dated
October 11, 2005).
19
Arbitration Award at 6–7; see also JSR055, City of Wilmington Administrative Board
Agenda for October 26, 2017 Meeting.
20
Arbitration Award at 6 (discussing testimony of Director Barnes).
21
See id.
22
Id. at 5–6 (discussing testimony of President Bozeman and noting that Section 22.2 of
the Agreement requires that “[i]f either party gives notice requesting changes to this
agreement, the parties will endeavor to promptly begin negotiations”).
6
revised. 23 From her perspective, the revisions were motivated by a desire “to
respond to confusion from employees as to how to meet the residency requirement
and to provide additional guidance on that issue.” 24 She believed that the revisions
conformed the City’s form to the legal definition of “residence”—the revision was
“a change in form rather than an actual change in definition.”25 She testified that “it
was not her intent to impose additional restrictions on employees.” 26
The Residency Review Board approved the revised definition at the
meeting.27 The City’s Administrative Board then adopted the revised definition on
October 26, 2017. 28 This decision refers to the revised definition as the “2018
Definition” and the definition applied prior to 2018 as the “Pre-2018 Definition.”
The 2018 Definition defines “residence” as follows:
For purposes of the City’s residency requirement, an
employee’s residence is his/her domicile, i.e., that place
where the employee has his/her true, fixed, and permanent
home. It is also the dwelling where the employee actually
lives. It is the place where the employee eats, sleeps, and
keeps his/her personal belongings. It is the place that is
the center of the employee’s non-working hours. In the
23
Id. at 7; see also JSR053–JSR054, Minutes of City of Wilmington Residency Review
Board for October 12, 2017 Meeting.
24
Arbitration Award at 6.
25
Id. at 7–8.
26
Id. at 7.
27
Id.; see also Minutes of City of Wilmington Residency Review Board for October 12,
2017 Meeting.
28
Arbitration Award at 7.
7
absence of a marital separation, it is the dwelling at which
an employee’s spouse and children, if any, reside.29
The 2018 Definition implements two significant revisions to the Residency
Requirement. The first is that it equates “residence” with “domicile,” which the
2018 Definition goes on to define as “that place where the employee has his/her true,
fixed, and permanent home.” 30 The second, which one might interpret as an
extension of the shift to a “domicile”-focused definition, requires not only that the
municipal employee live within the City limits, but also that (absent “marital
separation”) the employee’s “spouse and children, if any, reside” in the City.31 This
decision refers to these two revisions as the “true-fixed-permanent test” and the
“family-lives-there test,” respectively.
D. The FOP Files a Grievance and Arbitration Challenging the
Revision to the Annual Residency Declaration.
As required by the Act, 32 the Agreement provides a process by which the FOP
or employees may file grievances. 33 If that process is followed and the grievance is
29
2018 Annual Declaration.
30
Id.
31
See id.
32
19 Del. C. § 1613(c) (“The public employer and the exclusive bargaining representatives
shall negotiate written grievance procedures by means of which bargaining unit
employees, through their collective bargaining representatives, may appeal the
interpretation or application of any term or terms of an existing collective bargaining
agreement; such grievance procedures shall be included in any agreement entered into
between the public employer and the exclusive bargaining representative.”).
33
Agreement §§ 4.1–4.5.
8
not satisfactorily resolved, the Agreement permits the FOP to appeal to an impartial
arbitrator.34
On January 16, 2018, the FOP filed a grievance with the Chief of Police
claiming that the 2018 Definition constituted a unilateral modification of a
mandatory subject of bargaining under the Act.35 The Chief of Police denied the
FOP’s grievance on April 10, 2018.36
On April 20, 2018, the FOP filed an Unfair Labor Practice Charge Complaint
with the Public Employment Relations Board for the State of Delaware (the
“PERB”). 37 The City asked the PERB to defer on the complaint pending resolution
of the arbitration award. 38 On August 21, 2018, the PERB determined that the FOP’s
complaint was sufficient to establish that the City may have violated the Act by
failing to negotiate the residency requirement.39 The PERB deferred resolution of
the complaint to the negotiated grievance and arbitration procedure.40
34
Id. § 4.6.
35
See JSR058–JSR060, FOP Lodge #1 Grievance Letter.
36
JSR101–JSR102, City’s Denial of Grievance Letter.
37
JSR104–JSR108, FOP Lodge #1’s Unfair Labor Practice Charge Complaint.
38
JSR109–JSR114, Respondent City of Wilmington’s Answer with New Matter to the
Unfair Labor Practice Charge Complaint of the Fraternal Order of Police Lodge
No. 1 ¶¶ 13–16.
39
JSR118–JSR124, Public Employment Relations Board Probable Cause Determination
and Order of Deferral at 7.
40
Id.
9
Also on April 20, 2018, the FOP filed a demand for arbitration against the
City asserting the same claim and seeking the same relief as presented in the initial
grievance. 41 In light of a settlement agreement reached in another matter, the City
agreed to use the Pre-2018 Definition of “residence” pending resolution of the
proceeding. 42
E. The Arbitrator Sustains the FOP’s Grievance.
An arbitration hearing was held on February 21, 2019, 43 and the parties
completed post-hearing briefing on April 23, 2019.44 During the arbitration, the City
argued that the residence requirement is not a mandatory subject of bargaining but,
rather, a prohibited subject of bargaining in view of the General Assembly’s
enactment of the Residency Requirement. 45 The City took the position that the
2018 Definition is consistent with the meaning of “residence” applied by Delaware
courts and used in the City Charter. 46 Accordingly, the City did not impose a
41
See JSR103, FOP Lodge #1’s Demand for Arbitration.
42
Arbitration Award at 12–13.
43
Id. at 1.
44
See JSR128–JSR155, Post-Hearing Opening Brief of Petitioner Wilmington Fraternal
Order of Police Lodge #1; JSR156–JSR175, Respondent City of Wilmington’s Post-
Hearing Answering Brief; JSR176–JSR185, Post-Hearing Reply Brief of Petitioner
Wilmington Fraternal Order of Police Lodge #1; JSR186–JSR191, Respondent City of
Wilmington’s Post-Hearing Sur-Reply Brief.
45
Arbitration Award at 16–18.
46
Id.
10
condition on employment different from that imposed by the City Charter and thus
had no obligation to bargain.47
On May 26, 2019, the arbitrator issued an opinion and award (the “Arbitration
Award”) rejecting the City’s arguments and sustaining the grievance. 48 The
arbitrator concluded that residency is a mandatory subject of bargaining absent a
residency requirement imposed by a higher-level entity. 49 The arbitrator next
observed that no Delaware court has defined “residence” for the purpose of
enforcing the Residency Requirement, and the requirement itself does not include a
definition of the term “residence.” 50 Moreover, the Act “clearly defines those
matters that are not subject to bargaining by public employers,” and a residency
requirement is not one of those matters.51 The arbitrator concluded that absence of
a precise definition, along with no language clearly prohibiting bargaining over the
Residency Requirement, suggests that “the City enjoys a certain level of discretion
in defining that term.” 52 The arbitrator further observed that the 2018 Definition
“materially altered [the meaning] . . . rather than simply clarifying [it]”53 and that
47
Id. at 18.
48
Id. at 18–23.
49
Id. at 20.
50
Id.
51
Id. at 21.
52
Id. at 20.
53
Id.
11
the revision thus constituted a unilateral alteration to the conditions of employment
that violated Article 5 of the Agreement.54
The arbitrator directed the City to continue using the Pre-2018 Definition until
the FOP agreed to change it or the General Assembly enacted a change regarding
the definition of “residence.”55
F. The City Files This Action.
On June 28, 2019, the City filed this action seeking to vacate the Arbitration
Award. 56 The FOP filed its answer on August 26, 2019. 57 The parties stipulated
that “all pertinent facts to the resolution of any issues presented by the Complaint
and Answer are set forth in the record” and agreed to resolve the action by cross-
dispositive motions. 58 Initially, the FOP filed a motion for judgment on the
pleadings, and the City filed a motion for summary judgment.59 The FOP appears
to have subsequently agreed to convert its motion for judgment on the pleadings into
a cross-motion for summary judgment, and the parties stipulated to a record.60 The
54
Id. at 18, 21–22.
55
Id. at 23.
56
Dkt. 1, Verified Compl. to Vacate Arbitration Award (“Compl.”).
57
Dkt. 5, Answer of Def. to Verified Compl. to Vacate Arbitration Award.
58
Dkt. 7, Stipulation and Order for Briefing Schedule, Recitals at 1.
59
See Dkt. 10, Mot. for J. on the Pleadings; Dkt. 12, City of Wilmington’s Mot. for
Summ. J.
60
See Dkt. 14, Letter to the Honorable Kathaleen S.J. McCormick Enclosing Two Courtesy
Copies of the City of Wilmington’s Opening Br. in Supp. of Its Mot. for Summ. J. Along
12
cross-motions were fully briefed on March 18, 2020.61 The court held oral argument
on October 5, 2020.62
II. LEGAL ANALYSIS
Court of Chancery Rule 56 provides that summary judgment is appropriate
when “there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” 63 Summary judgment is not warranted,
however, “if the parties are in disagreement concerning the factual predicate for the
legal principles they advance.”64 In deciding whether to grant summary judgment,
the court typically must view the evidence in the light most favorable to the non-
With the Compendium of Docs. Constituting the Joint Stipulated R. for Cross Mots. For
Summ. J. (enclosing “the Compendium of Documents Constituting the Joint Stipulated
Record for Cross-Motions for Summary Judgment” (emphasis added)). For avoidance of
doubt, because matters outside of the pleadings have been presented by stipulation and thus
not excluded by the court, this decision treats the FOP’s motion for judgment on the
pleadings “as one for summary judgment and disposes of it as provided in Rule 56,” as
permitted by Rule 12(c). See Ct. Ch. R. 12(c).
61
See Dkt. 11, Opening Br. of Def. Wilmington Fraternal Order of Police Lodge #1 in
Supp. of its Mot. for J. on the Pleadings (“Def.’s Opening Br.”); Dkt. 12, City of
Wilmington’s Opening Br. in Supp. of Its Mot. for Summ. J. (“Pl.’s Opening Br.”); Dkt. 15,
Answering Br. of Def. Wilmington Fraternal Order of Police Lodge #1 in Opp’n to Pl. City
of Wilmington’s Mot. for J. on the Pleadings (“Def.’s Answering Br.”); Dkt. 16, City of
Wilmington’s Answering Br. in Opp’n to Def.’s Mot. for J. on the Pleadings (“Pl.’s
Answering Br.”); Dkt. 17, Reply Br. of Def. Wilmington FOP Lodge #1 in Supp. of Its
Mot. for J. on the Pleadings (“Def.’s Reply Br.”); Dkt. 18, Letter to Ct. Concerning Waiver
of City of Wilmington’s Reply Br. in Supp. of Its Mot. for Summ. J.
62
Dkt. 23, Tr. of October 5, 2020 Oral Arg. on Pl.’s Mot. for Summ. J. and Def.’s Mot. for
J. on the Pleadings.
63
Ct. Ch. R. 56(c).
64
Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99 (Del. 1992).
13
moving party.65 But where, as here, the parties have agreed that there is no genuine
issue of material fact, the court “shall deem the [cross-motions] to be the equivalent
of a stipulation for decision on the merits based on the record submitted with the
motions.”66 In such situations, “the general standard of drawing inferences in the
light most favorable to the nonmoving party does not apply.”67
Public policy supports “arbitration as a means of resolving labor disputes” and
accordingly limited judicial review of arbitration awards. 68 As the Delaware
Supreme Court has instructed, “review of an arbitration award is one of the
narrowest standards of judicial review in all of American jurisprudence.” 69
This court will not vacate an arbitration award unless: “(a) the integrity of the
arbitration has been compromised by, for example, fraud, procedural irregularity, or
65
E.g. Merrill, 606 A.2d at 99.
66
See Ct. Ch. R. 56(h); see also Williams Cos. v. Energy Transfer LP,
2020 WL 3581095, at *11 (Del. Ch. July 2, 2020) (“Where the parties file cross-motions
for summary judgment and ‘have not presented argument to the Court that there is an issue
of fact material to the disposition of either motion, the Court shall deem the motions to be
the equivalent of a stipulation for decision on the merits based on the record submitted with
the motions.’” (quoting Ct. Ch. R. 56(h)).
67
ION Geophysical Corp. v. Fletcher Int’l, Ltd., 2010 WL 4378400, at *5 (Del. Ch.
Nov. 5, 2010); accord. Jackson Walker L.L.P. v. Sipra Footwear, Inc., 2008 WL 2487256,
at *3 (Del. Ch. June 23, 2008); Am. Legacy Found. v. Lorillard Tobacco Co., 886 A.2d 1,
18 (Del. Ch. 2005).
68
AFSCME, Council 81, Registered Nurses Unit, Loc. 2305 v. State, 2014 WL 1813279,
at *2 (Del. Ch. Apr. 30, 2014).
69
SPX Corp. v. Garda USA, Inc., 94 A.3d 745, 750 (Del. 2014) (quoting TD Ameritrade,
Inc. v. McLaughlin, Piven, Vogel Secs., Inc., 953 A.2d 726, 732 (Del. Ch. 2008)).
14
a specific command of law; (b) the award does not claim its essence from the
[collective bargaining agreement]; or (c) the award violates a clearly defined public
policy.”70
The City’s primary argument is that the Arbitration Award should be vacated
because it is contrary to a specific command of law—i.e., the Residency
Requirement—although the City frames that argument as a public policy issue. The
City then redeploys this premise to contend that the Arbitration Award does not draw
its essence from the Agreement. This decision rejects the premise the Arbitration
Award is contrary to the Residency Requirement. Thus, regardless of whether the
City’s arguments are framed as “command of law,” “public policy,” or “essence
from the agreement” theories, they all suffer from the same flawed premise and fail
to support vacating the Arbitration Award.
A. The Arbitration Award Is Not Contrary to Law.
Section 1613 of the Act states that “no collective bargaining agreement shall
be valid or enforceable if its implementation would be . . . contrary to law.” 71 This
70
E.g., State v. Corr. Officers Ass’n of Del., 2016 WL 6819733, at *8 (Del. Ch.
Nov. 18, 2016) (alteration in original) (quoting Meades v. Wilm. Hous. Auth.,
2003 WL 939863, at *4 (Del. Ch. Mar. 6, 2003)); see 10 Del. C. § 5714.
71
19 Del. C. § 1613(e).
15
aspect of the Act codifies the common law principle that courts may not enforce “an
illegal contract prohibited by law.”72
The City argues that the Arbitration Award runs contrary to law by binding
the City to a definition of “residence” that is inconsistent with the City Charter.73 It
is true that the City’s administrative powers and contractual freedoms are limited by
and must be applied in a manner consistent with the City Charter. 74 Thus, the
Arbitration Award cannot require the City to adopt a definition of “residence”
72
See, e.g., Della Corp. v. Diamond, 210 A.2d 847, 849 (Del. 1965) (holding that “it is
against the public policy of this State to permit its courts to enforce an illegal contract
prohibited by law”); AB Stable VIII LLC v. Maps Hotels & Resorts One LLC,
2020 WL 7024929, at *80 (Del. Ch. Nov. 30, 2020) (holding that “[a]s a general matter,
parties are obligated to comply with the law, and Delaware law does not permit a court to
enforce a contract prohibited by law”).
73
Pl.’s Opening Br. at 11–25.
74
See Wilm. C. (Charter) § 1-101; Schadt v. Latchford, 843 A.2d 689, 691 (Del. 2004).
The City Charter “stands as its constitution,” and “charter amendments must be enacted by
referendum or by an act of the General Assembly with approval of two-thirds of all
members of each house.” Schadt, 843 A.2d at 691; accord. Smithers v. Bracebridge Corp.,
2005 WL 8150129, at *2 (Del. Ct. Com. Pl. Nov. 4, 2005). As the Delaware Supreme
Court held in Schadt, “the City enjoys complete powers of legislation and administration
relating to its municipal functions, but only within the scope of the powers conferred by
the General Assembly through the City’s Charter.” 843 A.2d at 691–94 (invalidating a
City ordinance requiring landowners to maintain public sidewalks abutting their property
where the City Charter states that the City must maintain public sidewalks); see also
Lemos v. Willis, 858 A.2d 955, 957–59 (Del. 2004) (applying Schadt to invalidate a City
ordinance requiring private landowners to remove ice and snow from public sidewalks
abutting their property). In Schadt, the court held that the City’s ordinance “must conform
to, be subordinate to, not conflict with, and not exceed the [City Charter],” but the
principles apply equally to the City’s exercise of administrative powers and contractual
freedoms. See 843 A.2d at 692.
16
inconsistent with the Residency Requirement. The City argues that the Arbitration
Award does so by binding it to the Pre-2018 Definition. 75
The foundation of the City’s argument is that Delaware law interprets the term
“residence” as used in the Residency Requirement to mean “domicile.”76 The City
acknowledges that neither the City Charter nor the Delaware Code expressly define
“residence.” 77 The City thus draws support from decisional and secondary
authorities.
The City first cites to two Delaware Superior Court cases—
Mitchell v. Delaware State Tax Commissioner and Williamson v. Standard Fire
Insurance Co. 78 In the first decision, the court held that “‘residence’ is synonymous
with the legal term ‘domiciled.’” 79 In the second decision, the court observed that
“[i]n Delaware, the term ‘resident’ is often equated with the legal term of
‘domicile.’”80
75
Pl.’s Opening Br. at 11–25.
76
Id. at 19–25.
77
Id. at 19–20.
78
See id. at 21 (first citing Mitchell v. Del. State Tax Comm'r, 42 A.2d 19, 21 (Del. Super.
1945); and then citing Williamson v. Standard Fire Ins. Co., 2005 WL 6318348, at *5
(Del. Super. Aug. 19, 2005)).
79
Mitchell, 42 A.2d at 21.
80
Williamson, 2005 WL 6318348, at *5.
17
The City’s reliance on these two cases is misplaced. As this court has
previously explained, the terms “resident” and “residence” are used throughout the
Delaware Constitution and Delaware statutes. 81 They have “various statutory
meanings” and “different connotations in different statutes and situations.”82 The
precise meaning of the term is “dependent upon the context of the statute in which
they are used.”83 The term “resident” does not equate to “domicile” for all purposes
under Delaware law. 84
Neither Mitchell nor Williamson address the meaning of the term “residence”
in the relevant context—the Residency Requirement. Mitchell is a 1945 voting
rights case where the court interpreted the word “resident” in inapposite provisions
of the Delaware Constitution and a 1935 statute.85 Williamson did not involve a
statutory definition at all, but rather, a dispute over a homeowners’ insurance
81
Wife v. Husband, 271 A.2d 51, 52 n.2 (Del. Ch. 1970).
82
Id.83
Id.; see also Miller v. Bd. of Adjustments of Town of Dewey Beach, 1995 WL 465183,
at *4 (Del. Super. June 30, 1995) (“‘[R]esident’ and ‘residence’ are words having various
statutory meanings dependent upon the context of the statute in which they are used. Such
words have different connotations in different statutes and situations. They must be
construed in the light of the purpose of the statute in which they appear and the result
designed to be accomplished by their use.”).
84
See, e.g., In re Joseph E. Churchman Guardianship, 1987 WL 10013, at *3–4 (Del. Ch.
Apr. 28, 1987) (noting that “the word ‘resident’ has different connotations in different
statutes and must be construed in light of the purpose of the statute in which it appears”
and holding that equating “resident” with “domicile” would be inequitable in the
guardianship context).
85
See 42 A.2d at 20–21.
18
policy.86 In that context, the court canvassed multiple authorities to ascertain the
parties’ intended meaning. 87 In the end, although the court observed that “[i]n
Delaware, the term ‘resident’ is often equated with the legal term of ‘domicile,’” the
court did not hold that the terms were synonymous for all purposes under Delaware
law. 88
The City also cites to decisions from other jurisdictions holding that
“residence” and “domicile” are interchangeable for the purposes of residency
requirements. 89 But none of these cases compel the conclusion that the General
86
2005 WL 6318348, at *1–3.
87
See id. at *3–5.
88
Id. at *5. Even if the City’s cases stood for the proposition that “residence” means
“domicile,” they do not stand for the proposition that the 2018 Definition accurately
captures that meaning. In Mitchell, the court did not offer an affirmative definition for
domicile. See 42 A.2d at 21–23. In Williamson, the court defined “domicile . . . to require
bodily presence plus the intent to make the place one’s home,” but it made no mention of
the “true, fixed, permanent” or “absent marital separation” provisions found in the 2018
Definition. See 2005 WL 6318348, at *3–5.
Although uncited by the City, it bears noting that numerous other cases have quoted
the language of Williamson on which the City relies. See, e.g., McGinnes v. State Farm
Mut. Auto. Ins. Co., 2013 WL 5347136, at *3 (Del. Super. Sept. 24, 2013) (“In Delaware,
the term ‘resident’ is often equated with the legal term of ‘domicile.’” (quoting Williamson,
2005 WL 6318348, at *5)); Boyer v. Sylvester, 2011 WL 2671872, at *6 (Del. Ct. Comm.
Pl. July 1, 2011) (same). And at least one older case uses similar language. See Gahn v.
Gahn, 116 A.2d 902, 903 (Del. Super. 1955) (“I take it that both parties concede that the
words ‘bona fide resident’ as used in Title 13 Del. C. § 1525 are synonymous with
domicile.”). Still, none of these decisions involve apposite context or inform the issue at
hand.
89
See Pl.’s Opening Br. at 21–22 (citing Hill v. City of Scranton, 411 F.3d 118, 127–28,
130–31 (3d Cir. 2005); Vasquez v. Milwaukee City Board of Fire & Police Comm’ns,
2010 WL 2364433, at *2–3 (Wisc. Ct. App. June 15, 2010); In re Ball, 896 N.Y.S.2d 489,
19
Assembly intended that the terms be used interchangeably in the Residency
Requirement or to have the fixed meaning the City ascribed to them.
Lacking support in decisional authority, the City turns to two secondary
authorities—a passage from a leading municipal governance treatise, Eugene
McQuillin’s The Law of Municipal Corporations, and a definition from Black’s Law
Dictionary.90
The passage from the McQuillin treatise seems supportive of the City’s
argument at first glance, as it begins with the statement: “‘Residence’ has been
defined as the place of one’s domicile. . . .” 91 This initial statement, however, is
followed by a disjunctive list including multiple more lenient definitions of
“residence”:
489 (N.Y. App. Div. 2010); Ferguson v. Bd. of Police Comm’rs, 782 S.W.2d 814, 816–17
(Mo. Ct. App. 1990); Fagiano v. Police Bd. of Chi., 456 N.E.2d 27, 29–31 (Ill. 1983);
Choike v. City of Detroit, 290 N.W.2d 58, 60–61 (Mich. Ct. App. 1980);
Rodgers v. Unemployment Comp. Bd. of Rev., 397 A.2d 1286, 1287
(Pa. Commw. Ct. 1979); Mercadante v. Paterson, 266 A.2d 611, 613 (N.J. Super. Ct. Ch.
Div. 1970), aff’d 275 A.2d 440 (N.J. 1971)).
90
See Pl.’s Opening Br. at 22–24 (citing 16A Eugene McQuillin, The Law of Municipal
Corporations § 45:68 (3d ed. 2011); Domicile, Black’s Law Dictionary (6th ed. 1990)).
The City cites to outdated versions of both of these secondary sources. The court cites to
the most recent versions, but the distinction is immaterial for the purpose of these
definitions.
91
See 16A Eugene McQuillin, The Law of Municipal Corporations § 45:81, at 634
(3d rev. ed. 2020) [hereinafter Municipal Corporations]. McQuillen’s treatise has been
cited favorably by the Delaware Supreme Court. See, e.g., Hines v. New Castle Cnty., 640
A.2d 1026, 1029 (Del. 1994); Dover v. Kelley, 327 A.2d 748, 754 (Del. 1974); New Castle
Cnty. v. New Castle, 372 A.2d 188, 190 (Del. 1977); Wilmington v. Smenthkowski,
198 A.2d 685, 686 (Del. 1964).
20
“Residence” has been defined as the place of one’s
domicile, i.e., the place where one usually eats, sleeps and
maintains one’s personal and household effects; the place
where a person is qualified to vote; the place where a
person has an extended, continual presence; the place
where an employee’s house or other dwelling place is
located; or the place where an employee has a permanent
home or abode. 92
The parallel structure created by the repetition of the phrase “the place,” following
the signal “i.e.,” and coupled with the use of the disjunction “or,” reveals that the
treatise’s author viewed “the place” clauses as equally viable definitions of
“domicile” for the purpose of defining “residence.” Of those clauses, only one uses
the phrase “permanent” so as to be similar to the true-fixed-permanent test. None
expressly include the family-lives-there test. The majority are comparable to the
Pre-2018 Definition. 93
Continuing on, the treatise passage describes the question of “residence” as a
fact-intensive inquiry that involves consideration of a number of factors:
Whether a residence is maintained at the place claimed by
the employee is a question of fact determined by the
employee’s intent as evidence by the surrounding facts.
92
Municipal Corporations § 45:81, at 634–35.
93
Compare Pre-2018 Definition (“A person’s residence is that dwelling or abode, where
one actually lives. It refers to one’s home, the place that is the center of the person’s non-
working hours. This will ordinarily be the place where one normally eats, sleeps, and keeps
his or her personal and/or household effects.”), with Municipal Corporations § 45:81,
at 634–35 (referring to “the place where one usually eats, sleeps and maintains one’s
personal and household effects; . . . the place where a person has an extended, continual
presence; the place where an employee’s house or other dwelling place located; or the place
where an employee has a permanent home or abode”).
21
The courts consider a number of different facts to
determine the ultimate fact, namely, whether the employee
resides within the required area. Among the facts
considered for this purpose are: whether the employee
owns or rents property within the prescribed area; whether
the employee owns or rents property elsewhere; where the
person’s spouse and children live and where the children
attend school, and if there are separate residences, are
there separate residences because of marital difficulties or
divorce; whether there are utilities maintained and used in
the place claimed to be the person’s residence; the address
used on tax returns; the amount of time spent at each
residence; the place where one votes or uses a voting
address; and where one’s clothes and personal belongings
are kept.94
When quoting from this part of the passage in briefing, the City emphasizes in bold
the clause similar to the family-lives-there test, which considers “where the person’s
spouse and children live” and “if there are separate residences . . . because of marital
difficulties.” 95 The City emphasizes this language as if to suggest that the family-
lives-there clause is essential to the definition of “residence.” The treatise, however,
merely lists factors to take into consideration when determining residency—any
factor might be sufficient and none are identified as essential. In fact, the treatise
directly acknowledges that “[t]here are numerous definitions as to what ‘residency’
94
Municipal Corporations § 45:81, at 635–37.
95
See Pl.’s Opening Br. at 23–24.
22
means within the context of a statute, ordinance or regulation requiring continuous
residency as a requirement for continued employment.” 96
On the whole, therefore, the McQuillan treatise does not support the
proposition that “residence” has the one fixed meaning that the City seeks to ascribe
to it—the 2018 Definition. Rather, it supports the proposition that “residence” can
have multiple meanings. Because the treatise is specific to the area of law at issue,
it is a powerful strike against the City’s position.
The City also relies on Black’s Law Dictionary,97 which defines “domicile”
as:
The place at which a person has been physically present
and that the person regards as home; a person’s true, fixed,
principal, and permanent home, to which that person
intends to return and remain even though currently
residing elsewhere. 98
This definition does not support the City’s argument that “residence” must mean
“domicile.” Indeed, Black’s Law Dictionary defines “residence” elsewhere as “[t]he
place where one actually lives, as distinguished from a domicile,” 99 a definition
96
Municipal Corporations § 45:81, at 634.
97
Pl.’s Opening Br. at 22–23.
98
Domicile, Black’s Law Dictionary (11th ed. 2019).
99
Residence, Black’s Law Dictionary (11th ed. 2019) (emphasis added). The City also
cites to American Jurisprudence, which states that “[t]he law sometimes equates ‘legal
residence’ with domicil while using ‘actual residence’ to refer to one’s present physical
location.” Pl.’s Opening Br. at 21 n.45 (quoting 25 Am. Jur. 2d Domicil § 9 (2014)). But
the supplement to that section of American Jurisprudence further states that “[a] person
23
expressly distinguishing between the terms that the City seeks to conflate. At most,
the definition provides some support for including the true-fixed-permanent test in
the definition of “domicile.” Standing alone, it does not compel that conclusion. It
does not even mention the other language added to the 2018 Definition—the family-
lives-there test. Like the treatise passage, therefore, the Black’s Law Dictionary
definition offers no support for and in fact seems to undermine the City’s position.
In sum, 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 approved
Directive 6.56 and 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.
may have two places of ‘residence,’ as in the city and country, but only one domicile.”
25 Am. Jur. 2d Domicil § 9 (2020). This definition therefore does not support the City’s
contention that “residence” must mean “domicile.”
24
B. The Arbitration Award Is Not Contrary to Public Policy.
This court will not enforce an arbitration award that interprets a collective
bargaining agreement in a manner that is contrary to public policy. 100 To warrant
vacating an arbitration award, the public policy relied on must be explicit, well-
defined, and “ascertain[able] by reference to the laws and legal precedents and not
from general considerations of supposed public interests.” 101 The public policy at
issue must also be “dominant,” 102 a requirement that calls for an analysis of other
applicable policy considerations.
To argue that the Arbitration Award violates Delaware public policy, the City
primarily recasts the argument rejected above that the Arbitration Award is “contrary
to express Delaware law.”103 As discussed above, contrary to the City’s assertions,
there is no express Delaware law interpreting the Residency Requirement to require
the 2018 Definition. The City’s policy argument thus fails in this respect.
100
E.g., City of Wilmington v. AFSCME, Council 81, Loc. 1102, 2003 WL 1530503, at *4
(Del. Ch. Mar. 21, 2003).
101
Id. (alteration in original); accord. Fraternal Ord. of Police Del. Lodge 10 v. State, 2017
WL 6055375, at *2 (Del. Ch. Dec. 7, 2017) (“A public policy is well-defined and dominant
if it may be ascertained from law and legal precedent.”).
102
AFSCME, 2003 WL 1530503, at *4 (quoting W.R. Grace & Co. v. Loc. Union 759, Int’l
Union of the United Rubber, Cork, Linoleum and Plastic Workers of Am.,
461 U.S. 757, 766 (1983)).
103
Pl.’s Answering Br. at 18.
25
In further support of its policy argument, the City draws on authorities from
other jurisdictions. 104 For example, the City cites to a 1970 decision of the
New Jersey Superior Court, Mercadante v. City of Paterson, that interpreted the term
“residence” for the purpose of a municipal residency requirement. 105 The court
found that although “[r]esidence . . . need not be[] equated with domicile,”106 the
policy rationale for the residency requirement called for such an interpretation:
“Since the requirement we are considering is intended to foster the public interest as
so defined, no casual residence was intended but rather a real and principal residence,
in short, domicile. Nothing less will create that identity with the community . . . .”107
The court held that the plaintiff employees did not meet the residency requirement
because they were not domiciled in the municipality.108
104
See, e.g., Pl.’s Opening Br. at 13 (arguing that “[b]y requiring that municipal employees
be residents of the City of Wilmington (at least for five years), the General Assembly
concluded that ‘the public interest is advanced by residence within the political unit which
provides the pay’ and ‘that residence will supply a stake or incentive for better performance
in office or employment and as well advance the economy of the locality which yields the
tax revenues’” (quoting Kennedy v. Newark, 148, A.2d 473, 476 (N.J. 1959))).
105
Id. at 21–22 (citing 266 A.2d at 614).
106
266 A.2d at 613.
107
Id. at 614 (internal quotation marks omitted).
108
Id. The City cites to additional decisions of other courts interpreting residency
requirements that likewise concluded that “residency” means “domicile.” See supra note
89. But only Ferguson v. Board of Police Commissioners of Kansas City discusses the
policy purpose underlying the decision, and only Hill v. City of Scranton involved a
collective bargaining agreement. See Hill, 411 F.3d at 118; Vasquez, 2010 WL 2364433;
In re Ball, 896 N.Y.S.2d 489; Ferguson, 782 S.W.2d 814; Fagiano, 456 N.E.2d 27; Choike,
290 N.W.2d 58; Rodgers, 397 A.2d 1286. And neither of those decisions are instructive.
26
Even assuming that decisions from other jurisdictions can supply the “explicit,
well-defined” Delaware policy necessary to vacate an arbitration award, 109 two
countervailing policy considerations dominate.
The first countervailing policy consideration applies to disputes over
collective bargaining agreements, which were not at issue in Mercadante nor the
other authorities on which the City relies. 110 The first section of the Act contains an
express policy statement that informs disputes over collective bargaining agreements
adopted pursuant to the Act:
It is the declared policy of the State and the purpose of this
chapter to promote harmonious and cooperative
relationships between public employers and their
employees, employed as police officers and firefighters,
and to protect the public by assuring the orderly and
uninterrupted operations and functions of public safety
services. These policies are best effectuated by . . .
[o]bligating public employers and organizations of police
officers and firefighters which have been certified as
representing their employees to enter into collective
bargaining negotiations with the willingness to resolve
disputes relating to terms and conditions of employment
In Ferguson, the court identified the policy rationale underpinning Missouri’s residency
requirement (rather than that of the General Assembly, which the court must ascertain
here). See 782 S.W.2d at 817. In Hill, the collective bargaining agreement at issue
contained its own definition of “residence” that allegedly conflicted with a city ordinance.
See 411 F.3d at 127–128. Those situations are factually inapposite to this litigation.
109
See Corr. Officers Ass’n of Del., 2016 WL 6819733, at *10 (quoting AFSCME, 2003
WL 1530503, at *4 (internal quotation marks omitted)).
110
See supra note 108.
27
and to reduce to writing any agreements reached through
such negotiations . . . . 111
Tailored to the circumstances of this case, the policy of the Act is that
collective bargaining over the terms and conditions of police officer’s employment
is the best way to effectuate harmonious relations between the City and its police
officers. The City does not dispute that residency is a condition of employment
generally subject to mandatory bargaining. 112 Thus, a relevant, explicit, and well-
defined Delaware policy—that of the Act—directs that the court favor bargaining
over the subject of residency.
The second countervailing policy consideration is that Delaware law supports
“arbitration as a means of resolving labor disputes.” 113 Delaware law favors
arbitration because it is “an efficient means of resolving these disputes.”114 In fact,
“the arbitral process is sometimes viewed as superior to the judicial process because
of an arbitrator’s greater knowledge and experience regarding the parties, and
111
19 Del. C. § 1601(2).
112
In briefing, the City stated that “[i]n the absence of the requirement in the City’s Charter
enacted by the General Assembly, the City has consistently agreed arguendo that a
requirement that Covered Employees reside in the City would be an appropriate bargaining
subject, i.e. a condition of employment under [the Act].” Pl.’s Answering Br. at 15. This
decision holds that no requirement in the City Charter removes the issue of residency from
the subject of bargaining. Hence, the City concedes that residency is an appropriate
bargaining subject.
113
See AFSCME, 2014 WL 1813279, at *2.
114
See AFSCME, 2003 WL 1530503, at *4 & n.22.
28
because he has been selected by them.” 115 Neither Mercadante nor the other
authorities on which the City relies involved the interpretation of an arbitration
award,116 and thus these cases lack the persuasive value that the City ascribes to
them.
The City therefore fails to persuade the court that the Arbitration Award is
contrary to public policy.
C. The Arbitration Award Draws Its Essence from the Collective
Bargaining Agreement.
An arbitration award “must draw its essence from the contract and cannot
simply reflect the arbitrator’s own notions of industrial justice.”117 To conclude that
an arbitration award does not “draw its essence” from the collective bargaining
agreement, the court “must be persuaded that the award is without rational support,
cannot be rationally derived from the terms of the agreement, or bears no reasonable
115
Del. State College v. Del. State College Chapter of Am. Ass’n of Univ. Professors, 1987
WL 25370, at *2 (Del. Ch. Nov. 24, 1987) (quoting City of Wilmington v. Wilm.
Firefighters Loc. 1590, Int’l Ass’n of Firefighters, 385 A.2d 720, 724 (Del. 1978)).
116
See Mercadante, 266 A.2d 211; Hill, 411 F.3d at 118; Vasquez, 2010 WL 2364433; In
re Ball, 896 N.Y.S.2d 489; Ferguson, 782 S.W.2d 814; Fagiano, 456 N.E.2d 27; Choike,
290 N.W.2d 58; Rodgers, 397 A.2d 1286.
117
City of Wilmington v. AFSCME, Council 81, Loc. 1102, 2005 WL 820704, at *3
(Del. Ch. Apr. 4, 2005) (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S.
29, 38 (1987)). The FOP cites to a passage of AFSCME as controlling law regarding the
power of an arbitrator. See Def.’s Answering Br. at 22–23 (quoting AFSCME, 2005 WL
820704, at *3). But in a significant portion of the passage which the FOP quotes, the court
was quoting the language of the specific collective bargaining agreement at issue. See
AFSCME, 2005 WL 820704, at *3. That is therefore not persuasive guidance in assessing
collective bargaining agreements generally.
29
relationship to the underlying contract from which it is derived.” 118 The court cannot
reach such a conclusion simply because “others might interpret the same provisions
differently.” 119
To argue that the Arbitration Award does not draw its essence from the
Agreement, the City again contends that “the Arbitration Award is based entirely on
the Arbitrator’s erroneous interpretation of the Charter Residency Requirement
which is not part of the [Agreement].”120 As discussed above, contrary to the City’s
assertions, there is no express Delaware law interpreting the Residency Requirement
to require the 2018 Definition, and the Arbitration Award thus did not err in reaching
this conclusion. Accordingly, the City’s contractual argument fails to supply a
reason to vacate the Arbitration Award.
The decision to which the City cites is factually inapposite. In arguing that
the Arbitration Award does not “draw its essence” from the Agreement, the City
relies on Interstate Brands Corp. v. Local 411 Retail, Wholesale and Department
118
AFSCME, 2005 WL 820704, at *3 (citing Meades, 2003 WL 939863, at *4); accord.
Corr. Officers Ass’n of Del., 2016 WL 6819733, at *8.
119
AFSCME, 2005 WL 820704, at *3 (quoting New Castle Cnty. v. Fraternal Ord.
of Police, 1996 WL 757237, at *3 (Del. Ch. Dec. 17, 1996)); accord. State Dep’t of
Corr. v. Del. Public Empls. Council 82, AFCSME, 1987 WL 5179, at *3 (Del. Ch. Jan. 7,
1987); see also Del. State Univ. Chapter of Am. Ass’n of Univ. Professors v. Del. State
Univ., 1995 WL 523585, at *1 (Del. Ch. Aug. 18, 1995) (“[T]he court does not review an
arbitrator’s decision for ordinary factual or legal error.”).
120
Pl.’s Answering Br. at 34.
30
Store Union, AFL-CIO, where the arbitration award made no reference to the
collective bargaining agreement.121 Here by contrast, the arbitrator cited to Section
5.1 of the Agreement, a provision that seeks to preserve the conditions of
employment for covered employees.122 He found that the 2018 Definition amounted
to a unilateral and material change to a “condition of employment detrimental to the
bargaining unit.”123 He therefore concluded that the revision violated Section 5.1 of
the Agreement. 124 These aspects of the arbitrator’s analysis reveal that the
Arbitration Award did have rational support, was rationally derived from the terms
of the Agreement, and bore a reasonable relationship to the Agreement, such that it
drew its essence from the Agreement.
III. CONCLUSION
For the foregoing reasons, the City’s motion is DENIED, and the FOP’s
motion is GRANTED.
121
See Pl.’s Opening Br. at 27–28 (citing 39 F.3d 1159, 1160–62 (11th Cir. 1994)).
122
Arbitration Award at 8–9, 21 (citing Agreement § 5.1). The City concedes as much in
its briefing. See Pl.’s Opening Br. at 17–18 (“[T]he Arbitration Award relies upon §§ 5.1
and 20.1 of the [Agreement] in an attempt to adopt and incorporate into that agreement a
less-stringent standard for residency limited to the specific language contained in prior
forms of the Annual Residency and City policies.” (emphasis added)).
123
Arbitration Award at 22.
124
Id.
31