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Distinguishing between an individual?s ?domicile? and his or her ?residence? for the purpose of meeting a ?residence requirement? for employment

Distinguishing between an individual?s ?domicile? and his or her ?residence? for the purpose of meeting a ?residence requirement? for employment
Matter of Ball v City of Syracuse, 2010 NY Slip Op 01037, decided on February 11, 2010, Appellate Division, Third Department

The Syracuse City Charter provides that employees "shall be at the time of their appointment and continue to be during their continuance in the employment of the city, residents of the city of Syracuse except as otherwise provided by law,* local law or ordinance of the council" (Syracuse City Charter § 8-112 [2]).

Larry V. Ball was employed as a plant examiner for the City of Syracuse, Onondaga County, until he was terminated for having violated the employer's residency policy.

Ball conceded that he maintained a room in Syracuse for the purposes of satisfying the residency requirement, but that his primary residence and domicile was in the Town of Sullivan, Madison County.**

In February 2007, the employer's director of personnel sent a memorandum to all department heads for distribution to all employees, stating that the residency requirement, as used in the Charter means the "actual principal domicile" of the employee and that an employee claiming a school tax relief exemption at an address outside the City of Syracuse would be deemed not to be in violation of the Charter requirement.

After Syracuse learned that Ball was receiving a school tax relief exemption on his property in Sullivan for 2007, terminated his employment with the City.

Ball then applied for unemployment insurance benefits but he was disqualified for such benefits after the Unemployment Insurance Appeal Board ruled that ?his noncompliance with the employer's residence policy provoked his discharge and amounted to a voluntary separation from employment without good cause.?

Ball appealed the Board?s determination but the Appellate Division affirmed its ruling.

Here, said the court, the sole issue is whether the Board's interpretation of the residency requirement contained in the Syracuse City Charter was proper. The Appellate Division concluded that it was, commenting that despite the technical distinction between domicile and residence, the statutory use of the term "resident" is frequently construed to be synonymous with "domicile," particularly where the status described confers a privilege or benefit.

In addition, the court noted that Syracuse had a ?longstanding policy? of deeming the term ?residence? to mean ?domicile? as demonstrated by its internal memoranda dating back to ?at least 1991.?

* See, for example, §3.2 [et seq.] of the Public Officers Law with respect to excusing certain employees from complying with a residence requirement set by a political subdivision of the State.

** An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term ?domicile? means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. [See also an earlier decision involving this issue at http://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html .]

Full post as published by New York Public Personnel Law on February 17, 2010 (boomark / email).